remanded EB-2 NIW Case: Electrical Engineering

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEP. 13, 2023 In Re: 28282446 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an electrical engineer, seeks employment-based second preference (EB-2) immigrant 
classification as a member of the professions holding an advanced degree or as an individual of 
exceptional ability. Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § 
1153(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. § 
1153(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 Nebraska Service Center denied the petition, concluding that the record did not 
establish that the Petitioner is eligible for or otherwise 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 apreponderance of the evidence. 
Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de nova. Matter of Christo 's , Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de nova 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. 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. 
An advanced degree is any U.S. academic or professional degree or a foreign equivalent degree above 
that of a bachelor 's degree.1 8 C.F.R. § 204.5(k)(2). A U.S. bachelor's degree or a foreign equivalent 
1 Profession shall include, but not be limited to, architects, engineers, lawyers, physicians, surgeons, and teachers in 
elementary or secondary schools, colleges, academics, or seminaries. Section 101(a)(32) of the Act. 
degree followed by five years of progressive experience in the specialty is the equivalent of a master's 
degree. Id. 
Exceptional ability means a degree of expertise significantly above that ordinarily encountered in the 
sciences, arts, or business. 8 C.F.R. § 204.5(k)(2). A petitioner must initially submit documentation 
that satisfies at least three of six categories of evidence. 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F).2 Meeting 
at least three criteria, however, does not, in and of itself, establish eligibility for this classification.3 If 
a petitioner does so, we will then conduct a final merits determination to decide whether the evidence 
in its totality shows that they are recognized as having a degree of expertise significantly above that 
ordinarily encountered in the field.4 
Once a petitioner demonstrates eligibility as either a member of the professions holding an advanced 
degree or an individual of exceptional ability, they must then establish eligibility for a discretionary 
waiver of the job offer requirement "in the national interest." Section 203(b)(2)(B)(i) of the Act. 
While neither the statute nor the pertinent regulations define the term "national interest," Matter of 
Dhanasar, 26 l&N Dec. 884, 889 (AAO 2016), provides the framework for adjudicating national 
interest waiver petitions. Dhanasar states that USCIS may, as matter of discretion5, grant a national 
interest waiver if the petitioner demonstrates that: 
• 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. 
II. ANALYSIS 
The Petitioner proposes to work in the United States as the chief executive officer, security systems 
~neer, and electrical engineer for his recently established business. The business,! I 
L_J would provide residential and commercial custom electronics design and integration services. 
The Director did not make a determination whether the Petitioner is eligible for the underlying EB-2 
classification. The Director found that the record did not establish that the Petitioner is eligible for or 
otherwise merits a national interest waiver as a matter of discretion. 
A. EB-2 Classification 
In his petition, the Petitioner asserted that he is eligible for the EB-2 classification as an advanced 
degree professional and as an individual of exceptional ability. However, the Director did not evaluate 
the Petitioner's claims. On appeal, the Petitioner argues that the Director erred in not addressing 
2 If these types of evidence do not readily apply to the individual's occupation, a petitioner may submit comparable 
evidence to establish eligibility. 8 C.F.R. § 204.5(k)(3)(iii). 
3 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of individuals of 
exceptional ability. See generally 6 USCIS Policy Manual F.5(B)(2) , https: //www.uscis .gov/policy-manual. 
4 See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) (discussing a two-part review where the evidence is first counted 
and then, if it satisfies the required number of criteria, considered in the context of a final merits determination); see 
generally 6 USCIS Policy Manual, supra, at F.5(B)(2). 
5 See also Poursina v. USClS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
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whether he qualifies as an individual of exceptional ability and does not claim that he is an advanced 
degree professional. 
To establish eligibility as an advanced degree professional, the Petitioner submitted his diploma, 
academic transcripts, an academic evaluation. 
To establish eligibility as an individual of exceptional ability, the Petitioner submitted evidence to 
meet four of the evidentiary criteria under 8 C.F.R. § 204.5(k)(3)(ii). The Petitioner asserts he meets 
the following criteria: academic record in the area of exceptional ability under 8 C.F.R. § 
204.5(k)(3)(ii)(A); license or certification for the profession under 8 C.F.R. § 204.5(k)(3)(ii)(C); 
membership in professional associations under 8 C.F.R. § 204.5(k)(3)(ii)(E); and recognition for 
achievements and significant contributions to the field under 8 C.F.R. § 204.5(k)(3)(ii)(F). 
On remand, the Director should evaluate the documentation to determine whether the Petitioner meets 
the requirements for the underlying EB-2 classification as either an advanced degree professional or 
as an individual of exceptional ability. 
B. Substantial Merit and National Importance 
The first prong of the Dhanasar analytical framework, substantial merit and national importance, 
focuses on the specific endeavor that a petitioner proposes to undertake. The Director's decision 
concluded, "Therefore, the evidence does not demonstrate that your endeavor has substantial merit 
and national importance." Although the Director's decision lists some of the evidence in the record 
and stated the law and relevant considerations in determining whether the Petitioner meets the first 
prong of Dhanasar, the decision does not explain the basis for this determination. 
On appeal, the Petitioner argues that the Director's decision erred by not considering evidence 
submitted, and instead made conclusory statements finding his proposed endeavor does not have 
substantial merit and national importance. The Petitioner further argues that the Director did not 
"evaluate the merits" of the Petitioner's proposed endeavor described in the evidence submitted. 
The Petitioner points to evidence submitted with the petition and with his reply to a request for 
evidence, arguing that the documentation submitted establishes his proposed endeavor has 
substantial merit and national importance. 
