remanded EB-2 NIW Case: Engineering Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF Y-F-C-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV . 14, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a technical manager, seeks second preference immigrant classification as a member of 
the professions holding an advanced degree or 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). After a petitioner 
has established eligibility for EB-2 classification, U.S . Citizenship and Immigration Services (USCIS) 
may, as matter of discretion, 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 . Matter of Dhanasar , 26 I&N Dec. 884 (AAO 2016) . 
The Director of the Nebraska Service Center denied the Form 1-140, Immigrant Petition for Alien 
Worker , finding that the Petitioner qualified for classification as a member of the professions holding 
an advanced degree , but that he had not established that a waiver of the required job offer , and thus of 
the labor certification, would be in the national interest. 1 
On appeal , the Petitioner submits additional documentation and a brief asserting that he is eligible for 
the EB-2 classification as an individual of exceptional ability and for a national interest waiver under 
the Dhanasar framework. 
Upon de novo review , we will remand the matter to the Director for further action and consideration. 
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. 
1 The Director did not make a finding regarding the Petitioner 's claimed eligibility as an individual of exceptional ability. 
Matter ofY-F-C-
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. 
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. If a doctoral 
degree is customarily required by the specialty, the alien must have a United States 
doctorate or a foreign equivalent 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. 
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). 
Furthermore, 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 
Matter of Dhanasar, 26 I&N Dec. 884.2 Dhanasar states that after EB-2 eligibility has been 
established, USCIS may, as a matter of discretion, grant a national interest waiver when the below 
prongs are met. 
2 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 l&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
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Matter ofY-F-C-
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
foreign national proposes to undertake. The endeavor's merit may be demonstrated in a range of areas 
such as business, entrepreneurialism, science, technology, culture, health, or education. In 
determining whether the proposed endeavor has national importance, we consider its potential 
prospective impact. 
The second prong shifts the focus from the proposed endeavor to the foreign national. To determine 
whether he or she is well positioned to advance the proposed endeavor, we consider factors including, 
but not limited to: the individual's 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. 
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. In performing 
this analysis, USCIS may evaluate factors such as: whether, in light of the nature of the foreign 
national's qualifications or the proposed endeavor, it would be impractical either for the foreign 
national to secure a job offer or for the petitioner to obtain a labor certification; whether, even assuming 
that other qualified U.S. workers are available, the United States would still benefit from the foreign 
national's contributions; and whether the national interest in the foreign national's contributions is 
sufficiently urgent to warrant forgoing the labor certification process. In each case, the factor(s) 
considered must, taken together, indicate 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. 3 
II. ANALYSIS 
A. Member of the Professions Holding an Advanced Degree 
In the decision denying the petition, the Director found that the Petitioner qualified for classification 
as a member of the professions holding an advanced degree, stating: "USCIS accepts that an advanced 
degree ... is required by the occupation, and that [ the Petitioner] holds the requisite advanced degree." 
For the reasons discussed below, we withdraw the Director's determination on this issue. 
In order to show an individual is a professional holding an 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, the 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 Petitioner presented his bachelor of science degree in engineering technology froml 
University id I and his official academic record from the university. The record '-r-ef-le-c--t-s -th_a_t_h_e_. 
3 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
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Matter ofY-F-C-
received the aformentioned bachelor's degree on May 6, 2016. Although the Petitioner holds a U.S. 
baccalaureate degree, he has not demonstrated at least five years of progressive post-baccalaureate 
experience in his specialty at the time he filed the Form I-140.4 Accordingly, we withdraw the 
Director's finding that the Petitioner qualifies as a member of the professions holding an advanced 
degree. 
B. Exceptional Ability 
The Petitioner's March 2018 letter accompanying the Form 1-140 specifically stated that he was 
seeking classification as "an individual of exceptional ability with respect to vapor phase 
decomposition (VPD) systems and technology." In addition, the Petitioner's response to the Director's 
request for evidence listed four of the regulatory criteria for individuals of exceptional ability and he 
provided evidence relating to those criteria: 8 C.F.R. § 204.5(k)(3)(ii)(A), (B), (E), and (F). In his 
appeal brief: the Petitioner maintains that he meets the regulatory criteria for classification as an 
individual of exceptional ability. The Director's decision did not address whether the Petitioner satisfies 
at least three of the six regulatory criteria at 8 C.F.R. § 204.5(k)(3)(ii) and has achieved the level of 
expertise required for exceptional ability classification. 
C. National Interest Waiver 
The regulation at 8 C.F.R. § 204.5(k)(4)(ii) states, in pertinent part, "[t]o apply for the [national 
interest] exemption the petitioner must submit Form ETA-750B, Statement of Qualifications of 
Alien." The denial decision stated that the Petitioner did not provide "a properly completed 
Application for Alien Employment Certification (Form ETA-750B) or Application for Permanent 
Employment Certification (ETA Form 9089), Parts J, K, and L. Therefore, since the petitioner did not 
submit this required evidence, USCIS must deny the Form 1-140." At the time of filing, however, the 
Petitioner offered a properly signed and executed ETA Form 9089, Parts J, K, and L. Accordingly, 
the Director's finding on this issue is withdrawn. 
In addition, the Director's decision did not render findings as to whether the Petitioner satisfies prongs 
one and two of the Dhanasar analytical framework. Furthermore, with regard to prong three of the 
Dhanasar precedent decision, the Director's analysis stated twice that the Petitioner had not 
demonstrated "a substantial impact" in the field. We note that while the Petitioner's technological 
contributions and the national interest in these contributions are relevant factors for consideration 
under prong three of the Dhanasar framework, there is no requirement that a petitioner demonstrate 
"a substantial impact" in the field in order to satisfy this prong. The Director's prong three analysis 
was also problematic because it did not consider the Petitioner's arguments and evidence relating to 
the impracticality of labor certification due to his self-employment, job creation associated with his 
proposed endeavor, and whether the national interest in his technological contributions is sufficiently 
urgent to warrant foregoing the labor certification process. 
4 The Forml-140 was filed on March 23, 2018. With respect to the Petitioner's five years of progressive post-baccalaureate 
experience in his specialty, he must demonstrate such experience at the time of filing. See 8 C.F.R. § 103.2(b)(l). 
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Matter ofY-F-C-
III. CONCLUSION 
We are therefore remanding the petition for the Director to consider whether the Petitioner has satisfied 
the eligibility requirements for classification as an individual of exceptional ability. In addition, the 
Director should properly apply all three prongs of the Dhanasar analytical framework to make a 
determination as to 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. In visa petition 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; Matter of Skirball Cultural Ctr., 25 I&N Dec. 799, 806 (AAO 2012). 
ORDER: The decision of the Director is withdrawn. The matter is remanded for farther 
proceedings consistent with the foregoing opinion and for the entry of a new decision 
which, if adverse, shall be certified to us for review. 
Cite as Matter ofY-F-C-, ID# 5130934 (AAO Nov. 14, 2019) 
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