remanded EB-2 NIW Case: Medicine

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date : JUN. 05, 2023 In Re: 24227546 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner seeks classification as an advanced degree professional. 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 . 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 revoked the approval of the petition, concluding that the 
record did not establish the Petitioner 's eligibility because the Petitioner had willfully misrepresented 
material facts regarding his credentials and work history. 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 . 
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. 
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 of Dhanasar, 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 discretion 1, grant a national interest waiver if the petitioner demonstrates that: 
1 See also Poursina v. USCIS, 936 F.3d 868, 871-72 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national 
interest waiver to be discretionary in nature). 
• 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. 2 
USCIS may revoke the approval of a petition "at any time" for "good and sufficient cause." 
Section 205 of the Act, 8 U.S.C. § 1155. USCIS may issue a notice of intent to revoke (NOIR) a 
petition's approval for good and sufficient cause if the unexplained and unrebutted record at the time 
of the notice's issuance would have warranted the petition's denial. Matter ofEstime, 19 I&N Dec. 
450,451 (BIA 1987). The NOIR provides the opportunity to submit evidence in support of the petition 
and in opposition to the alleged grounds for revocation. 8 C.F.R. § 205.2(b). If the NOIR response 
does not rebut or resolve revocation grounds stated in the notice, USCIS properly revokes a petition's 
approval. Matter ofEstime, 19 I&N Dec. at 451-52. However, a notice of revocation (NOR) is not 
valid unless it is based on evidence contained in the record of proceedings. Id. 
First, it is noted that USCIS records indicate that the Petitioner has filed two subsequent Forms 1-140, 
Immigrant Petition for Alien Workers, also seeking a national interest waiver, which have been 
approved. 3 However, in this case, the Director entered a finding of willful misrepresentation of a 
material fact against the Petitioner. Specifically, the Director determined that despite his claims to the 
contrary in the initial petition, the Petitioner is not a medical researcher; he has never been an associate 
professor; and he has not published any post-graduate work. A finding of willful misrepresentation 
will be considered in any future proceeding where the Petitioner's admissibility is an issue. 
Section 212(a)(6)(C) of the Act, 8 U.S.C. § 1182(a)(6)(C). 
On appeal, the Petitioner denies that he misrepresented his medical profession. He states that he has 
published several research articles, that he was an associate professor, and that he has published post­
graduate work. 
A finding of material misrepresentation requires the following elements: the petitioner procured or 
sought to procure a benefit under U.S. immigration laws; they made a false representation; and the 
false representation was willfully made, material to the benefit sought, and made to a U.S. government 
official. Id.; see generally 8 USCIS Policy Manual J.2(B), https://www.uscis.gov/policymanual. The 
record indicates, and the Petitioner does not dispute, that the Petitioner made representations to U.S. 
government officials while seeking to procure an immigrant visa, which is a benefit under U.S. 
immigration laws. The remaining issues are therefore whether the Petitioner made a false 
representation, and if so, whether it was willful and material. 
While the NOIR and NOR make specific factual allegations regarding the falsity and willfulness of 
the Petitioner's representations, they do not specify on what grounds those representations rendered 
the Petitioner ineligible for classification as an advanced degree professional or a waiver of the job 
offer requirement. This is insufficient to support the Director's finding of willful misrepresentation 
because it does not indicate why the Petitioner's statements were material. Matter ofD-R-, 27 I&N 
Dec. 105, 113 (BIA 2017) ("[material] misrepresentation tends to shut off a line of inquiry that is 
2 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
3 The approved petitions are.__ ___________ __. They were both filed for the occupation of medical 
specialist. 
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relevant to the alien's admissibility and that would predictably have disclosed other facts relevant to 
his or her eligibility for a visa ... "); see generally 8 USCIS Policy Manual J.3(E)(2) ("A 'material' 
misrepresentation is a false representation concerning a fact that is relevant to the person's eligibility 
for an immigration benefit."). 
Furthermore, at this time we are unable to address the merits of this case because the record is 
incomplete. The Director's decision indicates that the Petitioner submitted evidence in response to 
the NOIR, including but not limited to a statement. However, this response is not in the record. Thus, 
we cannot determine whether the Director properly considered all the relevant evidence in the record 
or whether the record at the time of the revocation would have warranted the petition's denial and the 
finding of willful misrepresentation of a material fact. Matter of Estime, 19 I&N Dec. at 452. The 
Director bears the responsibility of ensuring that the record is complete and contains all evidence that 
has been submitted by a petitioner or considered by USCIS in reaching its decision. See 8 C.F.R. 
§ 103.2(b)(l); cf Matter o_f Gibson, 16 I&N Dec. 58, 59 (BIA 1976). For the foregoing reasons, we 
will withdraw the Director's decision and remand this matter to the Director to review the entirety of 
the record and to issue a new NOIR concerning the Petitioner's eligibility for the underlying EB-2 
classification, whether he merits a discretionary waiver of the job offer requirement in the national 
interest, and whether he willfully misrepresented material facts. 
On remand, the Director should identify and incorporate any documents which may have been 
inadvertently omitted from the record of proceeding before reviewing the entire record and issuing the 
new NOIR, granting the Petitioner a reasonable opportunity to respond. Upon receipt of a timely 
response, or the expiration of the time period to respond, the Director should review the entire record, 
including the materials submitted on appeal, and enter a new decision. 
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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