remanded EB-2 NIW Case: Finance

U.S. Citizenship 
and Immigration 
Services 
In Re: 23791663 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 24, 2023 
Form 1-140, Immigrant Petition for Alien Worker (National Interest Waiver) 
The Petitioner, a financial manager, seeks second preference immigrant classification, 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) . 
The Director of the Texas Service Center denied the petition, concluding that 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 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 oJChawathe, 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. 53 7, 53 7 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 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. 
Section 10l(a)(32) of the Act provides that "[t]he term 'profession' shall include but not be limited to 
architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, 
colleges, academics, or seminaries." 
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. 
Profession means one of the occupations listed in section 10l(a)(32) of the Act, as well 
as any occupation for which a United States baccalaureate degree or its foreign 
equivalent is the minimum requirement for entry in the occupation. 
In addition to the definition of "advanced degree" provided at 8 C.F.R. § 204.5(k)(2), the regulation 
at 8 C.F.R. § 204.5(k)(3)(i)(B) provides that a petitioner 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." 
To demonstrate eligibility as an individual of exceptional ability, a pet1t10ner 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 (AAO 2016). Dhanasar states that after a petitioner has 
established eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) 
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may, as matter of discretion 1, 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. 2 
II. ANALYSIS 
A. Eligibility for the Requested Classification 
As stated above, the first step to establishing eligibility for a national interest waiver is demonstrating 
qualification for the underlying EB-2 visa classification. While we may agree with the Director's 
ultimate conclusion that the Petitioner has not established that a waiver of the required job offer would 
be in the national interest, it is appropriate to remand the matter because the Director did not make an 
initial determination as to whether the Petitioner qualifies as an individual of exceptional ability. 3 
The Petitioner asserted eligibility and submitted documentation for six of the regulatory criteria under 
8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). Although the Director issued a notice of intent to deny relating to 
the national interest portion, he did not request additional documentation or inform the Petitioner of 
any deficiencies in his claims of exceptional ability. The Director also did not address the Petitioner's 
exceptional ability claim in the denial. 
On remand, the Director should determine whether the Petitioner meets three of the criteria under 
8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). If so, the Director should then conduct a final merits determination 
to conclude whether the Petitioner has achieved a level of expertise significantly above that ordinarily 
encountered in business as required to qualify as an individual of exceptional ability. 
B. Dhanasar Analysis 
Regarding the Petitioner's remaining claims of eligibility under the Dhanasar analysis, we agree with 
the Director's ultimate conclusions. For example, regarding the national importance portion of the 
first prong, although the Petitioner's statements reflect his intention to continue working in his field 
in the United States, he has not offered sufficient information and evidence to demonstrate that the 
prospective impact of his proposed endeavor rises to the level of national importance. In Dhanasar, 
1 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 discretionary in nature). 
2 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
3 We note that in response to the notice of intent to deny (NOID), the Petitioner asserts that USCIS determined that the 
Petitioner is an advanced degree professional. Upon review of the NOTD, we do not find such a determination. Further, 
the Petitioner did not initially claim, and the record does not establish, that the Petitioner is an advanced degree 
professional. Although the Petitioner initially submitted a copy of his foreign bachelor's degree in business administration 
and transcripts, we must also look to letter(s) from the Petitioner's current or former employers to demonstrate that he has 
the required five years of progressive post-baccalaureate experience. 8 C.F.R. § 204.5(k)(3)(i)(B). While we have 
reviewed the letters of recommendation, they do not satisfy this regulatory requirements and, thus, we cannot conclude 
that the Petitioner is an advanced degree professional. 
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we determined that the petitioner's teaching activities did not rise to the level of having national 
importance because they would not impact his field more broadly. Id. at 893. Similarly, the record in 
this matter does not demonstrate that the Petitioner's proposed endeavor stands to sufficiently extend 
beyond his future employer(s) and clients such that it would impact U.S. interests or the financial 
industry more broadly at a level commensurate with national importance. In addition, he has not 
demonstrated that his specific proposed endeavor has significant potential to employ U.S. workers or 
otherwise off er substantial positive economic effects for our nation. 
III. CONCLUSION 
For the reasons discussed above, we are remanding the petition for the Director to consider whether the 
Petitioner qualifies for EB-2 classification, the threshold determination in national interest waiver 
cases. The Director may request any additional evidence considered pertinent to the new 
determination. 
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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