dismissed EB-2 NIW Case: Cosmetology

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: AUG. 16, 2024 In Re: 32628256 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a cosmetologist, seeks employment-based second preference (EB-2) immigrant 
classification as an individual of exceptional ability. See Immigration and Nationality Act (the Act) 
section 203(b)(2), 8 U.S.C. § 1153(b )(2). The Petitioner also seeks a national interest waiver of the job 
offer requirement that is attached to this EB-2 immigrant classification. See section 203(b)(2)(B)(i) of 
the Act, 8 U.S.C. § 1153(b )(2)(B)(i). 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. 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish that the Petitioner qualifies for the underlying EB-2 qualification or for a national interest 
waiver. The Director granted a subsequent motion to reopen and reconsider, but ultimately denied the 
petition. 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. 
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. 
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 
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) . 
at least three criteria, however, does not, in and of itself, establish eligibility for this classification. 2 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. 
If a petitioner demonstrates 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. 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 USCIS may, as 
matter of discretion, 3 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. 4 
Id. at 889. 
II. EB-2 CLASSIFICATION 
The Director determined that the Petitioner did not meet any of the following categories of evidence 
required to demonstrate exceptional ability: 
• Evidence in the form of letter(s) from current or former employer(s) showing that the 
individual has as least ten years of full-time experience in the occupation for which he 
or she is being sought. 8 C.F.R. § 204.5(k)(3)(ii)(B); 
• A license to practice the profession or certification for a particular profession or 
occupation. 8 C.F.R. § 204.5(k)(3)(ii)(C); 
• Evidence that the alien has commanded a salary, or other remuneration for services, 
which demonstrates exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(D); 
• Evidence of membership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E); or 
• Evidence of recognition for achievements and significant contributions to the industry 
or field by peers, governmental entities, or professional or business organization. 
8 C.F.R. § 204.5(k)(3)(ii)(F) 
The Director concluded however that the Petitioner had an official academic record showing that 
she has a degree, diploma, certificate, or similar award from a college, university, school, or other 
institution of learning relating to the area of exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(A). 
Therefore, although the Petitioner did not meet at least three of the six criteria, she met at least one. 
Ultimately, the Director determined that the Petitioner was not an individual of exceptional ability as 
necessary to qualify for the EB-2 classification. However, the Director determined that based on the 
2 USCTS has previously confirmed the applicability of this two-part adjudicative approach in the context of individuals of 
exceptional ability. 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5. 
3 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). 
4 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
2 
Petitioner's diploma from in Russia, awarded in June 2011, she had a foreign 
equivalent degree to a U.S. advanced degree. Thus, the Petition qualified for E21 visa classification. 
On appeal, the Petitioner submits a brief and copies of documents already in the record. The Petitioner 
states that the Director's decisions were "incorrectly based on the application oflaw or policy, and that 
these decisions were erroneous considering the evidence available in the case record at the time of 
judgment." She asserts that she has established her qualification as a member of professions holding 
an advanced degree as outlined in 8 C.F.R. § 204.5(k)(2), thereby meeting the requirements for E21 
visa classification. The Petitioner states that she has established that her proposed endeavor has 
substantial merit and is of national importance. Because the record does not establish by a 
preponderance of the evidence that the Petitioner is eligible for or otherwise merits a national interest 
waiver as a matter of discretion, we will reserve the issue of the Petitioner's eligibility for the EB-2 
classification as an individual of exceptional ability. 5 
III. NATIONAL INTEREST WAIVER 
The issue to be determined on appeal is whether the Petitioner established that a waiver of the 
requirement of a job offer, and thus a labor certification, would be in the national interest. For the 
reasons discussed below, we conclude that the Petitioner has not sufficiently demonstrated the national 
importance of her proposed endeavor under the first prong of the Dhanasar analytical framework. We 
will not disturb the Director's finding that the proposed endeavor had substantial merit. 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
individual proposes to undertake. In the original submission, the Petitioner provided a description of 
the proposed endeavor and documentary evidence that demonstrates that the proposed endeavor has 
substantial merit in an area such as business, entrepreneurialism, science, technology, culture, health, 
education, the arts, or social sciences. The Petitioner intends to pursue her endeavor as a business 
owner and cosmetology instructor. The Director concluded that, while the Petitioner's proposed 
endeavor had substantial merit, she did not demonstrate that her proposed endeavor had national 
importance. 
