dismissed EB-2 NIW Case: Business Management

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: NOV. 18, 2024 In Re: 34836945 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, ageneral manager of an ethnic grocery store business, seeks employment-based second 
preference (EB-2) immigrant classification as a member of the professions holding an advanced 
degree, as well as anational 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 the Petitioner did not 
establish that he is eligible for or otherwise merits a national interest waiver as a matter of discretion. 
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 of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de nova. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de nova 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 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. 
Once a petitioner demonstrates eligibility for the underlying classification, the petitioner must then 
establish eligibility for a discretionary waiver of the job offer requirement "in the national interest." 
Section 203(b)(2)(B)(i) of the Act. U.S. Citizenship and Immigration Services (USCIS) may grant 
this discretionary waiver of the required job offer, and thus of a labor certification, when it is in the 
national interest to do so. While neither the statute nor the pertinent regulations define the term 
"national interest," Matter of Dhanasar, 26 l&N Dec. 884, 889 (AAO 2016), provides the framework 
for adjudicating national interest waiver pet1t1ons. Dhanasar states 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. 
Id. 
II. ANALYSIS 
The issue on appeal is whether the Petitioner established eligibility for a national interest waiver.2 The 
Director determined that the Petitioner did not demonstrate his proposed endeavor has substantial 
merit or is of national importance, as required by the first prong of the Dhanasar analytical framework. 
Upon de novo review, we agree with the Director's determination that the Petitioner did not 
demonstrate that a waiver of the labor certification would be in the national interest.3 
The first prong of the Dhanasar analytical framework, substantial merit and national importance, 
focuses on the specific endeavor that a petitioner proposes to undertake. The endeavor's merit may 
be demonstrated in a range of areas, such as business, entrepreneurial ism, science, technology, culture, 
health, or education. In determining national importance, 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." Id. 
The Petitioner resides in the United States as aspouse of a E-2 nonimmigrant treaty investor, working 
as a general manager for two ethnic grocery stores, one owned by his spouse and the other owned by 
he and his spouse. He proposes to continue managing the two existing stores located in New Jersey; 
establish three additional ethnic grocery stores, one in the I IFlorida area and two additional 
stores in undetermined locations; and within three years establish a food distribution business for his 
grocery stores. Like the existing stores, the new businesses would be focused on Brazilian and other 
Latin American food products. He intends to be the general manager for his new businesses with 
responsibility for operations management and long-term strategies. Upon de nova review, we find the 
Petitioner's proposed endeavor to be an entrepreneur and general manager for ethnic grocery stores 
and a food distribution business has substantial merit. We withdraw the Director's determination to 
the contrary. 
1 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) Uoining the Third, Ninth, Eleventh, and D.C. Circuit Courts in 
concluding that USCIS' decision to grant or deny a national interest waiver to be discretionary in nature). 
2 The Petitioner asserts he qualifies as an advanced degree professional; however, the Director's decision did not make a 
determination for his EB-2 immigrant classification qualification. Because the dispositive issue on appeal is the 
Petitioner's eligibility for the national interest waiver, we reserve the Petitioner's qualification for the underlying EB-2 
immigrant classification. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (noting that "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 
l&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach alternative issues on appeal where an applicant is otherwise 
ineligible). 
3 While we may not discuss every document submitted, we have reviewed and considered each one. 
2 
With respect to national importance, the Director found that the record did not show that the 
Petitioner's endeavor would extend beyond his business and clients to impact his field or the economy 
more broadly at a level commensurate with national importance. The Director also pointed out that 
the Petitioner did not demonstrate his endeavor has the claimed significant potential to employ U.S. 
workers or otherwise offers substantial positive economic effects for our nation or the regions he 
intends to serve which would render his endeavor nationally important under the Dhanasar 
framework. 
On appeal, the Petitioner contends the Director based the decision on erroneous conclusions of law 
and did not fairly adjudicate the evidence. The Petitioner maintains that the Director incorrectly 
interpreted the evidence, pointing to a statement in the Director's decision that his ''business consists 
of business to business transactions, thus, it will only benefit and limit to profit the businesses in the 
transaction." Arguing, instead that his businesses are direct-to-consumer transactions and that the 
misrepresentations show the Director misinterpreted the evidence and erred in the decision. 
