dismissed EB-2 NIW Case: Business Consulting

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date : WL. 14, 2023 In Re: 26361699 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner , a business consulting entrepreneur , seeks classification as a member of the professions 
holding an advanced degree or of exceptional ability . See Immigration and Nationality Act (the Act) 
section 203(b )(2) , 8 U.S .C. § 1153(b )(2) . The Petitioner also seeks a national interest waiver of the 
job offer requirement that is attached to this employment based second preference (EB-2) immigrant 
classification . See section 203(b)(2)(B)(i) of the Act, 8 U.S .C. § 1153(b)(2)(B)(i) . 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 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 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 Christa 's, Inc. , 26 I&N Dec. 537, 537 n.2 (AAO 2015) . Upon de novo review, 
we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for a national interest waiver , a petition must first demonstrate qualification for 
the underlying EB-2 immigrant classification 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. 
The regulation at 8 C .F.R. § 204.5(k)(2) defines exceptional ability as "a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business." To demonstrate 
exceptional ability , a petitioner must submit at least three of the types of evidence listed at 8 C .F.R. 
§ 204.5(k)(3)(ii): 
(A) An official academic record showing that the alien has a degree , diploma , 
certificate , or similar award from a college, university , school, or other institution of 
learning relating to the area of exceptional ability ; 
(B) Evidence in the form of letter( s) from current or former employer( s) showing that 
the alien has at least ten years of foll-time experience in the occupation for which he or 
she is being sought; 
(e) A license to practice the profession or certification for a particular profession or 
occupation; 
(D) Evidence that the alien has commanded a salary, or other remuneration for services, 
which demonstrates exceptional ability; 
(E) Evidence of membership in professional associations; or 
(F) Evidence of recognition for achievements and significant contributions to the 
industry or field by peers, governmental entities, or professional or business 
organizations. 
If the above standards do not readily apply, the regulations permit a petitioner to submit comparable 
evidence to establish the beneficiary's eligibility. 8 e.F.R. § 204.5(k)(3)(iii). 
And 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. Whilst 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 ofDhanasar, 26 I&N Dec. 884 (AAO 2016). Dhanasar states that users may as a matter of 
discretion grant a national interest waiver of the job offer, and thus of the labor certification, to a 
petitioner classified in the EB-2 category if they demonstrate that (1) the noncitizen's proposed 
endeavor has both substantial merit and national importance, (2) the noncitizen 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 
noncitizen 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 noncitizen. To determine whether 
the noncitizen 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, progress towards achieving the proposed endeavor, and 
the interest of potential customers, users, investors, or other relevant entities or individuals are also 
key considerations. 
The third prong requires the petitioner to demonstrate that, on balance of applicable factors, it would 
be beneficial to the United States to waive the requirements of a job offer and thus of a labor 
certification. users may evaluate factors such as whether, in light of the nature of the noncitizen' s 
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qualification or the proposed endeavor, it would be impractical either for the noncitizen to secure a 
job offer or for the petition to obtain a labor certification; whether, even assuming that other qualified 
U.S. workers are available, the United States would still benefit from the noncitizen's contributions; 
and whether the national interest in the noncitizen's contributions is sufficiently urgent to warrant 
forgoing the labor certification process. Each of the factors 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. 
II. ANALYSIS 
A. Categorical Ineligibility for EB-2 Classification 
In the first instance, we conclude that the Petitioner has not provided relevant, material, or probative 
evidence to demonstrate their categorical eligibility for classification as an EB-2 immigrant. So we 
withdraw the Director's conclusion that the Petitioner is qualified for classification as an EB-2 
immigrant based on their exceptional ability. 
