dismissed EB-2 NIW Case: Business Management

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: APR. 18, 2024 In Re: 30644136 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Worker (National Interest Waiver) 
The Petitioner, an executive and 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 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 
establish that he was eligible for the requested classification or that a waiver of the classification's job 
offer requirement, 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 I&N Dec. 537,537 n.2 (AAO 2015). 
Upon de novo review, we will dismiss the appeal because the Petitioner did not establish that his 
proposed endeavor has national importance and thus, he did not meet the national importance 
requirement of the first prong of the Dhanasar framework. See Matter ofDhanasar , 26 I&N Dec. 884 
(AAO 2016). Because this identified basis for denial is dispositive of the Petitioner's appeal, we 
decline to reach and hereby reserve the Petitioner's appellate arguments regarding the remaining 
Dhanasar prong. 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 l&N Dec. 516, 526 n.7 (BIA 2015) ( declining to reach alternative issues 
on appeal where an applicant is otherwise ineligible). 
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. 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). 
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. 8 C.F.R. § 204.5(k)(3). 
Once eligibility for the EB-2 visa classification is established, a petitioner 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 
The Petitioner states that he has more than 20 years "of diverse experience in the fields of financial 
and business management." His proposed endeavor is "to establish and direct the operations of his 
own New Jersey-based business, which will be dedicated to manufacturing and distributing functional 
beverages to customers throughout the United States, thereby helping the U.S. decrease obesity levels 
among its population and helping individuals increase the quality of their health." 
With the initial filing the Petitioner submitted evidence of his education and experience, a personal 
statement describing his proposed endeavor and claimed eligibility for a national interest waiver, and 
a business plan. He also submitted recommendation and support letters, and industry reports and 
articles discussing entrepreneurship, business innovation and sustainability, and the beverage industry 
in the United States. 
Following initial review, the Director issued a request for evidence (RFE), allowing the Petitioner an 
opportunity to submit additional evidence in attempt to establish his eligibility for the requested 
classification and for the national interest waiver. The Petitioner's response to the RFE includes an 
evaluation of his educational credentials, and additional recommendation and support letters. 
After reviewing the Petitioner's RFE response, the Director determined that the Petitioner did not 
establish that he was eligible for the requested EB-2 classification, as the record did not demonstrate 
that the position of executive and business owner was a professional position. She further determined 
that the Petitioner had submitted sufficient evidence to demonstrate that his proposed endeavor has 
1 See also 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 to be 
discretionary in nature). 
2 
substantial merit. However, she concluded that the Petitioner had not demonstrated that his proposed 
endeavor had national importance, that he is well-positioned to advance his proposed endeavor, or 
that, on balance, it would be beneficial to the United States to waive the requirements of a job offer, 
and thus of the labor certification. The Director determined that the record did not demonstrate that 
the Petitioner's proposed endeavor would produce benefits rising to the level of national importance, 
trigger substantial positive economic impacts, or impact the industry more broadly. Additionally, the 
Director determined that the Petitioner did not demonstrate national interest factors such as the benefit 
of his prospective contributions to the United States, an urgent national interest in his contributions, 
or the potential creation of jobs. 
On appeal, the Petitioner submits a brief and asserts that the Director erred in concluding that the 
Petitioner's position of executive and business owner is not a professional position. He further asserts 
that the Director "failed to give due weight to the evidence submitted in the original petition and the 
RFE response" and erred in concluding that he was not eligible for a national interest waiver. In his 
brief on appeal, the Petitioner references evidence already in the record and states that this evidence 
demonstrates by a preponderance of the evidence that he meets the EB-2 classification and merits a 
national interest waiver. 
A. Member of the Professions Holding an Advanced Degree 
The Petitioner asserts that he qualifies for advanced degree professional classification by virtue of a 
foreign education equivalent to a U.S. baccalaureate degree and more than five years of post­
baccalaureate experience in the specialty, in accordance with 8 C.F.R. § 204.5(k)(3)(i)(B). He does 
not make any claim to qualify as an individual with exceptional ability. 
The Director determined that the Petitioner did not submit evidence to establish that his occupation of 
executive and business owner requires "a United States academic or professional degree or a foreign 
equivalent degree above that of a baccalaureate." As noted above, to qualify as a member of the 
professions, an individual must meet "one of the occupations listed in section 10l(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." 2 8 C.F.R. 204.5(k)(2). The Director incorrectly 
required evidence that the Petitioner's occupation required above that ofa baccalaureate. Therefore, 
this portion of the Director's decision is withdrawn. However, for the reasons discussed below, we 
cannot conclusively determine that the Petitioner has established his eligibility for advanced degree 
professional classification. 
