remanded EB-2 NIW Case: Finance

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: APR. 30, 2024 In Re: 30626198 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a financial clerk, seeks classification as a member of the professions holding an 
advanced degree or in the alternative as an individual of exceptional ability in the sciences, arts or 
business. See 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. 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 Texas Service Center denied the petition in January 2023, concluding that the 
record did not establish that the Petitioner qualifies for the national interest waiver. The Petitioner 
filed a combined motion to reopen and reconsider. The Director dismissed the motion in September 
2023, stating that the filing did not meet the requirements for either type of motion. The matter is now 
before us on appeal under 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 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christa's, Inc., 26 I&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 qualify for a national interest waiver, a petitioner must first show eligibility 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. Section 203(b )(2)(B)(i) of the Act. 
Once a petitioner demonstrates EB-2 eligibility, they must then establish that they merit 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 I&N Dec. 884, 889 (AAO 2016), provides the framework for adjudicating national 
interest waiver petitions. Dhanasar states that USCIS may, as matter of discretion, 1 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. 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). A motion to reconsider must establish that the prior decision was based on an incorrect 
application of law or policy and that the decision was incorrect based on the evidence in the record of 
proceedings at the time of the decision. 8 C.F.R. § 103.5(a)(3). A motion that does not meet 
applicable requirements shall be dismissed. 8 C.F.R. § 103.5(a)(4). 
II. ANALYSIS 
The decision before us on appeal is not the January 2023 denial of the petition, but rather the 
September 2023 dismissal of the Petitioner's motion. Therefore, the question before us is whether the 
Director should have granted the motion. But we will also discuss certain aspects of the underlying 
petition and evidence in order to provide context for the motion and the Director's dismissal of that 
motion. 
The Petitioner's motion to reopen included hundreds of pages of exhibits, but nearly all of the material 
specific to the Petitioner consisted of copies of materials submitted previously. The sole exception is 
a February 2023 letter from the owner of a business in Florida who praised the Petitioner's "essential 
accounting knowledge" and who expressed a desire "to offer her an opportunity at our company." 
However, this letter describes work the Petitioner undertook after the petition's filing date and does 
not establish eligibility at the time of filing as required by 8 C.F.R. § 103.2(b)(l). 
The Petitioner identified other newly submitted materials as "Industry Reports," but they consist 
primarily of articles about business consulting and government communications about the U.S. 
economy. These materials provide general background information but no new facts specific to the 
Petitioner's proposed endeavor. 
For the above reasons, we agree with the Director that the motion to reopen did not include new facts, 
supported by documentary evidence, that would warrant reopening the petition. The Director properly 
dismissed the motion to reopen. 
We now tum to the dismissal of the Petitioner's motion to reconsider. In the January 2023 denial 
notice, the Director concluded that the Petitioner had not shown "that the proposed endeavor will 
impact the field more broadly at a level commensurate with national importance," and had "not 
provided consistent information regarding her proposed endeavor." But the Director did not discuss 
the proposed endeavor, or the Petitioner's evidence regarding it, in any detail. 
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). 
2 
On motion to reconsider, the Petitioner submitted a 64-page brief alleging "multiple errors m 
procedure and fact." Specifically, the Petitioner asserted: 
• The Director "did not address all the relevant evidence" in the record; 
• The Director did not explain why the Petitioner's evidence was insufficient; 
• The Director did not explain why the Petitioner's information about her proposed endeavor 
was inconsistent; 
• The Director cited incorrect information regarding the Petitioner's bachelor's degree, raising 
concerns about how thoroughly and carefully the Director reviewed the record; and 
• The Director did not address the second and third prongs of the Dhanasar national interest 
framework. 
The Petitioner cited case law establishing the importance of fully considering all the available 
evidence, and discussed aspects of the Petitioner's proposed endeavor that, the Petitioner asserted, the 
Director had overlooked when denying the petition. 
We agree with the Petitioner that the Director's January 2023 decision did not adequately detail and 
explain the grounds for denial of the petition. When denying a petition, the Director must explain the 
specific reasons for denial. See 8 C.F.R. § 103.3(a)(l)(i). The Director's January 2023 decision did 
not conform to this requirement. The lack of detail in the denial notice limited the Petitioner's 
opportunity to address specific deficiencies on appeal or motion. 
