remanded EB-2 NIW Case: Environmental Consulting

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEP. 03, 2024 In Re: 33407161 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an environmental consultant, seeks second preference immigrant classification as a 
member of the professions holding an advanced degree, 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. § 1 l 53(b )(2). 
The Director of the Texas Service Center denied the petition, concluding 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. The matter is now before us on appeal pursuant to 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 l&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. 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 of job 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. 
We set forth a framework for adjudicating national interest waiver petitions in the precedent decision 
Matter ofDhanasar, 26 I&N Dec. 884, 889 (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: (I) 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. Id. 
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) 
1 See 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 is discretionary 
in nature). 
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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. 2 
TI. ANALYSIS 
In adjudicating the petition, the Director indicated in her decision that the Petitioner failed to comply 
with the form instructions and did not submit the required initial evidence to establish his eligibility 
for the classification. 8 C.F.R. 103.2(a)(l), (b)(8)(ii). However, in doing so, the Director referenced 
documentation that would be required to establish 
the second prong of Matter ofDhanasar, 26 I&N 
Dec. 884, 889 (AAO 2016), which is not included in the form instructions as referenced by the 
Director. 
Further, the Director does not indicate in the decision whether the Petitioner had demonstrated his 
qualifications for the underlying EB-2 visa classification. We note that the Director's request for 
evidence (RFE) indicated that the Petitioner had a bachelor's degree and five years of progressive 
experience; however, our review of the record on appeal does not support that conclusion. In the 
Petitioner's statement submitted with his petition, he stated that, "having studied Aquaculture 
Engineering before de ___________ Ecuador, where despite I didn't graduate I 
completed 90% of my career." The Petitioner did not submit evidence of a bachelor's degree, and 
instead submitted documentation regarding his desire to be classified as an alien of extraordinary 
ability, which he notes on appeal. As the Director erred in her determination regarding the Petitioner's 
eligibility for the EB-2 visa classification and did not properly assess the evidence provided by the 
Petitioner, it is appropriate for us to remand the matter for the Director to determine if the Petitioner 
has established his eligibility for the underlying EB-2 visa classification in the first instance. 
Further, although the Director concluded that the Petitioner had established the substantial merit and 
national importance of the proposed endeavor, the Petitioner had not established that he was well 
positioned to advance his proposed endeavor. The Director mentioned the evidence submitted, but 
only stated that there was "a lack of evidence supporting claims made" in the Petitioner's letters of 
recommendation but did not provide a specific explanation or analysis of the evidence that was 
provided. 
As we have concluded that the Director erred in her determination that the Petitioner demonstrated his 
qualification for the underlying EB-2 visa classification and provided an incomplete analysis of the 
evidence in the record regarding whether the Petitioner is well positioned to advance his proposed 
endeavor, it is appropriate to withdraw the decision and remand the matter for the entry of a new 
decision consistent with the foregoing analysis. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
2 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
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