dismissed EB-2 NIW Case: Entrepreneurship

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: NOV. 20, 2023 In Re: 28582684 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an entrepreneur, seeks classification as a member of the professions holding an 
advanced degree. See Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. 
§ 1153(b )(2). The Petitioner also seeks a national interest waiver of the job offer requirement that is 
attached to this EB-2 immigrant classification. See section 203(b)(2)(B)(i) of the Act. U.S. 
Citizenship and Immigration Services (USCIS) may grant this discretionary waiver of the required job 
offer, and thus of a labor certification, when it is in the national interest to do so. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that a waiver of the job offer requirement is in the national interest. The matter is now before 
us on appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe , 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc. , 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo 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 immigrant classification, as either a member of the professions holding an 
advanced degree or an individual of exceptional ability in the sciences, arts, or business. Section 
203(b )(2)(B)(i) of the Act. 
Once a petitioner demonstrates eligibility for the classification, the petitioner must then establish 
eligibility for a discretionary waiver of the job offer requirement "in the national interest." Section 
203(b )(2)(B)(i) of the Act. While neither statute nor the pertinent regulations define the term "national 
interest," Matter of Dhanasar, 26 I&N Dec. 884, 889 (AAO 2016), provides the framework for 
adjudicating national interest waiver petitions. Dhanasar states that USCIS may, as a matter of 
discretion, 1 grant a national interest waiver if the petitioner demonstrates that: 
1 See also Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
• 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. 
II. ANALYSIS 
The Director denied the petition, concluding that the Petitioner established only the substantial merit 
of the proposed endeavor. The Director concluded that the Petitioner did not establish the endeavor's 
national importance, that she is well-positioned to advance it, or that, on balance, waiving the job offer 
requirement would benefit the United States. The Director did not make a finding as to the threshold 
question of the Petitioner's eligibility for the EB-2 classification. On appeal, the Petitioner submits 
additional evidence and a brief in which she asserts that she has established her eligibility for a national 
interest waiver. 
A. Qualification for the EB-2 Classification 
The Petitioner seeks to qualify for the EB-2 classification as an advanced degree professional, claiming 
that she has obtained the foreign equivalent of a bachelor's degree followed by at least five years of 
progressive experience. See 8 C.F.R. § 204.5(k)(2) (a bachelor's degree or the foreign equivalent 
followed by at least five years of progressive experience in the specialty is equivalent to a master's 
degree). However, the Director noted in a request for evidence (RFE) that there are insufficiencies 
and inconsistencies in the evidence relating to the Petitioner's work experience. Specifically[ the 
Director noted that one of the employment letters, from a company called I was 
insufficient because it did not provide a detailed description of the Petitioner's job duties. The Director 
also noted that the other employment letter, from a company called I I was inconsistent with 
the information on the Form ETA-750B submitted in support of the petition, with the employment 
letter stating that the Petitioner was employed withl lfrom December 2010 to February 2016 
in a single position, and the Form ETA-750B stating that the Petitioner was employed withl I 
from October 2011 to February 2016 in two different positions. The Director further noted that both 
the employment letter and the Form ETA-750B were inconsistent with the information provided in a 
prior non-immigrant visa application filed by the Petitioner in 2016. The non-immigrant visa 
application states that the Petitioner worked atl lonly from July 2009 to February 2011. The 
Director requested additional evidence to resolve these inconsistencies and to establish the Petitioner's 
eligibility. 
As noted above, the Director did not make a finding in the decision as to the Petitioner's eligibility for 
the EB-2 classification, nor did the Director discuss whether the inconsistencies were satisfactorily 
resolved by the RFE response. In the RFE response, the Petitioner resubmitted the same employment 
letters again but also submitted two "letters of recommendation" that relate to her employment history. 
One letter is from an individual who states that they were the Petitioner's supervisor atl.________. 
