remanded EB-2 NIW Case: Veterinary Medicine

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEP. 12, 2023 In Re: 28127935 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a veterinarian, seeks classification as a member of the professions holding an advanced 
degree or, in the alternative, as an individual of exceptional ability in the sciences, arts or business . 
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 Nebraska Service Center denied the petition, concluding that the Petitioner did not 
submit all required evidence. 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 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc. , 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will withdraw the Director 's decision and remand the matter for entry of a new decision consistent 
with the following analysis. 
Prior to denying the petition, the Director sent the Petitioner a notice of intent to deny (NOID). In the 
NOID, the Director noted, "The Instructions for Form 1-140, found at www.uscis.gov/forms, require 
certain evidence be submitted at the time of filing." The Director further informed the Petitioner in 
the NOID that his Form 1-140, Immigrant Petition for Alien Workers, submission "did not include any 
initial evidence or supporting documentation." The Director then listed various types of evidence that 
the Petitioner may submit to establish eligibility for the requested benefit, spanning multiple pages; 
however, the Director did not specifically address Department of Labor ETA Form 750 Part B, 
Statement of Qualifications of Alien, or ETA Form 9089, Application for Permanent Employment 
Certification, in the NOID. However, the Director's sole basis for denying the Form 1-140 was, "since 
the [P]etitioner did not submit . . . a properly completed Application for Alien Employment 
Certification (Form ETA-750B) or Application for Permanent Employment Certification (ETA Form 
9089) Parts J, K, and L ... USCIS must deny the Form 1-140 for this reason," rather than addressing 
the types of evidence the Director listed in the NOID. 
On appeal, the Petitioner, who now appears prose, acknowledges that the record did not contain ETA 
Form 750 Part Band ETA Form 9089 at the time of the Director's decision; however, he asserts that 
"this omission was due solely and exclusively to the law firm that r had hired, which did not folly 
comply with its professional obligation." The Petitioner farther establishes on appeal that, upon 
receiving the NOrD, he terminated his contract with the attorney who submitted the Form r-140 and 
he states that he "personally submitted all the evidence required by the examiner on the NOrD." 
However, the Petitioner asserts that the Director erred by not specifying in the NOrD that the record 
omitted ETA Form 750 Part Band ETA Form 9089, and by ultimately denying the Form r-140 solely 
because of those omissions. 
We note that, by regulation, users need not necessarily send a NOrD to a petitioner before denying 
a benefit request that does not, upon submission, contain all required initial evidence or otherwise 
demonstrate eligibility. 8 e.F.R. § 103.2(b )(8)(ii) (providing that "Users in its discretion may deny 
the benefit request for lack of initial evidence or for ineligibility or request that the missing evidence 
be submitted within a specified period of time as determined by users"). However, when users 
sends a NOrD to a petitioner as a matter of discretion before denying a benefit request, the process­
and purpose-of a NOrD is provided by regulation: 
A request for evidence or notice of intent to deny will be communicated by regular or 
electronic mail and will specify the type of evidence required, and whether initial 
evidence or additional evidence is required, or the bases for the proposed denial 
sufficient to give the applicant or petitioner adequate notice and sufficient information 
to respond. 
8 e.F.R. § 103.2(b)(8)(iv). Because the Director denied the Form 1-140 for a basis not addressed in 
the NOID as a basis for the proposed denial, the NOID did not sufficiently give the Petitioner adequate 
notice and sufficient information to respond to the NOID in a manner that could cure the basis for the 
proposed denial, as required by 8 e.F.R. § 103.2(b)(8)(iv). 
Therefore, we will remand the matter for the entry of a new decision. The Director may request any 
additional evidence considered pertinent to the new determination regarding the Petitioner's 
submission of initial evidence and any other issue. 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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