dismissed EB-2 NIW Case: Business

U.S. Citizenship 
and Immigration 
Services 
In Re: 095084 72 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JUN. 07, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner , a business owner and entrepreneur, seeks second preference 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 EB-2 classification. See Immigration and Nationality Act 
(the Act) section 203(b)(2) , 8 U.S.C . § 1153(b)(2). 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner's proposed endeavor was of national importance, and therefore failed to 
show his eligibility for a national interest waiver. The Petitioner subsequently filed a combined motion 
to reopen and motion to reconsider, both of which the Director found to meet the respective 
requirements for the filing of a motion. 1 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S .C. § 1361. Upon de nova 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 visa classification, as either an advanced degree professional or an individual 
of exceptional ability in the sciences, arts, or business . Because this classification requires that the 
individual's services be sought by a U.S . employer, a separate showing is required to establish that a 
waiver of the job offer requirement is in the national interest. 
Section 203(b) of the Act sets out this sequential framework: 
1 We note that in reviewing the Petitioner 's motion to reopen, the Director applied the standard at 8 C.F.R. § 1003.2(c), 
which is applicable to motions before the Board of Immigration Appeals and requires that evidence accompanying the 
motion "was not available and could not have been discovered or presented at the former hearing." The applicable 
regulation concerning motions to reopen in this case is 8 C.F.R. § 103.5(a)(2). Unlike the Board regulation, we do not 
require the evidence of a "new fact" to have been previously unavailable or undiscoverable. Instead, we interpret "new 
facts" to mean facts that are relevant to the issue(s) raised on motion and that have not been previously submitted in the 
proceeding, which includes the original petition. 
(2) Aliens who are members of the professions holding advanced degrees or aliens of 
exceptional ability. -
(A) In general. - Visas shall be made available ... to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or 
who because of their exceptional ability in the sciences, arts, or business, will 
substantially benefit prospectively the national economy, cultural or 
educational interests, or welfare of the United States, and whose services in the 
sciences, arts, professions, or business are sought by an employer in the United 
States. 
(B) Waiver of job offer -
(i) National interest waiver. ... [T]he Attorney General may, when the 
Attorney General deems it to be in the national interest, waive the 
requirements of subparagraph (A) that an alien's services in the sciences, 
arts, professions, or business be sought by an employer in the United States. 
While neither the statute nor the pertinent regulations define the term "national interest," we set forth 
a framework for adjudicating national interest waiver petitions in the precedent decision Matter of 
Dhanasar, 26 I&N Dec. 884. 2 Dhanasar states that after EB-2 eligibility has been established, users 
may, as a matter of discretion, grant a national interest waiver if the petitioner demonstrates: ( 1) that 
the foreign national's proposed endeavor has both substantial merit and national importance; (2) that 
the foreign national is well positioned to advance the proposed endeavor; and (3) that, on balance, it 
would be beneficial to the United States to waive the requirements of a job offer and thus of a labor 
certification. 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
foreign national 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. 
The second prong shifts the focus from the proposed endeavor to the foreign national. To determine 
whether he or she is well positioned to advance the proposed endeavor, we consider factors including, 
but not limited to: the individual's 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. 
The third prong requires the petitioner to demonstrate that, on balance, it would be beneficial to the 
United States to waive the requirements of a job offer and thus of a labor certification. In performing 
this analysis, users may evaluate factors such as: whether, in light of the nature of the foreign 
2 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department o( 
Transportation, 22 I&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
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national 's qualifications or the proposed endeavor, it would be impractical either for the foreign 
national to secure a job offer or for the petitioner to obtain a labor certification; whether, even assuming 
that other qualified U.S. workers are available, the United States would still benefit from the foreign 
national' s contributions; and whether the national interest in the foreign national' s contributions is 
sufficiently urgent to warrant forgoing the labor certification process. In each case, the factor(s) 
considered must, taken together, indicate that on balance, it would be beneficial to the United States 
to waive the requirements of a job offer and thus of a labor certification. 3 
II. ANALYSIS 
As acknowledged in the Director's decision, the record demonstrates that the Petitioner qualifies as a 
member of the professions holding an advanced degree. 4 The sole issue to be determined 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. 
