dismissed EB-2 NIW Case: Bioanalysis

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: AUG. 07, 2024 In Re: 31678893 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a bioanalyst, high school teacher, and entrepreneur, seeks employment-based second 
preference (EB-2) immigrant classification as a member of the professions holding an advanced 
degree, 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. § l 153(b)(2). 
The Director of the Texas Service Center denied the Petitioner's Form 1-140, Immigrant Petition for 
Alien Workers, concluding that the record did not establish that the Petitioner was eligible for and 
merited a national interest waiver as a matter of discretion. The matter is now before us on appeal 
pursuant to 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 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
To qualify for the underlying EB-2 visa classification, a petitioner must establish they are an advanced 
degree professional or an individual of exceptional ability in the sciences, arts, or business. Section 
203(b)(2)(A) 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). 
If a petitioner establishes eligibility for the underlying EB-2 classification, they must then demonstrate 
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, 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, 1 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. NATIONAL INTEREST WAIVER 
The Director concluded that the Petitioner qualifies as a member of the professions holding an 
advanced degree as required for underlying EB-2 classification. Accordingly, the remaining issue to 
be determined on appeal is whether the Petitioner has established that a waiver of the requirement of 
a job offer, and thus a labor certification, would be in the national interest. 
With respect to her proposed endeavor, the Petitioner initially indicated, through counsel, that she 
intended to work in the United States "as a professor and educator who will improve education and 
training programs in [the] area of bioanalysis, natural sciences, and biology," specifically by 
contributing to "the continuous improvement of the U.S. healthcare system, producing a new 
workforce ... especially in the field of Medical Laboratory Technicians [and] Medical Laboratory 
Scientists." In response to a request for evidence (RFE), the Petitioner provided an updated Form 
I-140 listing biological technician as her proposed employment in the United States, but also stated, 
through counsel, that she intended to work "as a bioscience expert and consultant who will improve 
recrniting, education and training programs in the area of bioanalysis, natural sciences, and biology," 
particularly for professionals and companies focused on medical laboratory sciences. She also claimed 
she would popularize science, technology, engineering, and mathematics (STEM) "among [the] 
younger population." The Petitioner provided a business plan wherein she stated she was creating a 
consulting company with an investment of funds totaling "upwards of $10,000" with the "goal to 
empower Medical Laboratory Technician[s] (MLT) or Medical Laboratory Scientist[s] (MLS), 
educators, institutions, and students by providing them with the knowledge, tools, and strategies 
needed to excel in the captivating world of biology." The plan further reflected that the company 
would offer specialized services aimed at improving natural sciences in the United States including 
curriculum development, teacher training and development, science program evaluation, and 
providing consultancy and advisory services to medical laboratories and educational institutions. 
The Director concluded, in part, that the Petitioner did not provide specific insight as to her proposed 
endeavor. We acknowledge the proposed endeavor as set forth in the Petitioner's initial filing and as 
clarified in response to an RFE indicates her intentions to work in various capacities, including as a 
professor, educator, and consultant. We find, however, that while the Petitioner's RFE response 
elaborated on her proposed endeavor, the record reflects her overall intention to work as a consultant 
providing educational and training services in the fields of bioanalysis, natural sciences, and biology, 
1 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). 
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including for medical laboratory technicians and scientists, and her business plan likewise reflects her 
proposal to provide such services through her own consulting business. Consequently, the Petitioner 
has sufficiently articulated a proposed endeavor to form a basis for evaluation under the Dhanasar 
analytical framework, and we therefore withdraw the Director's determination to the contrary. 
The Director further concluded that the Petitioner did not establish her proposed endeavor has 
substantial merit and is nationally important, or that on balance, waiving the job offer requirement 
would benefit the United States under Dhanasar prongs one and three. On appeal, the Petitioner 
claims the Director erred in its conclusion and asserts that the Petitioner meets all three prongs of the 
Dhanasar analytical framework. 
