remanded EB-2 NIW Case: Nursing

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JUNE 27, 2023 In Re: 26383222 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a nurse and caregiver, seeks employment-based second preference (EB-2) immigrant 
classification as a member of the professions holding an advanced degree or as an individual of 
exceptional ability. 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. See 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 denied the petition, concluding that the record did not 
establish that the Petitioner is eligible for or otherwise merits a national interest waiver as a matter of 
discretion. 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 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de nova. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de nova review, 
we wi 11 withdraw the Director's decision and remand the matter for entry of a new decision consistent 
with the following analysis. 
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. Section 203(b)(2)(B)(i) of the Act. An 
advanced degree is any U.S. academic or professional degree or a foreign equivalent degree above 
that of a bachelor's degree. 1 8 C.F.R. § 204.5(k)(2). A U.S. bachelor's degree or a foreign equivalent 
degree followed by five years of progressive experience in the specialty is the equivalent of a master's 
degree. Id. 
1 Profession shall include, but not be limited to, architects, engineers, lawyers, physicians, surgeons, and teachers in 
elementary or secondary schools, colleges, academics, or seminaries. Section 101(a)(32) of the Act. 
Exceptional ability means a degree of expertise significantly above that ordinarily encountered in the 
sciences, arts, or business. 8 C.F.R. § 204.5(k)(2). A petitioner must initially submit documentation 
that satisfies at least three of six categories of evidence. 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F).2 Meeting 
at least three criteria, however, does not, in and of itself, establish eligibility for this classification. 3 If 
a petitioner does so, we will then conduct a final merits determination to decide whether the evidence 
in its totality shows that they are recognized as having a degree of expertise significantly above that 
ordinarily encountered in the field.4 
Once a petitioner demonstrates eligibility as either a member of the professions holding an advanced 
degree or an individual of exceptional ability, they must then establish eligibility for 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 l&N Dec. 884, 889 (AAO 2016), provides the framework for adjudicating national 
interest waiver petitions. Dhanasar states that USCIS may, as matter of discretion5, 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. 
II. ANALYSIS 
The Petitioner proposes to work in the United States as a home healthcare nurse. She earned a diploma 
specializing in nursing froml IInstitute in Uzbekistan in 1988 and has worked as a 
nurse and home health nursing assistant. The Director determined that the Petitioner established her 
eligibility as a member of the professions holding an advanced degree, however, she did not establish 
that a waiver of the requirement of a job offer, and thus a labor certification, would be in the national 
interest. 
We note that in her petition, the Petitioner asserted that she is eligible for the EB-2 classification as an 
individual of exceptional ability and did not claim eligibility as a member of the professions holding 
an advanced degree. For the reasons discussed below, we conclude that the Petitioner has not 
established her eligibility for either EB-2 classification. 
A. Member of Professions Holding an Advanced Degree 
The Director concluded that the Petitioner qualifies for classification as a professional holding an 
advanced degree based on her submission of her diploma and academic transcript showing she earned 
2 If these types of evidence do not readily apply to the individual's occupation , a petitioner may submit comparable 
evidence to establish eligibility. 8 C.F.R. § 204.5(k)(3)(iii). 
3 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of individuals of 
exceptional ability. See generally 6 USCIS Polic y Manual F.5(B)(2) , https: //www.uscis.gov/policy-manual. 
4 See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) (discussing a two-part review where the evidence is first counted 
and then, if it satisfies the required number of criteria, considered in the context of a final merits determination); see 
generally 6 USCIS Policy Manual, supra, at F.5(B)(2). 
5 See also Poursina v. USClS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
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the foreign equivalent of a U.S. baccalaureate degree, as well letters from her former employers 
showing she has more than five years of progressive post-baccalaureate experience in the specialty. 
See 8 C.F.R. § 204.5(k)(3)(i)(B). However, after review of the record, we disagree. 
The diploma and academic transcripts do not indicate the Petitioner earned the foreign equivalent of a 
U.S. baccalaureate degree. The diploma and academic transcripts state that the Petitioner entered the 
vocational training program in 1986 and completed her studies in 1988. The Petitioner also submitted 
an academic evaluation of her diploma stating, "The diploma is the academic equivalent of an associate 
of applied science degree in nursing from a regionally accredited community/junior college in the 
United States." The Petitioner's academic records and the academic evaluation reflect the Petitioner 
completing the foreign equivalent of two years of postsecondary education, instead of earning the 
foreign equivalent of a U.S. baccalaureate degree. 
