dismissed EB-2 NIW Case: Business Management

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: DEC. 7, 2023 In Re: 28962751 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a business owner, 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 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 Petitioner did not 
qualify for classification as a member of the professions holding an advanced degree and that he 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. 
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 
An advanced degree is any United States academic or professional degree or a foreign equivalent 
degree above that of a bachelor's degree. A United States 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). In addition, "profession" is defined as of the occupations listed in 
section 101(a)(32) of the Act, 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. 1 8 C.F.R. 
§ 204.5(k)(3). 
If a petitioner demonstrates eligibility for the underlying EB-2 classification, they must then establish 
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 ofDhanasar, 26 I&N Dec. 884, 889 (AAO 2016), provides 
1 Profession shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in 
elementary or secondary schools, colleges, academics, or seminaries. Section 101(a)(32) of the Act. 
the framework for adjudicating national interest waiver pet1t10ns. Dhanasar states that U.S. 
Citizenship and Immigration Services (USCIS) may, as matter of discretion2, 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. 
II. ANALYSIS 
A. Member of the Professions Holding an Advanced Degree 
In order to show that a petitioner holds a qualifying advanced degree, the petition must be accompanied 
by "[ a ]n official academic record showing that the alien has a United States advanced degree or a 
foreign equivalent degree." 8 C.F.R. § 204.5(k)(3)(i)(A). Alternatively, a petitioner may present "[a]n 
official academic record showing that the alien has a United States baccalaureate degree or a foreign 
equivalent degree, and 
evidence in the form of letters from current or former employer(s) showing that 
the alien has at least five years of progressive post-baccalaureate experience in the specialty." 8 C.F.R. 
§ 204.5(k)(3)(i)(B). 
The Petitioner presented his "Certificate of Completion" in Logistics Technology (2011) and 
corresponding academic record froml Iin Brazil. 3 He also submitted 
his "Computer Technician" diploma (2001) and corresponding academic record froml lin 
Brazil.4 In addition, the Petitioner provided an "Evaluation of Education and Work Experience" from 
U-S-C-E- stating: "Considering that a Technology Degree followed by more than five years of foll­
time work experience in the field of Logistics Management is equivalent to a Bachelor's degree in 
Logistics Management, it is my expert opinion that [the Petitioner] with a Technology degree in 
Logistics, and 10 years of experience, has the equivalent of a U.S. Bachelor's degree in Logistics 
Management." 5 This credential evaluation, however, does not indicate that the Petitioner has "a 
foreign equivalent degree" to either a U.S. advanced degree or a U.S. baccalaureate degree. 
In denying the petition, the Director explained that the Petitioner "did not obtain a foreign degree 
equivalent to a U.S. baccalaureate degree. There is no provision under section 203(b )(2) of the Act 
which allows a [petitioner] to combine experience with education that is less than a United States 
baccalaureate degree or a foreign equivalent degree to equate to an advanced degree." The Director 
farther stated: "USCIS may only consider experience in conjunction with a United States 
baccalaureate degree or a foreign equivalent degree." 
On appeal, the Petitioner argues that "he is a member of the professions holding an advanced degree" 
based on the academic equivalency evaluation he submitted from U-S-C-E-. The regulatory language at 
2 See also Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (finding USCTS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
3 This academic record reflects two years (four semesters) of coursework (2009-2010). 
4 This academic record shows 14 courses taken during a three-year period (1999-2001). 
5 This evaluation noted that "the Technologo degree of two years duration" represents "attainment of a level of education 
comparable to up to two-years of undergraduate study in the United States." 
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8 C.F.R. § 204.5(k)(2) and 8 C.F.R. § 204.5(k)(3)(i)(B), however, does not state that occupational 
experience is acceptable in lieu of a U.S. baccalaureate degree or a foreign equivalent degree. In order 
to have education and experience equating to an advanced degree under section 203(b )(2) of the Act, 
the Petitioner must have a single degree that is the "foreign equivalent degree" to a U.S. baccalaureate 
degree (plus five years of progressive experience in the specialty). See 8 C.F.R. § 204.5(k)(2) and 
8 C.F.R. § 204.5(k)(3)(i)(B). A United States baccalaureate degree is generally found to require four 
years of education. See Matter of Shah, 17 I&N Dec. 244, 245 (Reg'l Comm'r 1977). There is no 
provision in the statute or the regulations that would allow a petitioner to qualify under section 
203(b )(2) of the Act as a member of the professions holding an advanced degree with anything less 
than a full baccalaureate degree (plus five years of progressive experience in the specialty). 
