U.S.

Citizenship Non-Precedent Decision of the

In Re: 29049595 Date: DEC. 26, 2023

Appeal of Texas Service Center Decision

Form 1-140, Immigrant Petition for Alien Worker (National Interest Waiver)

The Petitioner, an accountant, 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 immigrant 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 record did not
establish that the Petitioner was well-positioned to advance the endeavor or on balance, it would be
beneficial to the United States to waive the requirements of a job offer, and thus of a labor certification.
However, the Director did not discuss the substantial merit and national importance of the proposed
endeavor. The Director also did not evaluate whether the Petitioner qualifies for EB-2 classification
as a member of the professions holding an advanced degree or as an individual of exceptional ability.
The matter is now before us on appeal. 8 C.F.R. § 103.3.

The Petitioner bears the burden ofproof 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 novo. Matter of Christo 's, Inc., 26 l&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.

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. Section 203(b )(2)(B)(i) of the Act.

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 order to qualify as an individual of exceptional ability in the sciences, the arts, or business, a
petitioner must initially submit documentation that satisfies at least three of six categories of evidence.
8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). Meeting at least three criteria, however, does not, in and of itself:
establish eligibility for this classification. If a petitioner does so, we will then conduct a final merits
determination to decide whether the evidence in its totality shows that they are recognized as having
a degree of expertise significantly above that ordinarily encountered in the field.

Once a petitioner demonstrates eligibility as either a member of the professions holding an advanced
degree or an individual of exceptional ability, 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 (AAO 2016), provides the framework for adjudicating national interest
waiver petitions. Dhanasar states that U.S. Citizenship and Immigration Services (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 the proposed endeavor; and
• On balance, waiving the requirements of a job offer and a labor certification would benefit the
United States.

II. ANALYSIS

A. Eligibility for EB-2 Classification

As a threshold matter, we note that the Director did not determine whether the Petitioner qualifies for
the EB-2 classification, either as an advanced degree professional or an individual of exceptional
abilitv Go remand the Director should review a copy of the Petitioner's diploma from the
I with a degree in public accounting and the academic evaluation
stating that he has the foreign equivalent of a U.S. bachelor's degree in accounting, along with
experience letters from past employers to determine whether he qualifies as an advanced degree
professional.

In addition, although the Petitioner submitted documents to support that he qualifies as an individual
of exceptional ability, the Director did not make a finding on this issue. On remand, the Director
should evaluate the record to find whether the Petitioner meets three ofthe six criteria listed at 8 C.F.R.
§ 204.5(k)(3)(ii) and consider the totality of the evidence in determining whether the Petitioner

1
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).

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possesses a degree of expertise significantly above that ordinarily encountered in his field, and thus
qualifies as an individual of exceptional ability.

B. National Interest Waiver

With the initial filing, the Petitioner stated that his endeavor is to work as an accountant, "providing
financial accounting, managerial accounting, credit analysis, credit management, financial
management, business management, operations management, and project management services." In
response to the Director's request for evidence (RFE), the Petitioner submitted an updated personal
plan stating that his endeavor is "to offer financial management services to U.S.-based businesses,
mainly focusing on helping them in the area of in finances, accounting, and budgeting."

1. Substantial Merit and National Importance

Our exercise of discretion to waive the requirement of a job offer, and therefore a labor certification,
requires adherence to all three of the Dhanasar's prongs. Here, the Director did not include a
determination on substantial merit and national importance of the Petitioner's endeavor under the first
prong of the Dhanasar framework. An officer must fully explain the reasons for denying a visa
petition to allow the Petitioner a fair opportunity to contest the decision and to allow us an opportunity
for meaningful appellate review. 8 C.F.R. § 103.3(a)(i). Therefore, we will remand the matter for
entry of a new decision consistent with the following analysis.

In evaluating the Dhanasar' s first prong on remand, the Director should first analyze the evidence and
conclude whether the Petitioner's endeavor has substantial merit. 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. Dhanasar, 26 I&N Dec. at 889.

The Director should also analyze the evidence and conclude whether the Petitioner's endeavor has
national importance. Dhanasar provided examples of endeavors that may have national importance,
as required by the first prong, having "national or even global implications within a particular field,
such as those resulting from certain improved manufacturing processes or medical advances" and
endeavors that have broader implications, such as "significant potential to employ U.S. workers or has
other substantial positive economic effects, particularly in an economically depressed area." Id. at
889-90. Therefore, the Director should consider if the Petitioner's proposed endeavor has national or
global implications in the field of financial services, significant potential to employ U.S. workers, or
other substantial positive economic effects for the nation. If the Director concludes that the
Petitioner's documentation does not meet the substantial merit or national importance requirements of
Dhanasar's first prong, his decision should discuss the insufficiencies in the evidence and adequately
explain the reasons for ineligibility.

2. Well Positioned to Advance the Proposed Endeavor

As evidence for Dhanasar's second prong, the Petitioner presented his academic records, updated
personal plan, letters from employers and colleagues discussing his work experience, and an expert
opinion letter. The Petitioner asserts on appeal that the Director erred by requiring evidence of how

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his work served "as an impetus for progress in the industry" or has "a significant record or
indispensable role of success in the field," as these are not requirements found in the second prong of
the Dhanasar's analytical framework. While a petitioner's record of success and progress towards
achieving their endeavor are relevant factors for consideration under prong two of the Dhanasar
framework, we agree that there is no requirement that a petitioner demonstrate being "an impetus for
progress" or having an "indispensable role of success" in the field to satisfy this prong. The Director's
statements on this issue are therefore withdrawn.

To determine whether an individual is well positioned to advance the proposed endeavor, we consider
factors including, but not limited to: their 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. Id. at 890.

On remand, the Director should apply the second prong factors in Dhanasar to the facts contained in
the record to determine whether the Petitioner is well positioned to carry out the endeavor of providing
financial management services to businesses. As education is merely one factor among many that
contribute to the second prong analysis, 2 the Director should evaluate whether the recommendation
letters and the Petitioner's past experiences demonstrate a level of success that would render him well
positioned. The Director should also consider other evidence in the record, or the lack thereof, that
demonstrate any progress towards achieving his endeavor, or interests from potential employers or
clients.

In addition, the Director did not adequately address the Petitioner's updated personal plan and expert
opinion letter submitted in response to RFE. The Director should articulate whether such evidence
shows or fails to show that he is well positioned to advance his endeavor.

III. CONCLUSION

For the foregoing reasons, we will withdraw the Director's decision and remand the matter for farther
consideration of the record, including the claims and documentation submitted on appeal, and entry of
a new decision to determine whether the Petitioner meets each prong under Dhanasar.

ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new
decision consistent with the foregoing analysis.

2
In Dhanasar, the record established that the petitioner held multiple graduate degrees including ·'two master of science
degrees, in mechanical engineering and applied physics, as well as a Ph.D. in engineering." Id. at 891.