dismissed EB-2 NIW Case: Culinary Arts

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAR. 8, 2024 In Re: 30042475 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner is a chef who seeks employment-based second preference (EB-2) immigrant 
classification as a member of the professions holding an advanced degree 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. § l 153(b)(2). 
The Texas Service Center Director denied the Form 1-140, Immigrant Petition for Alien Workers 
(petition), concluding the Petitioner did not establish that she qualifies for the underlying visa 
classification as an individual of exceptional ability. The Director further determined she did not merit 
a discretionary waiver of the job offer requirement in the national interest. 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 l&N Dec. 369, 375 
(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 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 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 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 detennination of whether to grant or deny an NIW rests solely with USCIS. 
See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (agreeing with four other Circuit Courts of 
Appeals). 
II. NATIONAL INTEREST WAIVER 
The Petitioner attained a foreign Bachelor of Arts degree focused on the plastic arts and followed that 
with several years of work as a chef and executive chef. As her proposed endeavor in the United 
States, the record at the time of filing reflected she planned to work as an executive chef for an Italian 
restaurant, and she would run their newly formed catering business. In response to the Director's 
request for evidence, she added additional work as an executive chef for a second catering company. 1 
We agree with the Petitioner that the Director committed several procedural errors when evaluating 
her eligibility for the EB-2 classification portion of the denial decision. However, because it appears 
she is also not eligible for the waiver of the job offer requirement in the national interest, it is 
unnecessary to remand the matter to the Director to remedy those procedural errors, as a remand would 
serve no purpose. 
A. Substantial Merit and National Importance (Collectively Dhanasar 's First Prong) 
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. 
Dhanasar, 26 I&N Dec. at 889. The Director decided the Petitioner satisfied the substantial merit 
portion of the first prong without any analysis. 
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." See Dhanasar, 26 I&N Dec. at 889. The endeavor 
must substantially benefit and "impact the field ... more broadly" (Id. at 883) as "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. at 889. 
Ultimately, when we evaluate whether the Petitioner's proposed endeavor satisfies the national 
importance requirement, we look to evidence illustrating the "potential prospective impact" of her 
actual proposed work. Id. at 889. 
What the Petitioner will actually undertake is to serve as an executive chef at two businesses involved 
in catering. She indicates she seeks to contribute to the culinary scene by working for established 
1 The Petitioner does not explain how she plans on serving in the role of executive chef for two competing organizations 
at the same time, each of which is presumably a full-time position with similar operating hours. Because the Director did 
not address this as an adverse issue, we will not analyze this as a possible problematic topic on appeal. 
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entities where she will not only champion the U.S. food industry, but also push the boundaries of 
Italian cuisine by making innovative recipes. She further states her endeavor will contribute to 
Americans' health, incorporating fresh and healthy products with exquisite innovative culinary 
techniques. She proposes to expand the boundaries of the U.S. culinary industry by combining Italian 
cuisine, Mediterranean cooking techniques, and American culinary heritage. 
The Petitioner indicates this will contribute to the U.S. welfare by improving the traditional American 
diet with features of different culinary traditions to mitigate this country's dietary-related financial 
burden of obesity and health risks. She further proposes her knowledge and ability related to the 
culinary arts and the relationship between food and culture can help further U.S. government goals 
related to public health and safety, poverty reduction, economic recovery, equal opportunities, and 
justice. Through her endeavor she plans to keep teaching and supervising culinary professionals to 
improve the United States' scientific progress in culinary arts and the science of gastronomy. 
While this is well-meaning, it falls far short of meeting the standard of her endeavor having national 
importance, with the primary shortcoming being that she has not established the potential prospective 
impact of her work more broadly to the culinary arts field. Id. at 883. The Director properly focused 
on that aspect in the denial when they referenced the Dhanasar case and how his work as an educator 
would be limited to his students and not have broader impacts in the endeavor's field of air and space 
propulsion systems. However, on appeal, the Petitioner does not advance any arguments 
demonstrating the Director was incorrect or erred when they focused on her endeavor's impact to 
individual businesses and any tangential effects. Instead, she references back to her previous claims, 
much of which we detailed above. It is the Petitioner's burden to explain how the Director erred as it 
relates to this eligibility requirement, and she has not done so here. A petitioner's burden of proof 
comprises both the burden of production, as well as the ultimate burden of persuasion. Matter ofY-B-, 
21 I&N Dec. 1136, 1142 n.3 (BIA 1998). 
Next, the Petitioner discusses a memorandum from the Department of Homeland Security issued in 
2021 pertaining to public health measures and the importance that critical infrastructure workers were 
able to safely access their workplaces during the COVID-19 pandemic. We acknowledge that 
restaurant workers were included as a category of essential workers. However, as the 
Director-General of the World Health Organization stated on May 5, 2023," ... I declare COVID-19 
over as a global health emergency." WHO Declares End to COVID Global Health Emergency, 
Reuters (May 8, 2023) https://www.reuters.com/business/healthcare-pharmaceuticals/covid-is-no­
longer-global-health-emergency-who-2023-05-05/. Simply because the Petitioner operates in an 
industry that was formerly designated to include essential workers during a pandemic does not 
translate to those same workers holding a similar level of national importance after the health 
emergency subsides. 
