dismissed EB-2 NIW Case: Business Management

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JUN. 18, 2024 In Re: 31035773 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a business manager, seeks employment-based second preference (EB-2) immigrant 
classification as a member of the professions holding an advanced degree and/or an individual of 
exceptional ability, 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 record did not 
establish that the Petitioner merited a national interest waiver as a matter of discretion. The matter is 
now before us on appeal pursuant to 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 qualify for a national interest waiver, a petitioner must first show eligibility 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. 
An advanced degree is any U.S. academic or professional degree or a foreign equivalent degree above 
that of a bachelor's degree. A U.S. 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. [If a doctoral 
degree is customarily required for the specialty, the non-citizen must a U.S. doctorate or a foreign 
equivalent degree. (delete if doctorate not an issue)] 8 C.F.R. § 204.5(k)(2). 
Exceptional ability means a degree of expertise significantly above that ordinarily encountered in the 
sciences, arts, or business. 8 C.F.R. § 204.5(k)(2). A petitioner must initially submit documentation 
that satisfies at least three of six categories of evidence. 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). 1 Meeting 
at least three criteria, however, does not, in and of itself, establish eligibility for this classification. 2 If 
a petitioner does so, we will then conduct a final merits determination to decide whether the evidence 
in its totality shows that they are recognized as having a degree of expertise significantly above that 
ordinarily encountered in the field. 
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 of Dhanasar, 26 T&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,3 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. 
TI. ANALYSIS 
A. Duplicate Filing 
The instant Form I-290B, Notice of Appeal or Motion, was received on October 27, 2023, within the 
period allowed for the filing of appeals per 8 C.F.R. § 13.3(a)(2)(i). Subsequent to the filing of this 
appeal, the Petitioner filed a second I-290B, also timely filed, as a motion to reconsider the same 
decision by the Director at issue in the instant appeal. On April 3, 2024, the Director dismissed the 
Petitioner's motion to reconsider. 
The regulation at 8 C.F.R. § 103.2(a)(7)(iv) states the following: 
Unless otherwise provided in this title, only one of the same benefit request as defined 
in 8 CFR 1.2 may be submitted at a time or while the same request is pending. If more 
than one materially identical requests are submitted, USCIS may reject one at its 
discretion. For purposes of this section, a motion to reopen or reconsider and an appeal 
that is filed on the same decision will be considered a duplicate request. 
We note that this regulation became effective on April 1, 2024, after the Petitioner filed both this 
appeal and the motion to reconsider. But the regulation is consistent with long-standing USCIS policy 
regarding the rejection of materially identical filings by the same person for the same immigration 
1 If these types of evidence do not readily apply to the individual's occupation, a petitioner may submit comparable 
evidence to establish their eligibility. 8 C.F.R. § 204.5(k)(3)(iii). 
2 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of aliens of 
exceptional ability. 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5. 
3 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts (and Third 
in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver is discretionary 
in nature). 
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benefit. See U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other 
Immigration Benefit Request Requirements, 89 Fed. Reg. 6194, 6233, (January 31, 2024). As noted 
in the comments to the final rule, duplicate I-290B filings create jurisdictional conflicts between the 
AAO and other offices of the Department of Homeland Security. Here, beyond the sections relating 
to the filing of an appeal or motion, respectively, the briefs submitted by the Petitioner in support of 
these two I-290Bs are virtually identical. Because the Petitioner's filing of the motion to reconsider 
rendered moot his earlier filing of this appeal, and because the Director has already issued her decision 
to dismiss the motion, we dismiss the instant appeal. 
B. National Interest Waiver 
In addition to dismissing the instant appeal as moot, we will also address the Petitioner's assertions on 
appeal about his request for a national interest waiver. The first prong of the Dhanasar analytical 
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 Petitioner proposes to work as a marketing and property manager for his own company, C-V-H-, 
that he has operated in the I I Florida area since 2019. He indicates that the company will 
provide property management services for vacation rentals, and will assist foreign buyers interested 
in purchasing vacation rental properties in the area. 
