remanded EB-2 NIW Case: Civil Engineering

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAY 16, 2024 In Re: 31125012 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a civil engineer, seeks classification as an individual of exceptional ability in the 
sciences, arts, or business. See Immigration and Nationality Act (the Act) section 203(b )(2), 8 U.S.C. 
§ l l 53(b )(2). The Petitioner also seeks a national interest waiver of the job offer requirement that is 
attached to this EB-2 immigrant classification. See section 203(b )(2)(B)(i) of the Act, 8 U.S.C. 
§ 1 l 53(b )(2)(B)(i). U.S. Citizenship and Immigration Services (USCIS) may grant this discretionary 
waiver of the required job offer, and thus of a labor certification, when it is in the national interest to 
do so. 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
establish that she qualifies as an individual of exceptional ability or that she merits a national interest 
waiver as a matter of discretion. The matter is now before us on appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will withdraw the Director's decision and remand the matter for entry of a new decision consistent 
with the following analysis. 
I. LAW 
To establish eligibility for a 
national interest waiver, a petitioner must first demonstrate qualification 
for the underlying EB-2 visa classification, as either an advanced degree professional or an individual 
of exceptional ability in the sciences, arts, or business. Section 203(b )(2)(B)(i) of the Act. 
Exceptional ability in the sciences, arts, or business means a degree of expertise significantly above 
that ordinarily encountered in the sciences, arts, or business. 8 C.F.R. § 204.5(k)(2). In addition, the 
regulation at 8 C.F.R. § 204.5(k)(3)(ii) sets forth the specific evidentiary requirements for 
demonstrating eligibility as an individual of exceptional ability. A petitioner must submit 
documentation that satisfies at least three of the six categories of evidence listed at 8 C.F.R. 
§ 204.5(k)(3)(ii) . However, meeting the minimum requirements by providing at least three types of 
initial evidence does not, in itself, establish that the individual meets the requirements for exceptional 
ability. See generally 6 USCIS Policy Manual F.5(8)(2), https://www.uscis.gov/policymanual. In the 
second part of the analysis, officers should evaluate the evidence together when considering the 
petition in its entirety for the final merits determination. Id. The officer must determine whether the 
petitioner, by a preponderance of the evidence, has demonstrated a degree of expertise significantly 
above that ordinarily encountered in the sciences, arts, or business. Id. 
If a petitioner demonstrates eligibility for the underlying EB-2 classification, they must then 
demonstrate they merit a discretionary waiver of the job offer requirement "in the national interest." 
Section 203(b )(2)(B)(i) of the Act. Matter ofDhanasar, 26 I&N Dec. 884, 889 (AAO 2016) provides 
that USCIS may, as matter of discretion, 1 grant a national interest waiver if the petitioner shows: 
• The proposed endeavor has both substantial merit and national importance; 
• The individual is well-positioned to advance their proposed endeavor; and 
• On balance, waiving the job offer requirement would benefit the United States. 
The Petitioner, a civil engineer, seeks to open and direct the operations of an information technology 
(IT) and gamification consulting firm in the State of Florida. 
A. Eligibility for Underlying EB-2 Classification 
Regarding the underlying EB-2 classification, the Director proceeded to a final merits determination 
because the Petitioner demonstrated that she met the initial evidence requirements. Specifically, the 
Director concluded that she met four of the six criteria at 8 C.F.R. § 204.5(k)(3)(ii) pertaining to 
academic records, licenses, memberships, and recognition for achievements and significant 
contributions to the field. Although the Petitioner also claimed she could satisfy the criteria relating 
to experience letters and high salary, the Director concluded that she did not meet those criteria. 