This letter claims that the Petitioner held three different human resources positions from June 2009 to 
February 2016. Although the letter attempts to clarify the dates that the Petitioner had different roles, 
much of the letter discusses the general hiring and selection process and the purpose of a human 
2 
resources department, rather than describing the Petitioner's duties. 2 As to the specifics of the 
Petitioner's duties, the letter writer states little more than that the "work that [the Petitioner] did with 
us was extremely important and relevant" and that the Petitioner helped with "the implementation of 
[p]ositions and [s]alaries, obtaining important certifications for the company, such as ISO 9001 and 
ISO 14001." Additionally, although the Petitioner provided this additional letter, she did not provide 
any statement or clarification to address why the initial! Iemployment letter provided different 
information, or to address the inconsistencies with the non-immigrant visa application and the Form 
ETA-750B. 
The other letter is written by the Petitioner's parent and states that the Petitioner has worked for them 
at~------~ a shop in Brazil that sells lottery tickets, from 2012 to the present. The letter 
states that the Petitioner has performed duties such as managing reports, accounts receivable and 
payable, and cash closing. The letter also claims that the Petitioner, who appears to be residing in the 
United States, is remotely "managing and carrying out strategic planning" to "provide focus and 
greatly optimize the work of employees." Although this letter provides more information than the 
previous letter, it does not state the time periods during which the Petitioner worked in person at the 
shop versus working remotely or sufficiently explain the Petitioner's remote job duties. Additionally, 
it is unclear how the Petitioner's experience assisting in her parent's lottery ticket shop relates to her 
field of specialty. 
Moreover, as to the Petitioner's specialty, the record is also not clear as to the specialty in which the 
Petitioner is attempting to establish that she possesses experience. For example, counsel's brief in 
support of the initial filing states that the Petitioner has "expertise in psychology and industrial 
organizational health training industries," but also that she possesses an advanced degree based upon 
her 13 years of experience in "entrepreneurship." In response to the RFE, counsel's cover letter first 
states that the Petitioner possesses the equivalent of an advanced degree in "business" based upon her 
bachelor's degree in psychology and 12 years of experience in "outpatient services and treatments for 
adults and children." Later, counsel states that the Petitioner's 12 years of experience is in "the field 
of healthcare," and later still is in "recruitment, selection, training and development, marketing, 
strategic planning and business plans, [and] management." Additionally, the RFE response letter 
claims that the Petitioner has "served in numerous roles throughout her career, including [f]ounder, 
[p]artner, [ m ]anager, [r]ecruitment and [ s ]election [ a ]ssistant, and other business-related positions." 
Finally, we also note that there is a lack of clarity regarding the date the Petitioner obtained her degree. 
The Petitioner submitted a diploma and transcript for her title of psychologist degree from Brazil and 
a credential evaluation stating that the degree is equivalent to a U.S. bachelor's degree in psychology. 
The transcripts state that the Petitioner graduated in 2011 but that the diploma was issued in 201 7. 
Similarly, the diploma is dated in June of 2017. The credential evaluation does not explain the 
discrepancy between the graduation date and the diploma issuance date. When using work experience 
in addition to a bachelor's degree to qualify as an advanced degree professional, the regulations require 
that the qualifying work experience "follow" the bachelor's degree. 8 C.F.R. § 204.5(k)(2). 
Therefore, the date that the Petitioner received her bachelor's degree is material to her eligibility. 
2 Evidence relating to qualifying experience shall be in the form of letters from current or former employers and shall 
include a specific description of the duties performed. 8 C.F.R. § 204.S(g)(l). 
3 
Based upon the inconsistencies in the Petitioner's employment history that she has not yet addressed, 
the lack of a specific description of duties in the employment letters, and the lack of clarity in the 
record as to the date of the Petitioner's degree and as to the Petitioner's claimed specialty, we conclude 
that the Petitioner has not established that she qualifies for the EB-2 classification. 
B. Eligibility for a National Interest Waiver 
We tum now to the Petitioner's request for a national interest waiver under the Matter of Dhanasar 
framework. 3 The Petitioner's proposed endeavor is to establish a mental health clinic in the state of 
Florida. The Petitioner states that the clinic will provide affordable outpatient services and treatments 
for adults and children. The Petitioner submitted a business plan which projects that by the fifth year 
of operations the clinic will employ 15 workers and earn approximately $400,000 annually in revenue. 
