remanded EB-2 NIW Case: Transportation Management

U.S. Citizenship 
and Immigration 
Services 
In Re: 20617693 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAY 9, 2022 
Form I-140 , Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner seeks second preference immigrant classification as a member of the professions 
holding an advanced degree or as an individual of exceptional ability, 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 had not 
established that he qualifies as an individual of exceptional ability . 
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. 
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 
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. 
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). 
2 
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 
At initial filing, the Petitioner claimed that he is "a degreed professional in the field of Linguistics." 4 
In addition, the Petitioner indicated his various jobs and positions and provided supporting 
documentation. The Director issued a request for evidence (RFE) and stated: 
The petitioner has provided an official academic record showing that the alien has a 
U.S. baccalaureate degree (or a foreign equivalent degree). However, no 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 was 
provided. Therefore at this time the petitioner does not qualify for the E2 l visa 
classification. 
In regards to the Petitioner's qualification for exceptional ability classification, the Director 
determined that he only met one criterion, official academic record at 8 C.F.R. § 204.5(k)(3)(ii)(A), 
and did not submit evidence for any of the other criteria. In response to the Director's RFE, the 
Petitioner stated: 
Please be advised that in 2010, the [Petitioner] graduated from _____ 
Institute of Foreign Languages inl I with a Bachelor's Degree in 
Philology. As confirmed by the [Petitioner's] former employers he has over five years 
of progressive post-baccalaureate managerial experience. Based on the documentation 
in the record, the [Petitioner] established that he is a member of the professions holding 
advanced degrees or their equivalent. 
3 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
4 See Petitioner's affidavit submitted at initial filing. 
3 
Additionally and alternatively, USCIS should find that the [Petitioner] has exceptional 
ability in the field of transportation management, which justifies a projection of future 
benefit that will be national in caliber, and therefore, qualifies for the National Interest 
Waiver. 5 
In denying the petition, the Director did not address the Petitioner's eligibility as a member of the 
professions holding an advanced degree. Instead, the Director only evaluated the Petitioner's claims 
and evidence as they related to his eligibility as an individual of exceptional ability. Specifically, the 
Director determined that the Petitioner did not demonstrate that he fulfilled at least three regulatory 
criteria. In addition, the decision does not provide a proper analysis of the documentation or a 
sufficient discussion explaining the Petitioner's eligibility for a national interest waiver under the 
Dhanasar analytical framework. 
On appeal, the Petitioner contends that that he qualifies as a member of the professions holding an 
equivalent of an advanced degree and for a national interest waiver. The Petitioner does not further 
claim eligibility as an individual of exceptional ability. 6 
A. Member of the Professions Holding an Advanced Degree 
In order to qualify as a member of the professions, an individual must meet "one of the occupations 
listed in section 101(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 into the 
occupation." 8 C.F.R. 204.5(k)(2). 7 Further, in order to show an individual holds 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 "[aa ]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's decision does not determine whether the Petitioner's occupation qualifies as a member of 
the professions. In addition, the Director does not conclude whether the Petitioner's "Bachelor's 
Diploma" from I I Institute of Foreign Languages qualifies as a foreign equivalent of a 
baccalaureate degree. Moreover, the Director does not ascertain whether the Petitioner's employment 
reflects at least five years of progressive experience in the specialty. As such, the Director did not decide 
whether the Petitioner is a member of the professions holding an advanced degree. 
5 The Petitioner claimed to meet three additional criteria. 
6 See, e.g., Matter of M-A-S-, 24 T&N Dec. 762, 767 n.2 (BIA 2009); Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 
2011) ( finding that issues not raised in a brief are deemed waived). 
7 Section 101 (a)(32) of the Act states "[t]he term 'profession' shall include but not limited to architects, engineers, lawyers, 
physicians, surgeons, and teachers in elementary or secondary schools, colleges, academics, or seminaries." 
4 
B. National Interest Waiver 
The next issue is 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. Although the decision summarized the 
three-prong Dhanasar requirements, the Director did not address the Petitioner's claims and 
documentation. Instead, the Director determined that since the Petitioner did not establish "eligibility 
for second preference classification under section 203(b )(1 )(A) of the INA, USCIS will not grant a 
national interest waiver as a matter of discretion." Without a proper evaluation of the evidence in 
accordance with the factors identified in the Dhanasar precedent decision, the Director's 
determination was in error. 
III. CONCLUSION 
To meet the requirements for a national interest waiver, an individual must first qualify for the 
underlying EB-2 visa classification. We are therefore remanding the petition for the Director to 
consider whether the Petitioner has satisfied the eligibility requirements for classification as a member 
of the professions holding an advanced degree. 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. As such, we will remand the matter for further consideration of the record, 
including claims and documentation submitted on appeal, and entry of a new decision. 
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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