As noted above, a petition for an advanced degree professional must include evidence that a petitioner 
possesses a "United States academic or professional degree or a foreign equivalent degree above that 
of baccalaureate [or] A United States baccalaureate degree or a foreign equivalent degree followed by 
at least five years of progressive experience in the specialty shall be considered the equivalent of a 
master's degree." 8 C.F.R. § 204.5(k)(2). In addition, a petitioner must meet all of the eligibility 
requirements of the petition at the time of filing. 8 C.F.R. § 103.2(b)(l), (12). 
2 Section 101 (a)(32) of the Act states "[t]he term 'profession' shall include but not limited to architects, engineers, 
lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academics, or seminaries." 
3 
I 
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 [individual] 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 [individual] 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 [individual] has at least five years of progressive post-baccalaureate experience in 
the specialty." 8 C.F.R. § 204.5(k)(3)(i)(B). 
The record includes a diploma, titled Di lom and academic transcri • ears of stud 
issued to the Petitioner by the 
I The Petitioner also submitted a credential evaluation report from Scholaro, Inc., stating 
that he has a foreign equivalent of a U.S. bachelor's degree in English language, awarded in July 2000. 
The report states that the admission requirements for the Petitioner's "Diploma Specialist program in 
English Language" were "completion of secondary education (11 years)." 
We have reviewed the Electronic Database for Global Education (EDGE), which is a web-based 
resource for the evaluation of foreign educational credentials created by the American Association of 
Collegiate Registrars and Admissions Officers (AACRAO). 3 USCIS considers EDGE to be a reliable 
source of information about foreign credentials equivalencies. According to EDGE, the Diplom 
Bakalavr is issued following four years of post-secondary university study and represents attainment 
of a level of education comparable to a bachelor's degree in the United States. The entrance 
requirement for a Diplom Bakalavr is completion of basic secondary education "and a university 
entrance examination." 
EDGE further states that a Diplom Spetsialista or Specialist's Degree is usually awarded after five to 
six years of study ( or in one year following a diplom bakalavr) and represents attainment of a level of 
education comparable to a master's degree in the United States.4 The entrance requirement for a 
Diplom Spetsialista is a diplom bakalavr, or completion of basic secondary education and a university 
entrance examination. 
The credential evaluation report from Scholaro, Inc. is inconsistent with the credential descriptions in 
EDGE. Neither the Petitioner's academic record nor the evaluation identifies the Petitioner's 
credential as a Diplom Bakalavr or a Diplom Spetsialista. Although the evaluation identifies the 
Petitioner's academic record as a "Diploma of Specialist" equivalent to a U.S. bachelor's degree, this 
is inconsistent with the information in EDGE that a Specialist's Degree requires five to six years of 
study and is equivalent to a U.S. master's degree. The record also does not include evidence that the 
Petitioner met the entrance requirements for either the Diplom Bakalavr or the Diplom Spetsialista, 
such as evidence of completion of basic secondary education or passage of a university entrance 
examination. 
3 AACRAO is a nonprofit professional association of more than 11,000 higher education admissions and registration 
professionals who represent more than 2,600 institutions in over 40 countries. See http://www.aacrao.org/who-we-are. 
4 A third credential listed in EDGE is the Diplom o srednem professional'nom obrazovanii (issued before 2006), which 
represents attainment of a level of education comparable to completion of a vocational or other specialized high school 
cuniculum in the United States. According to EDGE, "credit for this study is not accepted at universities in Kazakhstan 
and is terminal/technical in nature." 
4 
As a matter of discretion, we may use opinion statements submitted by a petitioner as advisory. Matter 
of Caron Int'l, Inc., 19 I&N Dec. at 795. However, we may give an opinion less weight if it is not in 
accord with other information in the record or if it is in any way questionable. Id. We are ultimately 
responsible for making the final determination regarding an individual's eligibility for the benefit 
sought. The submission of expert opinion letters is not presumptive evidence of eligibility. Id.; see 
also Matter of V-K-, 24 I&N Dec. 500, 502 n.2 (BIA 2008) ("[E]xpert opinion testimony, while 
undoubtedly a form of evidence, does not purport to be evidence as to 'fact' but rather is admissible 
only if 'it will assist the trier of fact to understand the evidence of to determine a fact in issue."'). 
