dismissed EB-2 NIW Case: Business Management

U.S. Citizenship 
and Immigration 
Services 
In Re: 12306241 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JUNE 9, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a general operations 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 Texas Service Center denied the petition, concluding that the Petitioner qualified 
for classification as a member of the professions holding an advanced degree, by way of equivalent, 
progressive experience in the specialty, but 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. 
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: 
(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. ... the 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 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, 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 
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 Director found that the Petitioner qualifies as a member of the professions holding an advanced 
degree, by way of equivalent, progressive experience in the specialty. Although the Director found 
substantial merit in the proposed endeavor in the field of business management consultation, the 
Director concluded that the record does not establish that the Beneficiary's endeavor has national 
importance. The Director also concluded the record did not satisfy the second and third Dhanasar 
prongs. For the reasons discussed below, the Petitioner has not established that a waiver of the 
requirement of a job offer is warranted. 
Initially, the Petitioner described the endeavor as follows: 
[A] plan ... to continue working as a [g]eneral [o]perations [m]anager, to advise U.S. 
companies on how to properly plan, direct, and coordinate the operations of their 
business. By formulating policies, managing daily operations, and planning the use of 
materials and human resources [I] will be able to ensure the success of any company 
that employs [me]. [I intend] to continue using [my] vast expertise and knowledge in 
the food industry, where [I] can provide expert managerial services to U.S. companies 
gained from over 15 years of experience. Additionally, [my] experience working in 
many other industries will allow [me] to work with U.S. companies looking to 
capitalize in other sectors, especially including those doing business or planning on 
expanding their business internationally, with the greatest of ease. 
In response to the Director's request for evidence, the Petitioner reiterated: 
[M]y overall proposed endeavor in the United States is to off er my management 
expertise to assist U.S. companies, businesses, and organizations in need of 
reorganization, and assistance in growing within their industry or market, expanding 
into other markets and ultimately increasing their profits. I am also fully capable of 
helping foreign companies set up their businesses in the U.S. and facilitating cross­
border trade between the U.S [sic] and Brazil. All areas and options ultimately result 
in benefits for the United States, through increased revenue, employment of U.S. 
workers, and contribution to the country's gross domestic product (GDP). 
The Petitioner specified that, in August 2019, after the petition filing date, he "started a consulting 
company in the U.S [sic] . .. as a sister consulting company for the established company that my wife 
and I have run in Brazil for the last 10 years." The Petitioner also asserted that, for both companies, 
"I am responsible for overseeing and controlling the work of the third-party teams in the United States, 
including accountants and law firms; and communicating with stockholders to explain tax issued [sic] 
and keep the stockholders compliant with tax obligations." The Petitioner also informed that, in 
October 2019, he began working as the general manager of a multinational logistics company located 
2 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
3 
in Florida, and that his role entails "facilitat[ing] the international trade operations of the company, 
which are supported by a significant number of clients with business operations in Brazil." 3 
In the decision, the Director concluded the record does not establish that the proposed endeavor has 
national importance, observing that "the [P]etitioner has not established that the level of work he 
proposes to perform will impact the field more broadly as opposed to impacting potential clients or 
businesses." 
On appeal, the Petitioner summarizes his expertise in business management and his prior career 
accomplishments in Brazil. The Petitioner also asserts that he will "work in a field that favors 
numerous industries that already have a substantial impact on the U.S. economy and societal welfare." 
The Petitioner also cites a report that "shows that international companies have long been an important 
foundation of the U.S. economy [creating] direct and residual effects [that] are highly beneficial, not 
only to their own workers and shareholders, but to domestic competitors, consumers, entities up and 
down their supply chains, the local communities in which they operate, and the overall economy." 
The Petitioner provides a bullet-point list that summarizes the potential accomplishments of the 
proposed endeavor, as follows: 
• U.S. job creation, considering that business productivity leads compames to 
produce more goods and services, and therefore hire more workers. 
• Promoting effective business advisory within multinational environments, in line 
with updated global business strategy trends. 
• Providing unparalleled, and foll-service, business consulting services to U.S. 
companies, including advisory and financial control methods. 
• Facilitating the execution of projects by helping navigate Brazilian bureaucracy, 
and by allowing foreign companies to establish themselves within the U.S. market, 
which leads to important foreign direct investment actions and drives U.S. 
economic prosperity. 
In determining national importance, the relevant question is not the importance of the industry, field, 
or profession in which an individual will work; instead, to assess national importance, we focus on the 
"specific endeavor that the foreign national proposes to undertake." See Dhanasar, 26 I&N Dec. at 
889. Dhanasar provided examples of endeavors that may have national importance, as required by 
the first prong, having "national or even global implications within a particular field, such as those 
resulting from certain improved manufacturing processes or medical advances" and endeavors that 
have broader implications, such as "significant potential to employ U.S. workers or has other 
substantial positive economic effects, particularly in an economically depressed area." Id. at 889-90. 
3 Although the Petitioner initially described the consulting endeavor as advising U.S. companies on how to plan, direct, 
and coordinate their business operations, the Petitioner did not initially state that the endeavor would entail creating a new 
business of his own. A visa petition may not be approved based on speculation of future eligibility or after a petitioner 
becomes eligible under a new set of facts. See 8 C.F.R. § I 03.2(b )(I); see also Matter of Michelin Tire Corp., 17 T&N 
Dec. 248, 249 (Reg'l Comm'r 1978). A petitioner may not make material changes to a petition in an effort to make a 
deficient petition conform to U.S. Citizenship and Immigration Services requirements. See Matter of Izummi. 22 l&N 
Dec. 169,176 (Assoc. Comm'r 1998). 
4 
The proposed endeavor of managing business operations of a logistics company and providing 
business consulting services to other companies benefits those companies and clients. However, the 
record does not establish how the endeavor would have broader implications in terms of significant 
potential to employ U.S. workers or have substantial positive economic effects, beyond the Petitioner's 
employer and clients, as contemplated by the first Dhanasar prong. See Dhanasar, 26 I&N Dec. at 
889. Petitioners bear the burden of articulating how they satisfy eligibility criteria. See section 291 
of the Act, 8 U.S.C. § 1361. We note that the Petitioner reiterates in the bullet-point list on appeal that 
the endeavor will accomplish "U.S. job creation," as results from general "business productivity," but 
provides no evidence demonstrating how his specific proposed endeavor would impact the economy 
or the field. Therefore, the record does not establish the scope of U.S. jobs the endeavor would create 
in order for us to determine whether it rises to the level of broader, substantial positive economic 
effects, as contemplated by Dhanasar. See Dhanasar, 26 I&N Dec. at 889. The Petitioner's 
statements on appeal regarding his expertise and prior career accomplishments in Brazil do not address 
how the proposed endeavor in the United States has broader implications beyond his immediate 
employer and clients. Moreover, the Petitioner's focus on appeal on the economic results of 
commercial activity in general does not address aspects of the specific endeavor and how the 
performance of the planned activities under the endeavor would have broader implications, rising to 
the level of national importance as contemplated by Dhanasar. See id. 
In summation, the Petitioner has not established that the proposed endeavor has national importance, 
as required by the first Dhanasar prong, and therefore is not eligible for a national interest waiver. 
We reserve our opinion regarding whether the record satisfies the second or third Dhanasar prong. 
III. CONCLUSION 
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, we 
conclude that the Petitioner has not established eligibility for, or otherwise merits, a national interest 
waiver as a matter of discretion. 
ORDER: The appeal is dismissed. 
5