dismissed EB-2 NIW Case: Business Management

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: FEB. 12, 2024 In Re: 28786067 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Worker (National Interest Waiver) 
The Petitioner, a chief executive officer, 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 Acting Director of the Texas Service Center denied the petition, concluding that the Petitioner did 
not establish 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 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter ofChristo '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. at 
884. 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 INSv. 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 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). 
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. Because this classification requires that the 
individual's services be sought by a U.S. employer, a separate showing is required to establish that a 
waiver of the job offer requirement is in the national interest. 
An advanced degree is any U.S. academic or professional degree or a foreign equivalent degree above 
that of a bachelor's degree. 1 8 C.F.R. § 204.5(k)(2). A U.S. bachelor's degree or a foreign equivalent 
degree followed by five years of progressive experience in the specialty is the equivalent of a master's 
degree. Id. 
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). 2 Meeting 
at least three criteria, however, does not, in and of itself, establish eligibility for this classification. 3 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. 
Once a petitioner demonstrates eligibility as either a member of the professions holding an advanced 
degree or an individual of exceptional ability, 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,4 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 experience as an executive officer with local 
and multinational corporations. His professional experience includes strategic planning, finance, 
supply chain, commercial negotiation, and project management. He states that his proposed endeavor 
is to serve in the position of chief executive officer of I I a designer and 
manufacturer of door and trim products and custom cabinetry based in Florida. In this position, the 
Petitioner states that he will provide "quality building materials (prehung doors, trim and cabinetry) 
to national, state and local builders, and to contribute to solving the country's increasing need of 
housing at a fair and reasonable cost." 
1 Profession shall include, but not be limited to, architects, engineers, lawyers, physicians, surgeons, and teachers in 
elementary or secondary schools, colleges, academics, or seminaries. Section 10l(a)(32) of the Act. 
2 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). 
3 USCIS has previously confirmed the applicabi lity of this two-part adjudicative approach in the context of aliens of 
exceptional ability. 6 USCJS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5. 
4 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). 
2 
The Petitioner asserts that he is eligible for the EB-2 classification as a member of the professions 
holding an advanced degree and as an individual of exceptional ability. With the initial filing the 
Petitioner submitted evidence of his education and experience, evidence of his claimed eligibility as 
an individual of exceptional ability, a business plan describing his proposed endeavor and claimed 
eligibility for a national interest waiver, and recommendation and support letters. He also submitted 
industry reports and articles discussing the residential construction industry and general labor 
shortages. 
A. Member of Professions Holding an Advanced Degree 
The Petitioner asserts that he qualifies for advanced degree professional classification by virtue of 
foreign education that he claims is equivalent to a U.S. master of business administration degree, in 
accordance with 8 C.F.R. § 204.5(k)(3)(i)(A). The Acting Director found that the Petitioner qualifies 
for classification as a professional holding an advanced degree, however, the Director did not explain 
the basis for this determination. After reviewing the record, we disagree with the Acting Director's 
determination. 
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). 
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 Petitioner submitted a diploma, titled MBA (Master En Direccion De Empresas), from I~--~I lin Spain. He also submitted an academic evaluation, stating that the degree awarded in 
1998 is the foreign equivalent of a U.S. master of business administration degree. 
At the outset we note that the name on the diploma does not match the Petitioner's name. The diploma 
is issued to and the name stated in the academic evaluation is ~ 
" The Petitioner does not provide any documentation to demonstrate that he is the~----~ same individual to whom the degree was issued. Nor does he explain why the name on the degree 
differs and the last name differs in spelling by one letter from his claimed name on all other documents 
in the record, including his passport. The Petitioner must resolve inconsistencies with independent, 
objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 
1988). 
3 
According to the American Association of Collegiate Registrars and Admissions Officers 
(AACRAO) 5 Electronic Database for Global Education (EDGE): 6 
The Master/Magister represents attainment of a level of education comparable to 6 months/I 
semester or up to 2 years of graduate study in the United States, based on coursework. 
An additional note on this credential in EDGE states: 
These titulos propios (post-graduate titles) exist outside the official titles sanctioned by the 
Ministry of Education and Science. Because these titles are not officially sanctioned by the 
government, they are not officially recognized though are valued by private employers. 
EDGE does not determine that this type of credential is equivalent to a U.S. master's degree as 
claimed. Additionally, the record does not include the Petitioner's academic transcripts listing the 
courses he completed or the number of years of study of each academic program in order to make a 
full and accurate determination of any equivalency. 
