dismissed EB-2 NIW Case: Art

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: APR. 25, 2024 In Re: 30164362 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Worker (National Interest Waiver) 
The Petitioner, an artist, seeks second preference immigrant classification (EB-2) as an individual of 
exceptional ability. See Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. 
§ 1 l 53(b )(2) (2022). The Petitioner also seeks a national interest waiver of the job offer requirement 
that is attached to this EB-2 immigrant classification. See section 203(b )(2)(B)(i) of the Act. U.S. 
Citizenship and Immigration Services (USCIS) may grant this discretionary waiver of the required job 
offer, and thus of a labor certification, when it is in the national interest to do so. 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish the Petitioner's qualification for a national interest waiver. The matter is now before us on 
appeal. 8 C.F.R. § 103.3 (2022). 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de 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 
for the underlying EB-2 immigrant 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. 
"Exceptional ability" means a degree of expertise significantly above that ordinarily encountered in 
the field. 8 C .F.R. § 204.5(k)(2) (2022). An individual 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. 1 If a 
petitioner does demonstrate meeting at least three criteria, USCIS then conducts a final merits 
1 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of individuals of 
exceptional ability. See generally 6 USCIS Policy Manual F.5(B)(2), https://www.uscis .gov/policy-manual/volume-6-
part-f-chapter- 5. 
determination to decide whether the evidence in its totality shows that the individual is 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. Matter ofDhanasar states that USCIS may, as matter of discretion, 2 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. 
Matter ofDhanasar, 26 I&N Dec. at 889-91. 
TI. ANALYSIS 
The Director determined that the Petitioner "does have a degree of expertise significantly above that 
ordinarily encountered in the ... arts" and found "the [P]etitioner to be an individual of exceptional 
ability." Notwithstanding this finding, the Director concluded that she did not establish that a waiver 
of the requirement of a job offer, and thus a labor certification, would be in the national interest. 
Upon de novo review, we agree with the Director's finding, concluding that the Petitioner's proposed 
endeavor does not satisfy the national importance element under Matter ofDhanasar' s first prong. If 
the Petitioner does not meet the first prong, the record is dispositive in finding that she is ineligible for 
the national interest waiver, and we need not address the second and third prongs under the Matter of 
Dhanasar framework. 
As explained in the Director's decision, the first prong - substantial merit and national importance -
focuses on the specific endeavor that the foreign national proposes to undertake in the United States. 
In determining whether the proposed endeavor has national importance, we consider its potential 
prospective impact. Matter ofDhanasar, 26 I&N Dec. at 889. We noted in Matter ofDhanasar that 
"we look for broader implications" of the proposed endeavor and that "[ a ]n undertaking may have 
national importance for example, because it has national or even global implications within a particular 
field." Id. We also stated that "[a]n endeavor that has significant potential to employ U.S. workers or 
has other substantial positive economic effects, particularly in an economically depressed area, for 
instance, may well be understood to have national importance." Id. at 890. 
2 See Poursina v. USCIS, 936 F. 3d 868, 870-76 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national 
interest waiver to be discretionary in nature); see also Flores v. Garland, 72 F. 4th 85, 88 (5th Cir. 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 is discretionary in nature). 
2 
In an undated statement that the Petitioner submitted in support of the petition, the Petitioner stated 
that she is "in the field of Design" and she is "an experienced expert in utilizing artistic design to bring 
social attention to environmental issues." When discussing her proposed endeavor in the United 
States, she indicated that she intends to engage in "artistic social activism," "work in the artistic and 
cultural sphere of the United States," and "focus [her] skills in art and design to generate awareness of 
the need for changes in environmental policy-making, to the benefit of the U.S economic and 
environmental health." In a document entitled "EB-2 Professional Plan," she discussed her 5-year 
plan and 10-year plan as a contemporary artist in the United States, noting that she aims for her art to 
"help to shift public opinion and drive awareness" and "affect public policy decision-making and 
contribute to the positive, sustainable development of the U.S. economy, thus creating a safter, cleaner, 
and more economically-efficient future." 
The Petitioner has offered other evidence in support of her petition, including recommendation letters 
from an associate professor of art at _____ discussing her artistic work and "her zeal to 
deliver greater awareness and appreciation of the natural world through her artwork", and from a 
fellow at theI Idiscussing her work that "draws attention to 
the need to preserve wild spaces and animals who call them home." She has also submitted evidence 
relating to her employment as a graphic designer, her licensing agreement with an online platform, 
and her consignment agreement with an art gallery. Additionally, she has presented materials 
confirming the showing of her work online, in publications and in exhibitions. The "EB-2 Professional 
Plan" states that she is a member of the World Wildlife Fund (WWF) and donates money to 
organizations that address environmental and wildlife preservation concerns. 