Accordingly, the Petitioner has not demonstrated that he has "a foreign equivalent degree" to either a 
U.S. advanced degree or a U.S. baccalaureate degree. 
Based on a de novo review, we will adopt and affirm the Director's determination that the Petitioner 
has not provided sufficient evidence to demonstrate that he qualifies as a member of the professions 
holding an advanced degree. See Matter of Burbano, 20 I&N Dec. 872, 874 (BIA 1994); see also 
Prado-Gonzalez v. INS, 75 F.3d 631, 632 (11th Cir. 1996) (joining "every court of appeals that has 
considered this issue" holding that an appellate body may affirm the lower court's decision for the 
reasons set forth therein); Giday v. INS, 113 F.3d 230, 234 (D.C. Cir. 1997) (noting the practice of 
adopting and affirming the decision below has been "universally accepted by every other circuit that 
has squarely confronted the issue"); Chen v. INS, 87 F3d. 5, 8 (1st Cir. 1996) (joining eight U.S. 
Courts of Appeals in holding that appellate adjudicators may adopt and affirm the decision below as 
long as they give "individualized consideration" to the case). Here, the Director gave individualized 
consideration of the Petitioner's arguments and evidence. 
B. National Interest Waiver 
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 conclude that the Petitioner has not sufficiently demonstrated the national 
importance of his proposed endeavor under the first prong of the Dhanasar analytical framework. 
With respect to his proposed endeavor, the Petitioner indicated that he intends to continue operating his 
company,,.___________ _, located inl lFlorida. He explained that his company "is 
a limited liability company created in 2016 to provide top-quality interior and exterior residential and 
commercial painting services." The Petitioner further stated that.__ _________ ~"seeks to 
provide its painting services in the city as well as to focus on the expansion of its operations to include 
also the residential and commercial customers demand in the greater I I' area. In addition, he asserts 
that he plans "to contribute to the advance of painting industry in the U.S. market by continuous work 
and expansion of my company inl Iarea. By doing so, I will, consequently, create more direct and 
indirect employment opportunities, boost investments, increase tax revenues along with all the positive 
economic ripple effects." 
In addition to company formation documents and financial records, the Petitioner submitted the 
business plan for .___________ ___, This business plan includes industry and market 
analyses, information about his company and its services, financial forecasts and projections, 
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marketing strategies, a discussion of the Petitioner's education and work experience, and a description 
of company personnel. Regarding future staffing, the Petitioner's business plan anticipates that his 
company would employ 17 personnel, but he did not elaborate on these projections or provide evidence 
supporting the need for these additional employees. In addition, while his plan offers revenue 
projections of $140,000 in year one, $175,000 in year two, and $246,750 in year three, he did not 
adequately explain how these sales forecasts were calculated. 
The record includes information about U.S. real gross domestic product by state, migration to Florida, 
home sales inl lSouth Florida's real estate market, the U.S. painters industry market, affordable 
apartments construction for seniors in Orange County, the Central Florida construction industry, 
advisory support programs for small and medium-size enterprises, and the benefit of the paints and 
coatings industry to the U.S. economy. Additionally, the Petitioner provided articles discussing White 
House initiatives to support small businesses, immigrant-owned businesses' effect on the U.S. 
economy, Brazilian immigrants in the United States, the rise in U.S. entrepreneurial activity after the 
pandemic, the value of small business to the U.S. economy, the worldwide paint and coatings industry, 
and U.S. small businesses and entrepreneurship. He also submitted information about the Distressed 
Communities Index (DCI)J Imid-tier DCI score, the poverty rate in Central Florida counties, 
immigrant tax contributions and spending power, Latino-owned businesses in the United States, small 
businesses as drivers of the U.S. economy, painting industry trends, and the U.S. house painting and 
decorating contractors market. The record therefore supports the Director's determination that the 
Petitioner's proposed endeavor has substantial merit. 
Furthermore, the Petitioner provided letters of support from J-C-, J-B-G-, J-C-2-, C-S-, and J-K­
discussing his capabilities and experience in providing painting services. The Petitioner's skills, 
knowledge, and prior work in his field, however, relate to the second prong of the Dhanasar 
framework, which "shifts the focus from the proposed endeavor to the foreign national." Id. at 890. 