In determining whether the proposed endeavor has national importance, we consider its potential 
prospective impact. Dhanasar, 26 I&N Dec. at 889. 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. In Dhanasar, we 
further 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. Further, to evaluate whether the Petitioner's proposed endeavor satisfies the national 
importance requirement, we look to evidence documenting the "potential prospective impact" of her 
work. In Dhanasar we determined that the petitioner's teaching activities did not rise to the level of 
5 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 alternative issues on appeal where an applicant is otherwise ineligible). 
3 
having national importance because they would not impact his field more broadly. Id. at 893. Here, 
the record does not show through supporting documentation how her endeavor sufficiently extends 
beyond her prospective clients or employees, to impact the field or the U.S. economy more broadly at 
a level commensurate with national importance. 
On appeal, the Petitioner asserts that the submitted evidence establishes the national importance of her 
endeavor, I I stating the following: 
The business plan outlined the potential to employ U.S. workers, as the pos1t1ve 
economic effects for New York and the United States, embedded in numerous tables 
with precise calculations. 
The Petitioner notes that her business plan: 
[M]eticulously outlined the potential benefits to the regional and national economy 
resulting from her projects, demonstrating a clear understanding of the substantial 
positive economic effects provided by Dhanasar. 
The Petitioner's assertions, as well as others in her business plan and elsewhere on the record, largely 
discuss the anticipated potential of her company based on her experience in operating a consulting 
business in the beauty industry. However, these assertions are not supported by objective evidence to 
demonstrate how her company, one of many operating in the industry, would have a prospective 
national impact on the field or on an economy of any scale. For example, the business plan anticipates 
hiring 44 individuals, generating $1,522,480 in payroll expenses, $228,372 in payroll taxes, and a net 
profit of$449,393 by the conclusion of its fifth year of operation. The plan does not, however, provide 
an objective basis for these projections, nor are the numbers corroborated by probative evidence 
sufficient to demonstrate that it is likely the company will have a positive national economic impact or 
a national prospective impact within the field. A petitioner must support assertions with relevant, 
probative, and credible evidence. See Matter ofChawathe, 25 I&N Dec. at 376. 
On appeal, the Petitioner references letters of recommendation and other material as evidence of her 
skills and experience. The Petitioner argues that the letters not only affirm her past work but also 
highlight the tangible benefits her company provides to the beauty industry at large. We note that the 
letters explicitly acknowledge "the Petitioner's extraordinary skills as a personal care specialist in the 
beauty sector" and the Petitioner's "masterclass service and professional skills have left a lasting 
impression." And both writers have expressed a desire to work with the Petitioner in the future. 
However, this supporting documentation does not show how the endeavor sufficiently extends beyond 
the Petitioner's prospective clients to impact the field or the U.S. economy more broadly at a level 
commensurate with national importance. We note that evidence of an individual's abilities and history 
within a field generally relate not to the national importance of an endeavor, as discussed in the first 
prong of Matter ofDhanasar, but to the second, 6 discussing whether an individual is well positioned 
to advance an endeavor. As such, the letters of recommendation do not sufficiently demonstrate the 
6 Because the Petitioner has not established eligibility under the first prong of the Dhanasar framework, determinations 
concerning the second and third prongs are unnecessary to the ultimate decision; therefore, they will be reserved in this 
decision. 
4 
national importance of the Petitioner's proposed endeavor. 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 if it is not in accord 
with other information in the record or if it is in any way questionable. 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. Thus, while highly 
complementary to the Petitioner, the recommendation letters do not support the Petitioner's contention 
that her proposed endeavor is of national importance. 
The Petitioner has not demonstrated that her proposed endeavor has significant potential to employ 
U.S. workers or otherwise offer substantial positive economic effects for the nation. Specifically, she 
has not shown that her business stands to provide substantial economic benefits to New York or to the 
United States overall. While the business plan and statements explain in general terms that her 
company would benefit the U.S. economy because it would help create jobs, that reasoning is not based 
on any objective evidence related to her specific proposed endeavor to operate a beauty industry 
consultancy. The Petitioner has not provided evidence to show that her proposed endeavor would offer 
a region or its population substantial economic benefits through employment levels, business activity, 
or tax revenue. As such, the business plan does not demonstrate that the prospective benefits to the 
regional or national economy resulting from the Petitioner's endeavor would reach the level of 
"substantial positive economic effects" contemplated by Dhanasar. Id. at 890. 
