remanded EB-2 NIW Case: Finance

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JUN. 29, 2023 In Re: 27439633 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an investment and financial advisor, seeks employment-based second preference (EB-
2) immigrant classification as a member of the professions holding an advanced degree or an 
individual of exceptional ability, as well as a national interest waiver of the job offer requirement 
attached to this classification. See Immigration and Nationality Act (the Act) section 203(b )(2), 
8 U.S.C. § ll 53(b )(2). 
The Director of the Texas Service Center denied the petition, concluding that while the Petitioner is 
eligible for the EB-2 classification as a member of the professions holding an advanced degree, the 
record did not establish that he is eligible for, and merits as a matter of discretion, a national interest 
waiver. 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 a preponderance of the evidence. 
Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo '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 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. Section 203(b )(2)(B)(i) of the Act. 
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). 
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). 1 Meeting 
at least three criteria, however, does not, in and of itself: establish eligibility for this classification. 2 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. 
If a petitioner demonstrates eligibility for the underlying EB-2 classification, 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 T&N Dec. 884, 889 (AAO 2016), provides the 
framework for adjudicating national interest waiver petitions. Dhanasar states that U.S. Citizenship 
and Immigration Services (USCIS) may, as matter of discretion 3, 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. EB-2 CLASSTFICA TION 
The Petitioner initially claimed eligibility as an individual of exceptional ability. Because the Director 
determined that he qualified as a member of the professions holding an advanced degree, she did not 
evaluate his eligibility as an individual of exceptional ability. Per the discussion below, on remand 
the Director should focus on the latter when issuing her new decision. 
A. Member of the Professions Holding an Advanced Degree 
The Director determined that the Petitioner holds a Bachelor of Finance degree, and that this was 
sufficient to establish his eligibility as a member of the professions holding an advanced degree. We 
disagree and withdraw the Director's conclusion per the analysis below. 
The Petitioner submitted a properly translated copy of his diploma and transcripts from ~ 
University I I which show that after four semesters of study he completed the management 
technician program. An "Evaluation of Education, Training, and Experience" in the record concludes 
that this diploma represents the equivalent of one year of academic studies towards the attainment of 
a Bachelor of Science degree in finance from an accredited college or university in the United States. 
It then considers this diploma in combination with the Petitioner's training and work experience in 
financial management to conclude that he holds the foreign equivalent of a bachelor's degree in 
finance from an accredited institution of higher education in the United States. 
1 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). 
2 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of aliens of 
exceptional ability. 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5. 
3 See also Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionmy in nature). 
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The plain language of the regulations, however, indicates that an advanced degree equivalency must 
include a single bachelor's degree, without substituting experience for education or combining lesser 
educational credentials. The regulations require five years ofprogressive experience to follow"[ a] United 
States baccalaureate degree or a foreign equivalent degree." 8 C.F.R. § 204.5(k)(2). 
Also, when introducing the EB-2 regulations, the former Immigration and Naturalization Service (INS) 
explained that "the proposed rule does not provide a procedure to allow experience alone to substitute for 
either a baccalaureate degree or an advanced degree." Proposed Rule on Employment-Based Petitions, 
56 Fed. Reg. 30703, 30706 (July 15, 1991). In response to stakeholder input, the INS reviewed the 
Immigration Act of 1990 Act and found the proposed regulations consistent with Congressional intent. 
The INS stated: 
[B]oth the Act and its legislative history make clear that, in order to qualify as a 
professional under the third classification or to have experience equating to an 
advanced degree under the second, an alien must have at least a bachelor's degree. 
INS Final Rule on Employment-Based Petitions, 56 Fed. Reg. 60897, 60900 (Nov. 29, 1991) 
(emphasis added). Thus, an advanced degree professional must have at least a U.S. bachelor's degree 
or a single foreign degree equivalent. 
Here, the evaluation states that the Petitioner's degree is not equivalent to a U.S. bachelor's degree, 
and that the determination that he possesses the foreign equivalent of a U.S. bachelor's degree is based 
on a combination of education, training and experience. The record therefore does not establish the 
Petitioner's qualification as an advanced degree professional. 
