dismissed EB-2 NIW Case: Beverage Bottling Industry

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JUL. 03, 2024 In Re: 31455384 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, National Interest Waiver) 
The Petitioner, with his experience in the beverage bottling industry, seeks employment-based second 
preference (EB-2) immigrant classification as a member of the professions holding an advanced degree 
or an individual of exceptional ability, as well as a national interest waiver of the job offer requirement 
attached to this classification. See Immigration and Nationality Act (the Act) section 203(b )(2), 
8 U.S.C. § ll 53(b )(2). 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner had not 
shown that a waiver of the required job offer, and thus of the labor certification, would be in the 
national interest because the record did not establish the Petitioner's proposed endeavor is of national 
importance or that, on balance, it would be beneficial to the United States to waive the requirements 
oflabor certification. The matter is now before us on appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof 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 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
To qualify for a national interest waiver, a petitioner must first show eligibility for the underlying 
EB-2 visa classification under section 203(b)(2)(A) of the Act, 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. 
An advanced degree is any U.S. academic or professional degree or a foreign equivalent degree above 
that of a bachelor's degree. A U.S. bachelor's degree or foreign equivalent degree followed by five 
years of progressive experience in the specialty is the equivalent of a master's degree. 
8 C.F.R. § 204.5(k)(2). 
Exceptional ability means a degree of expertise significantly above that ordinarily encountered in the 
sciences, arts, or business. 8 C.F.R. § 204.5(k)(2). 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). 1 Meeting 
at least three criteria, however, does not, in and of itself, establish eligibility for this classification. 2 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. 
If a petitioner demonstrates eligibility for the underlying EB-2 classification, 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 T&N Dec. 884, 889 (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,3 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 their proposed endeavor; and 
• On balance, waiving the job offer requirement would benefit the United States. 
Id. 
II. ADV AN CED DEGREE 
The 
Director determined the Petitioner established he qualifies as a member of the professions holding 
an advanced degree as required for EB-2 classification. Specifically, the Director found the Petitioner 
submitted evidence that he holds at least a bachelor's degree and five years of experience in the field 
without further discussion of the evidence. 
However, the record does not contain evidence that the Petitioner holds a bachelor's degree. Rather, 
the Petitioner submitted a copy of a high school diploma with a concentration in mechanics, work­
related certifications, and evidence of work experience. The Petitioner also submitted an evaluation 
equating the Petitioner's years of work experience to a bachelor's degree in quality systems 
management. However, the record does not reflect the Petitioner holds the requisite baccalaureate 
degree to qualify as an advanced degree professional. See 8 C.F.R. § 204.S(k)(l ), (2). The regulations 
at 8 C.F.R. § 204.5(k)(2) require submission of a bachelor's degree or foreign equivalent degree; 
petitioners cannot combine experience, training, or education to substitute for or supplement this 
requirement. As the Petitioner has not established himself as an advanced degree professional, the 
Director's finding on his eligibility for the underlying EB-2 visa classification is withdrawn. 
1 If these types of evidence do not readily apply to the individual's occupation, a petitioner may submit comparable 
evidence to establish their eligibility. 8 C.F.R. § 204.5(k)(3)(iii). 
2 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of aliens of 
exceptional ability. 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5. 
3 See 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 
The Petitioner previously asserted before the Director that he qualifies for the underlying immigrant 
classification as an individual of exceptional ability in the sciences, arts, or business. But as the 
Petitioner has not demonstrated the national importance of the proposed endeavor, as outlined below, 
we reserve the Petitioner's arguments regarding whether he qualifies for EB-2 visa classification as 
an individual of exceptional ability. 
III. NATIONAL INTEREST W AIYER 
The Petitioner intends to operate both as a business developer and consultant in the U.S. bottling 
industry and also enter this industry himself through his own company, I I The Petitioner 
asserts his extensive experience in the food and beverage industry, including as a quality consultant, 
allowed him to increase revenue for his clients in Brazil. The Petitioner plans to bring this same 
expertise and profitability to the United States. The Petitioner believes he can offer production 
efficiencies and development, such as bottle shapes that are lightweight and carbon efficient, to the 
bottling industry. 
A. Substantial Merit and National Importance 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
individual proposes to undertake. 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. 
Matter of Dhanasar, 26 I&N Dec. at 889. The Director determined the Petitioner established the 
substantial merit aspect, the initial half of the first prong. 
