remanded EB-2 NIW Case: Finance And Investment

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date : AUG . 15, 2023 In Re: 27421205 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Worker (National Interest Waiver) 
The Petitioner, a financial and investment analyst, 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 immigrant 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 qualified 
for the EB-2 classification as a member of the professions holding an advanced degree, but 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 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. Section 203(b )(2)(B)(i) of the Act. 
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. 
In order to qualify as an individual of exceptional ability in the sciences, the arts, or business, 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). Meeting at least three criteria, however, does not, in and of itself: 
establish eligibility for this classification. 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 as either a member of the professions holding an advanced 
degree or an individual of exceptional ability, 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 (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, 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 the proposed endeavor; and 
• On balance, waiving the requirements of a job offer and a labor certification would benefit the 
United States. 
II. ANALYSIS 
The Petitioner's proposed endeavor is to provide advisory and support services in implementing a 
standardized risk management system for small and 
medium businesses in the United States. 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. 
A. Eligibility for EB-2 Classification 
The Director indicated in the request for evidence (RFE) that in order to qualify as a member of the 
professions holding an advanced degree, the Petitioner must submit an academic evaluation to 
demonstrate that his foreign degrees are equivalent of the U.S. advanced degrees. The Petitioner 
submitted his diplomas and academic transcripts from the j IUniversityl lwith a 
degree of "Graduate Industrial Engineer" and thel IUniversityl lwith a degree of 
"Magister in Business Administration" in Colombia. However, the Petitioner did not submit a foreign 
equivalency evaluation in his RFE response and thus, did not establish that he possesses the equivalent 
of U.S. bachelor's and master's degrees. 
Therefore, we withdraw the Director's conclusion that the Petitioner met the EB-2 classification as an 
advanced degree professional. On remand, the Director should analyze the evidence in the record and 
1 See also Poursina v. USC1S, No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or 
deny a national interest waiver to be discretionary in nature). 
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determine whether the Petitioner has established that he is qualified for the requested classification as 
a member of the professions holding an advanced degree pursuant to 8 C.F.R. § 204.5(k)(2). 
The Director also indicated in the RFE that the Petitioner must submit documents to demonstrate that 
he meets three of the six criteria under 8 C.F.R. § 204.5(k)(3)(ii) to qualify as an individual of 
exceptional ability. However, the Director did not make a finding on this issue. On remand, the 
Director should evaluate the record to find whether the Petitioner meets three of the six criteria listed 
at 8 C.F.R. § 204.5(k)(3)(ii) and consider the totality of the evidence in determining whether the 
Petitioner possesses a degree of expertise significantly above that ordinarily encountered in his field, 
and thus qualifies as an individual of exceptional ability. 
B. National Interest Waiver 
The first prong of the Dhanasar analysis, which considers the substantial merit and national 
importance of the proposed endeavor, 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 initially identified the Petitioner's endeavor as the financial and investment analyst and 
determined that the Petitioner's proposed endeavor was of substantial merit. The Petitioner described 
his proposed endeavor as implementing standardized risk management systems for small and medium 
sized entrepreneurs in the United States and explained the need for such endeavor, especially given 
the significant number of business closings during the pandemic. As the Petitioner provided sufficient 
details regarding this, we agree with the Director that his endeavor has substantial merit. 
However, the Director's decision regarding the national importance of the Petitioner's proposed 
endeavor contains a critical error which must be addressed on remand. Specifically, in discussing the 
broader implications of the proposed endeavor, the Director stated that the Petitioner did not 
demonstrate his work "would have broader implications for the medical field." As the Petitioner's 
proposed endeavor does not involve the medical field, but the area of finance and risk management, 
on remand the Director should consider the evidence in the record (including the evidence submitted 
with the Petitioner's appeal) to determine whether this specific proposed endeavor is of national 
importance. 
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. 
The Director concluded that the Petitioner is not well positioned to advance the proposed endeavor. 
However, the Director erroneously state that the Petitioner is "not well positioned to advance her 
proposed endeavor to be a nurse practitioner for an ill patient." The record shows that the Petitioner 
is a financial and investment analyst, not as a nursing practitioner. On remand, the Director should 
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apply the second prong factors in Dhanasar to the facts contained in the record to determine whether 
the Petitioner is well positioned to carry out the endeavor as a financial and investment analyst 
providing risk assessment to small and medium businesses. 
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 stated that the Petitioner's endeavor "as a Financial Analyst for one client" would not 
produce the widespread benefits to the United States. However, the Petitioner stated that he will 
intervene and advise small and medium businesses, not just one client. On remand, the Director should 
re-evaluate the Petitioner's claims under the third prong of the Dhanasar framework in light of the 
revised analysis of the first two prongs per the discussion above. 
C. Required Initial Evidence 
The Director further determined that the Petitioner did not submit Form ETA-750B, Statement of 
Qualifications of Alien, pursuant to 8 C.F.R. § 204.5(k)(4)(ii). With the appeal, the Petitioner submits 
a completed and signed Form ETA-750B. As the Director did not have an opportunity to review this 
new evidence, we remand the matter back to the Director to consider it with the other evidence on 
record. 
III. CONCLUSION 
The Director's decision is withdrawn. The matter is remanded for the entry of a new decision 
consistent with the foregoing analysis. The Director should issue a new decision regarding the 
Petitioner's eligibility for the underlying EB-2 visa classification and for a national interest waiver 
with an analysis of the evidence to support each conclusion. The Director may request any additional 
evidence considered pertinent to the new determination and any other issue. As such, we express no 
opinion regarding the ultimate resolution of this case on remand. 
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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