remanded EB-2 NIW Case: Law

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEP. 28, 2023 In Re: 28404240 
Appeal of Nebraska 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, as well as 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 Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b )(2)(B)(i). 
The Director of the Nebraska Service Center denied the petition, concluding that, although the 
Petitioner demonstrated her eligibility for EB-2 classification as a member of the professions holding 
an advanced degree, she did not establish that a discretionary waiver of the classification's job offer 
requirement 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 of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). While we conduct de novo review on 
appeal, Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015), we conclude that a remand 
is warranted in this case because the Director's decision is insufficient for review. The decision 
contains several factual errors, lacks sufficient analysis and discussion of the evidence in the record, 
and reaches conclusory findings with respect to the Petitioner's eligibility for the requested national 
interest waiver. Accordingly, we will withdraw the Director's decision and remand the matter for 
entry of a new decision consistent with the following analysis. 
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. See section 203(b )(2)(B)(i) of the Act. The 
record supports the Director's determination that the Petitioner qualifies as a member of the 
professions possessing an advanced degree. 
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 ofDhanasar , 26 I&N Dec. 884, 889 (AAO 2016), provides 
the framework for adjudicating national interest waiver petitions. Dhanasar states that USCIS may, 
as matter of discretion4, 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. 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
individual 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. 
Dhanasar, 26 I&N Dec. at 889. 
The Director determined that the Petitioner established that her proposed endeavor's substantial merit, 
but not its national importance. The Director, noting that the Petitioner indicated her intent to continue 
working as a lawyer or legal consultant, observed that "an occupation and the general work performed 
in that occupation do not constitute an endeavor." The Director therefore concluded that "the evidence 
suggests that you have no proposed endeavor" and as a result, did not establish the Petitioner's future 
work in her field "would serve the national interest of the United States." The Director's determination 
that the record does not describe a proposed endeavor is contrary to the evidence submitted (which 
included, among other items, a professional plan), and contrary to the Director's own affirmative 
determination that the Petitioner established the substantial merit of her proposed endeavor. Further, 
this conclusory finding that the Petitioner has "no proposed endeavor" led to an insufficient analysis 
of the evidence submitted in support of the first prong of the Dhanasar framework. 
For example, the Director acknowledged that the Petitioner submitted a professional plan but does not 
address the plan's description of her proposed endeavor and its national importance, or other evidence 
that addresses the first prong of the Dhanasar framework, which included an expert opinion letter. 
Nor does the decision address the Petitioner's specific claims as to how her proposed work will have 
substantial positive economic effects and national implications within her field, its potential to broadly 
enhance societal welfare, and its impact on a matter that a government entity has described as having 
national importance. These factors are relevant to a determination regarding the potential prospective 
impact of her work under the Dhanasar framework and should be weighed as part of the first prong 
analysis. In fact, the Director had specifically instructed the Petitioner to address such factors in her 
response to a request for evidence, but then failed to give her claims due consideration. 
The second prong of the Dhanasar framework shifts the focus from the proposed endeavor to the 
individual. To determine whether they are well positioned to advance the proposed endeavor, we 
consider factors including, but not limited to: their 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. Id. at 890. 
In concluding that the Petitioner is not well-positioned to advance her proposed endeavor, the Director 
provided some brief analysis of the submitted evidence. However, in several instances, the analysis 
references facts that do not appear in the record or pertain to the Petitioner's proposed endeavor. For 
example, the Director stated that "[t]he evidence lacked specific detail as to where and how you will 
drive your endeavor in the United States as an Education Expert. The record does not show that your 
business plan ... has generated positive interest among relevant parties ... , or otherwise reflects a 
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record of success as an education expert." As emphasized by the Petitioner on appeal, she is not an 
education expert, did not submit a business plan, and did not otherwise indicate her intention to 
establish an education business. 
Overall, the errors noted, particularly the reference to evidence that was submitted with an unrelated 
petition, and the lack of specific references to the evidence in the record, make it unclear whether the 
Director folly analyzed the evidence submitted by the Petitioner and based the decision solely on that 
evidence. An officer must folly explain the reasons for denying a visa petition. See 8 C.F.R. § 
103.3(a)(i). This explanation should be sufficient to allow the Petitioner a fair opportunity to contest 
the decision and to allow us an opportunity for meaningful appellate review. See, e.g. 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). 
Here, the Director's decision did not sufficiently explain the reasons for denial. 
Therefore, we will withdraw the Director's decision. On remand, the Director should review the entire 
record, including the Petitioner's appeal, in considering whether she has established eligibility under 
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. As such, we 
express no opinion regarding the ultimate resolution of this case on remand. 
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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