Date of Decision: September 14, 2023
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: Oil and Gas Industry
Petitioner Information
- Profession: Field Production Operator
- Field: Oil and Gas Industry
- Nationality: Not Specified
Summary of Decision
- Initial Decision: Denied
- Appeal Outcome: Remanded
Evidentiary Criteria Analysis
The petitioner, a field production operator in the oil and gas industry, sought classification under the EB-2 category as an individual of exceptional ability and requested a national interest waiver. The Director of the Texas 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 case and remanded it for a new decision.
Key Points from the Decision
- Eligibility for EB-2 Classification: The petitioner claimed exceptional ability and did not claim eligibility as a member of the professions holding an advanced degree. However, the Director erroneously concluded that the petitioner qualified as an advanced degree professional based on his Bachelor of Science in Industrial Engineering. The AAO clarified that the petitioner did not possess an advanced degree, as his baccalaureate was not followed by at least five years of progressive experience in the specialty. The Director must now make an initial determination regarding the petitioner’s claim of exceptional ability.
- National Interest Waiver: The Director did not provide specific reasons for the denial in the original decision and failed to discuss any evidence in the record or details of the petitioner’s proposed endeavor. The AAO emphasized that when denying a petition, the Director must explain the specific reasons for denial, including weighing the petitioner’s arguments and evidence relating to the Dhanasar prongs. The AAO noted that the petitioner significantly altered his proposed endeavor after receiving a Request for Evidence (RFE), which is not permissible. The Director must consider the petitioner’s original proposed endeavor when issuing the new decision.
Conclusion
Final Determination: The Director’s decision was withdrawn, and the case was remanded for a new decision. The Director must make an initial determination on the petitioner’s claim of exceptional ability and consider whether the petitioner qualifies for the national interest waiver based on the original proposed endeavor.
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