dismissed EB-2 NIW Case: Business Management

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: NOV. 29, 2023 In Re: 28562401 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a general and operations manager, seeks an employment-based second preference (EB-
2) immigrant classification as 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 proposed endeavor was of national importance and therefore denied the national 
interest waiver. 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. 
I. LAW 
To establish eligibility for a national interest waiver, a petitioner must first demonstrate qualification 
for the underlying EB-2 immigrant 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. 
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 of the six categories, however, does not alone establish eligibility for the 
exceptional ability classification.2 If a petitioner satisfies at least three of the six categories for 
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 U.S. Citizenship and Immigration Services (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(8)(2) , 
https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5 . 
establishing exceptional ability, 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. 
Should a petitioner demonstrate 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. Matter ofDhanasar, 26 I&N Dec. 884, 889 (AAO 2016), provides 
the framework for adjudicating national interest waiver petitions. Dhanasar set forth that USCIS may, 
as matter of discretion, 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 Classification: Exceptional Ability 
The Director concluded that the Petitioner's bachelor's degree and 10 years of experience satisfied the 
requirement for exceptional ability. However, to establish exceptional ability, the Petitioner must meet 
at least three of six criteria under 8 C.F.R. § 204.5(k)(3)(ii), and establish a degree of expertise 
significantly above that ordinarily encountered in the field under 8 C.F.R. § 204.5(k)(2). Here, the 
Director mentioned only two of the six criteria and incorrectly concluded that they met the evidentiary 
requirement. However, as the record does not establish by a preponderance of the evidence that the 
Petitioner is eligible for a national interest waiver as a matter of discretion, we will reserve the issue 
of the Petitioner's eligibility for the EB-2 classification. 3 
B. National Interest Waiver 
1. Substantial Merit 
The Petitioner's proposed endeavor is to start a business in home flipping and serve as the business' 
general and operations manager. He submits a brief: and resubmits an expert opinion letter, his 
business plan, and resume in support of his appeal. The Petitioner highlights several statistics in his 
brief: some of which are: 8.4% of home sales in 2022 were from home flipping and that was the 
highest percentage since 2005; in 2022, there was a 72.2% increase in home flipping in Florida, the 
state where the Petitioner's proposed endeavor would be; and that small businesses such as the 
Petitioner's proposed endeavor are 44% of the economic activity, 48% of U.S. jobs and 43.5 % of the 
national Gross Domestic Product. These statistics show the Petitioner's endeavor has potential for 
positive impacts to the local real estate market and the local economy. We conclude the record satisfies 
the substantial merit requirement. 
3 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 unnecessmy to the ultimate decision); see also Matter o/L-A-C-, 26 I&N Dec. 516, 526 n.7 (BIA 2015) 
( declining to reach alternative issues on appeal where an applicant is othe1wise ineligible). 
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2. National Importance 
In analyzing the potential prospective impact of the proposed endeavor, the Director's decision 
concluded that the Petitioner did not satisfy the requirement of national importance.4 We agree. 
For a national importance determination, 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 Dhanasar, 26 I&N Dec. at 889. In Dhanasar, we further 
noted that "we look for broader implications" of the specific 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. 
The Petitioner's proposed endeavor is as a general and operations manager of his own home flipping 
business. In addition, his proposed endeavor will include the launch of theI I where 
investors can track their investments through the entire process. On appeal, he resubmits the expert 
opinion letter written on his behalf, a business plan, and his resume. He provides statistics and 
information about the national importance of the general fields of home flipping and small business 
ownership, their economic impact, their impacts on local economy, tax collection, and the job 
opportunities his proposed endeavor will directly and indirectly provide. However, evidence of the 
importance of the industry or profession in general does not satisfy the standard of national importance. 
While some of this information is probative of meeting the substantial merit analysis we discussed 
above, such evidence does not establish how the Petitioner's specific proposed endeavor, as general 
and operations manager of his own home flipping company stands to impact the broader field or 
otherwise establish its national importance. 
