remanded EB-2 NIW Case: Cosmetology

U.S. Citizenship 
and Immigration 
Services 
In Re: 22427165 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JUNE 9, 2022 
Form I-140 , Immigrant Petition for Alien Worker (Advanced Degree , Exceptional Ability , National 
Interest Waiver) 
The Petitioner seeks second preference immigrant classification as a member of the professions 
holding an advanced degree and as an individual of exceptional ability , as well as a national interest 
waiver of the job offer requirement attached to this EB-2 classification. See Immigration and 
Nationality Act (the Act) section 203(b )(2), 8 U.S.C. § 1153(b )(2). 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
qualify for classification as a member of the professions holding an advanced degree or as an 
individual of exceptional ability, and that she had not had not established that a waiver of the required 
job offer, and thus of the labor certification, would be in the national interest. On appeal, the Petitioner 
submits additional documentation and a brief asserting that she is eligible for the underlying EB-2 visa 
classification and for a national interest waiver. 
In these proceedings , it is the petitioner 's burden to establish eligibility for the immigration benefit 
sought. Section 291 of the Act , 8 U.S .C. § 1361. Upon de nova review , we will withdraw the 
Director's decision and remand the matter for further review of the record and issuance of a new 
decision . 
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. Because this classification requires that the 
individual's services be sought by a U.S. employer , a separate showing is required to establish that a 
waiver of the job offer requirement is in the national interest. 
Section 203(b) of the Act sets out this sequential framework: 
(2) Aliens who are members of the professions holding advanced degrees or aliens of 
exceptional ability . -
(A) In general. - Visas shall be made available ... to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or 
who because of their exceptional ability in the sciences, arts, or business, will 
substantially benefit prospectively the national economy, cultural or 
educational interests, or welfare of the United States, and whose services in the 
sciences, arts, professions, or business are sought by an employer in the United 
States. 
(B) Waiver ofjob offer-
(i) National interest waiver. ... [T]he Attorney General may, when the Attorney 
General deems it to be in the national interest, waive the requirements of 
subparagraph (A) that an alien's services in the sciences, arts, professions, or 
business be sought by an employer in the United States. 
Section 10l(a)(32) of the Act provides that "[t]he term 'profession' shall include but not be limited to 
architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, 
colleges, academics, or seminaries." 
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definitions: 
Advanced degree means any United States academic or professional degree or a foreign 
equivalent degree above that of baccalaureate. A United States baccalaureate degree 
or a foreign equivalent degree followed by at least five years of progressive experience 
in the specialty shall be considered the equivalent of a master's degree. 
Exceptional ability in the sciences, arts, or business means a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business. 
Profession means one of the occupations listed in section 10l(a)(32) of the Act, as well 
as any occupation for which a United States baccalaureate degree or its foreign 
equivalent is the minimum requirement for entry in the occupation. 
In addition to the definition of "advanced degree" provided at 8 C.F.R. § 204.5(k)(2), the regulation 
at 8 C.F.R. § 204.5(k)(3)(i)(B) provides that a petitioner present "[a]n official academic record 
showing that the alien has a United States baccalaureate degree or a foreign equivalent degree, and 
evidence in the form of letters from current or former employer( s) showing that the alien has at least 
five years of progressive post-baccalaureate experience in the specialty." 
Furthermore, 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). 
Additionally, while neither the statute nor the pertinent regulations define the term "national interest," 
we set forth a framework for adjudicating national interest waiver petitions in the precedent decision 
2 
Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). Dhanasar states that after a petitioner has 
established eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) 
may, as matter of discretion, 1 grant a national interest waiver if the petitioner demonstrates: (1) that 
the foreign national's proposed endeavor has both substantial merit and national importance; (2) that 
the foreign national is well positioned to advance the proposed endeavor; and (3) 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. 2 
II. ANALYSIS 
A. Member of the Professions Holding an Advanced Degree 
In order to show that a petitioner holds a qualifying advanced degree, the petition must be accompanied 
by "[a ]n official academic record showing that the alien has a United States advanced degree or a 
foreign equivalent degree." 8 C.F.R. § 204.5(k)(3)(i)(A). Alternatively, a petitioner may present "[a]n 
official academic record showing that the alien has a United States baccalaureate degree or a foreign 
equivalent degree, and evidence in the form of letters from current or former employer(s) showing that 
the alien has at least five years of progressive post-baccalaureate experience in the specialty." 8 C.F.R. 
