remanded EB-2 NIW Case: Mechanical Engineering

U.S. Citizenship 
and Inunigration 
Services 
MATTER OF S-D-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 20. 2019 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a mechanical engineer, seeks second preference 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 EB-2 classification. See Immigration and Nationality Act (the 
Act) section 203(b )(2), 8 U. S.C. § l l 53(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 meets a three-prong framework set forth in our 
precedent decision relating to such a waiver. 
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 U.S. Citizenship and 
Immigration Services (USCIS) had approved the petition in error. Specifically, the Director 
determined that although the Petitioner qualified for classification as a member of the professions 
holding an advanced degree, he 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 a brief and contends that he is eligible for a national interest 
waiver. 
Upon de nova review, we will remand the matter to the Director for further action and consideration. 
I. LAW 
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: 
Matter of S-D-
[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 I&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 
1 Matter of Ho, 19 I&N Dec. 582, 590 (BIA 1988) (citing Matter of Estime, 19 I&N Dec. 450 (BIA 1987)). 
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Matter of S-D-
will 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 NYSDOTprecedent decision in December 2016 and set forth a new framework for 
adjudicating national interest waiver petitions in Matter of Dhanasar, 26 I&N Dec. at 884. 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 May 2016 and the Director approved that petition under the 
NYSDOT analytical framework in June 2016. In May 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 he 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 I&N Dec. at 582 (citing Matter of Estime, 19 I&N Dec. at 450). 
Because the instant petition had been approved in June 2016 and therefore was not pending 2 with 
USCIS when Dhanasar was issued on December 27, 2016, we are remanding for the Director to 
consider whether the Petitioner met his 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, he 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. 
III. CONCLUSION 
We are remanding the pet1t10n for the Director to apply the NYSDOT analytical 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 NOIR. 
2 Any subsequent petitions filed by the Petitioner under this classification that were pending when Dhanasar was issued 
in December 2016, or that were filed after that date, should be considered under the newer framework. 
3 
Matter of S-D-
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 decision 
which, if adverse, shall be certified to us for review. 
Cite as Matter of S-D-, ID# 2106869 (AAO Mar. 20, 2019) 
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