In denying the petition, the Director determined that the Petitioner was not an individual of exceptional 
ability. Specifically, the Director concluded that although the Petitioner met at least three of the six 
criteria under 8 C.F.R. § 204.5(k)(3)(ii), the record lacked evidence that the Petitioner has "a degree 
of expertise significantly above that ordinarily encountered in the sciences, arts, or business." On 
appeal, the Petitioner asserts that the denial decision lacks a proper evaluation of the totality of the 
evidence and asserts that the Director did not explain in writing the specific reasons for denial as 
required by 8 C.F.R. § 103.3(a)(l)(i). 
In a final merits determination, USCIS must analyze all of a petitioner's accomplishments and weigh 
the totality of the evidence to determine whether the petitioner, by a preponderance of the evidence, 
has demonstrated a degree of expertise significantly above that ordinarily encountered in the sciences, 
arts, or business. See section 203(b )(2)(B)(i) of the Act; 8 C.F .R. § 204.5(k)(2); see also 6 USCIS 
Policy Manual, supra, at F.5(8)(2). Moreover, the Director must articulate the specific reasons as to 
why they conclude that the petitioner, by a preponderance of the evidence, has not demonstrated that 
1 See also Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts (and 
Third in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver to be 
discretionary in nature). 
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they qualify for exceptional ability classification. Id. On appeal, the Petitioner contends that the 
Director failed to consider all the submitted evidence together in the final merits determination. 
We agree with the Petitioner's claim that the Director's final merits analysis does not reflect 
consideration of the totality of the evidence as required. Although the Petitioner submitted evidence 
relating to all six of the criteria at 8 C.F.R. § 204.5(k)(3)(ii), the final merits discussion did not identify 
any of the submitted evidence or provide any analysis of such evidence. Specifically, rather than 
acknowledging the documentary evidence submitted by the Petitioner in support of her eligibility for 
the underlying classification, the Director simply concluded, in one sentence, that she was not an 
individual of exceptional ability. Moreover, we also note that the Director did not discuss the evidence 
in the record and how the evidence established that the Petitioner met four of the initial criteria; rather, 
the Director only stated the conclusion that these criteria were met. Because the Director did not 
properly consider all the Petitioner's evidence in the final merits analysis, the decision did not 
sufficiently address why she did not demonstrate her eligibility for the requested classification. 
As correctly asserted by the Petitioner, the Director must explain in writing the specific reasons for 
denial when denying a petition. 8 C.F.R. § 103.3(a)(l)(i). This explanation should be sufficient to 
allow the Petitioner a fair opportunity to contest the decision and to allow us an opportunity for 
meaningful appellate review. See, e.g., Matter ofM-P-, 20 T&N Dec. 786 (BIA 1994) (finding that a 
decision must fully explain the reasons for denying a motion to allow the respondent a meaningful 
opportunity to challenge the determination on appeal). Here, the Director's decision did not satisfy 
this requirement. 
Accordingly, we will withdraw the Director's decision and remand the matter for further review and 
entry of a new decision. The new decision should include an analysis of the totality of the record, 
including the evidence submitted in support of all claimed initial evidentiary criteria at 8 C.F.R. 
§ 204.5(k)(3)(ii). 
B. National Interest Waiver 
As to the Petitioner's eligibility for a national interest waiver, the Director determined that the 
Petitioner did not satisfy any of the three prongs of the Dhanasar analytical framework. On appeal, 
the Petitioner contends that the Director both ignored and did not give due regard to substantial 
evidence submitted in support of her eligibility under Dhanasar 's first prong, and further asserts that 
the Director imposed a higher standard of proof than the preponderance of the evidence in evaluating 
her request for a national interest waiver. 
Regarding the substantial merit and national importance of the proposed endeavor, the Director 
concluded that the endeavor had substantial merit but not national importance. The Director 
acknowledged the Petitioner's business plan and personal statement, but determined both were 
insufficient to demonstrate that the proposed endeavor had national importance. On appeal, the 
Petitioner asserts that the Director's analysis was restrictive and did not include analysis of all 
submitted evidence, noting that the "wide array" of evidence she submitted, including an expert 
opinion letter, letters of recommendation, and industry articles and reports, were not acknowledged or 
addressed. She further asserts that the Director ignored the fact that she is a high-skilled professional 
in a STEM area. 
