dismissed EB-2 NIW Case: Conflict Resolution

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JULY 8, 2024 In Re: 31415482 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner is a conflict resolution specialist who seeks employment-based second preference 
(EB-2) immigrant classification as an individual of exceptional ability, as well as a national interest 
waiver (NIW) 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 Texas Service Center Director denied the Form 1-140, Immigrant Petition for Alien Workers 
(petition), concluding that the record did not establish that the Petitioner merited a discretionary waiver 
of the job offer requirement in the national interest. The Petitioner appealed that decision, which we 
dismissed. The Petitioner bears the burden of proof to demonstrate eligibility to U.S. Citizenship and 
Immigration Services (USCIS) by a preponderance of the evidence. Section 291 of the Act; Matter of 
Chawathe, 25 I&N Dec. 369, 375 (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 review, we will dismiss the 
appeal. 
I. LAW 
To establish eligibility for an NIW, 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 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. 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 NIW petitions. Dhanasar states that USCIS may, as matter of discretion, 
grant an NIW 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. 
The purely discretionary determination of whether to grant or deny an NTW rests solely with USCTS. 
See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining four U.S. Circuit Courts of Appeals in 
concluding that USCIS' decision to grant or deny an NIW to be discretionary in nature). 
A motion to reopen is based on new facts that are supported by documentary evidence, and a motion 
to reconsider is based on an incorrect application of law or policy. The requirements of a motion to 
reopen are located at 8 C.F.R. § 103.5(a)(2), and the requirements of a motion to reconsider are located 
at 8 C.F.R. § 103.5(a)(3). If warranted, we may grant requests that satisfy these requirements, then 
make a new eligibility determination. 
II. ANALYSIS 
The issues here are whether the Petitioner: ( l) has submitted new facts, supported by documentary 
evidence, to warrant reopening, and (2) has established that we incorrectly applied the law or USCIS 
policy in dismissing her appeal. 
And the matters the Petitioner must first overcome within this motion are limited to the issues 
discussed within our most recent decision, the decision on her appeal. General support that a motion 
must first overcome the most recent decision lies within the regulation at 8 C.F.R. § 103.5(a)(l)-(3) 
where it repeatedly discusses the underlying or latest decision, it limits the time one has to file a motion 
after the most recent decision, and it references jurisdiction resting with the entity who made the latest 
decision. This demonstrates that any motion must first address and overcome the 
most recent adverse 
decision before the filing party's arguments may move on to any issue that arose in a previous petition, 
appeal, or motion filing. 
In our appeal dismissal, we only provided analysis relating to the national importance element of 
Dhanasar 's first prong. In doing so, we discussed a recommendation letter from a judge that described 
the Petitioner's skills and abilities, but we noted those attributes are better considered under other 
Dhanasar requirements rather than under the first prong. We also considered the Petitioner's proposed 
endeavor and its potential prospective impact. However, we found the Petitioner did not demonstrate 
how her proposed endeavor of owning and operating a mediation and conciliation business largely 
influences the field and rises to the level of national importance. 
Lastly, we discussed the proposed endeavor's business plan. We noted the forecasted sales did not 
establish the benefits to the regional or national economy would reach the level of"substantial positive 
economic effects" contemplated by Dhanasar. We further evaluated the proposed endeavor's job 
creation predictions concluding the Petitioner did not demonstrate that such future staffing levels 
would provide substantial economic benefits to the regions she specified, nor to the U.S. economy 
more broadly at a level commensurate with national importance. 
In this motion, the Petitioner must first address each of these aspects from our most recent decision 
and submit new facts supported by evidence demonstrating she has overcome our basis for ruling in 
an adverse manner on each issue, or she must demonstrate that we made an error in our analysis. 
On appeal, the Petitioner notes that mediation and dispute resolution reduce the burden on the U.S. 
judicial system and explains other positive aspects of this process, but she offered those same 
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arguments and we considered them when we dismissed the appeal. She also points to the proposed 
endeavor's business plan offering much of the same reasoning she stated before the Director or in the 
appeal brief. 
Turning to the Petitioner's job creation claims, the business plan predicts the endeavor will create 26 
jobs during five operating years. It also projects there will be approximately 7,600 workers in the 
mediation services industry in the United States in that same timeframe. 
In the motion, the Petitioner places a heavy focus on the word "potential" and appears to depart from 
its intended use in Dhanasar, and claims that she only has to show the prospective endeavor's potential 
to create jobs, regardless of the substance of those figures. While Dhanasar utilizes the phrase 
"potential" throughout and in several ways, it does not provide that simply having the potential to 
create a nominal number ofjobs is the standard that petitioners must meet to demonstrate the proposed 
endeavor has national importance. First, the Dhanasar precedent offers additional context relating to 
economics in that it requires the endeavor to have "significant potential to employ U.S. workers or 
[have] other substantial positive economic effects, particularly in an economically depressed area." 
(Dhanasar, 26 I&N Dec. at 890) ( emphasis added). Although Dhanasar generally indicates we 
consider the proposed endeavor's "potential prospective impact," it does not set the bar so low that 
merely having the potential to have some small positive economic benefit would be sufficient to show 
it has national importance. Such an interpretation would ignore Dhanasar's descriptive language we 
emphasize above (i.e., significant and substantial), and it would be counterintuitive to the requirement 
that the endeavor have importance at the national or global level rendering the precedential 
requirement of "national importance" meaningless. We will not interpret the Dhanasar decision in 
the manner the Petitioner proposes. 
Second, the endeavor's job creation potential is a nominal economic benefit at best and falls far short 
of showing the endeavor has national importance as required in Dhanasar. Regarding the proposed 
endeavor's job creation statistics, the Petitioner's employment claims (26 jobs in a field of 7,600 
workers) results in the proposed endeavor's potential to add jobs in this industry at a rate of 
approximately one-third of one percent. Here, the Petitioner does not explain the relevance of her 
employment figures to show they have significant potential to employ U.S. workers, consistent with 
the Dhanasar decision. 
The Petitioner claims her most important point went unnoticed, access to justice. Our appellate 
decision quoted the Petitioner's claims relating to this point. The Petitioner notes one of the proposed 
endeavor's objectives is to provide services to individuals who do not have access to the justice system 
and for small and medium sized businesses without a budget for legal representation. When we 
evaluate national importance, the relevant question is not the importance of the industry or profession 
in which the foreign national will work. Rather, we focus on the "the specific endeavor that the foreign 
national proposes to undertake" and we look to evidence illustrating the "potential prospective impact" 
of her actual proposed work. See id. at 889. 
A petitioner must demonstrate the proposed endeavor will "impact the field ... more broadly" (Id. at 
893) and that it has "broader implications" (Id. at 889). Within the motions, the Petitioner has not 
explained how offering mediation services-while continuing to charge a fee-will have a broad 
impact within the mediation field. The motion further identifies other aspects in which the endeavor 
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will benefit the United States to include: cost and time savings over federal litigation, flexibility when 
compared to litigation, improved relationships between the involved parties, and increased 
productivity and efficiency by removing possible litigation cases from the legal system. While these 
intended goals are commendable, the Petitioner has not demonstrated they individually, or 
collectively, reflect the proposed endeavor has national importance. Much like the foreign national's 
teaching activities did not reflect they would impact the field more broadly in the Dhanasar decision, 
so too do these listed aspects fall short in a similar manner. Id. at 893. 
III. CONCLUSION 
The Petitioner has not demonstrated that we should either reopen the proceedings or reconsider our 
decision. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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