Because the Petitioner has not established that she holds a U.S. baccalaureate degree or foreign 
equivalent degree, the Director's determination that she is eligible to be classified as a member of the 
professions possessing an advanced degree is withdrawn. 
B. Individual of Exceptional Ability 
Because the Director determined that the Petitioner established her eligibility as a member of the 
professions possessing an advanced degree, the Director did not evaluate her claim that she qualifies 
as an individual of exceptional ability. 
The Petitioner claimed that she meets three of the six evidentiary criteria under 8 C.F.R. § 
204.5(k)(3)(ii). For the reasons provided below, we conclude that the Petitioner does not meet the 
initial evidentiary requirements for classification as an individual of exceptional ability. 
An official academic record showing that the individual has a degree, diploma, 
certificate, or similar award from a college, university, school, or other institution 
of learning relating to the area of exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(A). 
As discussed above, the Petitioner submitted a copy of her diploma and academic transcripts for her 
diploma specializing in nursing from I IInstitute in Uzbekistan. Based on these 
documents, the Petitioner has established that she meets the criterion. 
Evidence of membership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
To meet this criterion, the Petitioner submitted a printout of her membership profile as an individual 
member with the American Society of Aging and a receipt indicating payment for her membership on 
September 12, 2022. Her membership profile indicates she was an individual member of the American 
Society of Aging since September 12, 2022, with expiration September 11, 2023. 
However, the Petitioner has not demonstrated being a member of the American Society of Aging at 
the time of filing the petition. The petition was filed on August 25, 2021, which is prior to the 
Petitioner becoming a member of the American Society of Aging in September 2022. USCIS 
regulations affirmatively require a petitioner to establish eligibility for the benefit it is seeking at the 
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time the petition is filed. See 8 C.F.R. § 103.2(b)(1).6 Also, the record does not include evidence 
demonstrating the American Society of Aging is a professional association, as required under the 
criterion. 
The Petitioner has not demonstrated her membership in a professional association under the criterion. 
Evidence of recognition for achievements and significant contributions to the 
industry or field by peers, governmental entities, or professional or business 
organizations. 8 C.F.R. § 204.5(k)(3)(ii)(F). 
The Petitioner indicates she meets this criterion based on her "educational background, professional 
experience, and superb skills" contributing to her field. To support her claim, the Petitioner submitted 
her academic diploma and transcripts, certificates of her completion of training courses, and letters of 
recommendation from her patients and employers. 
The academic records, certificates of training, and letters of recommendation show the Petitioner 
received training for her nursing and caregiving employment. The letters also attest to the Petitioner 
being a competent, reliable caregiver and nurse who is attentive to her patients. While the record 
shows the Petitioner has training as a nurse and caregiver, and that her employers and patients value 
the care she provides to her patients, it does not demonstrate that the Petitioner has been recognized 
for achievements and significant contributions to the industry or field, as required under the criterion. 
Therefore, the Petitioner has not demonstrated she meets this criterion. 
The Petitioner has not established that she meets at least three of the evidentiary criteria at 8 C.F.R. § 
204.5(k)(3)(ii)(A) through (F). Since the Petitioner did not satisfy the initial evidence requirements, 
we need not conduct a final merits analysis to determine whether the evidence in its totality shows that 
she is recognized as having a degree of expertise significantly above that ordinarily encountered in the 
sciences, arts, or business. 8 C.F.R. § 204.5(k)(2). Nevertheless, we advise that we have reviewed 
the record in the aggregate and conclude that it does not support a finding that the Petitioner has 
established the recognition required for classification as an individual of exceptional ability. 
C. Substantial Merit and National Importance 
The first prong of the Dhanasar analytical framework, substantial merit and national importance, 
focuses on the specific endeavor that a petitioner proposes to undertake. The Director's decision 
concluded that "The first prong, substantial merit and national importance, is met." However, the 
decision does not sufficiently explain the basis for this determination. 
In the petition, the Petitioner indicated that she intended to be an entrepreneur in the field of nursing. 
The Director sent the Petitioner a request for evidence asking that she provide additional details of her 
endeavor and evidence demonstrating her proposed endeavor has substantial merit and national 
importance. With the reply, the Petitioner submitted a business plan stating she "endeavors to provide 
6 See Matter of Katigbak, 14 l&N Dec. 45, 49 (Reg'l Comm'r 1971) (holding that a petitioner must establish eligibility at 
the time of filing; an immigrant petition cannot be approved after a petitioner becomes eligible under a new set of facts). 
