remanded EB-2 NIW Case: Law

U.S. Citizenship 
and Immigration 
Services 
In Re: 19615146 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: DEC. 09, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, an international legal consultant, seeks second preference immigrant classification as 
an individual of exceptional ability in the sciences, arts or business, as well as a national interest waiver 
of the job offer requirement attached to this EB-2 classification. See Immigration and Nationality Act 
(the Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2). After a petitioner has established eligibility for 
EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) may, as 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 offer and thus of a labor certification. Matter of 
Dhanasar, 26 l&N Dec. 884 (AAO 2016). 
The Texas Service Center approved the Form 1-140, Immigrant Petition for Alien Worker. However, 
the Director of the Texas Service Center subsequently issued a notice of intent to revoke (NOIR) and 
later revoked the approval of the immigrant petition, finding that USCIS had approved the petition in 
error. Specifically, the Director determined the Petitioner had not established that a waiver of the 
required job offer, and thus of the labor certification, would be in the national interest. 
On appeal, the Petitioner submits additional documentation and a brief asserting that she is eligible for 
the EB-2 classification and for a national interest waiver. 
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 nova review, we will remand the matter to the 
Director for further action and consideration. 
I. LEGAL FRAMEWORK 
The Secretary of Homeland Security "may, at any time, for what he deems to be good and sufficient 
cause, revoke the approval of any petition ... . " Section 205 of the Act, 8 U.S.C. § 1155. By 
regulation this revocation authority is delegated to any USCIS officer who is authorized to approve an 
immigrant visa petition. 8 C.F.R. § 205.2(a). USCIS must give the petitioner notice of its intent to 
revoke the prior approval of the petition and the opportunity to submit evidence in opposition thereto, 
before proceeding with written notice of revocation. See 8 C.F.R. § 205.2(b) and (c). The Board of 
Immigration Appeals has discussed revocations on notice as follows: 
[A] notice of intention to revoke a visa petition is properly issued for '"good and 
sufficient cause" where the evidence of record at the time the notice is issued, if 
unexplained and unrebutted, would warrant a denial of the visa petition based upon the 
petitioner's failure to meet his burden of proof. The decision to revoke will be 
sustained where the evidence of record at the time the decision is rendered, including 
any evidence or explanation submitted by the petitioner in rebuttal to the notice of 
intention to revoke, would warrant such denial.1 
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. 
In 1998, under the legacy Immigration and Naturalization Service, we set forth an initial framework 
for adjudicating national interest waiver petitions in the precedent decision Matter of New York State 
Dep 't of Transp. (NYSDOT), 22 l&N Dec. 215, 217-18 (Acting Assoc. Comm'r 1998). Under 
NYSDOT, a petitioner must first demonstrate that the individual seeks employment in an area of 
substantial intrinsic merit. Id. at 217. Next, a petitioner must show that the proposed benefit will be 
national in scope. Id. Finally, the petitioner seeking the waiver must establish that the individual will 
1 Matter of Ho, 19 l&N Dec. 582,590 {BIA1988)(citing MatterofEstime, 19 l&N Dec. 450 {BIA1987)). 
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serve the national interest to a substantially greater degree than would an available U.S. worker having 
the same minimum qualifications. Id. at 217-18. 
We vacated our NYSDOT precedent decision in December 2016 and set forth a new framework for 
adjudicating national interest waiver petitions in Matter of Dhanasar, 26 l&N Dec. 884 {AAO 2016). 
The Dhanasar precedent decision states that USCIS may, as 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 offer and thus of a labor certification. Id. 
11. ANALYSIS 
The Petitioner filed the Form 1-140 in October 2014 and the Director issued a Notice of Intent to Deny 
(NOID) the petition in December 2015 under the NYSDOT analytical framework. The Petitioner 
timely responded to the NOi D and the Director approved the petition in May 2016 under the NYSDOT 
analytical framework. In February 2018, the Director issued a NOIR, indicating that the record did 
not establish the Petitioner satisfied the requirements of the Dhanasar framework. The Petitioner 
responded to the NOIR with arguments and evidence addressing the Dhanasar framework, but the 
Director determined that she did not meet any of the three prongs set forth in that precedent decision. 
At issue in this matter is whether the Director had good and sufficient cause to issue the NOIR; 
specifically, whether "the evidence of record at the time the notice is issued, if unexplained and 
unrebutted, would warrant a denial of the visa petition based upon the petitioner's failure to meet his 
burden of proof." Matter of Ho, 19 l&N Dec. at 582 (citing Matter of Estime, 19 l&N Dec. at 450). 
Because the instant petition had been approved in May 2016 and therefore was not pending2 with 
USCIS when Dhanasar was issued on December 27, 2016, we are remanding for the Director to 
consider whether the Petitioner met her burden of proof with respect to the NYSDOT framework in 
place at the time the petition was approved. If after further review the Director intends to revoke the 
approval of the instant petition, the Director must issue a new NOIR based on the evidentiary 
requirements that applied under NYSDOT and provide the Petitioner an opportunity to offer evidence 
in response. 
Ill. CONCLUSION 
We are remandingthe petition for the Directorto apply the NYSDOTanalytical framework to determine 
whether the Petitioner has established eligibility for the benefit sought, or whether there is good and 
sufficient cause to issue a new NOi R. 
2 Any subsequent petitions filed by the Petitioner under this classification that were pending when Dhanasarwas issued 
in December 2016, or that were filed after that date, should be considered under the newer framework. 
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ORDER: The decision of the Director is withdrawn. The matter is remanded for further 
proceedings consistent with the foregoing opinion and for the entry of a new dee ision 
which, if adverse, shall be certified to us for review. 
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