On appeal, the Petitioner contends that the Director's focus on the physical location of her office is 
misplaced. However, the Director correctly observed that the Petitioner's office would not be located 
in a retail space but in a residential apartment building. The Petitioner states: 
_____ specializes in providing classes, workshops, and consulting services 
tailored to the beauty industry. Such services do not necessitate a traditional retail space, 
as the focus is on educational and advisory functions rather than retail transactions. 
Classes will be online and do not require office space, and a temporary rental space will 
be utilized for face-to-face events." 
Furthermore, the Petitioner states: 
fully intends to rent a suitable space to accommodate its classes, 
workshops, and consulting services effectively. 
However, heretofore, the Petitioner did not indicate that she would utilize a temporary or suitable rental 
space to conduct her endeavor. Therefore, this represents a material change in the proposed endeavor. 
A petitioner may not make material changes to a petition in an effort to make a deficient petition 
conform to USCIS requirements. See Matter ofizwnmi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). 
The Petitioner also argues that the Director disregarded her business plan because it was developed 
after the initial petition filing and submitted in response to the request for evidence. She argues that 
"[t]he fact that the business plan was crafted after the petition was filed and the RFE was issued is not 
indicative of its unreliability," and that is was common practice for businesses, especially startups, to 
refine and adjust their business plans based on evolving circumstances and feedback received from 
5 
regulatory bodies such as USCIS." The Petitioner further asserts that the business plan was 
meticulously crafted and thoroughly researched; it outlined the potential benefits to the regional and 
national economy resulting from her projects; there are no rules or regulations mandating that a business 
plan must be executed prior to filing; it did not contradict the assertions made in the initial petition; and 
the Petitioner developed a business plan in response to the RFE that "aligns with the autobiographical 
details initially provided." Nevertheless, we agree with the Director that the business plan held limited 
evidentiary value as it related to the material change to the petition because a petitioner must establish 
eligibility at the time the petition is filed. See 8 C.F.R. § 103.2(b )(1 ); Matter ofKatigbak, 14 I&N Dec. 
45, 49 (Comm'r 1971); see also Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988) (Standing for the 
proposition that any inconsistencies in a petitioner's evidence may lead to reevaluation of the remaining 
evidence offered in support of the visa petition). The Petititioner states that the principles established 
in Katigbak and Izummi have been misinterpreted and misapplied to unrelated benefit applications, to 
wit, the national interest waiver petitions. However, contrary to the Petitioner's assertions on appeal, 
Katigbak and Izummi, like 8 C.F.R. § 103.2(b )(1), apply both to evidence pertaining to a particular visa 
classification and to evidence pertaining to issues the Petitioner describes as "unrelated benefit 
applications." Katigbak specifically noted that a central question is whether an individual qualified for 
the requested visa at the time the visa petition is filed, based on the set of facts that existed as of that 
date, because the priority date attaches to the petition filing date. Matter ofKatigbak, 14 I&N Dec. at 
48-49. Section 203(b )(2)(A) of the Act makes second-preference visas available, in relevant part, to 
qualified individuals "whose services in the sciences, arts, professions, or business are sought by an 
employer in the United States," thus making the job offer requirement a visa classification eligibility 
criterion that must be satisfied at the time of filing, not an "unrelated benefit application[ s ]" as the 
Petitioner describes it. See C.F.R. § 103.2(b)(l); see also Matter of Katigbak, 14 I&N Dec. at 49; 
Matter of lzummi, 22 I&N Dec. at 176. Section 203(b)(2)(B) of the Act establishes criteria for a 
discretionary national interest waiver of the job offer requirement. Because the job offer requirement 
must be satisfied at the time of filing as a part of a requested visa classification, eligibility for the waiver 
of a requisite job offer must also be satisfied based on the set of facts that existed at the time of filing 
as part of the requested visa classification; otherwise, a beneficiary in question would not have been 
eligible for the requested visa classification on the filing date and, thus, as of the priority date. See id. 
The Petitioner must establish that the fact existed at the time of filing the benefit request for it to be 
within the set of facts that may establish eligibility for the benefit. See id. 
The record does not establish the national importance of the proposed endeavor as required by the first 
prong of the Dhanasar precedent decision. 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 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 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). 
III. CONCLUSION 
The Petitioner has not demonstrated that the proposed endeavor has national importance. As the 
Petitioner has not met the requisite first prong of the Dhanasar analytical framework, she has not 
6 
established that she is eligible for or otherwise merits a national interest waiver as a matter of discretion. 
The petition will remain denied. 
ORDER: The appeal is dismissed. 
7