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high-quality nursing services to patients in the [United States]." The business plan further states, "she 
will be able to provide home care to patients as well as organize teaching courses in order to transfer 
knowledge." 
The Director should analyze the evidence to determine whether the record sufficiently demonstrates 
the endeavor has substantial merit and national importance. The endeavor's merit may be 
demonstrated in a range of areas, such as business, entrepreneurialism, science, technology, culture, 
health, or education.7 In determining whether the proposed endeavor has national importance, we 
consider its potential prospective impact. Matter of Dhanasar, 26 l&N Dec. at 889. The Director 
should focus on what the Petitioner will be doing rather than the specific occupation. An endeavor 
having significant potential on the broader implications for a field or region, generally may rise to the 
level of having national importance for the purpose of establishing eligibility for a national interest 
waiver.8 The Director should review the record to determine whether the Petitioner has demonstrated 
her proposed endeavor has significant potential on the broader impact in the field. 
If the Director concludes that the Petitioner's documentation does not meet the substantial merit or 
national importance requirements of Dhanasar's first prong, the decision should discuss the 
insufficiencies in the evidence and adequately explain the reasons for ineligibility. 
D. Well Positioned to Advance the Proposed Endeavor 
In the second prong, the focus shifts to the petitioner and their positioning to advance their proposed 
endeavor, and we look at several factors in making this determination. 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. Matter of 
Dhanasar, 26 l&N Dec. at 890. 
For Dhanasar 's second prong, the Director concluded that while the record shows the Petitioner "has 
gained skills and experience in her field of endeavor," it did not demonstrate that the Petitioner is well 
positioned to advance the proposed endeavor. However, the decision did not sufficiently explain the 
basis for the determination. While the decision states that the Petitioner submitted letters of 
recommendation and the Petitioner's diploma, it does not provide an analysis of that evidence. Also, 
the decision does not mention or indicate it considered other evidence submitted by the Petitioner, 
including an expert opinion evaluation and her training certificates. 
On appeal, the Petitioner argues that the Director erred in finding the evidence was not sufficient to 
establish the Petitioner is well positioned to advance the proposed endeavor. The Petitioner argues 
she "clearly established the ability to carry forward the proposed endeavor" and describes the 
Petitioner's professional experience and client testimonials. 
An officer must fully explain the reasons for denying a petition in order to allow a petitioner a fair 
opportunity to contest the decision and to allow us an opportunity for meaningful appellate review. 
See 8 C.F.R. § 103.3(a)(l)(i); see also Matter of M-P-, 20 l&N Dec. 786 (BIA 1994) (finding that a 
7 See generally 6 USCIS Policy Manual, supra, at F.5(0)(1). 
8 See generally 6 USCIS Policy Manual, supra, at F.5(0)(1). 
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decision must fully explain the reasons for denial to allow the respondent a meaningful opportunity to 
challenge the determination on appeal). Here, the Director's decision did not adequately address the 
evidence submitted with the petition or in response to the request for evidence. The Director should 
analyze the evidence to determine if the Petitioner is well positioned to advance the proposed 
endeavor. 
Accordingly, we withdraw the Director's determination that the Petitioner does not meet the second 
prong of the Dhanasar framework. Any new determination by the Director must consider all of the 
evidence offered for prong two, including the Petitioner's academic record, certifications and 
trainings, memberships, the expert opinion letter, and letters of recommendation. The Director should 
analyze the specific content of the record to determine if this documentation renders her well 
positioned to advance the proposed endeavor. If the Director concludes that the Petitioner's 
documentation does not meet Dhanasar 's second prong, the decision should discuss the insufficiencies 
in the evidence and adequately explain the reasons for ineligibility. 
E. Balancing Factors to Determine Waiver's Benefit to the United States 
As to the third prong of Dhanasar, the Director stated the law and the relevant considerations in 
performing the third prong's balancing analysis and concluded that the Petitioner "has not established 
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." However, the Director did not discuss the evidence weighed in 
balancing those considerations or address the Petitioner's specific claims, if any, as to the third prong. 
Without a proper evaluation of the factors identified in Dhanasar 's third prong, the Director's 
determination for this prong was in error. If the Director concludes that the Petitioner's documentation 
does not meet this prong, the decision should address the Petitioner's arguments and evidence, and 
explain the relative decisional weight given to each balancing factor. 
Ill. CONCLUSION 
Accordingly, we are remanding the petition to the Director to determine if the Petitioner has 
established eligibility for an EB-2 visa classification and for a national interest waiver, and to enter a 
new decision. The Director may request any additional evidence considered pertinent to the new 
determination. 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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