The Petitioner did not initially provide details regarding his proposed endeavor in the United States, 
but indicated on Form I-140 that his proposed employment would be as a chief executive, and that in 
this role he would "plan, direct or coordinate operational activities at the hi hest level of mana ement 
with the he! of subordinates." He also submitted information about ....,.... ______ ...,.._ ____ ____, 
.__ _________________________ _,, a .__ _____ _.manufacturing 
and sales business he owned and ran since 2007, and articles about entrepreneurship in the United 
States. In response to the Director's request for evidence (RFE), the Petitioner submitted a business 
plan and registration documents concerning I l a Florida company he established in 
2018, as well as a letter fromj I a professor atOUniversity, who provides his 
evaluation of the Petitioner's eligibility for the requested immigration benefit. After reviewing the 
evidence, the Director concluded that while the Petitioner had established that his proposed endeavor 
as an entrepreneur and administrator in business has substantial merit, and that he was well positioned 
to advance that endeavor, he had not established that this endeavor was of national importance. 
Therefore, the Director concluded that he was not eligible for a national interest waiver. 
In his combined motion to reopen and reconsider, the Petitioner asserted that the Director failed to 
give consideration to the letter froml l which he indicated was submitted to establish 
his eligibility for a national interest waiver. He also submitted several invoices and receipts, as well 
as photographs, related to I I without explaining how this evidence supported his eligibility 
for a national interest waiver. As noted above, the Director's decision did not consider this evidence 
to be "new," and noted tha~._ ______ __,ts letter was considered and discussed in his previous 
decision. 
3 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three p~ 
4 The Petitioner submitted copies of his diploma and transcripts froml___J University in I l which 
indicate that he earned a bachelor's degree in business administration in 2007. An academic evaluation report confirms 
that this four-year degree is equivalent to a bachelor's degree in business administration issued by a college or university 
in the United States. The record also includes evidence that the Petitioner gained at least 1ve years of progressive 
ex erience after he earned this de ree as the owner and resident of his boat-building business, _ I 
3 
On appeal, the Petitioner states that the Director's decision on his combined motion "was done in 
error," but does not farther explain why his motions to reopen and reconsider should have been 
granted. Instead, he goes through the three prongs of the Dhanasar framework and argues that the 
evidence in the record supports his eligibility. In asserting that his proposed endeavor is of national 
importance, he initially states that the Director erred in stating that his proposed endeavor is to "start 
in the I I industry," and that his actual proposal is to "provide exceptional Business 
Administration skills to the~------~ industry." However, we note that the record consists 
of evidence related solely to the founding, operation and growth of I l and there is no 
indication that the Petitioner's "exjertise, skills, know how, and entrepreneurship" would be applied 
to companies other than!._ ___ __. or its potential business partners. 
The Petitioner next refers to letters from companies that have worked with him in I I and in the 
United States and s ecifically refers to a letter frorn~ ______ __.o~~----'-----'---~I 
L--------r----- 1 This letter, which was submitted with the Petitioner's motion to reopen, 
indicates tha has created a joint venture witl}l....., I and that they have already 
been corning up with "new and innovative ideas," such as aLJdesigned with accessibility for the 
disabled. He also states that this joint venture will create jobs, impact other small businesses in the 
area "to do certain things that we cannot do in house," and contribute tax revenue. 
As an initial matter, we note that the joint venture agreement betweenl I andl I was 
signed on April 20, 2019, ten months after the Petitioner filed this petition. Eligibility for a requested 
immigration benefit must be established at the time of filing. 8 C.F.R. §§ 103.2(b )(1 ), (12); Matter of 
Katigbak, 14 I&N Dec. 45, 49 (Reg'l Cornrn'r 1971). A petition cannot be approved at a future date 
after the petitioner becomes eligible under a new set of facts. Matter of Izummi, 22 I&N Dec. 169, 
1 75 (Comm 'r 1998). That decision, citing Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981 ), further 
provides that USCIS cannot "consider facts that come into being only subsequent to the filing of a 
petition." Id. at 176. 
