remanded EB-2 NIW Case: It Systems Management

U.S. Citizenship 
and Immigration 
Services 
In Re: 17929067 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEPT. 1, 2021 
Form I-140 , Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability , National 
Interest Waiver) 
The Petitioner , an IT system s manager , seeks second preference immigrant classification as a member 
of the professions holding an advanced degree and /or as an individual of exceptional ability, as well 
as a national interest waiver of the job offer requirement attached to this employment based "EB-2" 
classification. See Immigration and Nationality Act (the Act) section 203(b )(2), 8 U.S.C. 
§ l 153(b)(2). 
The Director of the Nebraska Service Center denied the petition , concluding that the Petitioner 
qualifies as an individual of exceptional ability, but that he had not established that he is well 
positioned to advance his proposed endeavor and that, on balance , the United States would benefit 
from waiver of the required job offer, and thus of the labor certification requirement. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit 
Section 291 of the Act, 8 U.S.C . § 1361. Upon de novo review , we will withdraw the Director 's 
decision and remand the matter for further consideration and the 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. 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, arts, 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). This, however, is only the first step, and the successful submission of evidence 
meeting at least three criteria does not, in and of itself, establish eligibility for this classification. 1 
When a petitioner submits sufficient evidence at the first step, we will then conduct a final merits 
determination to decide whether the evidence in its totality shows that the beneficiary is recognized as 
having a degree of expertise significantly above that ordinarily encountered in the field. 8 C.F.R. 
§ 204.5(i)(3)(i). 
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. 8 84. 2 Dhanasar states that after EB-2 eligibility has been established, USCIS 
1 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of aliens of 
exceptional ability. USCTS Policy Memorandum, Evaluation of Evidence Submitted with Certain Form I-140 Petitions; 
Revisions to the Adjudicator·s Field Manual (AFM) Chapter 22.2, AFM Update ADJ 1-14, PM-602-0005.1 (Dec. 22, 
2010). 
2 In announcing this new framework, we vacated our prior precedent decision, Matter o{Ncw York State Department of 
Transportation, 22 I&NDec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
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may, as a matter of discretion, 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 off er and thus of a labor 
certification. 
The first prong, substantial merit and national impmiance, 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 offerorforthepetitionerto obtain a laborce1iification; 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 
As noted earlier, the focus of the first prong analysis is on the endeavor itself. Here, the Petitioner 
states that his endeavor will incorporate his experience as an IT systems manager and will focus on 
the Petitioner's "expertise and knowledge in the field of computer and IT systems" in the United 
States. The Petitioner stated that he has experienced "notable success directing a broad range of 
initiatives" in the IT field and anticipated that his plans to provide IT project management services 
and systems analysis will "help advance the U.S. economy in the area of computer and IT systems and 
technology." The Petitioner further predicted that his proposed endeavor will positively impact the 
United States because it will allow him to use his knowledge of IT systems management to: "fix, 
maintain and improve IT systems";"[ w ]ork on large-scale and highly complex IT projects ... and 
cross-border IT initiatives"; [ e ]nhance the technological and commercial facets ofU .S. IT companies"; 
"[g]enerate value and optimize operations"; enable U.S. companies to "seize market and investment 
3 SccDhanasar, 26l&NDec. at 888-91, for elaboration onthesethreeprongs. 
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opportunities abroad"; and improve the U.S. economy through job creation, contributing to the U.S. 
gross domestic product, and generating tax revenue. 
Here, although the Director issued a request for evidence (RFE), he did not seek further information 
regarding the proposed endeavor's national importance. To evaluate whether the Petitioner's proposed 
endeavor satisfies this requirement, we look to evidence documenting the "potential prospective 
impact" of his work. Whether the Petitioner's endeavor merits a national interest waiver is a matter 
that should be determined by correctly applying the Dhanasar framework within the context of a 
comprehensive analysis, which should start with proper consideration of the evidence pertaining to 
the first prong of that framework. Here, despite concluding that the Petitioner's proposed endeavor 
meets the national importance requirement of Dhanasar's first prong, there is no indication that the 
Director adequately contemplated the lack of evidence to support that conclusion. Notwithstanding 
this lack of a comprehensive analysis of the first prong, an element that is the foundation of a 
comprehensive Dhanasar analysis, the Director proceeded with an analysis of the second prong, which 
shifts the focus from the proposed endeavor to the foreign national. 
In sum, the Director did not accurately explain the deficiencies in the evidence. See 8 C.F.R. 
§ I 03.3(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 opp01iunity to 
challenge the determination on appeal). As such, the Director's decision cannot be affirmed. On 
remand, the Director should consider the evidentiary deficiencies pertaining to the national importance 
element of the first prong of the Dhanasar framework. Before concluding that the Petitioner has 
satisfied this prong, the Director should consider whether the record has sufficient evidence to 
demonstrate that the proposed endeavor stands to sufficiently extend beyond his prospective 
employers or clients to impact the IT field more broadly at a level commensurate with national 
importance and whether the endeavor has significant potential to employ U.S. workers or otherwise 
offers substantial positive economic benefits for our nation. The Director may issue an RFE requesting 
additional evidence addressing these factors. The Director shall then analyze the evidence under the 
Dhanasar framework to determine whether the endeavor meets the national importance requirement. 
ORDER: The Director's decision is withdrawn and the matter is remanded for further 
consideration and the entry of a new decision consistent with the above analysis. 
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