In her decision, the Director concluded that the Petitioner had established the substantial merit of his 
proposed endeavor, but had not shown that it was of national importance. On appeal, the Petitioner 
asserts that the Director erred by not considering evidence other than his business plan in making that 
determination. The appeal briefrefers to several exhibits in the response to the Director's request for 
evidence (RFE), including industry reports purportedly concerning the economic impact of vacation 
rentals on the overall tourism sector in the United States and, more specifically, Central Florida. But 
those reports are not in the record, as the Petitioner only included the website addresses for those 
reports on a list of exhibits. The unsubstantiated assertions of the Petitioner's representative relating 
to the content of these reports, made in the appeal brief and in response to the Director's RFE, do not 
constitute evidence. See, e.g., Matter ofS-M-, 22 I&N Dec. 49, 51 (BIA 1998) ("statements in a brief, 
motion, or Notice of Appeal are not evidence and thus are not entitled to any evidentiary weight"). 
Also, even if the Petitioner's representative's assertions about the contents of these reports were 
substantiated, they would not aid in establishing that his proposed endeavor is of national importance. 
According to the Petitioner and his representative, the reports indicate that renters of vacation homes 
contribute to increased spending at local businesses, create jobs for cleaners, landscapers, and 
maintenance workers, and increase demand for local real estate. But the first prong of the Dhanasar 
analytical framework focuses on the potential prospective impact of an individual's specific endeavor. 
While the vacation rental industry as a whole may well have the effects that the Petitioner describes, 
he cannot rely upon these broad figures to demonstrate the national importance of his proposed work 
for C-V-H-. 
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The Petitioner also asserts that his business plan, which includes projections for job creation and 
revenue, shows that he will employ 10 individuals with a total payroll of approximately $150,000, and 
also will support indirect jobs. He previously indicated that at the time of filing, C-V-H- employed 4 
workers and contracted with 5 companies to provide maintenance services, supporting an additional 
20 indirect jobs. An endeavor may be nationally important if it has significant potential to employ 
U.S. workers or has other substantial positive economic effects, especially in an economically 
depressed area. Dhanasar at 890. But the Petitioner has not demonstrated that the creation of lOjobs 
in the I I metropolitan area, with an average salary of $15,000, as well as potentially dozens of 
low-wage indirect jobs, would have the broader implications necessary for a showing of national 
importance. In addition, the Petitioner states in his business plan that has an unemployment 
rate lower than the national average, as well as a robust tourism industry, and is thus not an 
economically depressed area. 
While the evidence shows that the Petitioner's proposed serve theendeavor has the potential to 
existing well-developed tourism industry in the area, he has not established that it would have 
broader implications for the industry or would have substantial positive economic effects for the area. 
Per the above analysis, we agree with the Director and conclude that the Petitioner has not established 
that his proposed endeavor is of national importance, and therefore does not meet the first prong of 
the Dhanasar analytical framework. 
C. Member of the Professions Holding an Advanced Degree 
Although we dismiss the appeal as moot, and because the proposed endeavor is not of national 
importance, we further note that the Petitioner's statement in his brief that the Director found him 
eligible as a member of the professions holding an advanced degree is incorrect. The Director 
specifically did not base her denial of the petition on the Petitioner's eligibility for the EB-2 
classification, but still went into detail regarding the deficiencies in the evidence of the Petitioner's 
educational credentials. We incorporate that part of the Director's decision by reference. 4 Despite 
having been notified of these deficiencies, the Petitioner does not address them on appeal. So we 
conclude that the Petitioner has not established that he possesses a foreign degree that is equivalent to 
either an advanced degree or a baccalaureate degree from an accredited college or university in the 
United States, and he is therefore not eligible as a member of the professions holding an advanced 
degree. 
III. CONCLUSION 
The appeal is dismissed as moot. In addition, as an additional grounds for dismissal, the Petitioner 
has not established his eligibility for a national interest waiver under the first prong of the Dhanasar 
analytical framework. Since a petitioner must meet all three prongs to establish that they merit a 
national interest waiver, the identified basis for denial is dispositive of the Petitioner's appeal, and we 
4 The deficiencies noted by the Director are sufficient to show the Petitioner's ineligibility as a member of the professions 
holding an advanced degree, as he has not established that he possesses the foreign equivalent of an advanced degree or a 
bachelor's degree from an accredited college or university in the United States. We add that the record also lacks an 
evaluation of his educational credentials. official transcripts from the _______________ 
relating to his technician diploma, and the required translator's certification for the English translations of his diploma and 
transcripts froml I 
4 
decline to reach and hereby reserve the Petitioner's appellate arguments regarding the second and third 
prongs of the framework. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (stating that agencies are 
not required to make "purely advisory findings" on issues that are unnecessary to the ultimate 
decision); see also Matter of L-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). We further reserve the issue 
of the Petitioner's eligibility as an individual of exceptional ability. 
ORDER: The appeal is dismissed. 
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