Date of Decision: September 13, 2023
Service Center: Nebraska Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: Electrical Engineering
Petitioner Information
- Profession: Electrical Engineer
- Field: Electrical Engineering
- Nationality: Not Specified
Summary of Decision
- Initial Decision: Denied
- Appeal Outcome: Remanded
Evidentiary Criteria Analysis
The petitioner, an electrical engineer, sought classification under the EB-2 category as either an advanced degree professional or an individual of exceptional ability and requested a national interest waiver. The Director of the Nebraska Service Center denied the petition, concluding that the petitioner did not establish eligibility for the national interest waiver. The Administrative Appeals Office (AAO) reviewed the appeal and remanded the case for a new decision.
Key Points from the Decision
- Advanced Degree and Exceptional Ability: The petitioner submitted evidence to meet the criteria for both advanced degree professional and individual of exceptional ability classifications. The Director did not evaluate whether the petitioner met the requirements for either classification. On appeal, the petitioner argued that the Director failed to address his qualifications as an individual of exceptional ability. The AAO instructed the Director to evaluate the documentation and determine the petitioner’s eligibility for the underlying EB-2 classification on remand.
- Substantial Merit and National Importance: The petitioner proposed to work as the chief executive officer and electrical engineer for his recently established business, which provides residential and commercial custom electronics design and integration services. The Director concluded that the petitioner’s proposed endeavor did not have substantial merit and national importance but did not explain the basis for this determination. The AAO found that the decision lacked sufficient explanation and directed the Director to reevaluate the evidence and provide a detailed analysis of whether the proposed endeavor meets the first prong of the Dhanasar framework.
- Well-Positioned to Advance the Proposed Endeavor: The Director concluded that the petitioner was not well-positioned to advance his proposed endeavor but did not provide a sufficient analysis of the evidence. The AAO directed the Director to reassess the petitioner’s qualifications, including his education, skills, knowledge, and record of success, as well as the interest of potential customers and other relevant factors.
- Balancing Factors: The Director determined that it would not be beneficial to the United States to waive the job offer and labor certification requirements but did not discuss the evidence or provide a thorough analysis. The AAO instructed the Director to reconsider this prong of the Dhanasar framework, taking into account the petitioner’s specific claims and the relevant balancing factors.
Conclusion
Final Determination: The Director’s decision was withdrawn, and the case was remanded for a new decision. The Director must evaluate the petitioner’s eligibility for the EB-2 classification and reassess the evidence under the Dhanasar framework to determine whether the petitioner qualifies for a national interest waiver.
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