Even if we were to consider this joint venture agreement as evidence of the proposed endeavor's 
national importance, it does not add sufficient information to the record to support that claim. The 
Dhanasar decision states that an endeavor may have national importance if it has "significant potential 
to employ U.S. workers or has other substantial positive economic effects, particularly in an 
economically depressed area ... " Here, neither! l's letter nor the business plan fore=] 
I I provides information regarding the number of employees that will be employed, either directly 
or indirectly, as a result of the operation of this business. I I states that the business is 
located "in an industrial area where there is low income housing," but the record does not include any 
supporting information regarding economic conditions in the area, and neither he nor the Petitioner 
suggest that they would focus on hiring individuals from an economically depressed area. In addition, 
I I's letter speaks only T;enerally about the benefits and economic impact of 
entrepreneurialisrn andlin general. Our analysis under the first prong focuses on 
the potential prospective impact of the Petitioner's specific proposed endeavor, and in this case the 
evidence does not establish that there is significant potential to employ U.S. workers. 
As for other substantial positive economic effects,! h letter mentions that the proposed 
endeavor will also require other small business to perform services for the joint venture between his 
company andl I but again there is no supporting information in the record to demonstrate 
4 
the significance of this impact. Also, the Petitioner's business Ian for initially projects 
revenues of $1.8 million based upon the production and sale of~--~ in the company's first year 
with a net f'ofit of 35%, or $630,000. Later in the document, he indicates that after selling some D I the company would then begin making and selling! I which would generate 
higher profits of 55% and result in a $2.5 million profit in the first year. However, beyond the 
discrepancy in these figures and the lack of evidence to support them, the Petitioner has not established 
that this level of revenue, or the taxes resulting from it, would present a substantial economic effect. 
Other otential ositive effects of the proposed endeavor mentioned in the business plan and the letter 
r--,_ ___ _Jinclude a "side overhead door" which the Petitioner claims is a unique feature of 
his.__ _ _. hich would provide easier access to th{LJ especially for the elderly and disabled. And, 
as noted in the Director's decision, the Petitioner makes a brief reference to developing I I 
"that are strongly linked to sustainability and are free from pollution." The Dhanasar decision notes 
that national importance may be shown when an endeavor has national implications within a field, 
"such as those resulting from certain improved manufacturing processes or medical advances." 
However, in this case, neither of these brief statements is supported by evidence showing how these 
design elements in thee=]produced by the Petitioner's company would have broader implications, 
to the I pdustry or the field of business, beyond the clients who would purchase thesel I 
Based upon our review of the record and in accord with the analysis provided above, we agree with 
the Director's conclusion that the Petitioner has not established that his proposed endeavor of founding 
and leading al I manufacturer is of national importance, and that he therefore has not 
met the first prong of the Dhanasar framework. We also agree that the Petitioner is well-positioned 
to advanc~ his prlposed endeavor, due to his past experience in owning and operating a similar 
company i and the interest of business partners and potential clients. 
As explained above, the third prong requires the petitioner to demonstrate that, on balance, it would 
be beneficial to the United States to waive the requirements of a job offer and thus of a labor 
certification. Here, the Petitioner again refers to the letter fro~ I who writes that 
"there are substantial economic benefits for the United States associated with waiving the job offer 
and labor certification requirements ... " However, this statement does not explain why a waiver of 
those requirements is necessary to enable the Petitioner to pursue his endeavor, nor does I I I I indicate why the "business development and investment opportunities" he asserts are 
associated with the Petitioner's endeavor outweigh the national interest in protection of the domestic 
labor force. In any case, as the Petitioner has not established that his proposed endeavor is of national 
importance, he is not eligible for a national interest waiver and further discussion of the balancing 
factors under the third prong would serve no meaningful purpose. 
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III. CONCLUSION 
As the Petitioner has not met the requisite three prongs set forth in the Dhanasar analytical framework, 
we find that he has not established that he is eligible for or otherwise merits a national interest waiver 
as a matter of discretion. 
ORDER: The appeal is dismissed. 
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