B. Individual of Exceptional Ability 
As noted above, the Director did not evaluate the Petitioner's eligibility as an individual of exceptional 
ability in her decision. On remand, the Director should consider whether the Petitioner meets the three 
criteria under 8 C.F.R. § 204.5(k)(3)(ii) that he initially claimed. If she determines that he meets those 
three criteria, the Director must then consider the totality of the evidence to evaluate whether the 
Petitioner is recognized as having a degree of expertise significantly above that ordinarily encountered 
in his field. In doing so, the Director should consider, among other factors, whether the Petitioner's 
education and certifications are above the minimum standards for his profession as indicated in the 
documentary evidence in the record. Also, as the Director did not address these issues in her request 
for evidence or her denial decision, she should afford the Petitioner the opportunity to address any 
deficiencies in the evidence relating to the criteria and the final merits determination by issuing a 
second request for evidence if needed. 
IV. NATTONAL INTEREST W AIYER 
The Director determined in her decision that the Petitioner was not eligible for, and did not otherwise 
merit, a national interest waiver. However, her decision lacks any analysis of the evidence under the 
three prongs of the Dhanasar analytical framework. An officer must fully explain the reasons for 
denying a visa petition to allow a petitioner a fair opportunity to contest the decision and to allow 
us an opportunity for meaningful appellate review. See 8 C.F.R. § 103.3(a)(l)(i); see also Matter 
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of M-P-, 20 I&N Dec. 786 (BIA 1994) (finding that a decision must fully explain the reasons for 
denying a motion to allow the respondent a meaningful opportunity to challenge the determination 
on appeal). On remand, the Director should consider all of the evidence in a manner consistent with 
the analysis below, and articulate her analysis in the new decision. 
A. Substantial Merit and National Importance 
The first prong, substantial merit and 
national importance, focuses on the specific endeavor that the 
individual 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. 
Dhanasar, 26 I&N Dec. at 889. 
The Director concluded that the Petitioner's proposed endeavor is of both substantial merit and 
national importance, but did not provide an analysis or explain the reasoning behind those conclusions. 
As the Director did not identify the nature of the Petitioner's proposed endeavor at all in her decision, 
it is unclear how she determined its substantial merit and national importance. 
The Petitioner indicated that his proposed endeavor is to continue to work as a financial and investment 
advisor for his current employer, focusing on serving wealthy individuals from Latin America. He 
submitted several articles regarding wealth management and foreign direct investment in the United 
States. We agree that this evidence is sufficient to show that the Petitioner's proposed endeavor of 
providing wealth and financial management advice to clients from abroad seeking to invest in the 
United States is of substantial merit. 
Turning to the national importance of his proposed endeavor, the Petitioner asserted that the potential 
prospective impact of his proposed work would lead to job creation and economic growth in the United 
States, beyond the direct impact to the clients he proposes to serve. On remand, the Director should 
evaluate whether the record includes sufficient detail regarding the Petitioner's proposed endeavor to 
support these assertions. In addition, when evaluating the Petitioner's claims and the evidence 
submitted in support of these claims, 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 national importance of the 
overall field of wealth and financial management. Further, the Director must articulate her reasoning 
in her decision. 
B. Well Positioned to Advance the Proposed Endeavor 
The second prong shifts the focus from the proposed endeavor to the individual. To determine whether 
they are well positioned to advance the proposed endeavor, 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. Id. at 890. 
In her decision, the Director listed letters of recommendation and the Petitioner's degree as the 
evidence submitted in support of this prong. We note that this does not comprise the totality of the 
evidence in the record regarding his positioning to advance his proposed endeavor. Also, while the 
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Director listed the factors noted above, she did not analyze the evidence in light of those factors, but 
provided only conclusory statements. On remand, the Director should consider all of the evidence 
submitted in support of the Petitioner's ability to advance his proposed endeavor, including evidence 
of his further training and expert opinion letters, and articulate whether that evidence shows or fails to 
show that he is well positioned to advance his endeavor. 
C. Whether on Balance a Waiver is Beneficial 
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. 
Id. at 890-91. 
The Director concluded in her decision that the Petitioner had not submitted documentary evidence in 
support of this prong of the Dhanasar framework. On remand, the Director should evaluate the 
Petitioner's arguments regarding this criterion, including those made on appeal, and determine 
whether the record supports those arguments and establishes that a waiver of the job offer requirement 
would be beneficial to the United States. 
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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