dismissed EB-2 NIW Case: Business Management

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEP. 7, 2023 In Re: 28092498 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a chief executive officer, seeks second preference immigrant classification as a member 
of the professions holding an advanced degree or as an individual of exceptional ability, as well as a 
national interest waiver of the job offer requirement attached to this EB-2 classification . 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 the Petitioner had not 
established 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 Christa'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, petitioners must 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. In addition, 
petitioners must show 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 that U.S. Citizenship and Immigration Services (USCIS) may, as matter of discretion 1, grant 
a national interest waiver if: 
• 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. 
1 See also Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature) . 
II. ANALYSIS 
Regarding the national interest waiver, the first prong relates to substantial merit and national importance 
of the specific proposed endeavor. Dhanasar, 26 I&N Dec. at 889. The Petitioner's initial cover letter 
stated: 
The Petitioner intends to continue using his business mragenrnt and CEO expertise to 
build a fine dining Japanese Brazilian restaurant called The plan is to become a 
franchise business after the 3rd unit implementation in Florida. Florida is a state where 
economy is diverse and attracts global business, combined with a government that is in 
favor and encourages business and development, it also has increasing rates ofjob creation 
and population growth. 
Further, the Petitioner submitted a "Personal Plan & Statement" indicating: 
I intend to continue using my expertise and knowledge to work as a CEO in the United 
States, where I will start a Japanese Cuisine Business in Florida, which often suffer from 
a lack of investments. To do this, I intend to launch my own Oriental Restaurant in
I I where I will also employ American citizens who can help me to attend our 
customers, as well as run my international cuisine establishment. In fact, I have plans to 
successfully expand my business by licensing the use of the brand, thus opening new 
restaurant units i~ Iand, in future, inl I 
After approval of the petition, I intend to start the project by opening a restaurant in 
I I and gradually expand the development to other strate~ically positioned units, 
such asl ralso in Florida)J~-------~J 
Thus, through the opening and expansion project of1,________.luSA in the I ~FL region, 
I intend to generate jobs, collect taxes, and positively impact the national economy. 
In response to the Director's request for evidence, the Petitioner's cover letter claimed: 
. . . [The Petitioner] has the ability to lead c=]USA to become a distinguished Japanese 
Restaurant, serving primarily thel Imetropolitan area, with the potential to expand 
its operations to multiple states in the country, being recognized by the excellence of its 
services in the Japanese Cuisine. [The Petitioner] has extensive professional experience 
in management control, monitoring, hiring and training of salespeople, finance, 
purchasing, product research, strategic planning, monitoring of resultsf skills that 
strengthen him to be a differentiated and capable professional to make USA a great 
success in Florida and in the U.S .... 
. . . [The Petitioner] confirmed his intentions to work with husjness and exaujsjte cujste 
by starting his own company, a Japanese Restaurant name~.__________ __. to 
apply all his extensive knowledge acquired in business management, controlling, 
2 
monitoring, and correcting sales force, in a self-funded company based in ~I--~ 
Florida. The purpose is to continue working in his career in the business management 
through an entrepreneurial approach, as CEO .... 
The Director determined the Petitioner demonstrated the proposed endeavor's substantial merit and 
national importance. However, because the record does not support the Director's finding relating to the 
national importance aspect, we will withdraw the Director's decision regarding the first prong, discussed 
below. 
In 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 specific endeavor that the 
foreign national proposes to undertake." See Dhanasar, 26 I&N Dec. at 889. Although he provided 
evidence relating to a wide range of topics, such as the overall restaurant industry, Florida's business 
climate, impact of restaurants to local economies, importance of small businesses, and popularity of 
Japanese food and restaurants, the Petitioner must demonstrate the national importance of his specific, 
proposed endeavor of owning and operating I IFlorida, as well as 
expansion to two other locations, rather than the importance of particular industries or fields. 2 In 
Dhanasar, we 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. 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 record also contains an opinion letter from~-------~who claimed the Petitioner's 
proposed endeavor meets all three elements under the Dhanasar decision. As it relates to the national 
importance aspect, the letter discusses the food industry, the restaurant industry, consumer spending, 
and food delivery without explaining the national importance of the specific, proposed endeavor of 
owning and operating I IMoreover, although the letter asserts that "[h ]aving 
[the Petitioner] as a seasoned Chief Executive in the United States could highly benefit the American 
population," the letter does not further elaborate and explain how the Petitioner's restaurant inl I 
Florida, as well as future locations in I I Georgia and I I New York, would be nationally 
important. To evaluate whether the Petitioner's proposed endeavor satisfies the national importance 
requirement, we look to evidence documenting the "potential prospective impact" of his work. 