The issue here is whether the specific endeavor that he proposes to undertake has national importance 
under Dhanasar's first prong. 
The Petitioner also submitted an "Expert Opinion Letter" from Dr. V-L-, Associate Professor of 
Marketing at T-S-U-, in support of his national interest waiver. Dr. V-L- contends that the Petitioner's 
proposed work is of national importance because the generic occupation of operations manager and 
U.S. small businesses in general stand to contribute to our nation's economy. The issue here, however, 
is not the national importance of the field, industry, or profession in which the individual will work; 
instead we focus on the "the specific endeavor that the foreign national proposes to undertake." Id. at 
889. The letter from Dr. V-L- does not contain sufficient information and explanation, nor does the 
record include adequate corroborating evidence, to show that the Petitioner's specific proposed work 
operating a painting services company offers broader implications in his field or substantial positive 
economic effects for our nation that rise to the level of national importance. 
In the decision denying the petition, the Director determined that the Petitioner had not established the 
national importance of his proposed endeavor. The Director stated that the Petitioner had not 
demonstrated that his undertaking "stands to sufficiently extend beyond his organization and its clients to 
impact the industry or field more broadly." The Director also indicated the Petitioner had not shown that 
his proposed work "has significant potential to employ U.S. workers or otherwise offers substantial 
positive economic effects for our nation." 
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In his appeal brief, the Petitioner contends that his proposed endeavor has national importance. He asserts 
that his evidence shows "the impact his company will cause and has already caused on the industries of 
painting, coating, renovation and construction including sustainable buildings and his expertise in eco­
friendly use of chemicals for a green painting." The Petitioner further states: 
It is a unique cutting-edge market and how strong the impact the paint & coatings industry 
makes to the U.S. economy and which reaches national importance mainly through small 
businesses such a~ I [The Petitioner] also showed that his proposed 
endeavor impacts a matter that a government entity has described as having national 
importance or was the subject of national initiatives such as the Proclamation on National 
Small Business by the White House and showed that will broadly enhance societal welfare 
inl La city in a distressed community index. 
Furthermore, the Petitioner argues that he demonstrated "how I I has grown and the 
company has been rendering services to big clients such as C-C-, L-P-, U-S-, V-B-, among other 
important ones nationally and internationally." 
In determining national importance, the relevant question is not the importance of the field, 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 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. 
To evaluate whether the Petitioner's proposed endeavor satisfies the national importance requirement 
we look to evidence documenting the "potential prospective impact" of his work. While the 
Petitioner's statements reflect his intention to provide valuable painting services for his company's 
clients, he has n ot offered sufficient information and evidence to d emonstrate that the prospective 
impact of his 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 Petitioner has not 
shown that his proposed endeavor stands to sufficiently extend beyond his company and its clientele 
to impact his field, the commercial painting services industry , societal welfare, or the U.S . economy 
more broadly at a level commensurate with national importance. 
Furthermore, the Petitioner has not shown that the specific endeavor he proposes to undertake has 
significant potential to employ U.S . workers or otherwise offers substantial positive economic effects 
for our nation. Specifically, he has not demonstrated that his company's future staffing levels and 
business activity stand to provide substantial economic benefits in Florida or the United States. While 
the Petitioner claims that his company has growth potential, he has not presented evidence indicating that 
the benefits to the regional or national economy resulting from his undertaking would reach the level of 
"substantial positive economic effects" contemplated by Dhanasar. Id. at 890. In addition, although the 
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Petitioner asserts that his endeavor is "generating taxes and employing people," he has not offered 
sufficient evidence that his endeavor offers Florida or the United States a substantial economic benefit 
through employment levels, tax revenue , or busine ss activity. 
For the aforementioned reasons , the Petitioner' s proposed work does not meet the first prong of the 
Dhanasar framework. Because the documentation in the record does not establish the national 
importance of his proposed endeavor as required by the first prong of the Dhanasar precedent decision, 
the Petitioner has not demonstrated eligibility for a national interest waiver. Since this issue is dispositive 
of the Petitioner's appeal, we decline to reach and hereby reserve the appellate arguments regarding 
his eligibility under the second and third prongs outlined in Dhanasar. 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 ofL-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). 
III. CONCLUSION 
The Petitioner has not established that he satisfies the regulatory requirements for classification as a 
member of the professions holding an advanced degree. Further, as the Petitioner has not met the 
requisite first prong of the Dhanasar analytical framework, we conclude that he has not established he 
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. 
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