remanded EB-2 NIW Case: Hazardous Waste Management

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: AUG . 10, 2023 In Re: 27260353 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner , a hazardous waste management consultant , seeks employment-based second 
preference (EB-2) immigrant classification as a member of the professions holding an advanced degree 
and 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. § l 153(b )(2). 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner qualified 
for classification as a member of the professions possessing an advanced degree , but that he had not 
established he is well positioned to advance the endeavor and 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 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. 8 C.F.R. § 204.5(k)(2). Alternatively , a 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 ofletters 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) . 
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. 1 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 I&N Dec. 884, 889 (AAO 2016) provides the 
framework for adjudicating national interest waiver petitions. Dhanasar states U.S. Citizenship and 
Immigration Services (USCIS) may, as matter of discretion, 2 grant a national interest waiver if the 
petitioner shows: 
• 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. 3 
II. ANALYSIS 
As noted, the Director determined that the Petitioner, who claims eligibility for the EB-2 classification as 
both an advanced degree professional and as an individual of exceptional ability, qualifies as a member 
of the professions holding an advanced degree. However, the Director determined that the record did not 
establish his eligibility under the second and third prongs of the Dhanasar framework, and therefore 
found him ineligible for a waiver of the job offer requirement. 
For the reasons discussed below, we will withdraw the Director's decision and remand the matter to the 
Director for entry of a new decision. 
A. Member of the Professions Holding an Advanced Degree 
We withdraw the Director's determination that the Petitioner is a member of the professions holding an 
advanced degree. The Petitioner submitted an official academic record establishing that he possesses a 
bachelor's degree in architecture from a Colombian university, completed in 1988. The Petitioner also 
provided an evaluation of his education by a credentials evaluator. The evaluator concluded that the 
Petitioner's foreign bachelor's degree is the academic equivalent of a U.S. baccalaureate degree. In the 
denial decision, the Director stated that the Petitioner "submitted evidence with Form I-140 which 
establishes [he] has completed his Bachelor of Architecture and thus qualifies as a member of the 
1 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of aliens of 
exceptional ability. See generally, 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual/volume-6-
part-f-chapter-5. 
2 See also Poursina v. USC1S, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionmy in nature). 
3 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
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professions holding an advanced degree. Therefore, at this time, USCIS does not need to evaluate 
whether [he] also qualifies as an alien of exceptional ability." 
However, as noted, an individual who does not possess a U.S. academic or professional degree or 
foreign equivalent above that of a bachelor's degree must provide, in the alternative, evidence of a 
bachelor's degree or its foreign equivalent and "evidence in the form ofletters from current or former 
employer(s)" showing their five years of progressive post-baccalaureate experience in the specialty. 
8 C.F.R. § 204.5(k)(3)(i)(B). At the time of filing, the Petitioner submitted evidence intended to show 
his progressive post-baccalaureate experience, in the form of letters from his former employers 
documenting his employment. The Director has not yet reviewed this evidence. 
Therefore, we will remand the matter to the Director. On remand, the Director should consider 
whether the submitted evidence of the Petitioner's progressive post-baccalaureate experience 
complies with 8 C.F.R. § 204.5(k)(3)(i)(B) and establishes his eligibility for classification as a member 
of the professions possessing an advanced degree under section 203(b )(2) of the Act. If the Director 
concludes that the Petitioner is not an advanced degree professional, he should then determine whether 
the Petitioner qualifies as an individual of exceptional ability. 
B. Exceptional Ability 
As stated, the Director's decision did not address, in the alternative, whether the Petitioner satisfies at 
least three of the six regulatory criteria at 8 C.F.R. § 204.5(k)(3)(ii) and has achieved the level of 
expertise required for exceptional ability classification. In a cover letter accompanying the petition, 
counsel for the Petitioner indicated that they were submitting evidence that the Petitioner also qualifies 
as a professional with an Exceptional Ability in logistics and operations management as follows: 
1) Evidence of [his] Certificates and Professional memberships; 
2) [His] Degrees and Certificates [] in the field; 
3) Evidence of [his] Work Experience[]; and 
4) Articles of Organization[] for I I illustrating [his] role as a legal 
representative of the company. 
The Director has not yet reviewed this evidence. 
On remand, the Director should consider the Petitioner's evidence to determine if he has met three of 
the regulatory criteria at 8 C.F.R. § 204.5(k)(3)(ii). If so, the Director should then conduct a final merits 
determination to conclude whether the Petitioner has achieved the level of expertise significantly above 
that ordinarily encountered for exceptional ability classification. See 8 C.F.R. § 204.5(k)(2). 
C. National Interest Waiver 
While the Director concluded that the Petitioner did not establish that a waiver of the required job offer 
would be in the national interest, the Petitioner must first demonstrate qualification for the underlying 
EB-2 visa classification, as either an advanced degree professional or as an individual of exceptional 
ability. Since the Director's determination of this first threshold requirement is withdrawn, we also 
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withdraw the Director's conclusion that the Petitioner had not established eligibility under the second 
and third prongs of the Dhanasar framework. 
Further, as the Petitioner emphasizes on appeal, the Director's analysis of the Petitioner's eligibility 
under the Dhanasar framework contains few references to the evidence he provided in his initial 
submission and in response to the Director's request for evidence. An officer must fully explain the 
reasons for denying a visa petition to allow the 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 ofM-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, if the Director determines the Petitioner demonstrates qualification for the underlying 
EB-2 visa classification, he should issue a new national interest waiver determination after considering 
all previously submitted evidence, including the Petitioner's claims on appeal. 
III. CONCLUSION 
We are remanding the petition for the Director to reconsider whether the Petitioner has satisfied the 
eligibility requirements for classification as a member of the professionals holding an advanced degree 
or, in the alternative, as an individual of exceptional ability. In addition, the Director should properly 
apply all three prongs of the Dhanasar analytical framework to determine if the Petitioner has 
established that a waiver of the job offer requirement would be in the national interest. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for entry of a new 
decision consistent with the foregoing analysis. 
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