dismissed EB-2 NIW Case: Entrepreneurship

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-R-A-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 27. 2018 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM 1-140. IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an entrepreneur. 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. S'ce Immigration and Nationality Act (the Act) 
section 203(b)(2), 8 U .S.C. § 1153(b )(2). After the petitioner has established eligibility for EB-2 
classification. U.S. Citizenship and Immigration Services (USCIS) may. as matter of discretion. 
grant a national interest waiver if the petitioner demonstrates: (I) 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. Ma/ler of 
Dhanasar, 26 I&N Dec. 884 (AAO 2016). 
The Director of the Texas Service Center denied the Form I-140, Immigrant Petition for Alien 
Worker. finding that the Petitioner qualified for classification as a member of the professions 
holding an advanced degree. but that he had not established that a waiver of the required job offer. 
and thus of the labor certification. would be in the national interest. The Petitioner appealed the 
matter to us. and we dismissed the appeal. 1 
The matter is now before us on a motion to reopen. On motion. the Petitioner submits a brief and 
additional evidence. 
Upon review, we will deny the motion. 
l. LAW 
A motion to reopen is based on documentary evidence of new facts. and the requirements of a 
motion to reopen are located at 8 C.F.R. § 103.5(a)(2). 
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 
1 
See Maller ofA-R-A-. I D# 399777 (AAO August 15. 20 17). 
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Matter q(A-R-A-
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. . . . fT]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. 
While neither the statute nor the pertinent regulations define the term "national interest." Dhanasar 
stated that after EB-2 eligibility has been established. USC IS may. as a matter of discretion. grant a 
national interest waiver if the petitioner demonstrates by a preponderance of the evidence: ( 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 ofter and thus of a labor 
certification. 2 
II. ANALYSIS 
A. Background 
The Petitioner has stated that he is and will continue to be the chief executive officer (CEO) of 
a company that he founded and in which he owns a 91% o\\nership 
interest. In his initial filing, the Petitioner indicated that purchases personal electronics 
products from U.S. based distributors and sells them to national and international customers with a 
mission to "provide customers with a complete selection of unique digital imaging products. cell 
1 See Dhanasar, 26 I& N Dec. at 888-91. for elaboration on these three prongs. 
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Matter ofA-R-A-
phones , tablets, and other consumer electronics at competitive prices and with fast shipping to expedite 
order ful tillment."' 
The Director denied the petition finding that the Petitioner qualities as a member of the professions 
holding an advanced degree, but that he did not establish that waiver of the requirement of a job offer, 
and thus a labor certification. would be in the national interest. The Petitioner filed an appeal. 
Subs equent to the appellate filing, we set forth a new framework f(Jr adjudicating national intere st 
waiver petitions. See Dhanasar. 26 l&N Dec. 884. 3 The Petitioner offered a supplemental brief 
asserting eligibility under Dhanasar. In April 2017, we issued a request for evidence (RFE) asking 
the Petitioner to provide additional evidence satisfying the three-part framework set forth in that 
precedent decision. He responded through counsel directing us to the supplemental brief. We 
dismissed the appeal, addressing the arguments presented in the supplemental brief. but finding the 
Petitioner had not established eligibilit y for a national interest waiver. Specifically, while he 
demonstrated that he is well positioned to serve as CEO under the second prong of the 
Dhanasar framework, we found the Petitioner had not provided sufficient evidence or information 
showing that his proposed endeavor was of national importance. as required under the first prong. 4 
The Petitioner now tiles the current motion to reopen providing additional evidence of his eligibility . 
We will den y the motion for the reasons discussed below. 
B. Motion to Reop en 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). The regulation at 8 C.F.R. § 103.5(a)(2) does not define what constitutes a " new .. 
fact , nor does it mirror the Board of Immigration Appeals' definition of ''new .. at 8 C.F.R. 
§ 1003.23(b)(3) (stating that a motion to reopen will not be granted unless the evidence '·was not 
available and could not have been discovered or presented at the former hearing'"). Unlike the Board 
regulation, we do not require the evidence of a "new fact"' to have been previously unav ailable or 
undiscoverable. Instead , we interpret "new facts'" to mean ones that are relevant to the issue(s) 
raised on motion and that have not been previousl y s ubmitted in the proce eding. which includes the 
original petition. Reasserting previously stated facts or resubmitting previously provided evidence 
does not constitute '·new facts."' 