On appeal, the Petitioner maintains in her appellate brief that her "proposed endeavor holds significant 
national importance due to its holistic approach to addressing environmental issues through 
contemporary art, education, and community engagement." She claims that her proposed endeavor 
will positively impact the U.S. economy because her art "us[es] recycled materials" and offers 
consumers "eco-friendly merchandise and products," and because her "participation in exhibitions and 
collaborations ... stimulates economic growth .... " In addition, she alleges that her proposed 
endeavor will be "an economic driver," because it will "create jobs, generate tax revenue, and 
revitalize struggling areas." 
The record is insufficient to demonstrate that the Petitioner's proposed endeavor satisfies the first 
prong under Matter of Dhanasar. Specifically, the letters of recommendation and other supporting 
materials discuss the focus of Petitioner's proposed endeavor, but they fail to establish how her 
proposed endeavor will likely impact the field of design nationally or how the potential prospective 
impact has national implications within the field. See id., 26 I&N Dec. at 889. For example, the letter 
from an associate professor of art at I I claims that her proposed endeavor "has a 
national and even a global impact," but the letter supports the claim with a general discussion of 
contemporary art and its impact on society, without specifically explaining how the Petitioner's 
proposed endeavor - using art to bring awareness to environmental and wildlife preservation issues -
rises to the level of national importance or how it will likely impact the field of design more broadly. 
Also, the letter from a fellow at the _____________ notes that the Petitioner's 
art "explores themes of nature and ecofeminism," but does not explain how her proposed endeavor 
has national importance. As discussed in the Director's decision, the Petitioner has not established 
that her proposed endeavor "offers original innovations that contribute to advancements or otherwise 
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has broader implications for the field." See Matter ofDhanasar, 26 I&N Dec. at 889-90. Additionally, 
while the Petitioner has entered into a licensing agreement with an online platform and has displayed 
her work publicly, the record does not support a finding that the level of public interest she has received 
confirms national importance of her proposed endeavor. 
Similarly, while the Petitioner claims that her proposed endeavor is "an economic driver," she has not 
included sufficient evidence showing the level of economic impact that her proposed endeavor will 
likely have, including information on the number ofjobs it will likely create, the amount of tax revenue 
it will likely generate, how it will likely revitalize struggling areas, or where are the struggling areas I 
that it will likely revitalize. For example, the letter from an associate professor of art at
I lstates that the Petitioner's "contemporary artist position has ... economic effects for the 
society," because "the annual wage for artists was $49,960 in May 2021" and that the "employment 
multiplier figures for arts are very promising." Even ifwe were to accept that the Petitioner's proposed 
endeavor will likely have some economic impact, as it is the case with most employment, as noted in 
the Director's decision, the Petitioner has not established that "her proposed endeavor has significant 
potential to employ U.S. workers or otherwise offers substantial positive economic effects for the 
United States." See Matter ofDhanasar, 26 I&N Dec. at 890. 
We acknowledge that the Petitioner's proposed endeavor involves bringing awareness to 
environmental and wildlife preservation issues through art. Even if we were to conclude that her 
proposed endeavor has substantial merit, merely working in an important area is insufficient to 
establish the national importance of the Petitioner's specific proposed endeavor. The relevant question 
is not the importance of the area in which the individual will work; instead, we focus on the "the 
specific endeavor that the foreign national proposes to undertake." Matter ofDhanasar, 26 I&N Dec. 
at 889. In this case, for the reasons we have discussed, the Petitioner has not demonstrated the requisite 
national importance. 
Accordingly, we find that the Petitioner has not satisfied the first prong of the Matter of Dhanasar 
framework, and she has not demonstrated eligibility for a national interest waiver. As the identified 
reasons for dismissal are dispositive of the Petitioner's appeal, we decline to reach and hereby reserve 
remaining arguments concerning eligibility under the Matter of Dhanasar framework. See INS v. 
Bagamasbad, 429 U.S. 24, 25 (1976) (stating that "courts and agencies are not required to make 
findings on issues the decision of which is unnecessary to the results they reach"); see also Matter of 
L-A-C-, 26 I&N Dec. 516, 526 n. 7 (BIA 2015) ( declining to reach alternative issues on appeal where 
an applicant is otherwise ineligible). 
III. CONCLUSION 
As the Petitioner has not met the requisite first prong of the Matter ofDhanasar analytical framework, 
we find that she has not established she is eligible for or otherwise merits a national interest waiver as 
a matter of discretion. 
ORDER: The appeal is dismissed. 
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