dismissed EB-2 NIW Case: Driving Safety

U.S. Citizenship
and Immigration 
Services 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 15, 2024 In Re: 33388401 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a driving school owner, seeks employment-based second preference (EB-2) immigrant 
classification as 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 Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner is an individual of exceptional ability, that the proposed endeavor was of 
national importance, that the Petitioner is well positioned to advance the endeavor, or that it would be 
beneficial to waive the requirements of a job offer.1 The matter is now before us on appeal pursuant 
to 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance 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 Christa's, Inc., 26 l&N Dec. 537,537 n.2 (AAO 2015). Upon de nova review, 
we will dismiss the appeal. 
I. LAW 
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).2 Meeting 
at least three criteria, however, does not, in and of itself, establish eligibility for this classification.3 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 the requisite degree of expertise and will 
1 In the appeal brief, the Petitioner contends that on page two of the decision, the Director found the Petitioner qualified 
for the visa classification and the national interest waiver. While we acknowledge the error in the paragraph in question, 
the following analysis in the decision makes clear that the Director found that the Petitioner did not establish eligibility for 
the visa classification or a national interest waiver. 
2 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). 
3 USCIS 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. 
substantially benefit the national economy, cultural or educational interests, or welfare of the United 
States. 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. 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,4 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. 
Id. 
11. ANALYSIS 
The Petitioner claimed eligibility for the EB-2 immigrant classification as an individual of exceptional 
ability. However, because we conclude that he is not eligible for, and does not merit as a matter of 
discretion, a national interest waiver, and this determination is dispositive of the Petitioner's appeal, 
we decline to reach and hereby reserve the issue of eligibility as an individual of exceptional ability. 
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). 
A. Substantial Merit and National Importance 
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 arange 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. 
Matter of Dhanasar, 26 l&N Dec. at 889. 
The appeal brief states that the Petitioner's business will contribute "to a safer future on the roads, greater 
economic stability and a more skilled workforce in the United States." Although the evidence provided 
demonstrates that the endeavor has substantial merit, it does not show that the endeavor 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 
4 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) Uoining the Ninth, Eleventh, and D.C. Circuit Courts (and Third 
in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver is discretionary 
in nature). 
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foreign national proposes to undertake." See Dhanasar, 26 l&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. To evaluate 
whether the Petitioner's proposed endeavor satisfies the national impmiance requirement we look to 
evidence documenting the potential prospective impact of his work. 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. 26 l&N Dec. at 893. 
Here, the Petitioner argues on appeal that his proposed work is nationally important because it will 
contribute "to the US economy by reducing accidents, improving fleet management[,] promoting safe 
driving practices" and strengthening the economy. The brief avers that the venture wi 11 reduce accidents 
by training drivers, analyzing the main causes of accidents, and consulting with owners of commercial 
fleets. Though the Petitioner claims the endeavor is "destined to transcend border and bring invaluable 
benefits," he neglects to explain how this individual business will have an impact on the driving safety 
field on the level of national importance. Contentions require support to underpin them, as assertions 
themselves do not constitute evidence. See, e.g., Matter of S-M-, 22 l&N Dec. 49, 51 {BIA 1998) 
("statements in a brief, motion, or Notice of Appeal are not evidence and thus are not entitled to any 
evidentiary weight"). 
The record does not sufficiently demonstrate national importance either. 5 In support of prong one, the 
Petitioner provided income documents, letters of recommendation, and evidence of his past work 
product. 6 Although the letters all applaud the Petitioner's skills and his past business success, they do 
not specify how the Petitioner's business will contribute to the driving safety industry or the economy 
on a nationally important level. Furthermore, the Petitioner does not explain how the remaining 
evidence is relevant to national importance as it points to the Petitioner's past accomplishments and 
experiences, not the specific endeavor's potential impact in the driving safety field. Generally, this 
type of evidence is more appropriate for the second prong when determining if the petitioner is well­
positioned to advance the proposed endeavor. Dhanasar, 26 l&N Dec. at 890. 
The Petitioner also provided a letter from Dr. As a matter of discretion, we may 
use opinion statements submitted by a petitioner as advisory. Matter ofCaron Int 'l, Inc., 19 l&N Dec. 
791, 795 (Comm'r 1988). Nonetheless, we will reject an opinion or give it less weight ifit is not in 
accord with other information in the record or if it is in any way questionable. Id. 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. Id. 
Here the advisory opinion is of little probative value as Dr. I evaluation repeatedly makes 
conclusory statements on national importance without sufficient basis. First, he generally discusses 
the aims of the business and its financial projections. He summarily concludes that the financial 
5 While we may not discuss every document submitted, we have reviewed and considered each one. 
6 We note that in response to the request for evidence (RFE), the Petitioner submitted investor intent letters that originated 
after the filing of the petition. A petitioner must meet all of the eligibility requirements of the petition at the time of filing. 