The Petitioner attests they are eligible for EB-2 classification as a noncitizen of exceptional ability. In 
support they presented evidence of their completion of a course in legal studies from a foreign 
institution, 1 membership in an organization, the salary/remuneration they earned for their services, 
evidence of recognition in their field in the form of letters from individuals who have availed 
themselves of the Petitioner's services, and comparable evidence such as proof of publications and 
presentations. 2 
The Petitioner contended they have commanded a salary, or other remuneration for services, which 
demonstrates exceptional ability. The Petitioner stated their earnings in 2019 exceeded those of the 
average person in their field by a factor of 13. They farther contrasted their earnings with those 
positions falling under the "Management Analysts" occupational category as described in the 
Department of Labor's Occupational Information Network (O*NET). But the record does not reflect 
the salary or remuneration expected for individuals performing duties comparable to those the 
Petitioner intends to undertake. For example, there is no evidence in the record which would permit 
us to evaluate the duties a business consultant in Russia would perform for the salary and remuneration 
the Petitioner presents as a point of comparison. And the broad job description contained in O*NET 
did not readily correspond to the description of services and duties the Petitioner had described for 
their proposed endeavor. So the Petitioner has not met the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(D) 
because we cannot evaluate from information in the record whether the Petitioner's salary or 
remuneration "demonstrates exceptional ability." 
1 The Petitioner has demonstrated by a preponderance of the evidence that they meet the criteria contained at 8 C.F.R. 
§ 204.5(k)(3)(ii)(A). 
2 The Petitioner did not provide evidence of a license to practice the profession or certification for a particular profession 
or occupation, or evidence in the form ofletter(s) from current or former employer(s) showing that they have at least ten 
years of full-time experience in the occupation under 8 C.F.R. § 204.5(k)(3)(ii)(B) and (C). So the Petitioner has 
abandoned those grounds. 
3 
The Petitioner's membership in the World Institute of Scientology Enterprises (WISE) is not sufficient 
evidence of membership in a professional association. 3 Section 10l(a)(32) of the Act, 8 U.S.C. 
§ 1101(1)(32), defines the term "profession" as including "but not limited to, architects, engineers, 
lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies 
or seminaries." WISE is not a professional association. While certainly not dispositive, we note 
initially that it does not correspond to any single profession as listed or contemplated in section 
10l(a)(32) of the Act. WISE is an organization which "disseminates the administrative works of. .. L. 
Ron Hubbard for use in organizational, professional and private endeavors." Consequently, we do not 
agree that an association of "entrepreneurs, creative professionals, business owners, executives and 
leaders," i.e. many different professions and occupations united by use of "the Hubbard Administrative 
Technology in their enterprises" is a professional association as that term is contemplated in the 
regulations, and the Petitioner has not met the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(E). 
The Petitioner submitted numerous letters of recommendation prepared contemporaneously with these 
immigrant petition proceedings in support of the claim they received recognition for achievements and 
significant contributions to their field. The evidence the Petitioner submits does not meet the standard 
of proof because it does not satisfy the basic standards of the regulations. See Matter of Chawathe, 
25 I&N Dec. at 374 n.7. The regulation requires evidence of recognition of achievements and 
significant contributions. When read together with the regulatory definition of exceptional ability, the 
evidence of recognition of achievement of significant contributions should show expertise 
significantly above that ordinarily encountered in the field. The Petitioner's letters ofrecommendation 
contain vague statements about the Petitioner's entrepreneurial skills that the Petitioner would like us 
to conclude are recognition of achievements and significant contributions. But these statements are 
not supported by any evidence in the record which reflects that these are noteworthy as achievements 
and significant contributions. For example, many letters in the record credit the Petitioner's services 
with helping them realize business success. However, the evidence in the record does not show why 
this is especially noteworthy and how it constituted an achievement in, and a significant contribution 
to, the Petitioner's field. The letters also contained statements of appreciation to the Petitioner for 
performing their duties in what they considered an impressive manner. For example, they credited the 
Petitioner with 'providing insights" or "aid[ing] us greatly." However, it is not clear from the evidence 
how the competent performance of the services the Petitioner was engaged to perform are 
achievements in, and significant contributions to, the Petitioner's field. In a similar vein, the letters 
credit the Petitioner's "methodology" with success. Again, the attestations in the letters are not 
supported by evidence in the record demonstrating an achievement in and significant contribution to 
the Petitioner's field above that ordinarily encountered in the field. 