In our previous decision , we noted that und er Dhanasar, an endeavor that has significant potential to 
employ U.S. workers or has other substantial positive economic effects. particul arly in an 
economically depressed area. ma y well be under stood to hav e national importanc e. We indicated. 
howe ver, that the Petitioner did not provide information showing future anticipated reven ue and 
staffing levels, or an explanation of how these metrics demonstrate that his endeavor will offer 
substantial economic benefits to the region in which the business is located or to the nation . For 
' In announcing this new framework, we vacated our prior precedent decision. Malter <~(New York State Di!partment o( 
Transportation, 22 I&N Dec. 2 15 (Act. Assoc. Comm' r 1998) (NYSDOT). 
~ We noted that. as the Petitioner had not met the first prong of the Dhanasar framework. he is not eligible for a national 
interest waiver and further discussion of the balancing factors under the third prong would serve no meaningful purpose. 
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Malter 4 A-R-A-
example, we found that the Petitioner did not provide an updated business plan or any revised 
projections for future growth and hiring, nor did he offer evidence that his work stands to have 
positive economic effects that reach beyond to affect the regional or national economy more 
broadly. Accordingly, we found that his proposed work did not meet the "national importance'' clement 
of the first prong ofthe Dhanasar framework. 
On motion, the Petitioner offers a copy of September 2017 business plan. including 
company hiring , growth projections , and industry analysis . He maintains that his propo sed endeavor 
of leading as its CEO is of national importance for three reasons. First the Petitioner avers 
that the compan y's economic metrics . including revenue , profit, payroll expenses. and corporate tax 
projections, provide a substantial economic benefit to the U.S. economy. Second. he argues that 
work significantly benefits its corporate suppliers. including its largest supplier, 
Finally, he states that his business endeavor "through rapid growth and improved sales. 
will also contribute to the growth of other US businesses:· including both its freight forwarders and 
logistics partners, and an improved presence of American brands in underserved overseas markets. 
We consider each below. 
First, the Petitioner asserts that stands to have a "tre mendous market impact" resulting in a 
substantial economic benefit to the United States, citing the company's net profit as well as payroll 
expenses and total taxe s paid. He states that the company "co ntributes to the U.S. economy by being 
an export-oriented company and paying taxes on profits,'' and that '·the company's net profit , as \·veil 
as its payroll expenses will increase. thus increasing total taxes paid." According to the business 
plan, the company's net profit is projected to be $4 76.104 in 2018, rising to $1,155.772 in 202 1. 
The payroll taxes are also forecast to rise from $78,278 in 2018 to $139.255 in 2012, and its 
anticipated payroll expenses are projected to grow from an estimated $521 .850 in 2018 to $928,369 
in 2021. The business plan also includes a personnel summary stating that the company will reach a 
total headcount of 17 employees in 2021, including plans to open a second otticc locati on in 
Florida, to support its planned South American expansion. staffed with a sales representative. an 
office manager. and a shipping representative. 
However , the documentation submitted does not explain how these metric s demonstrate that his 
endeavor will oiler substantial economic benefits to the region in which the business is located or to 
the nation, nor did he offer evidence that his work stands to have positive economic etlects that reach 
beyond to affect the area more broadly. The Petitioner did not provide sutlicient inform atio n 
explaining, for example, how the company's anticipated profit margins of I %-2% and payroll tax 
amounts represent a substantial economic benefit to the regional or national economy, or ho~· its sales 
proJections represent a significant market share in the consumer electronic devices wholesale market. 
Further. while the Petitioner provided industry data forecasting growth in the consumer electronics 
industry over the next tive years, he did not otler information or evidence explaining speci fic 
role in the grow1h of this industry. Finally, he did not establish that a business employing 17 individuals 
in either New Jerse y. or Florida. stands to significantly impact employment level s in 
either location. 
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Matter of A-R-A-
Overall, the economic metrics provided indicate that the Petitioner's business is growing hut they do not 
show that any benefits to the regional or national economy would reach the level of ·'substantial 
economic benefiC contemplated by Dhanasar. In Dhanasar, we held that an 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. Here. the Petitioner has not oilered evidence that the area where the company is located 
is economically depressed or that the company w·ould offer the region a substantial economic benefit 
through its employment levels or otherwise. FUJiher, in the same way that Dhanasar finds that a 
classroom teacher· s proposed endeavor is not nationally important because the ctlccts of his/her work 
are primarily limited to his/her school or district. we find that the proposed endeavor in this case will not 
sutticiently extend beyond to affect the regional or national economy more broadly.5 As such. 
based upon the business metrics provided. the Petitioner has not established that his proposed endeavor 
is of national importance. 
Second. the Petitioner further avers on motion that his work stands to benefit corporate 
suppliers, including its largest purveyor, ·, On motion, he states that · is one of the 
leading distributors of overseas:· and that it will ''contribute to the improved presence of 
American brands, such as in the currently underserved markets of the Middle East and Asia." 
