dismissed EB-2 NIW Case: Entrepreneurship

U.S. Citizenship 
and Immigration 
Services 
In Re: 10811891 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAY 17, 2022 
Form I-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, an entrepreneur, seeks second preference immigrant classification as a member of the 
professions holding an advanced degree and as an individual of exceptional ability, 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 of the Texas Service Center denied the petition, concluding that the Petitioner did not 
qualify for classification as a member of the professions holding an advanced degree or as an 
individual of exceptional ability, and that he had not had not established that a waiver of the required 
job offer, and thus of the labor certification, would be in the national interest. 
On appeal, the Petitioner submits additional documentation and a brief asserting that he is eligible for 
classification as a member of the professions holding an advanced degree and for a national interest 
waiver. 
In these proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit 
sought. 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. 
Exceptional ability in the sciences, arts, or business means a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business. 
Profession means one of the occupations listed in section 10l(a)(32) of the Act, as well 
as any occupation for which a United States baccalaureate degree or its foreign 
equivalent is the minimum requirement for entry in the occupation. 
In addition, the regulation at 8 C.F.R. § 204.5(k)(3)(ii) sets forth the specific evidentiary requirements 
for demonstrating eligibility as an individual of exceptional ability. A petitioner must submit 
documentation that satisfies at least three of the six categories of evidence listed at 8 C.F.R. 
§ 204.5(k)(3)(ii). 
Furthermore, 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 (AAO 2016). 1 Dhanasar states that after a petitioner has 
established eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) 
may, as matter of discretion 2, 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 
1 In announcing this new framework. we vacated our prior precedent decision, Matter of New York State Department of 
Transportation. 22 l&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
2 See also Poursina v. USCIS. No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or 
deny a national interest waiver to be discretionary in nature). 
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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. 
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 
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 
A. Member of the Professions Holding an Advanced Degree 
In order to show that a petitioner holds a qualifying advanced degree, the petition must be accompanied 
by "[a ]n official academic record showing that the alien has a United States advanced degree or a 
foreign equivalent degree." 8 C.F.R. § 204.5(k)(3)(i)(A). Alternatively, a petitioner may present "[a]n 
official academic record showing that the alien has a United States baccalaureate degree or a foreign 
equivalent degree, and evidence in the form of letters from current or former employer(s) showing that 
the alien has at least five years of progressive post-baccalaureate experience in the specialty." 8 C.F.R. 
§ 204.5(k)(3)(i)(B). 
The record supports the Director's determination that the Petitioner's "Physical Education Licentiate" 
diploma (2006) from I in Brazil is the foreign equivalent of a U.S. baccalaureate 
3 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
3 
degree in physical education. The issue on appeal is whether the Petitioner has at least five years of 
progressive post-baccalaureate experience in his specialty, entrepreneurship. 4 
As evidence of his work experience, the Petitioner initially offered letters discussing his work as a 
physical education teacher, physical education coordinator, and soccer referee, but this experience did 
not relate to his specialty of entrepreneurship. He also provided amendments to the "Articles of 
Association" for his partnerships involving ( October 2011 ), D 
(January 2017), _________ (March 
2017), and 
documentatio to his formation of 
March 2016 . In addition submitted 
(2018), (2019), (2016), 
and _______ (2018). The regulation at 8 C.F.R. § 204.5(k)(3)(i)(B), however, 
specifies that the evidence of progressive experience must be "in the form of letters from current or 
former employer(s)." The information relating to the aforementioned companies is not sufficient to 
demonstrate that the Petitioner has at least five years of progressive post-baccalaureate experience in 
entrepreneurship. 
Without further information and evidence from his employers, the Petitioner has not established that he 
has at least five years of progressive post-baccalaureate experience in entrepreneurship to constitute the 
equivalent to an advanced degree in that specialty. See 8 C.F.R. § 204.5(k)(2) and 8 C.F.R. 
§ 204.5(k)(3)(i)(B). Accordingly, the record supports the Director's determination that the Petitoner has 
not established that he qualifies as a member of the professions holding an advanced degree. 
B. Exceptional Ability 
In denying the petition, the Director determined that the Petitioner fulfilled only the academic record 
criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A). The Petitioner's appellate submission does not contest the 
Director's findings or maintain that he satisfies at least three of the six categories of evidence listed at 
8 C.F.R. § 204.5(k)(3)(ii). Without offering any arguments or evidence to overcome the Director's 
findings, the Petitioner has not established that he satisfies at least three of the criteria and has achieved 
the level of expertise required for exceptional ability classification. 
C. National Interest Waiver 
The remaining issue to be determined is whether the Petitioner has established that a waiver of the 
requirement of a job offer, and thus a labor certification, would be in the national interest. For the 
reasons discussed below, we agree with the Director that the Petitioner has not sufficiently 
demonstrated the national importance of his proposed endeavor under the first prong of the Dhanasar 
analytical framework. 
