remanded EB-2 NIW Case: Gastronomy

U.S. Citizenship 
and Immigration 
Services 
In Re : 16226054 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JUL. 14, 2021 
Form I-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner seeks second preference immigrant classification as a member of the professions 
holding an advanced degree or as an individual of exceptional ability, 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. 
On appeal, the Petitioner submits additional documentation and a brief asserting that he is eligible for 
a national interest waiver. 
In these proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit 
sought. Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will remand the matter to 
the Director for further action and consideration. 
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, aiis, professions, or business are sought by an employer in the United 
States. 
(B) Waiver of job 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. 
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 addition, the regulation at 8 C.F.R. § 204.5(k)(3)(ii) sets forth the specific evidentiary requirements 
for demonstrating eligibility as an individual of exceptional ability. A petitioner 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). 1 Dhanasar states that after a petitioner has 
established eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) 
may, as matter of discretion 2, 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. 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 I&NDec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
2 See also Poursina v. USCJS, No. 1 7-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USC IS' decision to grant or 
deny a nationalinterestwaiverto be discretionaiy in nature). 
2 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
foreign national 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. 
The second prong shifts the focus from the proposed endeavor to the foreign national. To determine 
whether he or she is well positioned to advance the proposed endeavor, we consider factors including, 
but not limited to: the individual's 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. 
The third prong requires the 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, USCIS may evaluate factors such as: whether, in light of the nature of the foreign 
national's qualifications or the proposed endeavor, it would be impractical either for the foreign 
national to secure a job off er or for the petitioner too btain a labor ce1iification; whether, even assuming 
that other qualified U.S. workers are available, the United States would still benefit from the foreign 
national's contributions; and whether the national interest in the foreign national's contributions is 
sufficiently urgent to warrant forgoing the labor certification process. In each case, the factor(s) 
considered must, taken together, indicate 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. 3 
II. ANALYSIS 
At initial filing, the Petitioner provided documentation labeled, "Advanced Degree." In his initial 
cover letter, the Petitioner claimed eligibility for classification as an individual of exceptional ability 
and discussed the applicable regulatory criteria. The Director's decision, however, does not reflect 
that he made a determination whether the Petitioner qualified 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. In addition, the decision does not provide a proper analysis of the 
documentation or a sufficient discussion explaining the Petitioner's eligibility for a national interest 
waiver under the Dhanasar analytical framework. 
A. Member of the Professions Holding an Advanced Degree 
In order to qualify as a member of the professions, an individual must meet "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 into the 
occupation." 8 C.F.R. 204.5(k)(2). 4 Further, in order to show an individual holds an advanced degree, 
the petition must be accompanied by"[ a ]n official academic record showingthatthe alien has a United 
3 SeeDhanasar, 26l&NDec. at 888-91, for elaboration on these three prongs. 
4 Section 1 0l(a)(32) of the Act states "[t ]he term 'profession' shall include but not limited to architects, engineers, lawyers, 
physicians, surgeons, and teachers in elementary or secondary schools, colleges, academics, or seminaries." 
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States advanced degree or a foreign equivalent degree." 8 C.F.R. § 204.5(k)(3)(i)(A). Alternatively, 
the Petitioner may 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." 8 C.F.R. § 204.5(k)(3)(i)(B). 
The Director's decision does not determine whether the Petitioner's occupation, "an entrepreneur within 
the field of gastronomy, culture, and economic development in the food industiy generally," 5 qualifies as 
a member of the professions. In addition, the Director does not conclude whether the Petitioner's 
"DIPLOMA" (1992) as a "PUBLICITY TECHNICIAN" from thel !Business School 
qualifies as either a foreign equivalent degree above that of baccalaureate or as a foreign equivalent of a 
baccalaureate degree followed by at least five years of progressive experience in the specialty. As such, 
the Director did not decide whether the Petitioner is a member of the professions holding an advanced 
degree. 
B. Exceptional Ability 
The Petitioner asse1ied eligibility and submitted documentation for five of the regulatory criteria under 
8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). 6 He also claimed comparable evidence under 8 C.F.R. 
§ 204.5(k)(3)(iii). 
The Director's decision, however, does not address whether the Petitioner satisfied at least three of the 
six regulatory criteria at 8 C.F.R. § 204.5(k)(3)(ii) or has provided sufficient comparable evidence, and 
has achieved the level of expertise required for exceptional ability classification. Accordingly, the 
Director did not determine whether the Petitioner established eligibility as an individual of exceptional 
ability. 
C. National Interest Waiver 
The remaining issue is whether the Petitioner has established that a waiver of the requirement of a job 
offer, and thus a labor certification, would be in the national interest. 
1. Substantial Merit and National Importance of the Proposed Endeavor 
The Director lists documentation and states that the evidence does "not support that the proposed 
endeavor has substantial merit," and "the petitioner has not established that the proposed endeavor is of 
national importance." The decision, however, does contain a proper analysis of the documentation or 
a sufficient discussion explaining why the Petitioner does not meet this prong of the Dhanasar 
framework. 
5 Sec the Petitioner's "Professional Plan & Statement" submitted in response to theDirector'srequestforevidence. 
6 The Petitioner did not claim eligibility for the license criterion under 8 C.F .R. § 204 .5(k)(3)(ii)(C). 
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2. Well Positioned to Advance the Proposed Endeavor 
Relating to Dhanasar's second prong, the Director indicated that the Petitioner "has proven he has 
years of experience as an entrepreneur and provided sufficient evidence to show that [he] is well 
positioned to advance the proposed endeavor." However, the decision does not identify the evidence 
and sufficiently explain how this determination was based. 
3. Balancing Factors to Determine Waiver's Benefit to the United States 
With respectto prong three of the Dhanasarprecedent decision, the Director's decision states that "[t]he 
petitioner has submitted sufficient evidence to show that he has had some success in the 
entrepreneurship," but "the petitioner has not submitted evidence that it would be impractical for that 
business to seek the labor certification process, that the proposed endeavor is so urgent to waive the 
labor certification process, or that the endeavor would be beneficial to the United States." The 
Director's decision does not show that it addressed the Petitioner's arguments and evidence submitted 
at time of initial filing and in response to the RFE and notice of intent to deny. Without a proper 
evaluation of the evidence in accordance with the factors identified in the Dhanasar precedent 
decision, the Director's determination regarding prong three was in error. 
III. CONCLUSION 
To meet the requirements for a national interest waiver, an individual must first qualify for the 
underlying EB-2 visa classification. We are therefore remanding the petition for the Director to 
consider whether the Petitioner has satisfied the eligibility requirements for classification as a member 
of the professions holding an advanced degree or as an individual of exceptional ability. In addition, 
the Director should properly apply all three prongs of the Dhanasar analytical framework to make a 
determination as to whether the Petitioner has established that a waiver of the requirement of a job 
off er, and thus a labor certification, would be in the national interest. As such, we will remand the 
matter for further consideration of the record, including claims and documentation submitted on 
appeal, and entry of a new decision. 7 
ORDER: The decision of the Director is withdrawn. The matter is remanded for further 
proceedings consistent with the foregoing opinion and for the entry of a new decision which, if 
adverse, shall be certified to us for review. 
7 We have the authority to withdraw a decision and remand the case for further action, with an order that it be certified 
back to us if the new decision is adverse to the affected party. 1 USCIS Policy Manual F, 
https://www.uscis.gov/policymanual. This order is notmeantto compelapprovalofthe remanded case, bu tis designed to 
preserve the affected party's ability to seek appellate review without payment of a second appeal fee. Id. 
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