dismissed EB-2 NIW Case: Customs Administration

U.S. Citizenship 
and Immigration 
Services 
In Re: 22794254 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : OCT . 31, 2022 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a former customs official, seeks second preference immigrant classification as a 
member of the professions holding an advanced degree, as well as a national interest waiver of the job 
offer requirement attached to this EB-2 classification. See Immigration and Nationality Act (the Act) 
section 203(b )(2), 8 U.S.C. § 1153(b )(2). 
The Director denied the petition, concluding that although the record showed that he qualified as a 
member of the professions holding an advanced degree, it did not establish that a waiver of the job 
offer requirement, and thus a labor certification, would be in the national interest. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S .C. § 1361. 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. 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. 
Section 203 (b) of the Act sets out this sequential framework: 
(2) Aliens who are members of the professions holding advanced degrees or aliens of 
exceptional ability. -
(A) In general. - Visas shall be made available ... to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or 
who because of their exceptional ability in the sciences, arts, or business, will 
substantially benefit prospectively the national economy, cultural or 
educational interests, or welfare of the United States, and whose services in the 
sciences, arts, professions, or business are sought by an employer in the United 
States. 
(B) Waiver ofjob offer-
(i) National interest waiver. ... [T]he Attorney General may, when the 
Attorney General deems it to be in the national interest, waive the 
requirements of subparagraph (A) that an alien's services in the sciences, 
arts, professions, or business be sought by an employer in the United States. 
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definitions: 
Advanced degree means any United States academic or professional degree or a foreign 
equivalent degree above that of baccalaureate. 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. If a doctoral 
degree is customarily required by the specialty, the alien must have a United States 
doctorate or a foreign equivalent degree. 
While neither the statute nor the pertinent regulations define the term "national interest," we set forth 
a framework for adjudicating national interest waiver petitions in the precedent decision Matter of 
Dhanasar, 26 I&N Dec. 884. 1 Dhanasar states that after EB-2 eligibility has been established, USCIS 
may, as a matter of discretion, grant a national interest waiver if the petitioner demonstrates: ( 1) that 
the foreign national's proposed endeavor has both substantial merit and national importance; (2) that 
the foreign national is well positioned to advance the proposed endeavor; and (3) 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. 2 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
foreign national 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. 
The second prong shifts the focus from the proposed endeavor to the foreign national. To determine 
whether he or she is well positioned to advance the proposed endeavor, we consider factors including, 
but not limited to: the individual's education, skills, knowledge and record of success in related or 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 T&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSD01). 
2 To establish that it would be in the national interest to waive the job offer requirement, a petitioner must go beyond 
showing their expertise in a particular field. The regulation at 8 C.F.R. § 204.5(k)(2) defines ·'exceptional ability" as "a 
degree of expertise significantly above that ordinarily encountered" in a given area of endeavor. By statute. individuals of 
exceptional ability are generally subject to the job offer/labor certification requirement; they are not exempt by virtue of 
their exceptional ability. Therefore, whether a given petitioner seeks classification as an individual of exceptional ability, 
or as a member of the professions holding an advanced degree, they must go beyond demonstrating a degree of expertise 
significantly above that ordinarily encountered in their field of expertise to establish eligibility for a national interest 
waiver. See Dhanasar. 26 I&N Dec. at 886 n.3. 
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similar efforts; a model or plan for future activities; any progress towards achieving the proposed 
endeavor; and the interest of potential customers, users, investors, or other relevant entities or 
individuals. 
The third prong requires the petitioner to demonstrate 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. In performing 
this analysis, USCIS may evaluate factors such as: whether, in light of the nature of the foreign 
national's qualifications or the proposed endeavor, it would be impractical either for the foreign 
national to secure a job offer or for the petitioner to obtain a labor certification; whether, even assuming 
that other qualified U.S. workers are available, the United States would still benefit from the foreign 
national's contributions; and whether the national interest in the foreign national's contributions is 
sufficiently urgent to warrant forgoing the labor certification process. In each case, the factor(s) 
considered must, taken together, indicate 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. 3 
II. ANALYSIS 
The Petitioner is a former customs official who was employed by the (China) Customs Office 
for nearly 18 years. He proposes to establish a company in the United States to provide consulting 
services regarding Chinese customs policy and practice to businesses in the U.S. and act as a customs 
clearance agent for them. 