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Collectively considering the evidence submitted prior to the Director's decision, we agree with the 
Petitioner that her evidence was not given due consideration therein. In addition, we note that the 
Director erroneously conflates elements of Dhanasar 's second prong into their national importance 
analysis. Specifically, the Director states as a basis for denial under the first prong that the Petitioner 
did not submit evidence of a record of success in similar efforts, any progress for achieving the 
proposed endeavor, and the interest of potential customers, users, investors or other relevant entities 
or individuals. Such evidence, however, relates to whether the Petitioner is well positioned to advance 
her proposed endeavor and is appropriately examined when analyzing the second prong. Finally, we 
note that the Director erroneously concluded that "the [Petitioner] has not established that her proposed 
endeavor of founding and leading a company in accounting services is of national importance," when 
her stated endeavor is to be the CEO of an IT and gamification consulting company. 
Again, an officer must fully explain the reasons for denying a visa petition in order to allow the 
Petitioner a fair opportunity to contest the decision and to allow us an opportunity for meaningful 
appellate review. See 8 C.F.R. § 103.3(a)(l)(i); see also Matter of M-P-, 20 I&N Dec. 786. The 
Director should review the record to determine whether the Petitioner has demonstrated her proposed 
endeavor has significant national or global implications with respect to IT and gamification consulting, 
significant potential to employ U.S. workers, or other substantial positive economic effects. If the 
Director concludes that the Petitioner's evidence does not meet the national importance requirement 
of Dhanasar 's first prong, the decision should discuss the insufficiencies in the evidence and 
adequately explain the reasons for ineligibility. 
For Dhanasar's second prong, the Director concluded that the Petitioner was not well positioned to 
advance the proposed endeavor but did not sufficiently explain the basis for the determination. On 
appeal, the Petitioner argues that the Director did not sufficiently evaluate her academic qualifications, 
professional achievements, and years of experience in the field, and reiterates her qualifications and 
commitment to advance her proposed endeavor. Although the Director identified the types of 
documents submitted by the Petitioner and generally concluded that they were insufficient, the 
decision does not sufficiently analyze this evidence or explain why such evidence was deficient. 
The Director should analyze the evidence to determine if the Petitioner is well positioned to advance 
the proposed endeavor and should consider all of the evidence offered for prong two, including the 
Petitioner's academic record, certifications and trainings, expert opinion letter, and letters of support 
and recommendation. The Director should analyze the specific content of the record to determine if 
this documentation renders the Petitioner well positioned to advance the proposed endeavor. If the 
Director concludes that the Petitioner's documentation does not meet Dhanasar's second prong, the 
decision should discuss the insufficiencies in the evidence and adequately explain the reasons for 
ineligibility. 
The third prong requires the Petitioner to demonstrate that, on balance, it would be beneficial to the 
United States to waive the requirements of a job offer and thus of a labor certification. While the 
Director's decision identifies some of the factors to consider when determining whether a petitioner 
qualifies under Dhanasar 's third prong and indicates that the Petitioner had not established eligibility 
under this prong, the Director did not adequately discuss the evidence and sufficiently explain the 
basis for this determination. If the Director determines that the Petitioner's documentation does not 
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meet this prong, the decision should address all of the Petitioner's arguments and evidence, and explain 
the relative decisional weight given to each balancing factor. 
III. CONCLUSION 
For the above reasons, we will withdraw the Director's decision and remand this matter for further 
consideration and entry of a new decision. On remand, the Director should review the entire record, 
including the Petitioner's appeal, and determine whether she has established eligibility for both the 
underlying classification as an individual of exceptional ability and each of the three prongs of the 
Dhanasar framework. The Director may request any additional evidence considered pertinent to the 
determination prior to issuing a new decision. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
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