dismissed EB-2 NIW Case: Dispatch And Delivery Services

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: AUG. 19, 2024 In Re: 32127090 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, who endeavors to be an entrepreneur in the field of dispatch and delivery services, 
seeks employment-based second preference (EB-2) immigrant classification as either a member of the 
professions holding an advanced degree or an individual of exceptional ability, as well as a national 
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 Nebraska Service Center denied the petition, concluding that the record did not 
establish the Petitioner's eligibility for the requested national interest waiver. The Director dismissed 
a subsequently filed motion to reopen and motion to reconsider. The Petitioner now appeals the 
Director's dismissal of the combined motions pursuant to 8 C.F.R. §§ 103.3 and 103.5(a)(6). 
The Petitioner bears the burden of proof to demonstrate eligibility by apreponderance 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 qualify for the underlying EB-2 visa classification, a petitioner must establish they are an advanced 
degree professional or an individual of exceptional ability in the sciences, arts, or business. Section 
203(b)(2)(A) of the Act. 
If a petitioner establishes eligibility for the underlying EB-2 classification, they must then demonstrate 
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 l&N Dec. 884, 889 (AAO 2016), provides the 
framework for adjudicating national interest waiver petitions. Dhanasar states that U.S. Citizenship 
and Immigration Services (USCIS) may, as matter of discretion,1 grant a national interest waiver if 
the petitioner demonstrates that: 
1 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) Uoining the Ninth, Eleventh, and D.C. Circuit Courts (and Third 
• 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. 
11. ANALYSIS 
As a preliminary matter, we emphasize that the appeal before us relates to the Director's January 2, 
2024, dismissal of the Petitioner's combined motions to reopen and reconsider. 2 Therefore, the 
question before us on appeal is whether the Director erred in dismissing the motions. In that decision, 
the Director considered both the evidence submitted prior to the denial, as well as the evidence 
submitted on motion, and determined that the motions did not meet the applicable requirements. 
The record reflects the Petitioner intended to own and operate business in the field of dispatch and 
delivery services. According to the Petitioner's business plan, her company "will operate aNew York­
based delivery and transportation enterprise, offering a wide range of services based on cargo 
delivery." For its operations, the company will acquire "four vehicles each in Year 1 and Year 2, as 
well as an additional number of vehicles in the following years-- totaling 15 cargo vans in Year 5." 
She plans to hire a total of 15 drivers by Year 5. The business plan states the company will primarily 
focus on the U.S. market "and further expand[] to Canada and internationally, specifically Eastern 
Europe." The business plan does not concretely lay out an expansion to Canada, Europe, and Eastern 
Europe other than stating the aspiration. The business plan anticipates the number of employees rising 
to 29 in Year 5 (including drivers, dispatchers, order clerks, and customer service representatives). 
Operating expenses are projected to rise from $610,000 in Year 1 to over two million dollars in Year 
5. A profit is expected each year starting at $80,880 in Year 1 and increasing steadily to $169,794 in 
Year 5.3 
In relevant part,4 the Director's July 2023 decision found that the Petitioner's endeavor did not satisfy 
the national interest prong required for the national interest waiver. The record did not show that the 
Petitioner's proposed endeavor stood "to sufficiently extend beyond her company, their future 
clientele, or business partnership to impact the field or the delivery service industry more broadly at 
the level commensurate with national importance." Id. at 890. The Director also found that the 
Petitioner did not demonstrate the endeavor "has significant potential to employ U.S. workers or 
otherwise offer substantial positive economic effects for our nation," Id. Furthermore, the Director 
in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver is discretionary 
in nature). 
2 8 C.F.R. §103.5(a)(6). 
3 We note that the business plan's projections concerning the business are not supported by probative evidence to establish 
the growth estimates forecasted. A petitioner must support assertions with relevant, probative, and credible evidence. See 
Matter of Chawathe, 25 l&N Dec. at 376. The business plan does not demonstrate that any 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. 
4 The decision also found that the Petitioner did not show she was a person of exceptional ability, was not well-positioned 
to advance the proposed endeavor, and that on balance it would not be beneficial to the United States to waive the 
requirements of a job offer and labor certification. 
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found that the Petitioner had not "demonstrated that any increases in foreign trade and investment 
attributable to her company's future delivery services stand to substantially affect economic activity 
nationally." 
A motion to reopen must state new facts and be supported by affidavits or other documentary 
evidence.5 8 C.F.R. § 103.5(a)(2). A motion to reconsider must establish that the prior decision was 
based on an incorrect application of law or policy and that the decision was incorrect based on the 
evidence in the record of proceedings at the time of the decision. 8 C.F.R. § 103.5(a)(3). A motion 
that does not meet applicable requirements shall be dismissed. 8 C.F.R. § 103.5(a)(4). 
A. National Importance of the Proposed Endeavor 
In the Director's most recent decision denying the Petitioner's motions to reopen and reconsider, the 
Director noted that the Petitioner's counsel asserted in his brief: 
By creating a seamless and efficient logistics network between the United States 
and Eastern Europe, the Petitioner's business can facilitate the movement of goods 
and merchandise across borders. This endeavor can play a pivotal role in promoting 
U.S. exports, allowing American manufacturers, suppliers, and producers to 
access new markets and tap into the economic potential of the Eastern and Central 
European regions. 