Pointing to his business plan and business tax documents, the Petitioner claims he and his spouse's 
existing stores already generate employment opportunities and substantial economic impacts for their 
communities, which is sufficient to show the potential prospective economic impact of his proposed 
endeavor. In addition, he maintains the products at his stores are sourced from local U.S. importers, 
thereby he is investing in U.S. products and contributing to the growth of the local economy which 
has ripple effects extending to job creation and economic prosperity. The Petitioner also stresses that 
his endeavor will impact broader social welfare by providing cultural products from Brazil and Latin 
America which promote diversity and support immigrant integration. 
While we acknowledge and consider the Petitioner's statements and existing business' documents 
showing his commitment to providing grocery store products to communities it serves and to employ 
individuals at his business, he has not sufficiently documented the potential prospective impact, 
including the asserted economic and societal welfare impact to the United States and the areas he 
intends to serve, rises to the level of national importance contemplated under Dhanasar. 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, such as those resulting from certain improved manufacturing processes or medical 
advances." 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 argues his endeavor's potential economic impact is clearly documented in his business 
plan and his existing business' tax statements, as the evidence shows the stores employ U.S. workers 
and have had positive economic growth. The business plan describes the finances and personnel for 
the existing grocery stores, as well as projections for his proposed business endeavor. Since opening 
his first store in 2018 and the second store in 2022, the business plan and tax documents indicate that 
in 2022, the stores had seven employees, paid $347,500 in payroll, and had net income of $267,900. 
While continuing to manage these two stores, the business plan indicates that in three years, the 
Petitioner would establish and manage three additional grocery stores and a food distribution center, 
projecting the retail stores would have 54 employees and the distribution center would have four 
employees. By 2027, the business plan projects $15.9 million in total revenues, $1.2 million in net 
3 
income in the retail stores, $478,000 in net income from the distribution business, and approximately 
$1.3 million in wages. 
While the Petitioner's existing stores' employment and finances help explain his proposed endeavor 
and its potential economic forecasts, the evidence does not demonstrate his endeavor has the claimed 
significant potential to employ U.S. workers or other substantial positive economic effects rising to 
the level of national importance. With respect to the endeavor's future financial and staffing 
projections, the record does not sufficiently detail the basis for its projections of the endeavor's future 
financial and staffing projections, nor does it adequately explain how these projections will be realized 
based on the existing businesses. Moreover, the Petitioner has not provided corroborating evidence 
demonstrating that his business' future staffing levels and business activities have significant potential 
to employ U.S. workers or provide other substantial positive economic effects in the United States and 
the communities in the states it will serve, rising to the level of national importance contemplated 
under Dhanasar. 
The Petitioner does not support with material, relevant, or probative evidence his intentions to create 
54 jobs, pay wages of approximately $1.3 million, and generate $15.9 million in revenue over athree­
year period. Firstly, the tax documents indicate that the stores have experienced only a modest increase 
in net income since they were established, which tends to undercut the Petitioner's assertions. 
Secondly, the record reflects the Petitioner has employed seven employees, far fewer than the 
projected 54, with himself and his wife counted as employees amongst them. And the tax documents 
reflect that the Petitioner and his wife are paid a majority of the payroll with most of, if not all 
remaining employees staffing part-time positions and consequently earning a lower proportion of the 
endeavor's total salary. Also, without sufficient documentary evidence that his proposed job duties as 
ageneral manager of his ethnic grocery stores and food distribution business have the potential to have 
broader implications in his field, rather than benefiting his business and clients, the Petitioner has not 
demonstrated by apreponderance of the evidence that his proposed endeavor is of national importance. 
Next, the Petitioner submitted recommendation letters to support his claims of national importance. 
On appeal he points to a letter from the Mayor of ______ New Jersey which indicates 
the Petitioner's stores have hired employees in his community, helping the local economy and welfare 
ofthe residents. However, the Mayor's letter does not quantify the extent of the Petitioner's economic 
and societal welfare impact on the community, and such general statements do not show the potential 
of substantial positive economic or societal welfare effects as contemplated under Dhanasar. The 
record includes additional recommendation letters from the Petitioner's customers, business partners, 
suppliers, and family members attesting to his work at his existing New Jersey stores and his previous 
work in Brazil at a food distribution business and a gas station. While the letters confirm the 
Petitioner's work experience and show his work has been valued, they do not detail how his proposed 
endeavor would have economic and societal welfare benefits that rise the level of national importance. 