The Petitioner also identified their "Effective Staff Payment System" as a significant contribution to 
their field. The "Effective Staff Payment System" is copyright registered with the International Online 
Copyright Office. Registration with the International Online Copyright Office is not evidence of an 
achievement in and significant contribution to the Petitioner's field above that ordinarily encountered 
in the field. It is evidence of the Petitioner's intention to assert that assert their materials are original, 
recorded in evidentiary form, and predate other works. 
3 The Petitioner exclusively used the acronym WISE in the materials submitted into the record; they did not express what 
the acronym stood for. But the Petitioner did provide identifying details such as WISE's headquarters, number ofregional 
offices, and the "common thread" of use of the Hubbard Administrative Technology corresponding to information 
contained on the WISE website at https://wise.org/en/. 
4 
The Petitioner also submitted documentation reflecting publication of articles and interviews largely 
in web publications as well a list of speaking engagements. The articles were largely promotional of 
the Petitioner's background and activities but did not establish how the Petitioner's background and 
activities reflected exceptional ability or significant contributions to their field. Similarly, the record 
did not contain evidence of the exceptional or significant nature of the Petitioner's speaking 
engagements and how they demonstrated significant contributions their field. So the Petitioner's 
letters of recommendation, "Effective Payment System", publication of articles and interviews, and 
speaking engagements are not achievements or significant contributions to the industry or field 
demonstrating eligibility under 8 C.F.R. § 204.5(k)(3)(ii)(D) 
The Petitioner has established eligibility in only one of the six criteria contained at 8 C.F.R. 
§ 204.5(k)(3)(ii). They cannot fulfill the initial evidentiary requirement of three criteria under 8 C.F.R. 
§ 204.5(k)(3)(ii). So we need not provide a final merits determination to evaluate whether the Petitioner 
has achieved the required level of expertise required for exceptional ability classification. The 
Petitioner is ineligible for the EB-2 immigrant classification as a noncitizen of exceptional ability. 
B. Eligibility for Discretionary Waiver of the Job Offer Requirement and thus of a Labor Certification 
Ordinarily, only after determining the Petitioner's eligibility under the EB-2 category would the 
Director proceed to determine whether a discretionary waiver of the job offer requirement, and thus a 
labor certification, is warranted. Section 203(b)(2)(B)(i) of the Act. But since the Director's decision 
here made specific findings about the Petitioner's eligibility for a national interest waiver in their 
decision upon which the Petitioner's appeal is grounded, we will discuss the Petitioner's ineligibility 
for a discretionary waiver of the job offer requirement, and thus of a labor certification, 
notwithstanding their categorical ineligibility for the EB-2 permanent immigrant classification. 
Dhanasar 's three-prong analytical framework permits us to consider, as a matter of discretion, whether 
to grant a national interest waiver if a petitioner demonstrates that their proposed endeavor has both 
substantial merit and national importance; that they are well-positioned to advance their proposed 
endeavor; and whether, on balance, waiving the job offer requirement would benefit the United States. 
The Director determined that the Petitioner's proposed endeavor had substantial merit. But the 
Director concluded that the proposed endeavor did not have the required national importance to meet 
the first prong of the Dhanasar framework. We agree. 
In Dhanasar we focused the first prong of our analysis on the potential impact of a Petitioner's specific 
proposed endeavor to consider its national importance. The national importance of an endeavor is 
rooted in its potential impact and whether it has national or global implications within the field of 
endeavor. The broader implications, national and/or international, can inform us of the proposed 
endeavor's national importance. That is not to say that the implications are viewed solely through a 
geographical lens. Broader implications can reach beyond a particular proposed endeavor's 
geographical locus and focus. The relevant inquiry is whether the broader implications apply beyond 
just narrowly conferring the proposed endeavor's benefit. And substantial positive economic effects 
can also elevate a proposed endeavor to one of national importance, for example when those effects 
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have significant potential to employ U.S. workers or other positive economic effects particularly in an 
economically depressed area. 
The Petitioner's endeavor proposes to provide their entrepreneurial business consulting services to aid 
small businesses with job growth and employee retention. Specifically, the Petitioner will "guide U.S. 
small businesses and starts ups to sustainable expansion and growth ... providing entrepreneurs and 
business owners with the software, consultancy, and training" to achieve corporate objectives. 