Although the Petitioner's motion brief discussed the Director's alleged errors at some length, 
supported by cited USCIS precedent, binding court decisions, and other authorities, the Director did 
not address these issues in the September 2023 decision dismissing the motion. Instead, the Director 
summarily asserted that the "motion does not ... give reasons for reconsideration supported by any 
pertinent precedent decisions." We will therefore remand the matter in order for the Director to issue 
a more thorough decision on the merits of the underlying petition. 
The Director's new decision should take into account important issues concerning the Petitioner's 
eligibility for the underlying EB-2 classification. 
One of the factual errors that the Petitioner alleges on motion is that the Director provided incorrect 
information about the Petitioner's educational background. Specifically, the Director concluded: 
"Evidence in the record reflects that the petitioner is an advanced degree professional based on 
his receipt of a Bachelor's degree in Accounting on July 10, 2005 from ________ and 
his more than five years of post-baccalaureate experience." On motion, the Petitioner observes that 
she earned a bachelor's degree in business administration in 2016 from a university in Brazil. These 
errors are particularly significant because they are practically the only specific facts cited in the 
original denial notice. 
But in acknowledging this error, a more fundamental question presents itself While the Director's 
discussion of the national interest waiver was minimal, the only reason that the Director engaged in 
that discussion at all was because the Director had determined that the Petitioner is eligible for the 
underlying EB-2 classification. That determination, however, is based on a set of facts that the 
Petitioner agrees is incorrect. The erroneous determination is particularly significant because if the 
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Petitioner does not establish eligibility for the EB-2 classification, then she cannot qualify for the 
national interest waiver. 
The Petitioner initially claimed eligibility as a member of the professions holding an advanced degree. 
An advanced degree is any United States academic or professional degree or a foreign equivalent 
degree above that of a bachelor's degree. A United States bachelor's degree or foreign equivalent 
degree followed by five years of progressive experience in the specialty is the equivalent of a master's 
degree. 8 C.F.R. § 204.5(k)(2). "Profession" is defined as of the occupations listed in section 
10l(a)(32) of the Act, 8 U.S.C. § l 10l(a)(32), 2 as well as any occupation for which a United States 
baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the 
occupation. 8 C.F.R. § 204.5(k)(2). 
In an October 2022 request for evidence (RFE), the Director observed that the Petitioner had 
documented less than the required five years of post-baccalaureate employment experience between 
2016 and 2019. Later, on motion, the Petitioner submitted a printout from the U.S. Bureau of Labor 
Statistics' Occupational Outlook Handbook, indicating that "[a] high school diploma is typically 
required for most financial clerk positions." This information appears to be directly relevant to the 
Petitioner's eligibility for classification as a member of the professions holding an advanced degree. 
Also in the RFE, the Director asked "if the petitioner can qualify for the national interest waiver as an 
alien of exceptional ability." To establish exceptional ability, a petitioner must initially submit 
documentation that satisfies at least three of six evidentiary criteria. 8 C.F.R. § 204.5(k)(3)(ii)(A)­
(F). 3 Meeting at least three criteria, however, does not, in and of itself, establish eligibility for this 
classification. 4 USCIS must then conduct a final merits determination to decide whether the evidence 
as a whole shows that the individual is recognized as having a degree of expertise significantly above 
that ordinarily encountered in the field. 
The Director discussed the six evidentiary criteria for exceptional ability at 8 C.F.R. § 204.5(k)(3)(ii): 
(A) An academic degree relating to the area of claimed exceptional ability; 
(B) Ten years of full-time experience in the occupation; 
(C) A license or certification for the profession or occupation; 
(D) A salary or other remuneration that demonstrates exceptional ability; 
(E) Membership in professional associations; and 
(F) Recognition for achievements and significant contributions to the industry or field. 
The Director concluded that the Petitioner had satisfied only one of the criteria, through her academic 
degree in business administration. 
2 The listed occupations are architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academics, or seminaries. 
3 If these types of evidence do not readily apply to the individual's occupation, a petitioner may submit comparable 
evidence to establish their eligibility. 8 C.F.R. § 204.5(k)(3)(iii). 