Regarding his claim of eligibility under Dhanasar' s first prong, the Petitioner stated that he intends to 
continue his "career in the United states as an entrepreneur, specifically by managing and developing 
4 The Petitioner stated that he intends to continue his "career in the United states as an entrepreneur, specifically by 
managing and developing national and international companies." In addition, Part 6 ("Basic Information About the 
Proposed Employment") of the Immigrant Petition for Alien Worker, Form 1-140, lists the Petitioner's job title as 
"Entrepreneur." 
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national and international companies." He asserted that his proposed endeavor involves "facilitating and 
generating new businesses," as well as providing "business services to U.S. companies, institutions, and 
individuals in need of expert advice in business management, marketing strategies, business solutions, 
business development, and innovation development." The Petitioner further indicated that he plans to 
devote his services and financial resources to I I 
He also explained that he plans "to embark 
on a major expansion ofth __ ___,network," including three stores in the United States.5 
The record includes information about immigrants' contribution to the U.S. economy, the restaurant 
industry outlook, immigrant entrepreneurs as business creators, and the value of entrepreneurs to our 
country's economy. In addition, the Petitioner provided articles discussing immigrant entrepreneurs' 
economic contributions, entrepreneurs' involvement in promoting a more inclusive economy, and the 
entrepreneurial legacy of immigrants and their children. He also submitted information about 
entrepreneurs' role in job creation and innovation, U.S. restaurant industry sales, the economic 
contribution of immigrant-launched businesses, and immigrant tax contributions and spending power. 
The record therefore shows that the Petitioner's proposed work as a food service entrepreneur and 
business advisor has substantial merit. 
In determining national importance, the relevant question is not the importance of the field, 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 I&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. 
With the appeal, the Petitioner submits letters from 11 l and 
I I expressing interest in his business consultin services In addition the 
Petitioner offers letters of sup ort from _ 
(a Brazilian attorney) 
and 6 attesting to the Petitioner's business skills, but these 
letters do not explain how his proposed work is of national importance. The Petitioner's knowledge, 
skills, and experience in his field relate to the second prong of the Dhanasar framework, which "shifts 
the focus from the proposed endeavor to the foreign national." Id. at 890. The issue here is whether the 
specific endeavor that he proposes to undertake has national importance under Dhanasar's first prong. 
In his appeal brief, the Petitioner asserts that his proposed endeavor stands to "support the U.S. domestic 
job market, as it will promote the direct and indirect creation of jobs for U.S. citizens." He contends that 
5 The Petitioner notes that he is "the owner of a restaurant serving authentic Japanese cuisine, located in 
the city ofl I FL. I also in I is a new concept in Japanese cuisine, serving up sushi and poke 
bowls to a growing customer base in recent years." 
I 
6 The appellate submission includes commercial subleases for the Petitioner's two restaurants at _______ 
5 
his undertaking "not only broadly enhances U.S. commercial interests and prompts overall economic 
enrichment, but it also positively impacts the domestic job market." The Petitioner further argues that 
his proposed work "fuels a major commercial market, which, in tum, directly contributes to national 
economic output, as well as prioritizes national interests, such as the domestic job market." In addition, 
he claims that his endeavor "will produce significant national benefits, due to the ripple effects of his 
professional activities." The Petitioner also states that his undertaking will benefit our country through 
helping "increase the flow of money in the U.S. on a national level, which will contribute to U.S. gross 
domestic product (GDP)." 
To evaluate whether the Petitioner's proposed endeavor satisfies the national importance requirement 
we look to evidence documenting the "potential prospective impact" of his work. Although the 
Petitioner's statements reflect his intention to provide business and financial resources to his 
companies and advisory services to his future clients, he has not offered sufficient information and 
evidence to demon strate that the prospective impact of his proposed endeavor rises to the level 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. Id. 
at 893. Here, we conclude the record does not show that the Petitioner's proposed endeavor stands to 
sufficientl y extend beyond his companies and clientele to impact his field or the restaurant industry 
more broadly at a level commensurate with national importance . 
Furthermore, the Petitioner 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. Without sufficient information or evidence regarding any projected U.S. economic 
impact or job creation attributable to his future work, the record does not show that benefits to the regional 
or national economy resulting from the Petitioner's business projects would reach the level of"substantial 
positive economic effects" contemplated by Dhanasar. Id. at 890. Accordingly, the Petitioner's 
proposed work does not meet the first prong of the Dhanasar framework. 
Because the documentation in the record does not establish the national importance of his proposed 
endeavor as required by the first prong of the Dhanasar precedent decision, the Petitioner has not 
demonstrated eligibility for a national interest waiver. Further analysis of his eligibility under the second 
and third prongs outlined in Dhanasar, therefore, would serve no meaningful purpose. 
III. CONCLUSION 
The Petitioner has not established that he satisfies the regulatory requirements for classification as a 
member of the professions holding an advanced degree or as an individual of exceptional ability. 
Furthermore, as the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, 
we conclude that he has not established he is eligible for or otherwise merits a national interest waiver 
as a matter of discretion. The appeal will be dismissed for the above stated reasons, with each 
considered as an independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
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