§ 204.5(k)(3)(i)(B). 
The record includes employment verification letters relating to the Petitioner's experience as a 
skincare technician, cosmetologist, researcher, and instructor, as well as copies of her bachelor's 
degree in accounting and transcript from I Faculty of 
Human Sciences in Brazil. She also presented two academic evaluation reports which both concluded 
that the aforementioned degree is the foreign equivalent of a U.S. bachelor's degree in accounting. 
As noted above, the definition of advanced degree at 8 C.F.R. § 204.5(k)(2) and the regulatory 
language at 8 C.F.R. § 204.5(k)(3)(i)(B) both require post-baccalaureate experience to be "in the 
specialty." Here, the Petitioner's bachelor's degree is in the specialty of accounting, but her 
employment verification letters indicate that her experience is in the cosmetology field. In addition, 
the Petitioner has stated that she intends to continue working the field of cosmetology in the United 
States. 3 The acquisition of a degree or equivalent experience does not, of itself, qualify a person as a 
member of a "profession." The knowledge acquired must also be of nature that is a realistic 
prerequisite to entry into the particular field of endeavor. See Matter of Shin, 11 I&N Dec. 686 (BIA 
1966). 
In her appeal brief, the Petitioner asserts that she "intends to continue working as a Career and 
Technical Education Teacher" and that the entry-level education for this occupation is a bachelor's 
1 See also Poursina v. USCIS, No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCTS' decision to grant or 
deny a national interest waiver to be discretionary in nature). 
2 See Dhanasar, 26 T&N Dec. at 888-91, for elaboration on these three prongs. 
3 The Petitioner asserted that she intends "to continue working in my field of expertise in cosmetology, particularly in hair, 
facial and body aesthetics in the United States. Moreover, I intend to continue conducting scientific research in my field 
of expertise as well as providing training to cosmetics professionals .... " In addition, Parts 5 and 6 ("Additional 
Information About the Petitioner" and "Basic Information About the Proposed Employment") of the Immigrant Petition 
for Alien Worker, Form 1-140, both list the Petitioner's "Occupation" and "Job Title" as "Skincare Specialist." 
3 
degree. The Petitioner, however, has not shown that she has at least five years of progressive post­
baccalaureate experience in accounting to constitute the equivalent to an advanced degree in that 
specialty. See 8 C.F.R. § 204.5(k)(2) and 8 C.F.R. § 204.5(k)(3)(i)(B). Nor has she demonstrated that 
her bachelor's degree in accounting is a realistic prerequisite to entry into her proposed endeavor in 
the cosmetology field, either as a skincare researcher, salon operator, or "Career and Technical 
Education Teacher." Accordingly, the record supports the Director's determination that the Petitioner 
has not established that she qualifies as a member of the professions holding an advanced degree. 
B. Exceptional Ability 
In denying the petition, the Director determined that the Petitioner fulfilled only the license to practice 
criterion at 8 C.F.R. § 204.5(k)(3)(ii)(C). Upon review of the record, we conclude that the Petitioner 
also meets the official academic record criterion and the ten years of experience criterion. 4 See 
8 C.F.R. § 204.5(k)(3)(ii)(A) and (B). Accordingly, the Petitioner has presented documentation that 
satisfies at least three of the six categories of initial evidence listed at 8 C.F.R. § 204.5(k)(3)(ii). 
However, meeting the minimum requirement by providing at least three types of initial evidence does 
not, in itself, establish that the Petitioner meets the requirements for exceptional ability classification. 5 
The Director must therefore undertake a final merits determination to analyze the Petitioner's 
accomplishments and weigh the totality of the evidence to determine in the first instance if they 
establish her exceptional ability and are consistent with "a degree of expertise significantly above that 
ordinarily encountered in the sciences, arts, or business." See 8 C.F.R. § 204.5(k)(2). 