The record also includes a "Certificate of Graduation" issued to the Petitioner in 1996 from the~I--~ 
The record does not include academic transcripts accompanying 
this certificate. Nor does the record include an academic evaluation of this certificate. 
In light of the above, we disagree with the Acting Director's conclusion that the Petitioner has 
established that he is advanced degree professional in accordance with 8 C.F.R. § 204.5(k)(3)(i). 
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 in any further filings. 7 
B. Substantial Merit and National Importance 
The Acting 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 Dhanasar analytical framework. We agree, for the reasons explained 
below. 
5 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. 
6 We consider EDGE to be a reliable source of information about foreign credential equivalencies. See Confluence Intern., 
Inc. v. Holder, Civil No. 08-2665 (DSD-JJG), 2009 WL 825793 (D. Minn. Mar. 27, 2009); Tisco Group, Inc. v. Napolitano, 
No. 09-cv-10072, 2010 WL 3464314 (E.D. Mich. Aug. 30, 2010); Sunshine Rehab Services. Inc. No. 09-13605, 2010 WL 
3325442 (E.D. Mich. Aug.20.2010). See also Viraj, LLC v. Holder. No. 2:12-CV-00127-RWS, 2013 WL 1943431 (N.D. 
Ga. May 18, 2013). 
7 The Petitioner also claims eligibility for the EB-2 classification as an individual of exceptional ability. However. the 
Acting Director did not evaluate the Petitioner's evidence to determine whether he satisfies at least three of six categories 
of evidence listed under 8 C.F.R. § 204.5(k)(3)(ii), nor did she conduct a final merits determination to decide whether the 
evidence in its totality shows that the Petitioner is recognized as having a degree of expertise significantly above that 
ordinarily encountered in the field. We decline to make an analysis and determination on this claim in the first instance 
on appeal. However, should the Petitioner overcome other deficiencies noted herein in any further filings, the matter 
would be remanded to the Director for further consideration and analysis of the Petitioner's eligibility for classification as 
an individual of exceptional ability. 
4 
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. 
Following initial review, the Acting Director issued a request for evidence (RFE), allowing the 
Petitioner an opportunity to submit additional evidence in attempt to establish his eligibility for the 
national interest waiver. The Petitioner's response to the RFE includes an expert opinion letter, a 
personal statement, additional letters of support and recommendation, and additional information 
financial information for the Petitioner's proposed employer, ~--------~ 
After reviewing the Petitioner's RFE response, the Acting Director determined that the Petitioner 
submitted sufficient evidence to demonstrate that the proposed endeavor has substantial merit. 
However, she concluded that the Petitioner had not demonstrated that his proposed endeavor had 
national importance. The Acting Director stated that the record did not demonstrate that the 
Petitioner's intended contributions to the field will extend beyond his employer and its clients. 
Additionally, the Acting Director noted that, while the recommendation and support letters in the 
record claim that the Petitioner has influenced the field, the letters do not provide specific examples. 
The Acting Director concluded that the Petitioner has not demonstrated eligibility for a national 
interest waiver and further analysis of his eligibility under the second and third Dhanasar prongs 
would serve no meaningful purpose. 
On appeal, the Petitioner submits a brief and asserts that the Acting Director erred in determining that 
the impact of his proposed endeavor would not extend beyond his employer or have a potential broader 
impact in the field. He further asserts that the Acting Director erred in concluding that he did not 
establish that he was 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 under the second and third Dhanasar prongs. 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 merits a national interest waiver. 
In denying the petition, the Acting Director states that the Petitioner's "past record and potential 
prospective impact point to a single impact with a company." The Petitioner asserts on appeal that the 
Acting Director conflates the first and second Dhanasar prongs and "makes the ultra vires suggestions 
- not supported by law - that prospective impact to a company, alongside the broader field, may not 
have national importance." 
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. 
5 
To support the claimed national importance of his proposed endeavor, the Petitioner references an 
expert opinion prepared by~----------------~ as well as recommendation 
letters from former employers praising the Petitioner's education, experience, past success, personal 
qualities, and the results he achieved. However, these qualities relate to the second prong of the 
Dhanasar framework, that the individual is well-positioned to advance their proposed endeavor, which 
"shifts the focus from the proposed endeavor to the foreign national." Matter ofDhanasar, 26 I&N 
Dec. at 890. The issue here is whether the Petitioner's specific endeavor has national importance 
under Dhanasar 's first prong. 
