dismissed EB-2 NIW Case: Business Administration

U.S. Citizenship 
and Immigration 
Services 
In Re : 23078107 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: DEC. 21, 2022 
Form I-140, Immigrant Petition for Alien Worker (National Interest Waiver) 
The Petitioner seeks classification as a member of the professions holding an advanced degree. See 
Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § l 153(b)(2). The Petitioner 
also seeks a national interest waiver of the job offer requirement that is attached to this employment­
based, "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 Texas Service Center denied the petition, concluding that the Petitioner had not 
established that a waiver of the required job offer, and thus of the labor certification, would be in the 
national interest. The Director did not state a conclusion as to whether or not the Petitioner qualifies 
for the underlying immigrant classification. 
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 novoreview, 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: 
(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)Waiverofjob 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 tenn "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 (AAO 2016). Dhanasar states that after a petitioner has established 
eligibility for EB-2 classification, USCIS may, as a matter of discretion, 1 grant a national interest 
waiver if the petitioner demonstrates: (1) that the foreign national's proposed endeavor has both 
substantial merit and national impmiance; (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, regarding 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 ce1iification. In performing 
this analysis, USCIS may evaluate factors such as: whether, in light of the nature of the foreign 
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 too btain 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) 
1 Sec also Poursina v. USCJS, 936F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
2 
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. 2 
II. ANALYSIS 
The Petitioner earned a Ph.D. in business administration froml !University in 
I Georgia in 2015, and a master's degree inhuman resources fro m I University 
2 01 8 Ih e Petitio ner' only stated emp lo yment t experience is as manager of student affairs at 
I ]university from 2009 to 2018. The Petitioner entered the United States in 
November 2018 as a B-2 nonimmigrant visitor for pleasure. When she filed the petition in May 2019, 
she did not indicate that she had been employed in the United States. 
The only issue that the Director addressed in the denial 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 
We will also briefly address the issue of eligibility for the underlying immigrant classification. 
We agree with the Director that the Petitioner has not sufficiently demonstrated eligibility fora national 
interestwaiverundertheDhanasaranalytical framework. For the reasons discussed below, the Director 
determined, and we agree, that the Petitioner has not sufficiently demonstrated the national importance 
of her proposed endeavor under the first prong of the Dhanasar analytical framework. 3 
When she filed the petition, the Petitioner stated: "I plan to off er my expert knowledge and 
qualification of an innovative management specialist and human resources expert to the field of small 
and medium enterprise in the U.S .... [M]y work is dedicated to provid[ing] . . . comprehensive, high 
quality services to small and medium enterprises." The Petitioner provided background information 
about the importance of small businesses, but did not offer any further details about her proposed 
endeavor. 
The Director requested more details about the Petitioner's proposed endeavor, stating that the 
Petitioner did not "provide specific insight as to what she intends to do as a management specialist 
and human resources expert." 
In response, the Petitioner stated that her "extensive knowledge and expertise will be beneficial to the 
development and enhancement of the small and medium enterprises in the U.S. as well as startups and 
women-managed companies." She stated that she would bring about these benefits, and "improve 
mental health and well-being of the American population," as an "on line retailer of post cards, picture 
frames, gifts, and photo albums." 
The Petitioner's initial submission included no mention of selling greeting cards and other products. 
In her newer statement, the Petitioner asserted that she "noticed an increase in demand for this type of 
service due to the social isolation cause by the [COVID-19] pandemic ," which had not yet affected 
the United States when she filed the petition in May 2019. 
2 See Matter of Dhanasar, 26l&NDec. at 888-91, for elaboration on these three prongs. 
3 While we may not discuss every document submitted, we have reviewed and considered each one. 
3 
The Petitioner must meet all eligibility requirements at the time of filing the petition. See 8 C.F.R. 
§ 103 .2(b )(1 ). A petitioner may not make material changes to a petition that has already been filed in 
an eff 01i to make an apparently deficient petition conform to USCIS requirements. See Matter of 
Izummi, 22 I&N Dec. 169, 175 (Comm'r 1998). Here, the Petitioner has made a substantial material 
change to her petition, shifting her proposed endeavor from working as a "management specialist and 
human resources expert" to operating her own online store. 4 She registered her business in New Jersey 
as a limited liability company in June 2021, a month after the Director issued the request for evidence 
in May 2021. We will, neve1iheless, address the national benefit of the revised proposed endeavor, 
because that issue formed the basis for the Director's decision. 