As noted above, to establish such a waiver would be in the national interest, the Petitioner must 
demonstrate that her proposed endeavor has both substantial merit and national importance, that she 
is well positioned to advance her proposed endeavor, and on balance waiving the job offer requirement 
would benefit the United States. Matter ofDhanasar, 26 I&N Dec. at 889. After our review of the 
record, we conclude that the Petitioner has not sufficiently demonstrated the national importance of 
her proposed endeavor under prong one of the Dhanasar framework and alternatively that she is not 
well positioned to advance her proposed endeavor under prong two. 
To evaluate whether the Petitioner's proposed endeavor satisfies the national importance requirement, 
the relevant question is not the importance of the industry or profession in which the individual will 
work; instead, we focus on the "the specific endeavor that the foreign national proposes to undertake." 
See id. at 889. In Dhanasar, we further stated that we consider the proposed endeavor's "potential 
prospective impact," and "look for broader implications" noting that "[ a ]n undertaking may have 
national importance for example, because it has national or even global implications within a particular 
field." Id. Further, "[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. 
Initially, and as noted above, the Petitioner stated that she sought to improve education and training 
programs in [the] areas of bioanalysis, natural sciences, and biology. In support of her Form I-140, 
the Petitioner provided, in part, letters of recommendation and articles highlighting critical shortages 
of medical laboratory professionals in the United States. In response to an RFE, the Petitioner clarified 
her proposed endeavor and submitted additional evidence including, in part, a business plan, articles 
related to the medical laboratory field and STEM education, and an expert opinion letter. In her 
response, she again noted the importance of medical laboratory professionals and the shortage of such 
professionals and made general claims that her proposed endeavor would address this shortage and 
impact the U.S. economy. She further noted the importance of STEM education in high school and 
claimed she would "[popularize] STEM among the younger population." On appeal, with regard to 
national importance, the Petitioner claims that her endeavor "can potentially have far-reaching positive 
consequences to bio-science ... and push national economic growth." She further claimed that "as her 
consulting business expands, [she] will create new direct employment opportunities," and that her 
"consultancy helps local schools and local education and healthcare systems in underserved 
areas ... [by] providing unique training and education programs that can be applied in any [region]." 
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While we acknowledge the importance of medical laboratory professionals in the United States as well 
as STEM education in schools in general, our focus is on the specific endeavor that the Petitioner 
proposes to undertake rather than the importance of the industry or profession in which the individual 
will work. Here, the Petitioner has not offered sufficient information and evidence to demonstrate the 
specialized consulting and educational services her company would offer would extend beyond a 
specific company, school, or other clientele, or that the offered services are at a level that would have 
national implications in the medical laboratory professional field or STEM areas of education. See 
generally 6 USCIS Policy Manual F.5(D)(2), https://www.uscis.gov/policy-manual (explaining that 
while proposed classroom teaching activities in STEM, for example, may have substantial merit in 
relation to U.S. educational interests, such activities, by themselves, generally are not indicative of an 
impact in the field of STEM education more broadly, and therefore generally would not establish their 
national importance). Similarly, while the Petitioner generally claims her company could push 
economic growth and create new employment opportunities to address the shortage in medical 
laboratory professionals, she does not explain and has not provided evidence showing how this would 
be accomplished or the scale of any potential economic impact her proposed endeavor may have. 
Consequently, the record is insufficient to establish her proposed endeavor has significant potential to 
employ U.S. workers or has other substantial positive economic effects. Accordingly, we find the 
Petitioner has not established that her proposed endeavor is nationally important. 
Alternatively, even if the Petitioner's proposed endeavor was nationally important, we conclude in our 
de novo review, that she is also not well positioned to advance the proposed endeavor as required 
under prong two of the Dhanasar framework. To determine whether a petitioner is well positioned to 
advance their proposed endeavor, we consider factors including, but not limited to: their education, 
skills, knowledge and record of success in related or similar efforts; a model or plan for future 
activities; any progress towards achieving the proposed endeavor; and the interest of potential 
customers, users, investors, or other relevant entities or individuals. Matter ofDhanasar, 26 I&N Dec. 
at 890. 
The record reflects that the Petitioner obtained a bachelor's degree in bioanalysis in 2001. Her 
employment experience includes working as a bioanalyst from 2001 until 2016 and as a biochemist 
for one year through 2017. From November 2017 through August 2021, the Petitioner was a high 
school science teacher. Since August 2021, the Petitioner has not been employed. 
