30867414 - Appeal of Nebraska Service Center Decision - U.S. Citizenship and Immigration Services Form I-140 (National Interest Waiver)

Sep 16, 2026

U.S. Citizenship and Immigration Services records an appeal (In Re: 30867414) challenging the Nebraska Service Center’s denial of Form I-140, an EB-2 immigrant petition seeking a national interest waiver of the job offer and labor certification requirements. The matter explains the petitioner’s burden to prove eligibility by a preponderance of the evidence and sets forth a de novo review standard. It outlines EB-2 qualification for advanced degree or exceptional ability and applies the Matter of Dhanasar framework for national importance, positioning, and benefit to the United States.

LanguageEnglish

CategoryLetters

FormatPDF

Pages9

Reading Time3 min

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I. LAW

EB-2 eligibility prerequisites

National interest waiver framework (Matter of Dhanasar)

II. ANALYSIS

U.S.Citizenshipand ImmigrationServices Date:MAY14,2024 In Re:30867414 Appeal of Nebraska Service Center Decision Form I-140,Immigrant Petition for Alien Workers(National Interest Waiver) The Petitioner,an entrepreneur,seeks classification as a member of the professions holding anadvanced degree or of exceptional ability,Immigration and Nationality Act(the Act)section203(b)(2),8 U.S.C.§1153(b)(2).The Petitioner also seeks a national interest waiver of the job offerrequirement that is attached to this employment based second preference (EB-2)classification.Seesection 203(b)(2)(B)(i)of the Act,8 U.S.C.§1153(b)(2)(B)(i).U.S.Citizenship and ImmigrationServices(USCIS)may grant this discretionary waiver of the required job offer,and thus of a laborcertification,when it is in the national interest to do so.See Flores v.Garland,72 F.4th 85,88(5thCir.2023)(joining the Ninth,Eleventh,and D.C.Circuit Courts(and Third in an unpublished decision)in concluding that USCIS'decision to grant or deny a national interest waiver to be discretionary innature). The Director of the Nebraska Service Center denied the petition,concluding that the record did notestablish that a waiver of the required job offer,and thus of the labor certification,would be in thenational interest.The matter is now before us on appeal pursuant to 8 C.F.R.§103.3. The Petitioner bears the burden ofproof to demonstrate eligibility by a preponderance of the evidence.Matter of Chawathe,25I&N Dec.369,375-76(AAO 2010).We review the questions in this matterde novo.Matter of Christo's,Inc.,26 I&N Dec.537,537 n.2(AAO 2015).Upon de novo review,we will dismiss the appeal. # I.LAW To establish eligibility for a national interest waiver,a petitioner must first demonstrate qualification forthe underlying EB-2 visa classification,as either an advanced degree professional or an individual ofexceptional ability in the sciences,arts,or business.Because this classification requires that theindividual's services be sought by a U.S.employer,a separate showing is required to establish that awaiver of the job offer requirement is in the national interest,but only if a petitioner categoricallyestablishes eligibility in the EB-2 classification. The regulation at 8 C.F.R.§204.5(k)(2)defines advanced degree to mean any United States academicor professional degree or a foreign equivalent degree above that of a baccalaureate.A United States baccalaureate degree or a foreign equivalent degree followed by at least five years of progressiveexperience in the specialty shall be considered the equivalent of a master's degree and so permitclassification as an EB-2 permanent immigrant.Progressive experience can be demonstrated by thePetitioner by providing letters from current or former employers showing that they have at least fiveyears of progressive post-baccalaureate experience in the specialty.The regulation at 8 C.F.R.§204.5(g)(1)requires letters from current or former employers include the name,address,and title ofthe writer,and a specific description of the duties performed. If we conclude that a petitioner has an advanced degree or is of exceptional ability such that they haveestablished their eligibility for classification as an immigrant in the EB-2 classification,we evaluate thenational interest in waiving the requirement of a job offer and thus a labor certification. Whilst neither the statute nor the pertinent regulations define the term "national interest,"we set fortha framework for adjudicating national interest waiver petitions in the precedent decision Matter ofDhanasar,26 I&N Dec.884(AAO 2016).Dhanasar states that USCIS may as a matter of discretiongrant a national interest waiver of the job offer,and thus of the labor certification,to a petitionerclassified in the EB-2 category if they demonstrate that(1)the noncitizen's proposed endeavor hasboth substantial merit and national importance,(2)the noncitizen is well positioned to advance theproposed endeavor,and (3)th

FAQs

What is being appealed in In Re: 30867414?

The appeal challenges the Nebraska Service Center’s decision denying the petitioner’s Form I-140 request for an EB-2 national interest waiver.

What must the petitioner show to qualify for a national interest waiver?

The petitioner must first establish EB-2 eligibility (advanced degree or exceptional ability), and then satisfy the national interest waiver framework requiring substantial merit and national importance, being well positioned to advance the endeavor, and showing that waiver benefits the United States.

What evidence is required regarding progressive experience and employer letters?

Advanced degree equivalence requires at least five years of progressive post-baccalaureate experience. Employer letters must include the writer’s name, address, title, and a specific description of duties performed.

Sep 16, 2026

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