dismissed EB-2 NIW Case: Business Consulting

U.S. Citizenship 
and Immigration 
Services 
In Re: 18785388 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: OCT. 26, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a general manager, 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 Nebraska Service Center denied the petition, concluding that the Petitioner qualified 
for classification as a member of the professions holding an advanced degree, but that she had not 
established that a waiver of the required job offer, and thus of the labor certification, would be in the 
national interest. On appeal, the Petitioner submits additional documentation and a brief asserting that 
she is eligible for a national interest waiver. 
In these proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit 
sought. 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: 
(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 ofjob 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 (AAO 2016). 1 Dhanasar states that after a petitioner has established 
eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) may, as matter 
of discretion 2, 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, 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 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) 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 l&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
2 See also Poursina v. USC1S, No. 17-16579, 2019 WL 4051593 (Aug. 28, 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. 3 
II. ANALYSIS 
The Director found that the Petitioner qualifies as a member of the professions holding an advanced 
degree. The remaining 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. For the 
reasons discussed below, we agree with the Director that the Petitioner has not sufficiently 
demonstrated the national importance of his proposed endeavor under the first prong of the Dhanasar 
analytical framework. 
Regarding her claim of eligibility under Dhanasar' s first prong, the Petitioner indicated that her proposed 
endeavor in the United States is to use her company,! ~ 
to provide "business consulting services focused on legal and industry related matters regarding business 
transactions, mergers and acquisitions, and foreign direct investments." 5 The Petitioner also explained 
that her endeavor will "contribute to the overall U.S. economny by providing high-quality business and 
legal consulting services as well as generating taxes and creating job openings." 6 
The record includes articles about a shortage of skilled professionals able to provide legal expertise in 
the foreign direct investment industry. In addition, the Petitioner provided industry reports and articles 
indicating foreign direct investment in the U.S. has increased substantially and these industries are 
likely to expand in Florida and the United States. The record therefore supports the Director's 
determination that the Petitioner's proposed work as a general manager has substantial merit. 
In determining national importance, the relevant question is not the importance of the field or 
profession in which the individual will work; instead we focus on the "the specific endeavor that the 
foreign national proposes to undertake." See Dhanasar, 26 I&N Dec. at 889. In Dhanasar, we further 
noted 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. 
3 See Dhanasar, 26 I&N Dec at 888-91 for e)aboration on these three prongs 
4 The Petitioner incorporated! I onl I 2020, in Florida. 
5 T~ response to the Director's request for evidence (RFE), the Petitioner presente.d a business plan for,...! ----,I 
I _ I date~ ~2020. Regarding future staffing, her business plan anticipates that 
~-________________ _____.!will employ two business consultants and a marketing manager its 
first year and eight total employees in year five. In addition, the plan offers revenue projections of $343,200 in year one 
and $772,200 in year five. The Petitioner, however, does not explain how these staffing and revenue forecasts were 
calculated or provide evidence to support them. 
6 The business plan submitted by the Petitioner anticipates employing three employees its first year with total payroll 
expenses of $202,000 then growing to eight employees in year five with total payroll expenses of $414,162. Again, the 
Petitioner does not explain how these staffing and expense forecasts were calculated and does not explain how she 
anticipates paying the first year of payroll expenses having only invested $20,000 in the company. 
3 
In her appellate brief, the Petitioner points to her background, education , work experience, and 
specialized training in her field. The Petitioner's knowledge, skills, and experience in his field relate to 
the second prong of the Dhanasar framework, which "shifts the focus from the proposed endeavor to the 
foreign national." Id. at 890. 7 The issue here is whether the specific endeavor that she proposes to 
undertake has national importance under Dhanasar' s first prong. 
To evaluate whether the Petitioner's proposed endeavor satisfies the national importance requirement 
we look to evidence documenting the "potential prospective impact" of her work. Although the 
Petitioner's statements reflect her intention to offer business and foreign direct investment consulting 
services to future clients, she has not offered sufficient information and evidence to demonstrate that 
the prospective impact of her proposed endeavor rises to the level of national importance. In Dhanasar 
we determined that the petitioner's teaching activities did not rise to the level of having national 
importance because they would not impact his field more broadly. Id. at 893. Here, we conclude the 
record does not show that the Petitioner's proposed endeavor stands to sufficiently extend beyond her 
company, partnerships , and clientele to impact her field or the industry more broadly at a level 
commensurate with national importance . 
The Petitioner asserts that her proposed endeavor "will be committed to hiring only highly skilled 
American residents who have ample knowledge and management consulting services." The Petitioner 
indicates her endeavor "will create job openings, both directly and indirectly, by assisting new businesses 
to grow." However, the Petitioner has not demonstrated that the specific endeavor she proposes to 
undertake has significant potential to employ U.S. workers or otherwise offers substantial positive 
economic effects for our nation. Specifically, she has not shown that her project's future staffing 
levels and business activity stand to provide substantial economic benefits in Florida or the United 
States. While the sales forecasts for I I indicate that 
these projects have growth potential, the Petitioner has not submitted evidence to demonstrate that 
benefits to the regional or national economy resulting from the Petitioner's undertakings would reach the 
level of"substantial positive economic effects" contemplated by Dhanasar. Id. at 890. 
In addition, although the Petitioner asserts that_..,,.... ________________ __, will 
employ U.S. workers, she has not offered sufficient evidence that the area where they will operate is 
economically depressed, that she would employ a significant population of workers in that area, or 
that her endeavor would offer the region or its population a substantial economic benefit through 
employment levels or business activity. Nor has the Petitioner demonstrated that anl increases in 
employment or income attributable tol _ 's operations 
stand to substantially affect economic activity or tax revenue in Florida or nationally. Accordingly, 
the Petitioner's proposed work does not meet the first prong of the Dhanasar framework. 
7 To establish that it would be in the national interest to waive the job offer requirement , a petitioner must go beyond 
showing her expertise in a particular field. The regulation at 8 C.F.R. § 204.5(k)(2) defines "exception al ability" as "a 
degree of expertise significantly above that ordinarily encountered " in a given area of endeavor. By statute, individuals of 
exceptional ability are generally subject to the job offer/labor certification requirement; they are not exempt by virtue of 
their exceptional ability. Therefore , whether a given petitioner seeks classification as an individual of exceptional ability, 
or as a member of the professions holding an advanced degree, that individual cannot qualify for a waiver just by 
demonstrating a degree of expertise significantly above that ordinarily encountered in her field of expertise . See Dhanasar , 
26 I&N Dec. at 886 n.3. 
4 
Because the documentation in the record does not establish the national importance of her 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 of her eligibility under the second 
and third prongs outlined in Dhanasar, therefore, would serve no meaningful purpose. 
III. CONCLUSION 
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, we conclude 
that she has not established she is eligible for or otherwise merits a national interest waiver as a matter 
of discretion. The appeal will be dismissed for the above stated reasons, with each considered as an 
independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
5