dismissed EB-2 NIW Case: Business Management

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: NOV. 16, 2023 In Re: 28560043 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Worker (National Interest Waiver) 
The Petitioner, a general and operations manager and entrepreneur, 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 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 established 
she was an advanced degree professional, but had not demonstrated 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 Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo 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. Section 203(b )(2)(B)(i) of the Act. 
"Advanced degree" means any U.S. academic or professional degree or a foreign equivalent degree 
above that of baccalaureate . 8 C.F.R. § 204.5(k)(2). A U .S. baccalaureate degree or a foreign 
equivalent degree followed by five years of progressive experience in the specialty shall be considered 
the equivalent of a master's degree. Id. 
Once a petitioner demonstrates eligibility for the underlying 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 of Dhanasar , 26 I&N Dec. 884, 889 (AAO 2016), provides the 
framework for adjudicating national interest waiver petitions. Dhanasar states that U.S. Citizenship 
and Immigration Services (USCIS) may, as matter of discretion 1, 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. EB-2 Visa Classification 
The Director determined that the Petitioner is a member of the professions holding an advanced degree. 
However, upon de novo review, we disagree. 
In addition to the definition of "advance degree" provided at 8 C.F.R. § 204.5(k)(2), the regulation at 
8 C.F.R. § 204.5(k)(3)(i)(B) provides that a petitioner 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 ofletters from current or former employer(s) showing that the alien has at least five years of 
progressive post-baccalaureate experience in the specialty." The record indicates that the Petitioner's 
foreign baccalaureate degree is equivalent to a U.S. baccalaureate degree in physiotherapy. However, 
the Petitioner did not submit the evidence required to establish five years of qualifying work 
expenence. The Petitioner provided the following employment verification letters: 
• 1--------,___...J-November 2013 to present; 
• - Jul 2014 to July 2015; 
• - March 2013 to December 2013; 
• Hos ital Universitario - August 2011 to June 2012; and 
• ~---------~ - August 1998 to December 2008. 
As the Petitioner obtained her baccalaureate de ree m Au ust 2012 the letters from Hospital 
Universitario do not demonstrate 
post-baccalaureate expenence. Moreover, the letters fromI 1~~~~-r_o_r_ru_rr_~-t-~-p-~-y-e_r_s_a_s_ili_e_y_fil_e 
prepared by an accountant and a co-worker. Furthermore, none of the letters indicate whether the 
employment was foll-time. As such, the letters do not meet the requirements of 8 C.F.R. 
§ 204.5(k)(3)(i)(B). 
In addition, the Petitioner submitted an education and work experience equivalency evaluation which 
states that she has the equivalent of a U.S. master's degree in business administration. The evaluation 
bases this conclusion on the premise that the Petitioner has over five years of post-baccalaureate work 
experience in business administration, as required to show equivalency under 8 C.F.R. § 204.5(k)(2), 
but counts both her pre-baccalaureate work and her non-business administration work towards this 
1 See also Poursina v. USC1S. 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
2 
total without providing any reasoning as to why these constitute qualifying work experience. 2 Further, 
the evaluator relied upon the Petitioner's resume with no mention that he reviewed any letters, as 
required by 8 C.F.R. § 204.5(k)(2). 3 Because this evaluation is not in accord with the evidence of 
record or the relevant regulation, we will not grant it any evidentiary weight. Matter of Caron Int 'l, 
Inc., 19 I&N Dec. 791, 795 (stating that we may give less weight to or decline to accept an expert 
opinion that is not in accord with other information or is in any way questionable). The Petitioner has 
not submitted evidence establishing that she qualifies as an advanced degree professional through a 
combination of a baccalaureate degree and five years of work experience in her specialty. 8 C.F.R. 
§ 204.5(k)(3)(i)(B). 
For the foregoing reasons, the Petitioner has not established eligibility for the EB-2 classification as 
an advanced degree professional and we withdraw the Director's finding on this issue. 
The Petitioner also claimed she qualifies for EB-2 classification as an individual of exceptional ability. 
However, the Director did not make a finding as to whether the Petitioner qualifies as an individual of 
exceptional ability. Since the evidence in the record does not establish by a preponderance of the 
evidence that the Petitioner is eligible for, or otherwise merits, a national interest waiver as a matter 
of discretion, we will reserve the issue of whether she qualifies for EB-2 classification as an individual 
of exceptional ability for future consideration should the need arise. 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 alternate issues on appeal where an applicant is otherwise ineligible). 
B. National Interest Waiver 
The Petitioner proposes to continue her career in the United States as a general and operations manager 
and open a Pilates academy in Florida. She farther states that her Pilates academy will "provide 
services such as physical preparation, posture correction, breathing, and body care, where people will 
find postural exercise practices." 