We agree with the Petitioner that the decision does not sufficiently explain the reasons the 
documentation does not demonstrate the substantial merit and national importance of the 
Petitioner's proposed endeavor. An officer must fully explain the reasons for denying a petition in 
order to allow a petitioner a fair opportunity to contest the decision and to allow an opportunity for 
meaningful appellate review. See 8 C.F.R. § 103.3(a)(l)(i); see also Matter of M-P-, 20 l&N Dec. 786 
(BIA 1994). In determining the Petitioner did not establish the substantial merit and national 
importance of his proposed endeavor, the Director's decision did not meaningfully address the 
evidence submitted with the petition or in response to a request for evidence. 
The endeavor's merit may be demonstrated in a range of areas, such as business, entrepreneurialism, 
science, technology, culture, health, or education.6 The Petitioner submitted his Counsel's letter, his 
6 See generally 6 USCIS Policy Manual, supra, at F.5(0)(1). 
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statement, and abusiness plan indicating that his proposed endeavor is to be the chief executive officer, 
security systems engineer, and electrical engineer for his residential and commercial custom 
electronics design and integration company, I I On remand, the Director should 
analyze the evidence to determine whether the record sufficiently shows that the Petitioner's proposed 
endeavor is of substantial merit. 
In determining whether the proposed endeavor has national importance, we consider its potential 
prospective impact. Matter of Dhanasar, 26 l&N Dec. at 889. The Director should focus on what the 
Petitioner will be doing rather than the specific occupation. The Director should keep in mind that it 
is the national importance of the Petitioner's specific proposed endeavor that must be shown, not the 
importance of the overall field of electrical engineering. An endeavor having significant potential on 
the broader implications for a field or region, generally may rise to the level of having national 
importance for the purpose of establishing eligibility for a national interest waiver. 7 The Director 
should review the record to determine whether the Petitioner has demonstrated his proposed endeavor 
has significant potential on the broader impact in the field. On remand, the Director should analyze 
the evidence to determine whether the record sufficiently demonstrates the endeavor has national 
importance. 
If the Director concludes that the Petitioner's documentation does not meet the substantial merit or 
national importance requirements of Dhanasar's first prong, the decision should discuss the 
insufficiencies in the evidence and adequately explain the reasons for ineligibility. 
C. Well Positioned to Advance the Proposed Endeavor 
For Dhanasar 's second prong, the Director concluded, "the evidence does not establish how you are 
well positioned to establish your [sic] company in the United States." However, the Director's 
decision did not provide a sufficient analysis of the evidence to explain the basis for this determination. 
The second prong shifts the focus from the proposed endeavor to the petitioner. We analyze whether 
the petitioner is well positioned to advance their proposed endeavor, and we look at several factors in 
making this determination. We consider factors including, but not limited to: their education, skills, 
knowledge and record of success in related or similar efforts; a model or plan for future activities; any 
progress towards achieving the proposed endeavor; and the interest of potential customers, users, 
investors, or other relevant entities or individuals. Matter of Dhanasar, 26 l&N Dec. at 890. 
The Director's decision references the Petitioner's business plan and a recommendation letter from 
the Petitioner's potential client stating these are not sufficient to show sufficient interest in the 
Petitioner's endeavor. The Director did not acknowledge or analyze the additional documentation 
submitted to show the Petitioner is well positioned to advance his proposed endeavor, including his 
resume, academic credentials, membership certificate, training certifications, reference letters from 
previous clients, articles written by the Petitioner, articles referencing the Petitioner, a patent 
application, the business' corporate documents, and a lease agreement. 
On remand, the Director should analyze the evidence to determine whether the record sufficiently 
demonstrates the Petitioner is well positioned to advance the proposed endeavor. The Director should 
7 See generally 6 USCIS Policy Manual, supra, at F.5(0)(1). 
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articulate the basis for finding whether the evidence shows or fails to show that he is well positioned 
to advance his endeavor. 
D. Balancing Factors to Determine Waiver's Benefit to the United States 
The third prong requires a 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. In performing 
this analysis, we may evaluate factors such as: whether, in light of the nature of the individual's 
qualifications or the proposed endeavor, it would be impractical either for them to secure a job offer 
or to obtain a labor certification; whether, even assuming that other qualified U.S. workers are 
available, the United States would still benefit from their contributions; and whether the national 
interest in their contributions is sufficiently urgent to warrant forgoing the labor certification process. 
In each case, the factor(s) considered must, taken together, establish 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. 
Matter of Dhanasar, 26 l&N Dec. at 890-91. 
The Director concluded that the Petitioner "has not established 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." 
Although the Director's decision noted that the Petitioner being "self-employed is a positive factor," 
it did not state the law or the relevant considerations weighed in performing the third prong's balancing 
analysis. Also, the Director did not discuss the other evidence weighed in balancing those 
considerations or meaningfully address the Petitioner's specific claims as to the third prong. 
On remand, if the Director concludes that the Petitioner does not meet Dhanasar's third prong, the 
decision should address the Petitioner's arguments and evidence, and explain the relative decisional 
weight given to each balancing factor. 
Ill. CONCLUSION 
Accordingly, we are remanding the petition for the Director to consider whether the Petitioner has 
satisfied the eligibility requirements for the underlying EB-2 classification as an advanced degree 
professional or as an individual of exceptional ability. In addition, the Director should properly apply 
all three prongs of the Dhanasar analytical framework to determine if 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. The Director may request any additional evidence considered pertinent to the new 
determination. As such, we express no opinion regarding the ultimate resolution of this case on 
remand. 
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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