Even still, the Petitioner has not illustrated how her proposed endeavor will result in improvements 
broadly to the "the traditional American diet" and any ensuing negative health effects it might have. 
For example, she references another government-issued memorandum relating to dietary guidelines 
for Americans. We note however that the appeal brief attributes direct quotes from this second 
government memorandum that do not exist in the document ( e.g., "A health equity lens is essential to 
ensure that the 2025-2030 Dietary Guidelines for Americans is inclusive of people from diverse racial, 
ethnic, socioeconomic, and cultural backgrounds."). Similar, but not exact, quotes can be found on 
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government websites in 2023 more than two years after the petition filing date, which the Petitioner 
cannot rely on in this petition. A petitioner must establish eligibility at the time the visa petition is 
filed. 8 C.F.R. § 103.2(b)(l), (12). USCIS may not approve a visa petition if the foreign national was 
not qualified at the priority date but relies on evidence that postdates the filing date. See Matter of 
Izummi, 22 I&N Dec. 169, 175-76 (Assoc. Comm'r 1998); Matter ofKatigbak, 14 I&N Dec. 45, 49 
(Reg'l Comm'r 1971). Setting that aside, simply preparing food for individuals frequenting 
establishments where she works, and imparting knowledge to individual food preparers is limited 
within her industry rather than being broad as required by Dhanasar. 
We are also not persuaded by the opinion letters the Petitioner refers to in the appeal brief. While each 
letter presents information related to the importance of the broader field of the "food market," neither 
adequately explains the impact the Petitioner's endeavor will have on the field as a whole. The 
argument that the Petitioner will play an important role when considering the importance of the food 
market field to the economy without identifying the extent of her role in those important aspects, fails 
to establish her endeavor here will rise to the level of national importance. We may exercise our 
discretion and treat opinion statements the Petitioner submits as advisory. Matter of Caron Int 'l, Inc., 
19 I&N Dec. 791, 795 (Comm'r 1988). Additionally, where an opinion does not align with other 
information or is in any way questionable, we are not required to accept it, or we may give less weight to 
that evidence. Id. 
We are unable to provide an example from the opinion letters that specifically argues how the 
Petitioner's endeavor might actually impact the broader field. The authors focus almost entirely on 
the positive effects of the restaurant and food services industry, as well as on the national welfare, in 
what appears to be their effort to stretch the point. Without conveying it outright, the authors express 
that the Petitioner's endeavor will serve essentially as a small tooth or a cog, on a wheel, in the vastly 
larger machine of the food services and health industry. Based on these shortcomings, the Petitioner 
has not provided outside opinions that carry sufficient weight to support her contention that the 
proposed endeavor is of national importance. 
Ultimately, the Petitioner focuses on the occupation instead of her proposed endeavor being of national 
importance. These occupational improvements concentrate on the culinary arts, general economic 
growth, or health benefits to an altered American diet. This misplaced focus does not address the 
national importance requirements of the Dhanasar decision, nor does it adequately tie the Petitioner's 
endeavor to those occupational improvements. 
B. Well Positioned to Advance the Proposed Endeavor 
On appeal, the Petitioner asserts she meets additional eligibility requirements under the Dhanasar 
analytical framework, but she has not satisfied Dhanasar 's necessary first prong. Because this 
shortcoming is dispositive of the appeal, we reserve our opinion regarding the remaining issues. 
Where a case warrants a denial regardless of other eligibility considerations, it is unnecessary that we 
address those other considerations. Patel v. Garland, 596 U.S. 328, 332 (2022) (citing INS v. 
Bagamasbad, 429 U.S. 24, 25-26 (1976) (finding agencies are not required to make "purely advisory 
findings" on issues that are unnecessary to the ultimate decision)); see also Matter of Chen, 28 I&N 
Dec. 676,677 n.l, 678 (BIA 2023) (declining to reach alternative issues on appeal where an applicant 
is otherwise ineligible). 
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III. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is a petitioner's burden to establish 
eligibility for the immigration benefit sought. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
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