remanded EB-2 NIW Case: Food Manufacturing And Distribution

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 25, 2024 In Re: 29549088 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an entrepreneur and chief executive officer who intends to establish a food 
manufacturing and distribution business, seeks employment-based second preference (EB-2) 
immigrant classification as 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. § 1153(b )(2). 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish 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 of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). While we conduct de novo review on 
appeal, Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015), we conclude that a remand 
is warranted in this case because the Director's decision is insufficient for review. The decision lacks 
analysis and discussion of the evidence in the record and reaches conclusory findings with respect to 
the Petitioner's eligibility for the requested national interest waiver. Accordingly, we will withdraw 
the Director's decision and remand the matter for entry of a new decision consistent with the following 
analysis. 
To establish eligibility for a national interest waiver, a petitioner must first demonstrate qualification 
for the underlying EB-2 visa classification as either a member of the professions holding an advanced 
degree or an individual of exceptional ability in the sciences, arts, or business. Section 203(b )(2)(B)(i) 
of the Act. 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). 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. 
Although the Petitioner submitted evidence to establish that he met five (of the six) criteria at 8 C.F.R. 
§ 204.5(k)(3)(ii)(A)-(F), the Director did not make a determination with respect to whether the 
Petitioner qualifies for EB-2 classification as an individual of exceptional ability. 1 The Director 
observed in a request for evidence (RFE) that the Petitioner's initial evidence satisfied the criteria at 
8 C.F.R. § 204.5(k)(3)(ii)(A) and (E), but did not address his response to the RFE, which included 
additional evidence relating to the criteria at 8 C.F.R. § 204.5(k)(3)(ii)(B), (E) and (F). 
On remand, the Director should evaluate the Petitioner's evidence and determine ifhe has met at least 
three of the above criteria. If the Petitioner is found to meet at least three criteria, the Director must 
then conduct a final merits determination and review the evidence in its totality to determine if he has 
established he possesses a degree of expertise significantly above that ordinarily encountered in his 
field. See generally, 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual 
( describing the two-step evidential review process used in determinations for exceptional ability 
petitions). 
Once a petitioner demonstrates eligibility for the underlying classification, the petitioner must then 
establish eligibility for 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 we may, as matter 
of discretion, 2 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. 
The Director determined, without discussion of the submitted evidence, that the Petitioner did not meet 
his burden to establish the substantial merit and national importance of his proposed endeavor, and 
that on, balance, it would benefit the United States to waive the job offer requirement. While the 
Director generally listed some of the types of evidence the Petitioner submitted, the decision does not 
explain why such evidence was determined to be insufficient to meet the first and third prongs under 
the framework established in Dhanasar. For example, in addressing the "substantial merit" element 
of the first prong, the Director provided only a conclusory statement, noting, "the evidence does not 
support the petitioner's statement that the proposed endeavor has substantial merit." Further, the 
Director did not reach a determination regarding whether the Petitioner established that he is well­
positioned to advance the proposed endeavor under the second prong. 
On appeal, the Petitioner asserts that the Director's decision does not explain the specific reasons for 
denial, noting that the lack of clarity leaves him "unable to address or rectify the perceived 
inadequacies that led to the negative outcome." 
1 The Petitioner did not submit evidence to establish that he qualifies for EB-2 classification as a member of the professions 
holding an advanced degree. 
2 See also Poursina v. USC1S, 936 F.3d 868 (9th Cir. 2019) (finding the U.S. Citizenship and Immigration Service's 
decision to grant or deny a national interest waiver to be discretionary in nature). 
2 
We agree with the Petitioner's assertion that the decision is deficient. An officer must fully explain 
the reasons for denying a visa petition. See 8 C.F.R. § 103.3(a)(i). Furthermore, a decision denying a 
benefit must include the specific reasons for denial and sufficiently explain the underlying deficiencies 
to allow a petitioner a fair opportunity to contest the decision and to allow us an opportunity for 
meaningful appellate review. See, e.g., Matter ofM-P-, 20 I&N Dec. 786 (BIA 1994) (finding that 
the reasons for denying a motion must be clear to allow the affected party a meaningful opportunity 
to challenge the determination on appeal). Here, the decision did not meet these requirements. 
For the above reasons, we will withdraw the Director's decision and remand this matter for further 
consideration and entry of a new decision. On remand, the Director should review the entire record, 
including the Petitioner's appeal, and determine whether he has established eligibility for both the 
underlying EB-2 classification as an individual of exceptional ability and each of the three prongs of 
the Dhanasar framework. The Director may request any additional evidence considered pertinent to 
the determination prior to issuing a new decision. 
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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