The Petitioner provided little information to support his contention. For instance. he did not provide 
evidence from attesting to the importance of the company's contributions to overall 
business revenue. The record does not show that is one of leading distributors. nor 
does the Petitioner explain its impact on this company's overseas market share. or presence in new 
or emerging markets. Further, he did not provide evidence corroborating that the Middle East or 
Asia are currently underserved by U.S. suppliers in the personal electronic device market. 7 Nor has 
the Petitioner provided letters from relevant government entities, business partners, or established 
business associations with knowledge of the entity's products or services which indicate that 
business activity stands to significantly benefit other United States brands by opening the 
aforementioned foreign markets to other lJ .S. companies. 
The Petitioner's submission on appeal stated that use of transp01iation and shipping 
providers represents a substantial economic benefit to the economy. but we found that the record did 
not sufficiently corroborate that assertion. He claimed that the volume of goods bought and sold will 
offer a substantial economic benefit because the company's use of shipping providers and freight 
forwarders to distribute products furthers the national interest. The Petitioner maintained that based 
upon its past record of gross revenue exceeding $72 million. 8 its contracts with freight and shipping 
companies to transport this large quantity of inventory will continue to ··inject the U.S. economy 
5 See Dhanasar, 26 I&N Dec. at 893. 
6 The Petitioner notes that 70% of products are purchased wholesale trom 
7 
We note that any economic benefit to underserved markets abroad is not germane to whether the Petitioner· s proposed 
endeavor is of national impmtance to the United States. 
s Tax returns retlect that annual gross revenue exceeded $73 million in 2015, and its cost of goods sold 
exceeded $72 million , resulting in a profit of$911.485. 
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Malt er of A-R-A-
with a beneficial infusion of trade and financial activity , which should be considered for its impact 
on the u.s:· 
On motion. the Petitioner reiterates this argument stating that the company has plans to exp and into 
South American markets and that "through the rapid gro\\lth and improved sales, will also 
contribute to the growth of other U.S. businesses:· including increases in ·'payments it makes to the 
vendors and shipping companies it works with in the United States.· · He state s that the company has 
"already paid a total of $110.000 to and $90,000 to so far in 20 17." 
The record includes invoices and contracts with transport companie s ranging in value from a couple 
of hundred dollars to several thousand dollars. In addition , the 2015 tax returns rct1ect that the 
company paid $207,390 in shipping costs in 2015 . The Petitioner does not explain how these 
expenses stand to have substantial positive economic effects on U.S. shipping intere sts. For 
example, he did not ofter comparative statistics, industr y data, or oth er economic metrics indic ating 
that use of these service providers at these levels will result in significant benefits for the 
shipping providers. the freight industry generally. or the economy in which these providers operate . 
Further, he does not offer evidence documenting what percentage of the provider s' busines s 
represents. or establish that its business activity results in increased staffing levels at its 
providers or an improved presence of American brands in underserved overseas market s. For the 
above reasons. we affirm our previous finding that the Petitioner has not establi shed that his 
proposed endeavor is of national importance under the first prong of the Dhanasar fi·amework. 
Finally, as explained above . the third prong requires the Petitioner to demonstrate that on balance. it 
would be beneficial to the Unit ed Stat es to waive the requirement s of a job otfer and thu s of a labor 
certification. On motion, the Petitioner contends that he seeks a national interest waiver becau se it is 
impractical for an entrepreneur or self-employed inventor, when advancing an endeavor on his own, 
to secure a job offer from a U.S. employer. and there is no provision in the Department of Labor 
regulations permitting a self-petitioning entrepreneur to tile a labor certification. He maintain s that 
the purpose of the third prong was to '"expand the reach of the national interest waiver . especially for 
entrepreneurs." However. as the Petitioner has not established the national importance of his 
proposed endeavor(s) as requir ed b y the first prong of the Dhanasar framework , he is not eligible for 
a national interest waiver and further discussion of the balan cing factor s und er the third prong would 
serve no meaningful purpo se. 
Matter ofA-R-A-
III. CONCLUSION 
The record, including new infom1ation and evidence provided in the Petitioner's motion to reopen, does 
not demonstrate his eligibility for the benefit sought. As the Petitioner has not met the requisite three 
prongs set forth in the Dhanasar analytical framework, we find that he has not established that he is 
eligible tor or otherwise merits a national interest waiver as a matter of discretion. 
ORDER: The motion to reopen is denied. 
Cite as Matter ofA-R-A-. !D# 943712 (AAO Feb. 27. 20 18)