remanded EB-2 NIW Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: AUG. 01, 2024 In Re: 31281910 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Worker (National Interest Waiver) 
The Petitioner, an information technology consultant, seeks employment-based second preference 
(EB-2) 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 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 the proposed endeavor is nationally important, that the Petitioner was well-positioned to 
advance the proposed endeavor, or that it would be beneficial to the United States to waive the 
requirements of a job offer and labor certification. 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 l&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. 
An advanced degree is any United States academic or professional degree or a foreign equivalent 
degree above that of a bachelor's degree. A United States bachelor's degree or foreign equivalent 
degree followed by five years of progressive experience in the specialty is the equivalent of a master's 
degree. 8 C.F.R. § 204.5(k)(2). 
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) . 1 Meeting 
at least three criteria, however, does not, in and of itself, establish eligibility for this classification. 2 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 that U.S. Citizenship 
and Immigration Services (USCIS) may, as matter of discretion,3 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. 
IL EB-2 CLASSIFICATION 
As stated above, the first step to establishing eligibility for a national interest waiver is demonstrating 
qualification for the underlying EB-2 visa classification. Here, the Director's decision did not make 
an initial determination regarding the Petitioner's eligibility in this threshold first step. 
The Petitioner submitted evidence with the initial petition to establish his qualifications as an 
individual of exceptional ability. The Petitioner did not submit evidence regarding an advanced 
degree, nor did he claim to possess one. In the Request for Evidence (RFE), the Director determined 
that "because the petitioner has not demonstrated that beneficiary holds an advanced degree and thus 
does not qualify as a member of the professions holding an advanced degree, USCIS does not need to 
evaluate whether the beneficiary also qualifies as an individual of exceptional ability." This is 
incorrect. As noted above, an individual can qualify for the EB-2 classification as either an advanced 
degree professional or an individual of exceptional ability. In the decision, the Director does not make 
a finding on the EB-2 visa classification claimed by the Petitioner. 
On remand, the Director should analyze the record and determine whether the Petitioner has 
established he is an advanced degree professional or an individual of exceptional ability consistent 
with the regulations at 8 C.F.R. § 204.5(k). 
1 If these types of evidence do not readily apply to the individual's occupation, a petitioner may submit comparable 
evidence to establish their eligibility. 8 C.F.R. § 204.5(k)(3)(iii). 
2 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of aliens of 
exceptional ability. 6 USCJS Policy Manual F.5(8)(2) , https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5 . 
3 See also Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts (and 
Third in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver to be 
discretionary in nature). 
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III. NATIONAL INTEREST W AIYER 
The Petitioner is an information technology consultant. In the response to the RFE, the Petitioner 
states that his proposed endeavor is to "offer technological solutions, innovative and adaptable to the 
needs of clients, guaranteeing an increase in their competitiveness and growth." 
The Director determined that the Petitioner did not establish that his proposed endeavor has national 
importance, that he is well-positioned to advance his proposed endeavor, or that on balance, waiving 
the job offer requirement would benefit the United States. On appeal, the Petitioner asserts that the 
Director made several errors in this matter, including errors of fact, law, and policy. 
Upon review, we agree with the Petitioner that the Director's decision regarding the national interest 
waiver contained sufficient errors to warrant a remand. We are remanding the case to the Director for 
further review and to provide an accurate and sufficient explanation of the grounds of denial so that 
the Petitioner can more fully understand the Director's concerns. 
For example, when discussing national importance, the Director states the Petitioner must 
"demonstrate an interest of the government or its agency in the beneficiary's particular endeavor." 
Furthermore, when analyzing eligibility under the second prong of Dhanasar, the Director found the 
Petitioner ineligible because the duties they would perform are not "unique or unusual." The Director 
cites to no support for these requirements. 
Concerning the third prong, the Director did not engage in any analysis of the evidentiary record. A 
decision must fully explain the reasons for denying a visa petition to allow a 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). 
III. CONCLUSION 
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 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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