In support of their claims regarding the proposed endeavor's broader implications and potential 
prospective economic impact, the Petitioner submitted an "impact statement" and articles describing 
the effect of the COVID-19 pandemic on socio-economic factors, unemployment, and business 
operations. The Petitioner also submitted a research summary from the United States Small Business 
Administration's Office of Advocacy describing the gross domestic product attributable to small 
business between 1998 and 2014. 
From the outset, the Petitioner couches their endeavor in terms of targeting their services to individual 
small businesses. The record contains documentation reflecting the prevalence of small and medium­
size business in the United States. The Petitioner highlights the COVID-19 pandemic for a downward 
trend in economic indicators like employment and points to their entrepreneurial business consulting 
as a service through which these troubles can be addressed on the road back to profitability or net 
positive operations. The impact statement reflects that the Petitioner's "expertise in creating online 
business goals, monitoring performance, and increases sales via data-driven insights will be a key 
contribution to U.S. small businesses' ability to thrive going forward." 
The Petitioner essentially argues that the ripples of their entrepreneurial business consulting work with 
small businesses will have broader implications rising to a level of national importance. However, the 
Petitioner does not connect their work to any broader implications to the field outside of the work they 
would be specifically doing for the small businesses that would engage their services. As we said 
above, it is not required that the benefit of a petitioner's proposed endeavor extend beyond 
geographical bounds. Broader implications can reach beyond a particular proposed endeavor's 
geographical locus and focus. But the relevant inquiry is whether the broader implications apply 
beyond just narrowly conferring the proposed endeavor's benefit. The Petitioner has not demonstrated 
how conferring the benefit to their clients grows beyond their clients alone. 
The Petitioner argues that the services of entrepreneurial business consultants like their endeavor will 
help small businesses spur "downstream economic activity" chiefly by benefiting the financial health 
of their clients who will in tum contribute to the economy. But the record does not support the 
magnitude of the activity the Petitioner describes. Whilst the articles and information the Petitioner 
submitted into the record reflect that small business as a sector is important and identifies certain 
systemic challenges that small businesses face, they do not support how the additional of 
entrepreneurial business consulting services such as those provided by the Petitioner would benefit 
small business in a broad manner which implicated the national interest. 
And whilst the Petitioner identifies the "Effective Staff Payment System" as a key cog in the services 
they would offer, the record is silent about how the utilization of their methodology in the proposed 
endeavor broadly impacts the national interest positively through a positive economic impact of 
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sufficient magnitude to implicate the national interest. The "Effective Staff Payment System" has 
been copyrighted and registered internationally with the International Online Copyright Office. But 
mere copyright and registration does not illuminate the prospective positive impact of the system, nor 
does it demonstrate positive economic effects broadly implicating the national interest. It is not clear 
from the record how the "Effective Staff Payment System's" utilization in the proposed endeavor 
itself: such that it is, would have a substantial prospective positive economic effect commensurate 
with national importance. 
A petitioner's burden of proof comprises both the initial burden of production, as well as the ultimate 
burden of persuasion. Matter ofY-B-, 21 I&N Dec. 1136, 1142 n.3 (BIA 1998); also see the definition 
of burden of proof from Black's Law Dictionmy (11th ed. 2019) (reflecting the burden of proof 
includes both the burden of production and the burden of persuasion). The Petitioner has not met their 
burden of proof with persuasive material, relevant, and probative evidence which by a preponderance 
demonstrates the national importance of their proposed endeavor. 
III. CONCLUSION 
Because the identified reasons are dispositive of the Petitioner's appeal, we decline to reach and hereby 
reserve remaining arguments concerning eligibility under the remaining Dhanasar prongs. See INS v. 
Bagamasbad, 429 U.S. 24, 25 (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 alternate issues on appeal where an applicant is 
otherwise ineligible). 
The Petitioner is not eligible for EB-2 classification as an immigrant of exceptional ability. And they 
have not met the requisite first prong of the Dhanasar analytical framework. So we conclude that they 
have not established that they are eligible for or otherwise merit a national interest waiver of the job 
offer requirement, and thus of a labor certification. Accordingly the appeal will be dismissed. 
ORDER: The appeal is dismissed. 
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