The Director determined that due to the evidence of the Petitioner's bachelor's degree in economics 
and customs administration from the University of I and a letter 
from the !Customs Office regarding his employment from July 2001 through March 2019, he 
qualifies as a member of the professions holding an advanced degree. Upon review we agree, leaving 
the sole issue on appeal to be whether he merits a national interest waiver of a job offer requirement. 
For the reasons discussed below, we conclude that the Petitioner has not established that he does. 
A. Substantial Merit and National Importance of the Proposed Endeavor 
As noted above, when reviewing evidence under the first prong of the Dhanasar framework, we focus 
on the specific endeavor that the petitioner proposes to pursue. In his decision, the Director determined 
that the Petitioner's statement of his proposed endeavor lacked sufficient specificity, and noted that in 
responding to the request for evidence (RFE) the Petitioner indicated that he would establish a 
company and provide services in logistics. He relied upon this perceived deficiency, and the 
Petitioner's employment status at the time of filing, in determining that the Petitioner had not 
established the substantial merit of his proposed endeavor. After review, we disagree with this part of 
the Director's analysis, as the Petitioner's statement primarily expanded upon his initial description of 
his endeavor, which included the establishment of a business to provide customs consulting services. 
In addition, the analysis in the first prong under the Dhanasar framework is prospective, focusing on 
the merits of the proposed endeavor, and is not limited by a petitioner's occupation or educational 
status at the time of filing. As with all those applying for a national interest waiver, the Petitioner's 
current and prospective employment is considered under the first prong only as they illustrate the 
3 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
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capacity in which he intends to work. We will therefore review the record and the Petitioner's claims 
regarding the substantial merit of his endeavor. 
Under the Dhanasar framework, the merit of a proposed endeavor may be demonstrated in a range of 
areas, including business and entrepreneurship. In his initial filing, the Petitioner made several broad 
assertions, such as that "US policy is dominated by welcoming China into the global economic & 
educational system" and "America has much to gain from offering it's perceptive [sic] to a China that 
is attempting to develop a more transparent and accountable economic and educational systems." 
However, he offered no evidence to support these assertions or explain why they related to his specific 
endeavor, even in responding to the Director's RFE, despite a specific request for such evidence. To 
reiterate, it is the Petitioner's burden to establish eligibility for the requested benefit. Section 291 of 
the Act, 8 U.S.C. § 1361. Here, the record includes no evidence to document the potential prospective 
impact of his proposed endeavor. 
In addition, the Director noted in his decision that the Petitioner had not established that his proposed 
endeavor would have broader implications in his field, significant potential to employ U.S. workers, 
substantial positive economic effects, or would broadly enhance societal welfare or cultural or artistic 
enrichment. The Petitioner does not address on appeal how his proposed establishment of a customs 
consulting firm, service as a customs clearance agent, and host of annual conferences on Chinese 
customs and tax regulations would have any of these impacts or otherwise be of national importance. 
In Dhanasar, we determined that the petitioner's teaching activities did not rise to the level of having 
national importance because they would not impact his field more broadly. Dhanasar, 26 I&N Dec. 
at 893. Here, the record does not show how opening and operating a consulting firm stands to 
sufficiently extend beyond the Petitioner's own proposed company and clientele, to impact the import 
and export industry or the U.S. economy more broadly at a level commensurate with national 
importance. 
As the Petitioner has not established that his proposed endeavor will have substantial merit or be of 
national importance, he does not meet the first prong of the Dhanasar framework. 