However, the Petitioner has not met his burden of demonstrating the proposed endeavor is of national 
importance. The Director determined the Petitioner has not established his endeavor sufficiently 
extends beyond his own company, employers, and clients; or offers original innovations that contribute 
to advancements or has broader implications in the field. The Director also found the Petitioner did 
not demonstrate benefits to the U.S. regional or national economy from the Petitioner's proposed 
endeavor would rise to the level of substantial positive economic effects contemplated by Dhanasar. 
Id. at 890. 
On appeal, the Petitioner cites to an article predicting substantial growth in the beverage bottling and 
filling industry. The Petitioner also asserts his submitted business plan evidences his company will 
have substantial positive economic effects, both nationally and globally. The record contains an eight­
year plan for the Petitioner's business endeavor reflecting intent to employ up to 12 employees and 
obtain 620,000 dollars in investments. However, the Petitioner did not provide any supporting 
evidence corroborating these projected employment and investment figures. Further, the Petitioner 
did not meet his burden of demonstrating how these projections, even if credible and plausible, result 
in benefits to the regional or national economy to the level of "substantial positive economic effects," 
as contemplated by Dhanasar. Id. at 890. 
The Petitioner contends his particular work expertise will modernize the bottling industry, increase 
efficiency, and lessen environmental impact by making containers more recyclable. The Petitioner 
states that he intends to consult for I I a glass manufacturing company in the United States; the 
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record contains an unsigned contract and consultant invitation from I I to the Petitioner. The 
Petitioner claims I I has been applying global glass innovations at the national level, including 
eco-friendly and sustainable glass with lower carbon emissions. The Petitioner contends that since he 
would be improving manufacturing processes through his consultation work with I I he has 
established the national importance of his endeavor under Dhanasar. A 2023 letter froml 
human resources indicates the Petitioner would be employed to lower product wastage, consumer 
complaints, and internal workforce issues. We acknowledge Dhanasar states an endeavor's national 
importance may be established by certain improved manufacturing processes. Id at 889. However, 
the matter here is not whether improving manufacturing processes is nationally important but rather, 
whether the Petitioner's specific, proposed endeavor as business developer and quality consultant in 
the bottling industry has national importance. Here, the Petitioner has not established continuing his 
work in quality control, resulting in manufacturing performance and efficiency for his clients, rises to 
the level of national importance. Though the Petitioner asserts his role in developing eco-friendly 
glass bottles with lower carbon emissions, the record does not detail or include evidence of the 
Petitioner's intended role in this respect or how it has broader implications for our country. Further, 
the letters of support submitted on behalf of the Petitioner regarding his knowledge, skills, and abilities 
relate to the second prong of the Dhanasar framework, which "shifts the focus from the proposed 
endeavor to the foreign national." Id. at 890. Overall, the Petitioner has not demonstrated through 
supporting documentation how his endeavor sufficiently extends beyond his prospective client or 
employees, to impact the field or the U.S. economy more broadly at a level commensurate with 
national importance. 
B. Additional Dhanasar Prongs 
Because the documentation in the record does not establish the national importance of the proposed 
endeavor as required by the first prong of the Dhanasar precedent decision, the Petitioner has not 
demonstrated eligibility for a national interest waiver. Further analysis ofthe Petitioner's eligibility under 
the second and third prongs outlined in Dhanasar, therefore, would serve no meaningful purpose.4 
III. CONCLUSION 
As the Petitioner has not met the 
requisite first prong of the Dhanasar analytical framework, we conclude 
the Petitioner has not demonstrated eligibility for or otherwise merits a national interest waiver as a 
matter of discretion. Further analysis of the Petitioner's eligibility under the second and third prongs 
outlined in Dhanasar, therefore, would serve no meaningful purpose. The appeal will be dismissed 
for the above stated reasons, with each considered as an independent and alternate basis for the 
decision. 
4 See INS v. Bagamasbad. 429 U.S. 24, 25 (1976) (stating that agencies are not required to make "purely advisory findings" 
on issues that are unnecessary to the ultimate decision); see also Matter ofL-A-C-, 26 I&N Dec. 516, 526 n. 7 (BIA 2015) 
( declining to reach alternate issues on appeal where applicants do not otherwise meet their burden of proof). Here, the 
Director found the Petitioner established he is well-positioned to advance his proposed endeavor, in satisfaction of the 
second Dhanasar prong. Our de novo review of the record does not appear to support this finding; however. we will 
reserve this issue and not further consider the Petitioner's eligibility under this or the third prong as our determination the 
Petitioner did not satisfy the first Dhanasar prong is dispositive of this appeal. 
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ORDER: The appeal is dismissed. 
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