remanded EB-2 NIW Case: Pharmaceuticals

U.S. Citizenship Non-Precedent Decision of the
and Immigration Administrative Appeals Office 
Services 
In Re: 26953583 Date: MAY 11, 2023 
Appeal of Texas Service Center Decision 
Form I-140 , Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner , an entrepreneur seeking to sell pharmaceutical products , seeks classification as a 
member of the professions holding an advanced degree. See 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 (1) is a member of the professions holding an advanced degree and (2) 
qualifies for the national interest waiver. 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 nova. Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de nova review, 
we will withdraw the Director ' s decision and remand the matter for entry of a new decision consistent 
with the following analysis . 
To qualify for a national interest waiver , a petitioner must first show eligibility 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 United States academic or professional degree or a foreign equivalent 
degree above that of a bachelor's degree . A United States bachelor's degree or foreign equivalent 
degree followed by five years of progressive experience in the specialty is the equivalent of a master's 
degree . 8 C.F.R . § 204 .5(k)(2). 
"Profession" is defined as of the occupations listed in section 101(a)(32) of the Act , 8 U.S.C . 
§ 1101(a)(32) , as well as any occupation for which a United States baccalaureate degree or its foreign 
equivalent is the minimum requirement for entry into the occupation. 8 C.F .R. § 204.5(k)(3). 
Once a petitioner demonstrates EB-2 eligibility, 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: 
• 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. 
When denying a petition, the Director must explain the specific reasons for denial. 8 C.F.R. 
§ 103.3(a)(l )(i). In this instance, the Director did not sufficiently explain the reasons for the denial of 
the petition. 
With regard to the underlying EB-2 classification, the Director stated: 
In the instant case, the petitioner did not submit sufficient evidence with Form I-140 to 
establish that the beneficiary's academic record is that of an advanced degree, and 
therefore is seeking classification as an alien of exceptional ability. As such, USCIS 
will evaluate whether the beneficiary qualifies as an alien of exceptional ability. 
The decision includes no evaluation of exceptional ability (which the Petitioner did not claim). 
Instead, the next sentence reads: "As such, the beneficiary does not qualify as a member of the 
professions holding an advanced degree." The only stated explanation concerns the Petitioner's 
academic record. The Petitioner, however, had submitted documentation of a bachelor's degree in 
pharmacy and a credential evaluation indicating that her degree, plus more than five years progressive 
experience, is equivalent to a master's degree under 8 C.F.R. § 204.5(k)(3)(i)(B). The Director did 
not address this evaluation or explain why it is deficient. 
Regarding the national interest waiver, the Director stated a series of conclusions without explaining 
the reasoning underlying those conclusions: 
The petitioner states the beneficiary will be a[n] Entrepreneur who will manage and 
operate her own company. Therefore, USCIS finds that the petitioner's proposed 
endeavor does not have substantial merit. 
According to the petitioner's statement, the beneficiary's proposed endeavor is to work 
as an entrepreneur. 
1 See also Poursina v. USCIS, 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 petitioner has not established how the beneficiary's proposed endeavor stands to 
impact the regional or national population at a level consistent with having national 
importance. Nor has the petitioner demonstrated the beneficiary's work would have 
broader implications for the medical field. 
The petitioner has submitted documentation of the beneficiary's academic credentials, 
certificates, and a job offer letter from the petitioner. The evidence demonstrates the 
beneficiary is not well positioned to advance her proposed endeavor to be an 
entrepreneur. 
The record does not demonstrate the widespread benefits associated with beneficiary's 
endeavor as a[n] Entrepreneur. In addition, the record does not demonstrate that the 
beneficiary's proposed endeavor may lead to potential creation ofjobs. The record does 
not contain sufficient evidence to demonstrate that the beneficiary's proposed endeavor 
benefits would be beneficial to the United States. 
In the absence of a more detailed explanation, the Director's conclusions appear to suggest that the 
Petitioner is ineligible for the waiver because she is an entrepreneur. But entrepreneurs can qualify 
for the waiver provided they meet the underlying EB-2 requirements and the Dhanasar criteria. See 
generally 6 USCJS Policy Manual F.5(D)(4), https://www.uscis.gov/policy-manual. The question 
instead is whether the Petitioner has submitted sufficient evidence to show eligibility for the waiver. 
Ifnot, the Director must explain the deficiencies in the evidence in sufficient detail. 
The record before us raises significant doubt that the Petitioner has met her burden of proof, but the 
lack of specific information in the denial notice limited the Petitioner's ability to prepare a substantive 
appeal. The Director must issue a new decision. If that decision is a denial, then the Director must 
specifically explain, in reasonable detail, why the Petitioner had not established eligibility. 
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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