The Petitioner asserts that an "online greeting cards business ... helps alleviate certain risks related 
to COVID-19 and by decreasing individuals' feelings of loneliness and social isolation." The 
Petitioner asserts that her business will give "older adults ... another creative way to communicate 
with their loved ones safely." The Petitioner cited no supporting evidence to establish that operating 
an online greeting card store would have national imp01iance in this way. 
An 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. Matter ofDhanasar, 26 I&N Dec. at 890. The burden is on the Petitioner 
to establish thatthe economic effects ofherproposedendeavor are "substantial." In tenns of economic 
effects, the Petitioner stated that she planned to hire eight employees by the company's fifth year of 
operations. The Petitioner did not explain how this level of projected employment represented 
significant potential to employ U.S. workers or would have other substantial positive economic effects. 
In an advisory letter, an adjunct associate professor ac=] University of New York at 
stated: "I am certain that [the Petitioner] will be invited to participate" "as a speaker in important 
entrepreneurship events in the United States," owing to her "unique knowledge and experience." The 
writer indicated that the Petitioner "has demonstrated a remarkable record of specific achievements as 
a Chief Executive" and an "exceptional track record of experience as a Chief Executive," but he did 
not elaborate or even identify any company where the Petitioner had previously served as a chief 
executive. The record does not indicate that the Petitioner had ever served as a chief executive before 
the September 2021 date of the advisory letter. 
The writer described the Petitioner as "a seasoned Entrepreneur with expe1iise in the online greeting 
cards sector," but he did not describe any past experience or training that the Petitioner has in that 
field. The writer did not indicate that the Petitioner's newly claimed greeting card business was 
already active. Rather, he stated that the Petitioner "will establish" the company"[ u ]pon being granted 
pennanent residency." 5 
4 In January 2022, the Petitioner filed a second petition, with receipt number l in which the proposed 
endeavor included the online store from thetimeoffiling. That petition was approved in June 2022. Because thatpetition 
is a separate proceeding that is not before us on appeal, we will not comment on its merits in this decision. The approval 
of the January 2022 petition does not entitle the Petitioner to a 2019prioritydatefrom the petition now before us on appeal 
A denied petition will not establish a priority date. 8 C.F.R. § 204.S(e )(3). 
5 The Petitionerregistered the company in June 2021, but she did not submit evidence that the company has begun doing 
business. 
4 
users may, in its discretion, use as advisory opinions statements submitted as expert testimony. See 
Matter of Caron International, 19 I&NDec. 791,795 (eomm'r 1988). However, USeISis ultimately 
responsible for making the final determination regarding an alien's eligibility for the benefit sought. 
Id. The submission of letters from experts supporting the petition is not presumptive evidence of 
eligibility; users may, as the AAO has done above, evaluate the content of those letters as to whether 
they support an individual's eligibility. Id. at 795. users may even give less weight to an opinion 
that is not corroborated, in accord with other information or is in any way questionable. Id.; see also 
Matter of D-R-, 25 I&N Dec. 445,460 n.13 (BIA 2011) (discussing the varying weight that may be 
given expert testimony based on relevance, reliability, and the overall probative value). 
In this instance, the submitted letter is questionable because it includes general references to expertise 
and experience as an executive and as a greeting card entrepreneur, without citing to any evidence that 
the Petitioner actually possesses that expertise or experience. 6 The Petitioner claims no such 
experience prior to filing the petition, and the card business was not part of her proposed endeavor 
when she first filed the petition. The writer stated that the evaluation is "based on documents provided 
by [the Petitioner] as well as information based on [the writer's] own research," but again he did not 
elaborate with details about the provided documents, the nature of his research, or what he learned 
from that research. 