We acknowledge that the expert opinion includes an analysis of the national importance of the 
Petitioner's proposed endeavor. In his analysis! Icites to 2021 industry reports on residential 
construction in the United States, stating "the volume of spending for new construction is ex ected to 
keep rising in the United States and is forecast to reach over $2 trillion in 2025." then 
discusses the positive economic effects of the Petitioner's proposed endeavor with~------~
D based on industry reports and statistics of small business employers in the United States. 
However,I woes not discuss any specific financial figures or contributions to economy of 
I J the business the Petitioner proposes to direct. As a matter of discretion, we 
may use opinion statements submitted by the Petitioner as advisory. Matter of Caron Int 'l, Inc., 19 
I&N Dec. 791, 795 (Comm'r 1988). However, we will reject an opinion or give it less weight ifit 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. 
Here, the advisory opinion is of little probative value as it does not meaningfully address the details 
of the Petitioner's specific proposed endeavor and why it would have national importance. I I 
does not elaborate on how the Petitioner's specific proposed endeavor will have a prospective impact 
on the United States, including the national or global implications on residential construction, the 
potential to employ U.S. workers, or the positive economic effects. Rather, his opinion is general in 
nature, concluding that, because the Petitioner's proposed endeavor is to work for a small business in 
a high demand industry, it has national importance. 
The Petitioner also references his personal statement to support the national importance of his 
proposed endeavor. As noted above, to establish national importance, the Petitioner must demonstrate 
the proposed endeavor's impact. The Petitioner states that his proposed endeavor will "contribute an 
additional 5 to 6 million dollars in Federal Taxes in the next five years," as well as contribute to state 
sales and payroll taxes, employ U.S. workers, and provide support for affordable housing. The 
Petitioner includes financial projection statements dated March 3, 2023 and signed by the Controller 
of~--------~ According to the income tax projection in the record, the projected 
incremental increase in income tax in each year from 2023 to 2027 ranges from approximately 
$150,000 to $250,000, with a total increase of approximately $1.5 million since 2021. These 
incremental figures are not consistent with the Petitioner's statement that he will contribute an 
additional $5 million in federal taxes over the next five years. Unresolved material inconsistencies 
may lead us to reevaluate the reliability and sufficiency of evidence submitted in support of the 
requested immigration benefit. See Matter ofHo, 19 I&N Dec. at 591-592. 
6 
We acknowledge the Petitioner's appellate claims that the Acting Director acted ultra vires in 
disregarding the prospective impact to the company "alongside the broader field" to demonstrate 
national importance. However, we do not agree that the requirement to demonstrate the potential 
prospective impact of the proposed endeavor is a novel one. Here, the Acting Director properly 
considered the prospective impact to~--------~ but determined that the record did not 
demonstrate that this impact would reach the level of national or global implications contemplated by 
Matter ofDhanasar. 
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 "the specific endeavor that the 
foreign national proposes to undertake." See Matter ofDhanasar, 26 I&N Dec. at 889. The evidence 
does not suggest that the Petitioner's skills differ from or improve upon those already available and in 
use in the United States. Nor does the evidence demonstrate that the use of the Petitioner's experience 
will reach beyond benefitting ~--------~ or have broader implications within the field 
of residential construction. The record does not establish that the Petitioner's proposed endeavor 
stands to impact the field as a whole. 
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. 
Because the documentation in the record does not sufficiently establish the national importance of the 
Petitioner's proposed endeavor as required by the first prong of the Dhanasar precedent decision, he 
has not demonstrated eligibility for a national interest waiver. On appeal the Petitioner erroneously 
states that the Acting Director concluded that he was not 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 a labor certification. However, in her decision the Acting Director states that 
analysis of these two Dhanasar prongs would serve no meaningfully purpose and provides no analysis 
of the evidence in the record. However, since the identified basis for denial is dispositive of the 
Petitioner's appeal, we decline to reach and hereby reserve the Petitioner's appellate arguments 
regarding his eligibility under the second and third prongs. 8 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 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). 
8 As noted above, should the Petitioner overcome other deficiencies noted herein in any further filings, including his 
eligibility for EB-2 classification and the national importance of his proposed endeavor, the matter would be remanded to 
the Director for further consideration and analysis of the Petitioner's eligibility for the requested benefit. 
7 
III. CONCLUSION 
As the 
record does not establish that the Petitioner has met the requisite first prong of the Dhanasar 
analytical framework, we conclude that the Petitioner is not eligible for a national interest waiver as a 
matter of discretion. 
ORDER: The appeal is dismissed. 
8