remanded EB-2 NIW Case: Environmental Microbiology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF M-E-T-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 25, 2019 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an environmental microbiology researcher, 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 meets a three-prong framework set forth in our precedent decision relating to such a waiver. 
The Texas Service Center approved the Form I-140, Immigrant Petition for Alien Worker. However, 
the Director of the Texas Service Center subsequently issued a notice of intent to revoke (NOIR) and 
later revoked the approval of the immigrant petition, finding that USCIS had approved the petition in 
error. Specifically, the Director determined the Petitioner had not established that a waiver of the 
required job offer, and thus of the labor certification, would be in the national interest. The Petitioner 
filed a motion to reconsider, and the Director dismissed the motion. 
On appeal, the Petitioner submits additional documentation and a brief asserting that he is eligible for 
the EB-2 classification and for a national interest waiver. 
Upon de nova review, we will remand the matter to the Director for further action and consideration. 
I. LAW 
The Secretary of Homeland Security "may, at any time, for what he deems to be good and sufficient 
cause, revoke the approval of any petition . . .. " Section 205 of the Act, 8 U.S.C. § 1155. By 
regulation this revocation authority is delegated to any USCIS officer who is authorized to approve an 
immigrant visa petition. 8 C.F.R. § 205.2(a). USCIS must give the petitioner notice of its intent to 
revoke the prior approval of the petition and the opportunity to submit evidence in opposition thereto, 
before proceeding with written notice of revocation. See 8 C.F.R. § 205.2(b) and (c). The Board of 
Immigration Appeals has discussed revocations on notice as follows: 
Matter of M-E-T-
[A] notice of intention to revoke a visa petition is properly issued for "good and 
sufficient cause" where the evidence of record at the time the notice is issued, if 
unexplained and unrebutted, would warrant a denial of the visa petition based upon the 
petitioner's failure to meet his burden of proof. The decision to revoke will be 
sustained where the evidence of record at the time the decision is rendered, including 
any evidence or explanation submitted by the petitioner in rebuttal to the notice of 
intention to revoke, would warrant such denial. 1 
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. 
In 1998, under the legacy Immigration and Naturalization Service, we set forth an initial framework 
for adjudicating national interest waiver petitions in the precedent decision Matter of New York State 
Dep 't of Transp. (NYSDOT), 22 I&N Dec. 215, 217-18 (Acting Assoc. Comm'r 1998). Under 
NYSDOT, a petitioner must first demonstrate that the individual seeks employment in an area of 
substantial intrinsic merit. Id. at 217. Next, a petitioner must show that the proposed benefit will be 
national in scope. Id. Finally, the petitioner seeking the waiver must establish that the individual will 
serve the national interest to a substantially greater degree than would an available U.S. worker having 
the same minimum qualifications. Id. at 217-18. 
1 Matter of Ho, 19 l&N Dec. 582, 590 (BIA 1988) ( citing Matter of Estime, 19 l&N Dec. 450 (BIA 1987)). 
2 
Matter of M-E-T-
We vacated our NYSDOT precedent decision in December 2016 and set forth a new framework for 
adjudicating national interest waiver petitions in Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). 
The Dhanasar precedent decision states that 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. Id. 
II. ANALYSIS 
The record reflects that the Petitioner received a Ph.D. in plant and environmental science fromD 
I I University in August 2014. Accordingly, the Petitoner has established that he qualifies 
for the underlying EB-2 visa classification as a member of the professions holding an advanced degree.2 
The remaining issue is whether the Petitioner has established that a waiver of the requirement of a job 
offer, and thus a labor certification, is in the national interest. The Petitioner filed the Form 1-140 on 
May 4, 2016, and the Director approved that petition under the NYSDOT analytical framework on May 
26, 2016. On March 12, 2018, the Director issued a NOIR indicating that the record did not establish 
the Petitioner satisfied the requirements of the Dhanasar framework. The Petitioner responded to the 
NOIR with arguments and evidence addressing the Dhanasar framework, but the Director determined 
that he did not meet any of the three prongs set forth in that precedent decision. 
At issue in this matter is whether the Director had good and sufficient cause to issue the NOIR; 
specifically, whether "the evidence of record at the time the notice is issued, if unexplained and 
unrebutted, would warrant a denial of the visa petition based upon the petitioner's failure to meet his 
burden of proof." Matter of Ho, 19 I&N Dec. at 582 ( citing Matter of Estime, 19 I&N Dec. at 450). 
Because the instant petition had been approved in May 2016 and therefore was not pending 3 with 
USCIS when Dhanasar was issued on December 27, 2016, we are remanding for the Director to 
consider whether the Petitioner met his burden of proof with respect to the NYSDOT framework in 
place at the time the petition was approved. If after farther review the Director intends to revoke the 
approval of the instant petition, he must issue a new NOIR based on the evidentiary requirements that 
applied under NYSDOT and provide the Petitioner an opportunity to offer evidence in response. 
III. CONCLUSION 
We are remanding the petition for the Director to apply the NYSDOT analytical framework to determine 
whether the Petitioner has established eligibility for the benefit sought, or whether there is good and 
sufficient cause to issue a new NOIR. 
2 In the appeal briet: the Petitioner argues that he is eligible for EB-2 classification as an individual of exceptional ability. 
However, because the Petitioner qualifies for the underlying visa classification as a member of the professions holding an 
advanced degree, discussion of his eligibility as an individual of exceptional ability would serve no meaningful purpose. 
3 Any subsequent petitions filed by the Petitioner under this classification that were pending when Dhanasar was issued 
in December 2016, or that were filed after that date, should be considered under the newer framework. 
3 
Matter of M-E-T-
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 of M-E-T-, ID# 4636885 (AAO Oct. 25, 2019) 
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