With the petition, the Petitioner submitted an opinion from an adjunct associate professor of marketing 
at I I in New York, which includes an analysis of the national importance of the 
Petitioner's proposed endeavor. The opinion, however, does not describe the Petitioner's specific 
endeavor or sufficiently detail how it is of national importance. Instead, the opinion generally 
references the proposed endeavor being a retail business and indicates it has the potential to impact 
the retail industry, the economy, societal welfare, and national initiatives. For instance, the opinion 
4 
states that the endeavor would "contribute to the nation's economy by creating jobs and generating 
taxes, in addition to supporting other small and medium sized businesses in the United States and 
helping Latin American businesses establish themselves in the U.S. market." Also, the opinion states 
that the "endeavor impacts a matter that a government entity has described as having national 
importance or is the subject ofnational initiatives." Similarly, the opinion indicates that the Petitioner 
being a retail executive can broadly enhance societal welfare through job creation, economic growth, 
product accessibility and affordability, customer service, community engagement, and environmental 
sustainability. Since the Petitioner is an experienced retail executive, the opinion maintains he would 
likely be a speaker to congresses, lectures, symposiums, and other professional events to disseminate 
his knowledge and contribute to workforce expansion. 
However, the opinion speculating on the positive benefits that may arise from the Petitioner's proposed 
endeavor without detailing the endeavor and how it would specifically accomplish the goals, does not 
demonstrate the endeavor's national importance. Instead, we focus on the "the specific endeavor that 
the foreign national proposes to undertake" and consider the endeavor's "potential prospective 
impact." Matter of Dhanasar, 26 l&N Dec. at 889. The submission of letters from experts supporting 
the petition is not presumptive evidence of eligibility . Matter of Caron Int 'I, 19 l&N Dec. 791, 795 
(Comm'r. 1988); see also Matter of D-R, 25 l&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, the opinion refers to the Petitioner's retail experience and provides 
generalizations about typical retail business activity, rather than providing insight into how the 
Petitioner's particular endeavor would have a potential prospective impact. 
On appeal, the Petitioner submits for the first time a new opinion from I I Ph.D. of 
stressing that his existing stores are located in or near underserved areas 
and that the stores have economically impacted those underserved communities. The opinion 
maintains the Petitioner's business' local communities in New Jersey and I I Florida have a 
need for economic revitalization given their proximity to communities with high unemployment rates, 
significant poverty levels, and heavy reliance on federal assistance programs. The opinion indicates 
that the current businesses in New Jersey have created 108 direct and indirect jobs and generated 
annual economic output of $10 million, which helps their underserved communities. The opinion 
further projects that by 2025, the Petitioner's current and future businesses would have total revenue 
of almost $11.5 million, create an additional 230 jobs, and increase local earnings by $6.4 million, 
thereby increasing employment and stimulating the economy in the underserved regions. 
However, because the Petitioner was put on notice and given a reasonable opportunity to provide this 
evidence in response to a request for evidence, we will not consider it for the first time on appeal. See 
8 C.F.R. § 103.2(b)(11) (requiring all requested evidence be submitted together at one time); Matter 
of Soriano, 19 l&N Dec. 764, 766 (BIA 1988) (declining to consider new evidence submitted on 
appeal because "the petitioner was put on notice of the required evidence and given a reasonable 
opportunity to provide it for the record before the denial"). We note that were we to consider the new 
opinion, its financial and personnel projections differ from those previously provided by the Petitioner 
in his business plan, and it does not provide an explanation for the discrepancies. Moreover, it does 
not sufficiently detail the basis for its projections, or adequately explain how these projections will be 
realized. 
