remanded EB-2 NIW Case: Weapon Enhancement

MATTER OF A-S-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 12, 2018 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a researcher and inventor of weapon enhancement tools, 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). After a petitioner has established eligibility for EB-2 
classification, U.S. Citizenship and Immigration Services (USCIS) may, as matter of discretion, 
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. Matter of 
Dhanasar, 26 I&N Dec. 884 (AAO 2016). 
The Director of the Texas Service Center denied the Form 1-140, Immigrant Petition for Alien 
Worker, finding that the Petitioner had not established he qualified for classification as a member of 
the professions holding an advanced degree. 
On appeal, the Petitioner submits additional evidence and contends that the Director did not consider 
whether he qualifies for classification as an individual of exceptional ability and whether he is 
eligible for a national interest waiver under the Dhanasar framework. 
Upon de novo 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: 
Matter of A-S-
(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 of job 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. 
Furthermore, 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. 
Additionally, 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 l&N Dec. 884.1 Dhanasar states that after EB-2 
eligibility has been established, USCIS may, as a matter of discretion, 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 I&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSD07). 
2 
Matter of A-S-
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.2 
II. ANALYSIS 
At the time of filing, the Petitoner did not indicate whether he was seeking classification as a member 
of the professions holding an advanced degree or as an individual of exceptional ability. However, 
in his August 2017 letter responding to the Director's request for evidence, he asserted that he 
"satisfied the requirements to be classified as an individual of exceptional ability" and discussed the 
evidence he provided under the regulatory criteria at 8 C.F.R. § 204.5(k)(3)(ii). 
The Director denied the petition, finding that the Petitoner had not established that he qualifies as a 
member of the professions holding an advanced degree. In his decision, the Director stated that the 
evidence did not show that the Petitioner "has either a United States academic or professional degree or 
a foreign equivalent degree above that of a baccalaureate, or a single degree that is determined to be a 
United States baccalaureate degree or a foreign equivalent degree followed by five years of post­
baccalaureate experience." 
2 See Dhanasar, 26 I&N Dec. at 888-9 I, for elaboration on these three prongs. 
3 
.
Matter of A-S-
While the record supports the Director's determination that the Petitoner has not established that he 
qualifies as a member of the professions holding an advanced degree3, the Director's decision did not 
address whether the Petitioner meets at least three of the six regulatory criteria at 8 C.F .R. 
§ 204.5(k)(3)(ii) and has achieved the level of expertise required for exceptional ability classification. 
Furthermore, the Director's decision did not discuss whether the Petitioner is eligible for a national 
interest waiver under the requisite three prongs set forth in the Dhanasar analytical framework. 
III. CONCLUSION 
Although the record supports the Director's finding that the Petitioner has not established eligibility as 
a member of the professions holding an advanced degree, we are remanding the petition for the 
Director to consider whether the Petitioner has satisfied the eligibility requirements for classification 
as an individual of exceptional ability. In addition, the Director should apply the Dhanasar 
analytical framework to determine 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 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. 
Cite as Matter of A-S-, ID# 1518914 (AAO Sept. 12, 2018) 
3 The Petitioner presented an academic credentials evaluation indicating that his degree from 
is the foreign equivalent to "an Associate's Degree from an accredited institution of higher learning in the United 
States." This evidence does not demonstrate that the Petitioner has a United States baccalaureate degree or a foreign 
equivalent degree. See 8 C.F.R. § 204.5(k)(2) and 8 C.F.R. § 204.5(k)(3)(i)(B). 
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