remanded EB-2 NIW Case: Law

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: NOV. 29, 2023 In Re: 28962800 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a lawyer, seeks employment-based second preference (EB-2) immigrant classification 
as a member of the professions holding an advanced degree. See Immigration and Nationality Act 
(the Act) section 203(b )(2), 8 U.S.C. § 1153(b )(2). The Petitioner also seeks a national interest waiver 
of the job offer requirement that is attached to this EB-2 immigrant classification. See section 
203(b )(2)(B)(i) of the Act, 8 U.S.C. § 1153(b )(2)(B)(i). U.S. Citizenship and Immigration Services 
(USCIS) may grant this discretionary waiver of the required job offer, and thus of a labor certification, 
when it is in the national interest to do so. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner qualifies for a national interest waiver. 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. 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. 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). 
Profession is defined as 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. 1 8 C.F.R. § 204.5(k)(2). 
If a petitioner demonstrates eligibility as either a member of the professions holding an advanced 
degree or an individual of exceptional ability, 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 (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, 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 the proposed endeavor; and 
• On balance, waiving the requirements of a job offer and a labor certification would benefit the 
United States. 3 
II. ANALYSIS 
On December 2, 2022, the Director issued 
a request for evidence (RFE)4 discussuing the Petitioner's 
endeavor to provide legal consultancy services in the United States and how the evidence of record did 
not establish his eligibility for a national interest waiver under the Dhanasar framework. While the RFE 
did not explain whether or not the Petitioner qualfies as a member of the professions holding an advanced 
degree, the Director's decision to deny the petition references the Petitioner's eligibility for the EB-2 
classificiation as follows: 
You submitted evidence with Form I-140 which establishes the petitioner qualifies as a 
member of the professions holding an advanced degree. Therefore, USCIS does not need 
to evaluate whether the petitioner qualfies as an alien of exceptional ability. 
The Director's decision also states, "The petitioner indicated the endeavor is to work as a pilot and pilot 
instructor. The evidence establishes the endeavor has substantial merit." 
The decision goes on to evaluate the Petitioner's endeavor as a pilot and pilot instructor under the three 
prongs of the Dhanasar framework. Based on an analysis of this endeavor, the Director determined that 
the Petitioner had not established that a waiver of the requirement of a job offer, and thus a labor 
certification, would be in the national interest. On appeal, the Petitioner asserts that the Director "made 
an erroneous analysis of the Petitioner's proposed endeavor, confusing it with that of another candidate 
seeking to classify as an alien holding an advanced degree or exceptional ability." Upon de novo 
review, we conclude that a remand is warranted in this case because the Director's decision does not 
1 Profession shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in 
elementary or secondary schools, colleges, academics, or seminaries. Section 101 (a)(32) of the Act. 
2 See also Poursina v. USCIS. No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCTS' decision to grant or 
deny a national interest waiver to be discretionary in nature). 
3 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
4 We note that the Director's decision incorrectly references November 18, 2022, as the date that the RFE was issued. 
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analyze the evidence in the record as it pertains to the Petitioner's proposed endeavor the provide legal 
consultancy services. In addition, the decision does not analyze whether or not the Petitioner qualifies 
for the EB-2 classification as an advanced degree professional. 
The Director's exercise of discretion to waive the requirement of a job offer, and therefore a labor 
certification, requires adherence to all three of Dhanasar's prongs as they pertain to the Petitioner's 
proposed endeavor. Concerning the first prong of the Dhanasar framework, the Director did not 
discuss either the substantial merit or the national importance of the Petitioner's endeavor to provide 
legal consultancy services through the operation of his own business in Florida. Also, in concluding 
that the Petitioner did not meet Dhanasar's second or third prongs, the Director did not discuss any 
evidence specific to the record; the decision refers to evidence such as a pilot's license, which is not 
present in the record. An officer must folly 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. 8 C.F.R. § 103.3(a)(i). Here, the decision does appear to relate to the case at hand. 
In evaluating Dhanasar's first prong on remand, the Director should analyze the evidence and 
conclude whether or not the Petitioner's endeavor to provide legal consultancy services in the United 
States has substantial merit. 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. 
Dhanasar, 26 I&N Dec. at 889. 
The Director should also analyze the evidence and conclude whether or not the Petitioner's endeavor 
to provide legal consultancy services has national importance. Dhanasar provided that an endeavor 
of national importance may have "national or even global implications within a particular field," or 
may have broader implications, such as the "significant potential to employ U.S. workers or. .. other 
substantial positive economic effects, particularly in an economically depressed area." Id. at 889-90. 
The Director should evaluate the "potential prospective impact" of the Petitioner's work. Id. at 893. 
The Director should also consider, in accordance with the second prong of Dhanasar, whether the 
evidence of record demonstrates that the Petitioner is well positioned to advance his proposed 
endeavor. Finally, as to the third prong of the Dhanasar analytical framework, the Director should 
analyze the evidence and explain whether, on balance, it would be beneficial to the United States to 
waive the requirements of a job offer, and thus of a labor certification. On remand, the Director should 
review all of the evidence of record and explain the relative decisional weight given to each balancing 
factor. See 8 C.F.R. § 103.3(a)(i); see also Matter ofM-P-, 20 I&N Dec. 786 (BIA 1994) (finding that 
a decision must folly explain the reasons for denying a motion to allow the respondent a meaningful 
opportunity to challenge the determination on appeal). 
III. CONCLUSION 
For the foregoing reasons, we will withdraw the Director's decision and remand the matter for farther 
consideration of the record, including claims submitted on appeal. On remand, the Director should 
determine whether the Petitioner qualifies for the EB-2 visa classification and meets each prong under 
the Dhanasar framework to establish his eligibility for a national interest waiver. 
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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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