8 C.F.R. §§ 103.2(b)(I), (12). 
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projections mean the business is nationally important. However, he fails to illustrate how the financial 
projections as provided would have an impact on a nationally important level. Next, he examines the 
various ways the venture will operate in important fields. He further avers that the business will 
contribute to the success of small and medium businesses, enhance societal welfare, and is the subject 
of national initiatives as the company will teach safe driving tactics thereby reducing accidents. He 
concludes that as the business will involve important fields, it too is nationally important. These 
sections make presumptive conclusions without analysis and evidence to support them. Additionally, 
the arguments ignore the requirements we set forth in Dhanasar. It is not the importance of the field 
that determines an endeavor's national importance, but rather how the specific endeavor will impact 
the field on a level commensurate with national importance. See Dhanasar, 26 l&N Dec. at 889. In 
this lengthy discussion, Dr.I !alleges that the company will have a far-reaching influence, but 
never explains how the Petitioner's proposed endeavor impacts the driving safety field on a nationally 
important level or how his endeavor would have an economic impact on par with national importance. 
From the evidence provided, the Petitioner has not established that his proposed endeavor will have a 
national impact on the driving training industry. 
Moreover, he has not demonstrated that the specific endeavor he proposes to undertake has significant 
potential to employ U.S. workers or otherwise offers substantial positive economic effects for our 
nation. An endeavor that has significant potential to employ U.S. workers or has other substantial 
positive economic effects, particularly in an economically depressed area, may have national 
importance. Dhanasar, 26 l&N Dec. at 890. Here, however, the business plan does not adequately 
support these projections of job and revenue creation. 
The Petitioner's business plan anticipates that the Petitioner's company will reach a total of 13 
employees in year five. He also projected generating $633,600 in revenue in year one, increasing to 
$1,858,560 in year five. Nonetheless, the plan does not explain how these forecasts were calculated, 
or adequately clarify how these projections will be realized, nor does the record contain evidence to 
support the business plan's financial projections. The preponderance of the evidence standard requires 
that the evidence demonstrate that the petitioner's claim is probably true, where the determination of 
truth is made based on the factual circumstances of each individual case. Matter of Chawathe, 25 l&N 
Dec. at 376. In evaluating the evidence, truth is to be determined not by the quantity of evidence alone 
but by its quality. See id. Here, the lack of supporting details detracts from the credibility and 
probative value of the business plan. 
Even if we assumed all the projections in the business plan were accurate, the record lacks evidence 
demonstrating that its impact would be nationally important. The Petitioner's business plan in support 
of the petition contends that his business is nationally important "due to the contribution it will make 
to the local market, empowering companies, and American society to prosper the national economy." 
Yet the Petitioner did not provide documentation to support these statements that the company will 
result in substantial economic growth on the level of national importance. The record does not 
illustrate how creating 13 jobs and generating revenue as projected in the business plan, would have 
substantial positive economic effects on the level of national importance. The Petitioner must support 
assertions with relevant, probative, and credible evidence. See Matter of Chawathe, 25 l&N Dec. at 
376. The Petitioner has therefore not provided sufficient information and evidence to demonstrate the 
prospective impact of his proposed endeavor rises to the level of national importance. Accordingly, 
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the record does not sufficiently demonstrate that the Petitioner's proposed endeavor is of national 
importance. 
In the same way that Dhanasar finds that a classroom teacher's proposed endeavor is not nationally 
important because it will not impact the field more broadly, we find that the record does not establish 
that the Petitioner's proposed endeavor will sufficiently extend beyond his clients to affect the region 
or nation more broadly. 26 l&N Dec. at 893. He has not shown that benefits to the regional or national 
economy resulting from the Petitioner's undertaking would reach the level of "substantial positive 
economic effects" contemplated by Dhanasar. Id. at 890. 
Accordingly, we find that the record does not demonstrate national importance of the Petitioner's 
proposed endeavor as required by the first prong of the Dhanasar precedent decision and the Petitioner 
has not demonstrated eligibility for a national interest waiver. As 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 Bagamasbad, 429 U.S. at 25 (stating that 
"courts and agencies are not required to make findings on issues the decision of which is unnecessary 
to the results they reach"); see also Matter of L-A-C-, 26 l&N Dec. at 526 n.7 (declining to reach 
alternative issues on appeal where an applicant is otherwise ineligible). 
111. CONCLUSION 
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, we find 
that he has not established he is eligible for or otherwise merits a national interest waiver as a matter 
of discretion. 
ORDER: The appeal is dismissed. 
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