The first prong of the Dhanasar framework, substantial merit and national importance, focuses on the 
specific endeavor that the individual 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. Dhanasar, 26 I&N Dec. at 889. 
The Director determined that the evidence demonstrated the Petitioner's proposed endeavor has 
substantial merit and we agree. However, the Director determined that the evidence did not establish 
that the proposed endeavor has national importance. 
2 The evaluation also refers to what it calls "the '3-for-1 Rule' [which] states that three years ofrelevant work experience 
is equal to one year of education." However, this calculation relates to equivalence to a baccalaureate degree for 
beneficiaries ofH-lB specialty occupation visas. 8 C.F.R. § 214.2(h)(4)(iii)(D)(5). We further note that even under this 
regulation, equivalence to a master's degree requires five years of relevant work experience, not three. Id. 
3 The section regarding her professional experience mirrors the language from her resume. 
3 
On appeal, the Petitioner asserts that her proposed endeavor "will be directly creating jobs and 
contributing to the nation's economy through taxes generated" and "will broadly enhance societal 
welfare or cultural enrichment." The Petitioner relies on her 21 years of experience in physiotherapy 
and business administration and management to establish the national importance of her proposed 
endeavor. However, the Petitioner's expertise and record of success in previous positions are 
considerations under Dhanasar' s second prong, which "shifts the focus from the proposed endeavor 
to the foreign national." Id. at 890. The issue here is whether the Petitioner has demonstrated, by a 
preponderance of the evidence, the national importance of her proposed work. 
In addition, the Petitioner emphasizes the importance of small businesses and states that "small 
businesses create jobs, spark innovation, and provide opportunities for many people." When 
determining national importance, however, the relevant question is not the importance of the industry, 
sector, or profession in which the individual will work; instead, we focus on "the specific endeavor 
that the foreign national proposes to undertake." Id. 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. 
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 business plan reflects her intention to provide Pilates training to her company's 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 that the record does not show 
that the Petitioner's proposed endeavor stands to sufficiently extend beyond her clientele to impact the 
Pilates industry more broadly at a level commensurate with national importance. 
In addition, the Petitioner has not demonstrated that her proposed endeavor has significant potential 
to employ U.S. workers or otherwise offers substantial positive economic effects for the nation. 
Specifically, she has not shown that her company's business activity stands to provide substantial 
economic benefits to Florida or to the United States. The business plan does not demonstrate that the 
benefits to the regional or national economy resulting from the Petitioner's endeavor would reach the 
level of "substantial positive economic effects" contemplated by Dhanasar. Id. at 890. In addition, 
although the Petitioner asserts that her company will hire U.S. employees, she has not provided 
evidence to establish that the area in which the company 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, business 
activity, or tax revenue. While the business plan indicates that the Petitioner's company will hire U.S. 
employees and generate a revenue of over $900,000 within five years, the plan does not sufficiently 
detail the basis for the revenue and staffing projections depicted. The Petitioner's unsupported 
statements are insufficient to meet her burden of proof. A petitioner must support assertions with 
relevant, probative, and credible evidence. See Matter of Chawathe, 25 I&N Dec. at 376. 
4 
Finally, we acknowledge the opinion letter from an adjunct associate professor at D University. 
The author asserts that the Petitioner's proposed work has national importance, but he does not base 
his conclusion on the national importance of the Petitioner's specific endeavor. Although he recites 
the Petitioner's career history and accomplishments, and future staffing and revenue from the business 
plan, his findings stem from the significance of "The National Physical Activity Initiative," and 
entrepreneurship. The letter does not contain sufficient information and explanation of the Petitioner's 
proposed endeavor, nor does the record include adequate corroborating evidence, to show that the 
Petitioner's specific proposed work in the Pilates industry offers broader implications in her field or 
substantial positive economic effects for our nation that rise to the level of national importance. The 
letter therefore is insufficient to establish the national importance of the Petitioner's specific proposed 
U.S. work. See Matter of Caron Int'!, Inc., 19 I&N Dec. at 795. 
Because the Petitioner has not established eligibility under the first prong of the Dhanasar test, we 
need not address her eligibility under the remaining prongs, and we hereby reserve them. 4 The burden 
of proof is on the Petitioner to establish that she meets each eligibility requirement of the benefit 
sought by a preponderance of the evidence. Matter of Chawathe, 25 I&N Dec. at 375-76. The 
Petitioner has not done so here and, therefore, we conclude that she has not established eligibility for 
a national interest waiver as a matter of discretion. 
ORDER: The appeal is dismissed. 
4 See Id. 
5