A business plan in the record appears to be based on a general template. The business plan states that 
the Petitioner's company "prides itself on establishing and maintaining strong relationships with 
suppliers," but, as noted above, there is no direct evidence that the company has begun operations or 
that, as of late 2021, it had any such relationships to maintain. 7 
The Director denied the petition, stating that the Petitioner had not established the economic impact 
of the planned employment of eight individuals, and that the advisory letter did not suffice to meet her 
burden of proof. 
The appellate brief does not directly address the Director's specific conclusions. Instead, the brief 
repeats, verbatim, a statement originally submitted in response to the Director's request for evidence, 
with an added concluding sentence that reads: "Therefore, users erred in finding that the Petitioner 
has not established that the proposed endeavor is of national importance." Accordingly, the brief does 
not directly address the stated grounds for denial, or establish that the Director erred in that decision. 
In light of the above conclusions, the Petitioner has not met her burden of proof to establish that she 
meets the first prong of the Dhanasar national interest framework. Detailed discussion of the 
remaining prongs cannot change the outcome of this appeal. Therefore, we reserve those issues and 
will dismiss the appeal as a matter of discretion. 8 
6 If this decision had included discussion of whether the Petition eris well-positioned to advance the proposed endeavor, 
her evident lackofrelevant experience wouldhave been a significant factor in such discussion. 
7 The business plan is a draft document, with a comment box indicating a correction to the text on page 2 9. Repeated 
formatting errors appear to be consistent with the insertion of the Petitioner's name, and that ofher new company, into 
pre-existing template text. The plan was prepared specifically to support the petition; the phrase "EB-2 Visa Supporting 
Documentation" appears on the coverpage. 
8 See INS v. Bagamasbad, 429 U.S. 24, 25-26 (1976) (stating that, like courts, federal agencies are not generally required 
to make findings and decisions unnecessary to the results they reach); see also MatterofL-A-C-, 26 I&NDec. 516,526 
n.7(BIA2015) (declining to reach alternative issues on appeal where anapplicantis otherwise ineligible). 
5 
III. ADDITIONAL ISSUE 
In the decision notice, the Director focused entirely on the national interest waiver, and did not address 
the issue of the Petitioner's eligibility for the underlying immigrant classification. On appeal, the 
Petitioner states that she "qualifies as a holder of an advanced degree." The statute, however, does 
not refer to holders of an advanced degree. Rather, one must be either an individual of exceptional 
ability or a member of the professions holding an advanced degree. 
The regulations define a profession as one of the occupations listed in section 101 (a)(32) of the Act, 
8 U.S.C. § 1101 (a)(32), 9 as well as any occupation for which a United States baccalaureate degree or 
its foreign equivalent is the minimum requirement for entry into the occupation. 8 C.F.R. 
§ 204.5(k)(2). The Petitioner has abandoned her original plan to work as a "management specialist 
and human resources expert," and she has neither shown nor claimed that operating an on line store 
requires at least a bachelor's degree. For example, the Petitioner has not identified any licensing board 
or other authority that would prevent a person without such a degree from establishing and operating 
such a store. 
Therefore, the Petitioner has not met her burden of proof to establish that operating an online store 
qualifies as a profession, as the statute and regulations require. 
An individual may also qualify for classification under section 203(b )(2) of the Act as an individual 
of exceptional ability. An introductory statement from counsel briefly describes the evidentiary 
requirements to establish exceptional ability, butneither counsel nor the Petitioner actually claims that 
the Petitioner meets those evidentiary requirements, or explains how she meets them. As such, the 
Petitioner has made no claim to qualify for classification as an individual of exceptional ability. 
Because the Petitioner has not established that she is a member of the professions, and has put forward 
no specific claim of exceptional ability, she has not met her burden of proof to establish that she 
qualifies for classification under section 203(b )(2) of the Act. 
IV. CONCLUSION 
Because the Petitioner has not met the required first prong of the Dhanasar analytical framework, we 
conclude that she has not established eligibility for a national interest waiver as a matter of discretion. 
Furthermore, the Petitioner has not established that she qualifies for the underlying immigrant 
classification. We will dismiss the appeal for these reasons. 
ORDER: The appeal is dismissed. 
9 The listed occupations are "architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academies, or seminaries." 
6