B. Well Positioned to Advance the Proposed Endeavor 
In the second prong of the Dhanasar framework, the focus shifts from the proposed endeavor to the 
petitioner and their positioning to advance the endeavor they propose. Here, the Director noted in his 
decision that the despite the Petitioner's years of work as a customs official in China, he was 
unemployed at the time of filing and had not presented a sufficient plan and supporting evidence 
regarding the consulting firm he proposed. Specifically, he indicated that the record included no 
evidence of interest in the proposed company from potential customers or investors, or of any progress 
in the starting up of such a company. 
On appeal, the Petitioner states that his current nonimmigrant status in the United States does not allow 
for employment authorization, which explains his current employment status. However, he does not 
explain the lack of any business plan, or any evidence that he has made progress towards the startup 
of his business. The USCIS Policy Manual describes several categories of evidence that an 
entrepreneur may submit in support of a request for a national interest waiver, including ownership 
and an active or central role in a U.S.-based entity, documents showing a future intent to invest by an 
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outside investor, incubator or accelerator participation, intellectual property, and relevant growth 
metrics for the startup company. 4 While not all of those categories of evidence may readily apply to 
the Petitioner's proposed company, this list reflects the types of evidence that may be submitted in 
support of an entrepreneurial endeavor, and here the record is deficient. That section of the USCIS 
Policy Manual also lists degrees, licenses, and letters of experience as examples of evidence to 
document a petitioner's knowledge, skills, and experience to advance their endeavor, and the record 
does include that type of evidence. Although some of these types of evidence are present in the record 
and show that the Petitioner has the necessary education and experience in Chinese customs policy 
and practice relating to his endeavor, it does not demonstrate that he has any experience as an 
entrepreneur or in running a business. 
The Petitioner argues on appeal that the Director overlooked the evidence of his achievements as a 
customs official, which he states included his receipt of awards for his work performance, his 
authorship of professional articles in his field, articles written about him and his service as a reviewer 
for competitions. We first note that evidence regarding his receipt of awards and service as a reviewer 
was not submitted in support of this petition. USCIS must decide each case on its own facts with 
regard to the sufficiency of the evidence presented. Matter of Frentescu, 18 I&N Dec. 244,246 (BIA 
1982); Matter of Serna, 16 I&N Dec. 643,645 (BIA 1978). While the documents that are in the record 
support his experience and achievements as a customs official, this comprises only one aspect of the 
analysis of his positioning to advance his proposed endeavor. Other relevant factors in the second 
prong of the Dhanasar framework include a record of success as an entrepreneur, a model or plan for 
future activities, and the interest of other relevant parties in his proposed endeavor. As noted in the 
Director's decision, the evidence regarding these factors is either absent or insufficient to show that 
the Petitioner is well positioned to advance his endeavor. Accordingly, we conclude that the Petitioner 
has not met the second prong of the Dhanasar framework. 
C. Whether on Balance it Would be Beneficial to the United States to Grant a Waiver 
As explained above, the third prong of the Dhanasar framework requires the petitioner to demonstrate 
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. The Dhanasar decision spells out possible factors to be weighed 
under this prong, including the impracticality of obtaining a labor certification and the urgency of the 
national interest in an individual's contributions. On appeal, the Petitioner asserts that the nature of 
his achievements as a customs officer warrant a waiver even assuming the availability of qualified 
U.S. workers. However, because the Petitioner has not established the substantial merit or national 
importance of his proposed endeavor as required in the first prong of the framework, and has not 
shown that he is well positioned to advance that endeavor, we conclude that it would not be in the 
national interest to grant him a waiver of the job offer requirement. 
III. CONCLUSION 
The record establishes that the Petitioner qualifies as a member of the professions holding an advanced 
degree, and he is therefore eligible for the underlying EB-2 visa classification. But it does not support 
the substantial merit or national importance of his proposed endeavor, not does it show that he is well 
4 6 USC1S Policy Manual F.5(D)(4) 
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positioned to advance his endeavor. Accordingly, he has not demonstrated that any national interest 
in his proposed endeavor is such that a waiver of the EB-2 visa classification job offer requirement 
should be waived. 
ORDER: The appeal is dismissed. 
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