The Petitioner also states that his company could promote employment by directly employing 3 
employees initially and increasing to 15 employees by year 5, and that his business will indirectly 
employ a substantial number of people. The business plan does not sufficiently show how many 
people the business will employ and how the business will achieve this goal. In addition, the record 
does not establish how the Petitioner's specific endeavor would affect the regional or national economy 
to reach the level of "substantial positive economic effects" beyond the Petitioner's company and clients 
intended by Dhanasar. Id. The Petitioner discusses in detail how home flipping and small businesses 
as a whole can have substantial and positive economic effects but does not establish how his specific 
endeavor will do so. 
The brief then lists the unemployment rates for certain cities and counties in Florida and that the 
Petitioner's proposed endeavor could have positive economic impacts. As stated above, the Dhanasar 
analysis does give weight to the national importance of, "an endeavor that has significant potential to 
employ U.S. workers or has other substantial positive economic effects, particularly in an 
economically dyressed rea." Id. However, the evidence put forth in the brief lists the area of Florida 
most in need as County. This is not the area of Florida that the proposed endeavor will be1 
4 The Director's decision also concluded that the Petitioner was well-positioned to advance their proposed endeavor; but 
found on balance, waiving the job offer requirement would not benefit the United States. 
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serving. The brief clarifies that there are no strong obstacles to expanding work intol !county 
and that once matured, the proposed endeavor could expand. However, the record does not establish 
that the area he intends to operate in is economically depressed, that his proposed endeavor would 
employ a significant population of workers in the economically depressed areas, or that the proposed 
endeavor would offer a region or its population a substantial economic benefit through employment 
levels, business activity, or related tax revenue. 
The Petitioner provides an expert opinion letter froml Iadjunct professor at._l____ _. 
College of New York. In addressing the first prong of the Dhanasar framework, the author similarly 
discusses the importance of the industry in general; its popularity, its ability to contribute to the 
economy, and its role in the lives of American families; but does not show how the Petitioner's specific 
endeavor meets the threshold of national importance. He also discusses the Petitioner's experience, 
however that analysis would be more relevant to the second prong of Dhanasar, in whether the 
Petitioner is well positioned to advance the endeavor. The letter does not further the discussion for 
the national importance of the proposed endeavor. 
USCIS may, in its discretion, use as advisory opinions statements from universities, professional 
organizations, or other sources submitted in evidence as expert testimony. Matter of Caron Int 'l, 19 
I&N Dec. 791, 795 (Comm'r. 1988). However, USCIS is ultimately responsible for making the final 
determination regarding a foreign national's eligibility. The submission of letters from experts 
supporting the petition is not presumptive evidence of eligibility. Id., see also Matter ofD-R-, 25 I&N 
Dec. 445, 460 n.13 (BIA 2011) (discussing the varying weight that may be given expert testimony 
based on relevance, reliability, and the overall probative value). Here, much of the content of the 
expert opinion letter lacked probative value with respect to the national importance of the Petitioner's 
proposed endeavor. 
While we do not discuss each piece of evidence individually, we have reviewed and considered the 
record in its entirety. As the proposed endeavor does not meet the national importance standard, the 
Petitioner's proposed work does not meet the first prong of the Dhanasar framework. Therefore, the 
Petitioner has not demonstrated eligibility for a national interest waiver. Because the identified 
reasons for dismissal are dispositive of the Petitioner's appeal, we decline to reach and hereby reserve 
remaining arguments concerning eligibility under the Dhanasar framework. See Bagamasbad, 429 
U.S. at 25; see also Matter ofL-A-C-, 26 I&N Dec. at 526 n.7. 
III. CONCLUSION 
As the Petitioner has not met first prong of the Dhanasar analytical framework; in that his proposed 
endeavor is one of national importance, we conclude that the Petitioner has not established eligibility 
for a national interest waiver as a matter of discretion. The appeal will be dismissed for the above 
stated reasons. 
ORDER: The appeal is dismissed. 
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