remanded EB-2 NIW Case: Unknown

U.S. Citizenship 
and Immigration 
Services 
In Re: 12458465 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JUN. 21, 2021 
Form 1-140, 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 and 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 Texas Service Center denied the petition, concluding that the Petitioner 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 
he is eligible for a national interest waiver. 
While we conduct de nova review on appeal , we conclude that a remand is warranted in this case 
because the Director's decision is insufficient for review. In order to qualify for a national interest 
waiver , the Petitioner must first show that he qualifies for classification under section 203(b )(2)(A) of 
the Act as either an advanced degree professional or an individual of exceptional ability . As presently 
constituted, the record does not establish whether the Petitioner qualifies for the underlying second 
preference immigrant classification . 
I. LAW 
To establish eligibility for a national interest waiver, a petitioner must first demonstrate qualification 
for the underlying EB-2 visa classification ( emphasis added), 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. 
Section 10l(a)(32) of the Act provides that "[t]he term 'profession' shall include but not be limited to 
architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, 
colleges, academics, or seminaries." 
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. 1 Dhanasar states that after EB-2 eligibility has been 
established, USCIS may, as a matter of discretion, 2 grant a national interest waiver when the below 
prongs are met. 
1 In announcing this new framework. we vacated our prior precedent decision, Matter of New York State Department of 
Transportation. 22 T&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSD01). 
2 See also Poursina v. USC1S. 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 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. Eligibility for the Requested Classification 
As stated above, the first step to establishing eligibility for a national interest waiver is demonstrating 
qualification for the underlying EB-2 visa classification, as either an advanced degree professional or 
an individual of exceptional ability. 
The Petitioner's August 2018 letter accompanying the Form 1-140 petition stated that he qualifies as 
an advanced degree professional based on a combination of his academic background and progressive 
professional experience. The letter also stated that the Petitioner was alternatively seeking 
classification as "a professional of Exceptional Ability in his field of expertise." 
The Petitioner maintains that he has established eligibility as an advanced degree professional. 
Specifically, he states that "[a]ccording to your [request for evidence (RFE)] letter, USCIS finds [the 
Petitioner] to be a member of the professions holding an advanced degree." On appeal, the Petitioner 
again states that "the Service approved that the petitioner qualifies for the requested classification as a 
member of the professions holding an advanced degree." Contrary to the Petitioner's assertions, 
however, neither the Director's decision nor the RFE renders a finding as to whether the Petitioner 
qualifies as an advanced degree professional, or alternatively as an individual of exceptional ability. 
3 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
3 
Instead, the Director conducted an analysis of the Dhanasar framework, without first determining 
whether the Petitioner qualified for the underlying EB-2 visa classification. 
B. National Interest Waiver 
The remaining issue is whether the Petitioner has established that a waiver of the requirement of a job 
offer, and thus a labor certification, is in the national interest. The Director's decision did not render 
findings as to whether the Petitioner satisfies prong one of the Dhanasar analytical framework. 4 
III. CONCLUSION 
For the reasons discussed above, we are remanding the petition for the Director to first consider whether 
the Petitioner qualifies for EB-2 classification, the threshold determination in national interest waiver 
cases. If the Director concludes that the Petitioner is qualified for the requested classification, he 
should then 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 farther 
proceedings consistent with the foregoing analysis and entry of a new decision. 
4 On appeal, the Petitioner states "because the Service did not question the fulfillment of this prong either in the RFE. nor in 
the Service Denial Decision, the Petitioner is assuming the Service implicitly recognized that the proposed endeavor has 
substantial merit and national importance, although the Service should have explicitly analyzed this prong in the Service Denial 
Decision." 
4