Given the academic evaluation's inconsistent information regarding the title and equivalency of the 
academic record, the evaluation is of minimal probative value. 
Because we cannot conclude that the Petitioner possesses a foreign education equivalent to a U.S. 
baccalaureate degree, in accordance with 8 C.F.R. § 204.5(k)(3)(i)(B), we cannot conclude that the 
Petitioner qualifies for the requested EB-2 classification. 
Additionally, as required by 8 C.F.R. § 204.5(k)(3)(i)(B), the Petitioner must document his post­
baccalaureate experience "in the form of letters from current or former employer(s) showing that the 
[individual] has at least five years of progressive post-baccalaureate experience in the specialty." The 
Petitioner must establish eligibility at the time of filing. 8 C.F.R. § 103.2(b )(12); Matter ofKatigbak, 
14 I&N Dec. 45, 49 (Comm'r 1971). 
The record includes the Petitioner's employment book listing his employment in various positions 
from 1995 to 2000. Even if we accept that the Petitioner's Diplom is equivalent to a U.S. baccalaureate 
degree, which we do not, the employment book lists only employment that pre-dates the Diplom issued 
in July 2000. 
The record also includes recommendation and support letters from the Petitioner's former employers, 
colleagues, and business partners. However, none of these letters states the dates of the Petitioner's 
employment. Therefore, we are precluded from determining that the Petitioner possesses five years 
of foll-time post-baccalaureate experience as required by 8 C.F.R. § 204.5(k)(3)(i)(B). 
In light of the above, we disagree with the Petitioner's assertion that he has established that he is an 
advanced degree professional in accordance with 8 C.F.R. § 204.5(k)(3)(i)(B). However, because the 
Petitioner was not on notice of these issues, this does not form the basis of our dismissal. The 
Petitioner must address and resolve the inconsistencies in his academic records and the academic 
evaluation, as well as present evidence of his five years of post-baccalaureate experience, in any 
further filings. 
A. Substantial Merit and National Importance 
The Director determined that while the Petitioner established that the proposed endeavor has 
substantial merit, he did not establish that the proposed endeavor is of national importance as set forth 
under the first prong of the analytical framework of Matter ofDhanasar, 26 I&N Dec. 884. We agree, 
for the reasons explained below. 
5 
The first prong, 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. 
Matter ofDhanasar, 26 I&N Dec. at 889. 
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 Id. In Dhanasar, we further noted that "we look for broader implications" of the 
proposed endeavor and that "[aa ]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. 
As noted above, the Petitioner states that his proposed endeavor is to establish a company to 
manufacture and distribute its own beverage, as well as "other non-alcoholic beverages produced by 
other manufacturers." He states that his company's product will include B vitamins, caffeine, anxiety­
and insomnia-reducing amino acid, a weight loss supplement, and natural ingredients to "increase 
energy, stamina, strength, and mental capacity, as well as help the body to resist the effects of stress 
and manage depression and anxiety." 
The Petitioner submits his personal statement in attempt to support the national importance of his 
proposed endeavor. The Petitioner's personal statement discusses his experience, initially as an 
interpreter, and later in business management. His business experience includes sales, marketing, 
manufacturing, procurement and financial management. He also describes the benefits of 
entrepreneurship, the importance of sustainability, and trends in the beverage industry in the United 
States. This statement does not describe his proposed endeavor and, as the Director noted in the RFE, 
was not sufficient to demonstrate that his proposed endeavor has national importance. "In 
determining national importance, the officer's analysis should/ocus on what the beneficiary will be 
doing rather than the specific occupational classification." 6 USCIS Policy Manual F.5(D)(l ), 
https://www.uscis.gov/policy-manual (emphasis added). 
The Petitioner also submits his business plan. The Petitioner asserts that his proposed endeavor will 
"help American citizens improve their diets," as well as support the U.S. economy and create jobs. 
The Petitioner's business plan states that, within five years, the company will hire 23 employees, have 
a net profit of $838,083, and incur taxes of $359,179. The Petitioner's generalized projections are not 
specific and detailed enough to establish the potential prospective impact of his proposed endeavor. 
Nor are they supported by independent, objective evidence. 