4 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 
In response to the RFE, the Petitioner claimed to satisfy three further regulatory exceptional ability 
criteria, relating to experience, licensure or certification, and recognition. The Director must consider 
the Petitioner's evidence and arguments and make an initial determination as to whether the Petitioner 
has established exceptional ability in the sciences, arts, or business. In making that determination, the 
Director should consider several issues. 
8 C.F.R. § 204.5(k)(3)(ii)(B) requires at least ten years of full-time experience in the occupation sought. 
In this instance, the Petitioner seeks employment as a financial clerk, and must therefore document ten 
years of experience as a financial clerk before the petition's filing date. The Petitioner has submitted 
employment letters spanning a period of over ten years, from April 20095 to October 2019, but the 
Director should not simply look at the range of dates. The Director must determine whether there were 
interruptions in the employment that would reduce the total length of employment below ten years; 
whether the letters specify that the employment was full-time; and whether the experience was in the 
occupation sought, i.e., financial clerk, rather than in other occupations. 
In the RFE, the Director stated that "the letters do not effectively document if the petitioner has the 
required ten years of foll-time experience in the occupation she seeks." The Director did not discuss 
the Petitioner's response to that RFE, because the issue was seemingly foreclosed by the Director's 
conclusion in the decision that the Petitioner qualifies as a member of the professions holding an 
advanced degree. As discussed above and acknowledged by the Petitioner, that conclusion was 
erroneously based on a fact pattern that does not apply to this case. 
The Petitioner claims a license to practice the profession or certification for a particular profession or 
occupation, as described at 8 C.F.R. § 204.5(k)(3)(ii)(C). In the RFE, the Director stated that the 
Petitioner must establish that the license or certification is required for the occupation the Petitioner 
seeks. The Director did not cite any source for the provision that a license or certification must be 
required for the specific profession or occupation. The regulation, as worded, imposes no specific 
requirements regarding the circumstances of the licensure or certification. The Director should only 
consider the circumstances of that license or certification in the context of a final merits determination. 
A final merits determination, in turn, would only occur if the Director concludes that the Petitioner 
has satisfied three or more exceptional ability criteria. 
Furthermore, the regulations define "exceptional ability" as "a degree of expertise significantly above 
that ordinarily encountered in the sciences, arts, or business." 8 C.F.R. § 204.5(k)(2). In the event 
that the discussion of exceptional ability reaches a final merits determination, the Director should then 
consider factors such as the requirements to obtain a given license or certification. A credential that 
is universally held, or nearly so, within a given occupation or profession would tend to have less weight 
than a more selective credential based on achievement or ability, because a credential that all or most 
individuals have in a given occupation or profession would not serve to distinguish exceptional 
individuals from others. 
The Petitioner also submitted letters from former employers, stating that these letters constitute 
evidence ofrecognition for achievements and significant contributions to the industry or field by peers, 
governmental entities, or professional or business organizations under 8 C.F.R. § 204.5(k)(3)(ii)(F). In 
5 The Petitioner was 14 years old in April 2009. 
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the RFE, the Director generally stated that "support letters which discuss the petitioner's accomplishments 
over the years . . . [do] not establish that she meets this criterion." The Petitioner disputed this 
characterization in the RFE response. 
In considering the letters, the Director should bear in mind that the language of the regulation calls for 
"evidence ofrecognition for achievements and significant contributions to the industry or field." As such, 
materials that identify an individual's achievements but not significant contributions to the industry or 
field cannot suffice to satisfy the regulatory requirements. See Matter ofEcheverria, 25 I&N Dec. 512, 
518 (BIA 2011) (holding that the use of the conjunction "and" in a series of regulatory requirements "is 
a clear indication" that one "must satisfy each of the [listed] requirements"). The burden is on the 
Petitioner to establish that benefit to her former employers constituted significant contributions to the 
industry or field. 
III. CONCLUSION 
On motion, the Petitioner correctly raised concerns about the lack of detail in the Director's denial 
notice, and the Director dismissed the Petitioner's motion without addressing those concerns. The 
Director's initial determination regarding the Petitioner's eligibility for EB-2 classification relied on 
an incorrect fact pattern, and contradicted information in the RFE that more accurately reflected the 
facts in the record. The Director must issue a new decision taking these factors fully into account. 
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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