Initially, despite her degree and experience in bioanalysis and teaching at the high school level, the 
Petitioner has not established she has skills, knowledge, or a record of success associated with starting 
an education-based consulting service or performing the specific services she claims the consulting 
company will perform. The record does not reflect the Petitioner has formal education in business, 
nor does it reflect she previously created and successfully ran a company for any purpose, either in the 
United States or abroad, to reflect prior knowledge in or a record of success managing and developing 
a company. Further, the Petitioner claims her company will engage in curriculum development, 
teacher training, and development for medical laboratory technicians and scientists that adhere to 
national standards; however the record does not reflect that the Petitioner has formal education related 
to curriculum development or teacher training, nor experience conducting these activities, in particular 
at the collegiate or graduate levels or in compliance with any national standards applicable in the 
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United States.2 Similarly, the Petitioner claims the company's consulting services would involve 
assisting medical laboratories with onboarding and program planning, grant writing, and educational 
policy development, but the record does reflect the Petitioner possesses experience in these areas nor 
does the Petitioner sufficiently describe her experience in such areas, if any. 
The Petitioner also has not submitted sufficient evidence of progress towards achieving her proposed 
endeavor. The record does not show that the Petitioner has taken steps towards creating a legal entity 
for her consulting company, nor does she address whether her company would need or has made 
progress in obtaining accreditation or licenses for any of the education-based services it would provide. 
Additionally, the Petitioner claims she will use her own funds to create the company, but she has not 
provided any financial documents showing she possesses the funds she proposes to invest or that she 
has invested in the development of the company. To the extent the Petitioner states in her business 
plan that the amount of funds contributed to the creation of the company may fluctuate based on 
whether there are additional investors or through the use of debt, the Petitioner has not provided 
corroborating evidence related to the interest of potential investors, or any steps taken to obtain loans 
or financing that may support the creation and development of the company. 
Finally, other than providing general information about the shortage of medical laboratory 
professionals in the United States, the Petitioner has not provided probative evidence of any interest 
from potential customers, users, investors, or other relevant entities or individuals who seek her 
services, especially compared to, for instance, more traditional or more established forms of obtaining 
education and training for medical laboratory professionals that already exist in the United States. 
Accordingly, the Petitioner has not established she is well positioned to advance her proposed 
endeavor. 
III. CONCLUSION 
The Petitioner has not met the requisite first or second prong of the Dhanasar analytical framework, 
requiring that she demonstrate her proposed endeavor is nationally important and that she is well 
positioned to advance her proposed endeavor respectively. We therefore conclude that she has not 
established she is eligible for or otherwise merits a national interest waiver as a matter of discretion. 
As noted above, the Director also concluded that the Petitioner did not establish her proposed endeavor 
had substantial merit as is required under prong one of Dhanasar, or that on balance it would not be 
beneficial to the United States to waive the requirements of a job offer and thus of a labor certification 
under prong three. While the Petitioner also contests these conclusions on appeal, since our 
determinations that the Petitioner's proposed endeavor is not nationally important and that she is not 
well positioned to advance her proposed endeavor are dispositive of her appeal, we decline to reach 
and hereby reserve the appellate arguments on these issues. See INS v. Bagamasbad, 429 U.S. 24, 25 
2 The Petitioner also claims, through counsel, that she has advanced "from basic positions ... to advanced supervising 
positions where she had responsibilities of organizing and planning, training and instructing others." However, neither the 
Petitioner's curriculum vitae nor her employment letters, expert opinion letter, letters of recommendation, or the Form 
ETA-9089, Application for Permanent Employment Certification, reflect that she served in such supervisory positions or 
gained this experience, and her counsel's unsubstantiated assertions do not constitute evidence. See, e.g ., Matter ofS-M-, 
22 l&N Dec. 49, 51 (BIA 1998) ("statements in a brief, motion, or Notice of Appeal are not evidence and thus are not 
entitled to any evidentiary weight"); see also Matter of Obaigbena, 19 l&N Dec. 533, 534 n.2 (BIA 1988). 
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( 1976) ("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). 
ORDER: The appeal is dismissed. 
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