C. National Interest Waiver 
The remaining issue to be determined is whether the Petitioner has established that a waiver of the 
requirement of a job offer, and thus a labor certification, would be in the national interest. On the 
Form I-140, Immigrant Petition for Alien Worker, the Petitioner provided the following information: 
Part 5 - Additional Information About the Petitioner 
Section 3.a. Occupation: Skincare Specialist 
Part 6 - Basic Information About the Proposed Employment 
Section 1. Job Title: Skincare Specialist 
Section 2. SOC Code: 39-5094 
4 The Petitioner's graduation certificates and school records from in Brazil are sufficient to 
meet the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A). In addition, her employment verification letters from 
___ and I I are sufficient to satisfy the ten years of experience criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B). 
5 Officers must also consider the quality of the evidence. In the second part of the analysis, officers should evaluate the 
evidence together when considering the petition in its entirety for the final merits detennination. The officer must 
determine whether or not the petitioner, by a preponderance of the evidence, has demonstrated that she has a degree of 
expertise significantly above that ordinarily encountered in the sciences, arts, or business. See 6 USC1S Policy Manual 
F .5(B), https://www.uscis.gov/policy-manual. 
4 
Section 3. Nontechnical Description ofJob: Provide skin care treatments to face and body 
to enhance an individual's appearance. 
With respect to her proposed endeavor, the Petitioner initially submitted a letter stating: "I intend to 
continue working in my field of expertise in cosmetology, particularly in hair, facial and body 
aesthetics in the United States. Moreover, I intend to continue conducting scientific research in my 
field of expertise as well as providing training to cosmetics professionals in the United States .... " 
In response to the Director's request for evidence (RFE), the Petitioner provided a "Professional Plan 
& Statement" further describing her proposed endeavor: 
My focus is to continue my career as a Skin Care Teacher and Researcher in the field 
of Cosmetology, working on research and development of new treatments and new 
equipment within the beauty and aesthetic industry. I also plan to continue writing 
scientific articles based on the findings of my own research and present them in 
important seminars, workshops and other events in my field, helping to disseminate 
knowledge and innovative treatments among other professionals in my industry, 
Moreover, I plan to open and expand my own brand of cosmetology salon, named 
I I in the United States using the techniques I have developed and creating jobs to 
[sic] the American workers. Furthermore, I will open a Cosmetology and Aesthetic 
Laboratory to conduct research and studies in the U.S. as well as to provide specialized 
training to enhance the skills and knowledge of U.S. workers. 
In order to conduct research in the United States, I founded I my own 
laboratory and school of aesthetics and cosmetology, in_ I Florida. I plan to 
conduct researches of new treatments, technologies and equipment with the objective 
of improving the aesthetic treatments or even creating new ones. 
[I]n July 2018, I founded a cosmetic salon . . . . At the salon, I 
intend to devote part of my time to manage the business, implementing a variety of 
facial and body treatments, many of them developed by myself. I also plan to expand 
the business and the brand by opening additional salons in other locations. 
I founded I I my own laboratory and school of aesthetics and 
cosmetology inl I Florida, together with other partners. Our purpose is to gather 
highly qualified professionals in the aesthetics industry in the region to offer a variety 
of specialization courses on different facial and body treatment techniques. At 
I I I will work as an instructor together with ... specialized personnel, 
educating and training other aesthetics and cosmetology professionals on how to apply 
high-end techniques available in the market, such as the ones I developed myself. 
5 
I propose to keep disseminating my knowledge to audiences composed of young 
professionals , professional peers, students , clients and laypeople, among others. I will 
participate as a lecturer and speaker in academic and professional events, such as 
congresses , fairs, seminars, panels and others , to educate a variety of people on themes 
related to my areas of expertise . 
1. Substantial Merit and National Importance of the Proposed Endeavor 
The first prong focuses on the specific endeavor that the Petitioner proposes to undertake. In the 
decision denying the petition, the Director concluded that the Petitioner had not demonstrated the 
substantial merit and national importance of her proposed endeavor. The Director stated that the 
Petitioner had "not submitted a detailed description of the proposed endeavor" or "documentary 
evidence that demonstrates that the proposed endeavor will have potential prospective impact." We 
withdraw the Director's determination that the Petitioner did not offer a detailed description of her 
proposed endeavor. The information in the "Professional Plan & Statement" identified above 
adequately describes her proposed work in the United States . 6 In addition, while the Director's 
decision mentions the Petitioner's submission of "an opinion letter and a business plan," it did not 
provide an analysis of either document. 