The business plan states that the Petitioner's company "will offer unique products that differ from both 
traditional drinks and fortified water, with its beverages containing supplements that serve to boost 
energy levels and improve metabolism and cognitive functioning." Although the Petitioner states that 
his company will develop and manufacture its own beverage, the business plan does not provide 
sufficient information about this key aspect of the proposed endeavor. The Petitioner does not describe 
how the product will be developed. He does not provide information about how and from where 
6 
ingredients will be sourced, the manufacturing process or location, or how the product will be safety 
tested. Nor does he indicate who will be responsible for the product development. The business plan 
includes a list of the company's projected personnel and job duties, including the Petitioner as 
managing director, an accountant, sales representatives, and production workers. However, none of 
the job duties for these positions involve development of the beverage. 
The Petitioner submits articles and industry reports describing the importance of entrepreneurship, 
environmental sustainability, and the U.S. beverage industry. 5 An article titled "Why Sustainability 
is Important in Business" from Earth.org discusses consumer trends toward ecologically friendly 
products and packaging. However, the article does not discuss the beverage industry or the Petitioner's 
specific proposed endeavor. Similarly, an article titled "Would taxes on unhealthy foods reduce 
obesity?" from Economics Observatory discusses the impact of imposing taxes on soft drinks in the 
United Kingdom but does not address the Petitioner's specific proposed endeavor. 
Additional industry reports in the record tend to support that demand for a healthy beverage option 
may exist in the United States, but these reports do not specifically discuss the Petitioner's proposed 
endeavor. As noted above, the Director determined the endeavor has substantial merit, and we agree. 
However, the question we are examining here is national importance. When determining national 
importance, the relevant question is not the importance of the 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 Matter ofDhanasar, 26 I&N Dec. at 889. Much of the Petitioner's evidence relates 
to the beverage industry generally, rather than his specific proposed endeavor. Although we agree 
that health and nutrition are important and may be the subject of national initiatives, we conclude that 
this does not necessarily establish the national importance of the Petitioner's specific proposed 
endeavor. Even considering the articles and reports, collectively and in the totality of circumstances, 
the record contains insufficient information or evidence regarding the Petitioner's proposed endeavor 
to show broad potential implications demonstrating national importance. 
The Petitioner also submits recommendation letters from former colleagues. We note that the letters 
describe the Petitioner's achievements as having benefitted his employers or being key to the 
company, rather than describing achievements that had broad implications to the field of business 
management or food and beverage. The letters do not describe skills that differ from or improve upon 
those already available and in use in the United States. Although the letters praise his qualifications 
and professional accomplishments, the Petitioner's skills, expertise, and abilities 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 he proposes to undertake has 
national importance under Dhanasar 's first prong. 
The Petitioner claims that the denial is deficient because the Director did not give due weight to the 
evidence in the record, specifically the business plan. While we agree that an adjudicator should 
consider the relevant evidence in the record, the Petitioner does not sufficiently support his claim that 
there was relevant evidence that the Director did not consider. We note that the decision does discuss 
the business plan. Nevertheless, we address it again herein. 
5 While we discuss a sampling of these articles and reports, we have reviewed and considered each one. 
7 
The Petitioner continues to rely upon the asserted merits of the services he will provide, his personal 
and professional qualities and achievements, and the general demand for healthy and nutritional 
beverages. However, as set forth above, the evidence does not sufficiently demonstrate the proposed 
endeavor's national importance. Therefore, we conclude that the Petitioner has not met the requisite 
first prong of the Dhanasar framework. 
As the Petitioner has not established the national importance of his proposed endeavor as required by 
the first prong of the Dhanasar framework, he is not eligible for a national interest waiver and further 
discussion of the balancing factors under the second and third prongs would serve no meaningful 
purpose. As noted above, we reserve the Petitioner's appellate arguments regarding the remaining 
Dhanasar prong. 6 See INSv. Bagamasbad, 429 U.S. at 25. 
III. CONCLUSION 
As the Petitioner has not met all of the requisite three prongs set forth in 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. 
ORDER: The appeal is dismissed. 
6 Even ifwe had addressed the remaining issues, we still would have dismissed this appeal. As noted above, the Director 
concluded that, although the proposed endeavor has substantial merit, the Petitioner did not establish its national 
importance, that he is well-positioned to advance the proposed endeavor, or 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. On appeal, the Petitioner references 
the same supporting evidence submitted with the original petition and RFE response. The Director addressed the 
previously submitted evidence in the RFE and decision, and explained how it was deficient in establishing that the 
Petitioner met the Dhanasar prongs and would be eligible for a national interest waiver. The Petitioner's assertions on 
appeal do not establish that he meets all of the three Dhanasar prongs. 
8