5 
Next, the Petitioner maintains his endeavor aligns with nationally important U.S. government 
initiatives and policies supporting the science, technology, engineering, and mathematics (STEM) 
professionals. Moreover, as a small business entrepreneur of ethnic grocery stores in and near 
underserved communities, he maintains his endeavor is aligned with the U.S. government initiatives 
and policies supporting small businesses, entrepreneurship, job creation, and immigration reform. To 
support his assertions, the Petitioner submitted reports and articles relating to the U.S. government 
plans and initiatives, including the U.S. President's Build Back Better Agenda, which invests in U.S. 
communities and families through the American Jobs Plan and other proposals following the COVID-
19 pandemic; the America Rescue Plan, a U.S. government initiative that grants funding and lending 
for small businesses affected by the COVID-19 pandemic; U.S. government policies to alleviate 
inflation by lowering costs and the U.S. deficit; U.S. government policy supporting diversity, equity, 
inclusion, and accessibility in the federal workforce; and U.S. policies supporting advancement of 
STEM professionals. 
The importance of U.S. government initiatives and policies supporting job creation, entrepreneurship, 
equity in the workplace, and economic opportunities for families and small businesses post-COVID-
19 pandemic is not in dispute, but their overall significance does not establish the national importance 
of the Petitioner's proposed endeavor in particular. While national initiatives supporting small 
businesses, entrepreneurs, and STEM professionals may be important to the U.S. economy and societal 
welfare, and may help demonstrate an endeavor has substantial merit, it does not follow that a 
petitioner establishing and managing ethnic grocery stores after the COVID-19 pandemic impacts such 
national initiatives. 
Instead, as we stated earlier, we focus on the "the specific endeavor that the foreign national proposes 
to undertake" and consider the endeavor's "potential prospective impact." Matter of Dhanasar, 26 
l&N Dec. at 889. The Petitioner makes general statements about his business aligning with national 
initiatives but does not quantify the proposed endeavor's expected impact in the identified areas of 
concern, or provide objective, probative evidence to support his contentions. Although the Petitioner 
provides evidence that supporting small businesses, entrepreneurship, job creation, STEM 
professionals, and equal access to economic opportunities following the COVID-19 pandemic are 
nationally important issues, he has not demonstrated the potential prospective impact of his specific 
endeavor to such nationally important matters. Moreover, the Petitioner has not explained how his 
establishing and managing ethnic grocery stores and a food distribution business relates to and 
supports STEM professionals. 
The standard of proof in this proceeding is preponderance of the evidence, meaning that a petitioner 
must show that what is claimed is "more likely than not" or "probably" true. Matter of Chawathe, 
25 l&N Dec. at 375-76. To determine whether a petitioner has met his burden under the preponderance 
standard, we consider not only the quantity, but also the quality (including relevance, probative value, 
and credibility) of the evidence. Id. ; see also Matter of E-M-, 20 l&N Dec. 77, 79-80 (Comm'r 1989). 
The Petitioner's claims depend on numerous factors, and he did not offer a sufficiently direct 
evidentiary tie between his proposed work and the claimed economic and social welfare benefits to 
New Jersey, Florida, or the United States. While the Petitioner expresses his desire to contribute to 
the United States and its underserved communities, he has not established with specific, probative 
evidence that his endeavor has the claimed potential to extend beyond his business and clients to 
impact the field; to have significant potential to employ U.S. workers; to have substantial positive 
6 
economic effects, particularly in an economically depressed area; to broadly enhance societal welfare; 
or impact a matter which is the subject of national initiatives at a level commensurate with national 
importance. As such, the Petitioner has not demonstrated by a preponderance of the evidence that his 
proposed endeavor is of national importance. 
The Director further determined that the Petitioner did not establish that he is well-positioned to 
advance the proposed endeavor under Dhanasar's second prong, 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 Dhanasar's third prong. But, 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. 
This identified basis for dismissal is dispositive of the Petitioner's appeal, and therefore we decline to 
reach and hereby reserve the Petitioner's appellate arguments and eligibility under the second and 
third prongs of Dhanasar. See INS v. Bagamasbad, 429 U.S. at 25; see also Matter of L-A-C-, 26 l&N 
Dec. at 526 n.7. 
111. CONCLUSION 
As the Petitioner has not established eligibility under the requisite first prong of the Dhanasar 
analytical framework, he is not eligible 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. 
7