On appeal, the Petitioner contends that the Director's decision overlooked additional evidence she 
submitted to satisfy the first prong of Dhanasar, including multiple letters of support from colleagues, 
industry reports, her authorship of scientific articles, and business documentation relating to her 
formation ofl I and I I We agree with the Petitioner 's assertion 
that her evidence was not given due consideration in the Director's decision. 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 (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 adequately address the 
evidence submitted with the petition or in response to the RFE. 
The Director should analyze the Petitioner's evidence to determine if her proposed endeavor has 
national or global implications in the cosmetology field, significant potential to employ U.S. workers, 
or other substantial positive economic effects. If the Director concludes that the Petitioner's 
6 The Petitioner indicates that at least a portion of her proposed endeavor will involve training others in her field and 
providing facial and body treatments to clientele. While these endeavors have substantial merit, the record does not 
establish that teaching training courses and serving her salon 's clientele stand to impact the cosmetology field or the 
aesthetics industry more broadly, as opposed to being limited to her trainees and salon clientele. Accordingly , without 
sufficient documentary evidence of their broader impact, the Petitioner 's proposed instructional work and the services she 
intends to provide for her salon's clientele do not meet the "national importance" element of the first prong of the Dhanasar 
framework. Likewise , in Dhanasar , we determined that the petitioner 's teaching activities did not rise to the level of 
having national importance because they would not impact his field more broadly. Id. at 893. 
6 
documentation does not meet the requirements of Dhanasar' s first prong, his decision should discuss 
the insufficiencies in her evidence and adequately explain the reasons for ineligibility. 
2. Well Positioned to Advance the Proposed Endeavor 
The second prong shifts the focus from the proposed endeavor to the Petitioner. 7 The record includes 
her resume, academic records, cosmetic certifications and licenses, published and presented work, and 
business formation documents. In addition, the Petitioner offered recommendation letters describing 
her expertise in cosmetology and aestheticism and her past record of success in those endeavors. The 
Director's decision stated that the Petitioner meets the second prong of Dhanasar based on her 
submission of "an opinion letter," "a business plan," "industry reports," and business 
"communications," but it did not adequately explain the reason for this determination. Accordingly, 
we withdraw the Director's finding on this issue. Any new determination by the Director must 
consider all of the evidence offered for prong two. If the Director concludes that the Petitioner's 
documentation does not meet Dhanasar' s second prong, his decision should discuss the insufficiencies 
in her evidence and adequately explain the reasons for ineligibility. 
3. Balancing Factors to Determine Waiver's Benefit to the United States 
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. The Petitioner's 
response to the Director's RFE argued that aesthetic medicine is a growing market, that there is 
significant demand for her work, and that her skills and expertise will contribute to her field and to 
overall societal welfare. While the Director's decision listed "an opinion letter," "a business plan," 
"industry reports," and business "communications," the decision did not mention the other letters of 
support and industry reports the Petitioner offered under prong three of Dhanasar, nor did it discuss 
the arguments she presented in response to the RFE. If the Director concludes that the Petitioner's 
documentation does not meet this prong, his decision should address all of her arguments and 
evidence, and explain the relative decisional weight given to each balancing factor. 
III. CONCLUSION 
We withdraw the Director's decision and remand the matter for further review and entry of a new 
decision. On remand, the Director should review all evidence submitted to date, conduct a final merits 
determination to decide if the Petitioner qualifies for classification as an individual of exceptional 
ability, and analyze the Petitioner's evidence to determine if she meets all three requirements set forth 
in the Dhanasar framework. The Director may request any additional evidence considered pertinent 
to the new decision. 
7 To the extent that the Petitioner's proposed endeavor involves teaching training courses and serving her salon's clientele, 
if the Director determines that these activities do not have a broader impact, significant potential to employ U.S. workers, 
or other substantial positive economic effects, and therefore are not of national impmiance, the Director need not determine 
whether the Petitioner has established that she is well positioned to advance her proposed instructional work and clientele 
services. Moreover, if the Director determines that the Petitioner meets prong one of Dhanasar based on her proposed 
research, the Director's analysis under this prong should focus on whether the Petitioner is well positioned to advance her 
proposed research and development work. This includes the Petitioner's proposed speaking engagements at academic and 
professional events to disseminate her scientific findings. 
7 
ORDER: The decision of the Director is withdrawn. The matter is remanded for further 
proceedings consistent with the foregoing analysis and entry of a new decision. 
8