remanded EB-2 NIW Case: Nursing

U.S. Citizenship 
and Immigration 
Services 
In Re: 19798577 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JUN. 16, 2022 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a nurse, 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. § 1153(b )(2). 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner did not 
qualify for classification as a member of the professions holding an advanced degree and 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 a national interest waiver. 
In these proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit 
sought. 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. 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. 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 ofjob 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. 
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definitions: 
Advanced degree means any United States academic or professional degree or a foreign 
equivalent degree above that of baccalaureate. A United States baccalaureate degree 
or a foreign equivalent degree followed by at least five years of progressive experience 
in the specialty shall be considered the equivalent of a master's degree. If a doctoral 
degree is customarily required by the specialty, the alien must have a United States 
doctorate or a foreign equivalent degree. 
Exceptional ability in the sciences, arts, or business means a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business. 
Profession means 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 in the occupation. 
In addition, the regulation at 8 C.F.R. § 204.5(k)(3)(ii) sets forth the specific evidentiary requirements 
for demonstrating eligibility as an individual of exceptional ability. A petitioner must submit 
documentation that satisfies at least three of the six categories of evidence listed at 8 C.F.R. 
§ 204.5(k)(3)(ii). 
Furthermore, while neither the statute nor the pertinent regulations define the term "national interest," 
we set forth a framework for adjudicating national interest waiver petitions in the precedent decision 
Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). 1 Dhanasar states that after a petitioner has 
established eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) 
may, as matter of discretion 2, 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 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 l&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
2 See also Poursina v. USCIS, No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or 
deny a national interest waiver to be discretionary in nature). 
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would be beneficial to the United States to waive the requirements of a job offer and thus of a labor 
certification. 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
foreign national 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. 
The second prong shifts the focus from the proposed endeavor to the foreign national. To determine 
whether he or she is well positioned to advance the proposed endeavor, we consider factors including, 
but not limited to: the individual's 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. 
The third prong requires the petitioner to demonstrate 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. In performing 
this analysis, USCIS may evaluate factors such as: whether, in light of the nature of the foreign 
national's qualifications or the proposed endeavor, it would be impractical either for the foreign 
national to secure a job offer or for the petitioner to obtain a labor certification; whether, even assuming 
that other qualified U.S. workers are available, the United States would still benefit from the foreign 
national's contributions; and whether the national interest in the foreign national's contributions is 
sufficiently urgent to warrant forgoing the labor certification process. In each case, the factor(s) 
considered must, taken together, indicate 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. 3 
II. ANALYSIS 
A. Member of the Professions Holding an Advanced Degree or Exceptional Ability 
In order to show an individual is a professional holding an advanced degree, the petition must be 
accompanied by "[a]n official academic record showing that the alien has a United States advanced 
degree or a foreign equivalent degree." 8 C.F.R. § 204.5(k)(3)(i)(A). Alternatively, the Petitioner 
may present "[a ]n official academic record showing that the alien has a United States baccalaureate 
degree or a foreign equivalent degree, and evidence in the form of letters from current or former 
employer(s) showing that the alien has at least five years of progressive post-baccalaureate experience 
in the specialty." 8 C.F.R. § 204.5(k)(3)(i)(B). The Director determined the Petitioner did not submit 
evidence showing she had at least five years of progressive post-baccalaureate experience in the specialty. 
However, the Director's decision did not address whether the Petitioner satisfies at least three of the six 
regulatory criteria at 8 C.F.R. § 204.5(k)(3)(ii) and has achieved the level of expertise required for 
exceptional ability classification. Additionally, the Director's request for evidence (RFE) did not offer 
the Petitioner the opportunity to provide documentation to support a finding that she meets at least 
3 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
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three of the six regulatory criteria. Id. The Director's RFE stated the evidence submitted indicated 
the Petitioner may be seeking a different visa classification for skilled workers, professionals, and 
other workers under section 203(b)(3) of the Act and requested the Petitioner submit additional 
evidence to establish eligibility for this classification. Accordingly, we withdraw the Director's 
finding that the Petitioner does not qualify as a member of the professions holding an advanced degree. 
On remand, the Director should provide the Petitioner an opportunity to submit any evidence, if 
applicable, that may show she satisfies the requirements to show she is an individual of exceptional 
ability in the sciences, arts, or business and then consider whether the Petitioner qualifies under the 
regulatory criteria and issue a new decision regarding the Petitioner's qualification as a member of the 
professions holding an advanced degree or an individual of exceptional ability. 
B. National Interest Waiver 
While the Director made a finding that the Petitioner did not establish that a waiver of the required job 
offer would be in the national interest, the 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. Since the Director's determination of this first 
threshold requirement was withdrawn, we also withdraw the Director's finding that the Petitioner had 
not established eligibility under prongs one or three of the Dhanasar framework. On remand, the 
Director should issue a new national interest waiver determination if he finds the Petitioner 
demonstrates qualification for the underlying EB-2 visa classification. 
III. CONCLUSION 
We are therefore remanding the petition for the Director to consider whether the Petitioner has satisfied 
the eligibility requirements for classification as member of the professions holding an advanced degree 
or as an individual of exceptional ability. In addition, the Director should properly apply all three 
prongs of the Dhanasar analytical framework to make a determination as to whether the Petitioner has 
established that a waiver of the requirement of a job offer, and thus a labor certification, would be in 
the national interest. 
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. 
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