remanded EB-2 NIW Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 25691407 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 08, 2023 
Form 1-140, Immigrant Petition for Alien Worker (National Interest Waiver) 
The Petitioner, an information technology specialist, 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. § 1153(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 the national importance of the proposed 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 Christa'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. 
An advanced degree is any United States academic or professional degree or a foreign equivalent 
degree above that of a bachelor's degree. 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 a three­
prong framework for adjudicating national interest waiver petitions. Dhanasar states that U.S. 
Citizenship and Immigration Services (USCIS) 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. 
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 first 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 provided an official academic record establishing that he possesses a 
bachelor's degree in computer science from a Brazilian university, completed in December 2004. The 
Petitioner also provided an evaluation of his education and work experience prepared by a credentials 
evaluator. The evaluator concluded that (1) the Petitioner's foreign bachelor's degree is the academic 
equivalent of a U.S. baccalaureate degree, and (2) based on a review of the 16 years of work experience 
described in the Petitioner's resume, he possesses the equivalent of a master's degree in information 
technology. In a request for evidence (RFE), the Director advised that the Petitioner established his 
1 USCTS 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. 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 
eligiblity for classification as a member of the professions holding an advanced degree based on this 
evaluation and did not request additional evidence of his eligibility for EB-2 classification. 
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). The Petitioner did not provide sufficient evidence to meet this 
requirement. He provided: (1) a letter from his current Brazilian employer documenting his 
employment as an information technology (IT) solutions architect from September 2019 through 
January 2020; and (2) a letter from a previous employer documenting his employment as a product 
owner from February 2017 until February 2018. 
Although the Petitioner submitted other evidence intended to document his progressive post­
baccalaureate experience, it was not in the form of letters from his former employers, and therefore 
does not meet the requirements of 8 C.F.R. § 204.5(k)(3)(i)(B). Specifically, in addition to the above­
referenced evaluation, he provided: a letter from his accountant, who detailed the Petitioner's 
employment history since 2001, and a copy of his "Employment and Social Security Book" issued by 
the Brazilian Ministry of Labor, which identifies his employers, job titles and salaries from 2000 
through January 2009. 
Accordingly, the record as presently constituted does not contain sufficient evidence to support the 
Director's determination that the Petitioner is eligible for classification as a member of the professions 
holding an advanced degree. 
B. Exceptional Ability 
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. The Petitioner indicated at the time of filing that he was 
submitting evidence under each of the six regulatory criteria, and the Director has not yet reviewed 
this evidence. 
Therefore, we will remand the matter to the Director. 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). 
Prior to issuing a new decision, the Director may issue a new RFE to allow the Petitioner an 
opportunity to submit additional evidence of his progressive post-baccalaureate experience that 
complies with 8 C.F.R. § 204.5(k)(3)(ii) and/or additional evidence in support of his exceptional ability 
claim. 
3 
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 
withdraw the Director's conclusion that the Petitioner had not established eligibility under the first 
and third prongs of the Dhanasar framework. 
Further, we note that the Director's analysis of whether the Petitioner's proposed endeavor is of 
national importance, under the first prong, contains multiple references to a "business plan" submitted 
in response to the RFE. The record indicates that the Petitioner did not submit a business plan in 
response to the RFE. It is therefore unclear that the Director fully evaluated the RFE response, and 
that the Director's discussion of the business plan relates to the Petitioner. Further, the remainder of 
the Director's analysis of the Petitioner's eligibility under the Dhanasar framework contains few 
references to the evidence he provided in response to the RFE. 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 of M-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. 
4