Dhanasar, 26 I&N Dec. at 889. Here, the letter does not demonstrate how the Petitioner's proposed 
endeavor largely influences the field and rises to the level of national importance. In Dhanasar, we 
determined the petitioner's teaching activities did not rise to the level of having national importance 
because they would not impact the field more broadly. Id. at 893. Likewise, the record does not show 
through supporting documentation how the restaurant stands to sufficiently extend beyond its 
customers, to impact the restaurant industry or the U.S. economy more broadly at a level 
commensurate with national importance. 
2 The Petitioner's arguments and evidence relate more to the substantial merit aspect of the proposed endeavor rather than 
the national importance part. 
3 
In addition, under the national importance element, the Petitioner emphasized "his v1S1onary 
ideologies, performance-driven mindset, and extensive management experiences with his 
Management background" and "outstanding achievements, and record of accomplishments." Further,
I I letter referenced the Petitioner's "expertise in managing, controlling, finance, and 
shopping in the food market, strategic planning, and product research." However, the Petitioner's 
experience, skills, and abilities in his field 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. 
Finally, the record contains the Petitioner's business plan for.___________ __. However, 
the Petitioner did not establish how the business plan's claimed financial and employment projections, 
even if credible or plausible, have significant potential to employ U.S. workers or otherwise offers 
substantial positive economic effects for our nation. 3 The business plan does not make revenue 
projections; instead, it references "Break-Even" of$55,000; "Profitability" of $55,000 with a net profit 
of$1,100, $70,000 with a net profit of $10,500, and $85,000 with a net profit of$20,400; and "Annual 
Billing" of $360,000, $480,000, and $600,000 for years 1 through 3, respectively. Here, the Petitioner 
did not show how these figures translate into "substantial positive economic effects." See Dhanasar, 
26 I&N Dec. at 890. 
Similarly, although the business plan claims the creation of 8 jobs in year 1 to 15 jobs in year 3, the 
Petitioner did not establish that such future staffing levels would provide substantial economic benefits 
tol lFlorida region or the U.S. economy more broadly at a level commensurate with national 
importance. While he submitted evidence indicating that the I I Florida region is located in a 
distressed area and classified as an opportunity zone, the Petitioner did not demonstrate the 
significance of the creation of 8 - 15 jobs to the unemployment rate or how such jobs would offer 
substantial positive economic effects for thel !Florida area or our nation. 
Because the documentation in the record does not establish the national importance of the Petitioner's 
proposed endeavor, we withdraw the Director's favorable finding for the first prong of the Dhanasar 
precedent decision. As such, the Petitioner has not demonstrated eligibility for a national interest waiver. 
Further analysis of his qualification under the second and third prongs outlined in Dhanasar, therefore, 
would serve no meaningful purpose. 4 
III. CONCLUSION 
As the Petitioner has not met the requisite first prong ofthe Dhanasar analytical framework, we conclude 
he has not demonstrated eligibility for or otherwise merits a national interest waiver as a matter of 
discretion. The appeal will be dismissed for the above stated reasons, with each considered as an 
independent and alternate basis for the decision. 
3 The business plan makes projections only for th~ Florida restaurant. 
4 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 ofL-A-C-, 26 l&N Dec. 516,526 n.7 (BIA 2015) 
( declining to reach alternate issues on appeal where applicants do not otherwise meet their burden of proof). 
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ORDER: The appeal is dismissed. 
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