(Emphasis in the original). The Director found this statement to be conjecture and without evidence 
to corroborate it. Thus, the Director again found that the Petitioner's endeavor did not meet the 
national importance requirement. 
On appeal, the Petitioner challenges the Director's findings regarding substantial merit and national 
importance and regarding whether the Petitioner is well-positioned to advance her endeavor. The 
Petitioner contends that the Director's decision did not thoroughly address the Petitioner's complete 
argument in her motion, ignoring the "significant positive economic impact her international 
transpmiation company would have on the U.S. economy" described in pages 19 and 20 of the 
Petitioner's business plan. The Petitioner also argues that her employment history and expertise in 
customs law "would be beneficial to her proposed international transportation business." These 
arguments are unavailing. 
Upon de nova review of the record, we agree with the Director's decision that the Petitioner has not 
demonstrated her proposed endeavor rises to the level of national importance. First, the proposed 
endeavor is not an international transportation business. The business plan at pages 19 and 20 describe 
the importance of the long-distance freight trucking industry generally, but it does not address the 
Petitioner's specific endeavor to demonstrate whether it is of national importance. In determining 
national importance, the relevant question is not the importance of the industry or profession in which 
the individual will work; instead, we focus on the "the specific endeavor that the foreign national 
proposes to undertake." See Dhanasar, 26 l&N Dec. at 889. In Dhanasar, we fmiher noted that "we 
5 See Matter of Coelho, 20 l&N Dec. 464, 473 (BIA 1992) (requiring that new evidence have the potential to change the 
outcome). 
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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. 
Second, the Petitioner has not demonstrated that her proposed endeavor has significant potential to 
U.S. workers or otherwise offers substantial positive economic effects for the nation. Specifically, she 
has not shown that her business activity stands to provide substantial economic benefits to the United 
States. The Petitioner's business plan's projections concerning the business are not supported by 
probative evidence to establish the growth estimates forecasted. A petitioner must support assertions 
with relevant, probative, and credible evidence. See Matter of Chawathe, 25 l&N Dec. at 376. 
Here, the business plan does not demonstrate that any 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. The Petitioner's business plan projects creating 29 
jobs by Year five. Although the Petitioner asserts that her company will hire U.S. employees, she has 
not provided evidence to show that she would employ a significant population of workers in the region, 
or that her endeavor would offer the region or its population substantial economic benefit through 
employment levels, business activity, or tax revenue. Neither the business plan nor the remaining 
evidence in the record demonstrate that the Petitioner's endeavor to operate a delivery and 
transportation services enterprise out of New York rises to the level of national importance. Here, we 
conclude that the record does not show that the Petitioner's proposed endeavor stands to sufficiently 
extend beyond her employees and clients to impact the delivery and transportation services industry 
more broadly at a level commensurate with national importance. 
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. 
B. The Petitioner's waiver of a challenge to the Director's finding on the third prong of Dhanasar 
is also dispositive of the appeal. 
The Petitioner does not challenge the Director's July 2023 finding that the Petitioner did not 
demonstrate she met the third prong of Dhanasar, i.e. that on balance, it would not be beneficial to the 
United States to waive the requirements of job offer and thus of labor certification, therefore any 
challenge to that finding is waived. An issue not raised on appeal is waived. See, e.g., Matter of 0-
R-E-, 28 l&N Dec. 330,336 n.5 (BIA 2021) (citing Matter of R-A-M-, 25 l&N Dec. 657, 658 n.2 (BIA 
2012)). Any issue the Petitioner fails to contest on appeal, we consider that requirement to be waived, 
abandoned, or forfeited. Matter of F-C-S-, 28 l&N Dec. 788, 789 n.3, 791 n.6 (BIA 2024) (finding 
issues not challenged on appeal are waived); Silberman v. Miami Dade Transit, 927 F.3d 1123, 1134 
n.6 (11th Cir. June 17, 2019). See also Hristov v. Roark, No. 09-CV-2731, 2011 WL 4711885 at *1, 
*9 (E.D.N.Y. Sept. 30, 2011) (the court found the plaintiff's claims to be abandoned as he failed to 
raise them on appeal to the AAO). 
When a filing party does not address and waives an issue that is required for them to prevail on appeal, 
that failure is dispositive of the appeal. At that point, it is unnecessary for us to make a decision on 
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any additional issues because it is not possible for them to fully demonstrate they are eligible for the 
benefit. Accordingly, we deem this issue abandoned. 
The record does not establish the national importance of the proposed endeavor as required by the first 
prong of the Dhanasar precedent decision. In addition, the Petitioner waived any challenge to the 
third prong of Dhanasar. 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 l&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach alternative issues 
on appeal where an applicant is otherwise ineligible). 
111. CONCLUSION 
For the reasons above, the Petitioner has not shown that the Director erred in dismissing either the 
motion to reopen or to reconsider. 
ORDER: The appeal is dismissed. 
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