As stated above, the Director found that the Petitioner established the substantial merit of the proposed 
endeavor but not its national importance. The Director farther found that the Petitioner did not 
establish either the second or third prongs of the Dhanasar framework. As to the national importance 
of the proposed endeavor, the Director specifically concluded that the record did not demonstrate that 
providing outpatient psychological and behavioral health treatments and potentially creating 15 jobs 
would sufficiently extend beyond the clinic's patients and employees to impact the industry or field 
more broadly. The Director also noted that in determining national importance, USCIS considers the 
specific endeavor rather than the importance of the industry in which the petitioner will work. 
On appeal, the Petitioner submits a brief, a business plan, and letters of recommendation previously 
provided. The Petitioner states that the business plan submitted on appeal has been updated to provide 
"a clearer explanation of the petitioner's goals for her company" and that "the gaps and unclear points 
mentioned in the denial notice have now been addressed." The Petitioner contends on appeal that she 
has established eligibility for a national interest waiver and that the Director's decision "raised broad 
and unspecific concerns" and did not "properly address the reasons for a denial." In an effort to 
demonstrate the national importance of the endeavor, the appeal brief primarily repeats the information 
stated in the Petitioner's business plan, such as statistics and information related to mental health, 
healthcare costs, and demand for healthcare workers in the United States, and reiterates the plan's 
projections for revenue and job creation. 
Upon de novo review, we disagree that the Director's decision is insufficiently detailed. Rather, the 
Director's decision cites to specific information in the record and includes findings that are well­
supported by the language of Matter of Dhanasar. Additionally, the Petitioner does not identify on 
appeal any specific legal or factual errors in these findings. 
3 Because we conclude that the Petitioner has not established that she meets the threshold requirement of eligibility for the 
underlying EB-2 classification, the Petitioner is not eligible a waiver of the classification's job offer requirement. See 
section 203(b)(2)(B)(i) of the Act; see also Matter of Dhanasar, 26 T&N Dec. at 886. Nevertheless, because the Director 
did not make a finding as to the Petitioner's EB-2 eligibility, the Petitioner did not have an opportunity to address this 
issue on appeal. Therefore, we will consider the Petitioner's claims on appeal as to the Director's decision and her 
eligibility for a national interest waiver. 
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Moreover, we agree with the Director that the Petitioner has not established the national importance 
of the proposed endeavor. The Petitioner's business plan helps to show that she intends to establish a 
mental health clinic in the state of Florida, but it does not demonstrate that this clinic stands to have a 
broader impact on the field of mental healthcare or on the economy at a level commensurate with 
national importance. Although the Petitioner asserts on appeal that the business plan has been updated, 
the Petitioner does not explain what about the plan has been changed and the plan appears to be nearly 
identical to the one previously submitted, providing the same job creation and revenue projections and 
the same background information about mental healthcare in the United States. The business plan still 
does not explain how the Petitioner's outpatient services differ from those already available on the 
market, offer improvements or new approaches that are replicable throughout the field, or otherwise 
would stand to broadly impact the mental healthcare field beyond those patients directly served. 
Additionally, the plan does not explain how the creation of 15 jobs over 5 years stands to have an 
impact on the regional economy at a level commensurate with national importance. 
The Petitioner's assertions on appeal primarily repeat the assertions previously made about mental 
illness and mental healthcare in the United States. However, these assertions relate to the importance 
of the field in general, rather than to the impact of the Petitioner's specific endeavor. We agree with 
the Director that 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 "specific endeavor 
that the [ noncitizen] proposes to undertake." See Matter ofDhanasar, 26 I&N Dec. at 889. 
The Petitioner has not established that the proposed endeavor has national importance, as required by 
the first Dhanasar prong; therefore, she is not eligible for a national interest waiver. We acknowledge 
the Petitioner's arguments on appeal as to the second and third prongs of Dhanasar but, having found 
that the evidence does not establish the Petitioner's eligibility as to national importance, we reserve 
our opinion regarding whether the record establishes the remaining Dhanasar prongs. 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 I&N Dec. 516, 526 n. 7 (BIA 2015) ( declining to reach alternative issues on appeal where the 
applicant is otherwise ineligible). 
III. CONCLUSION 
The Petitioner has not established 
that she satisfies the regulatory requirements for classification as a 
member of the professions holding an advanced degree. 8 C.F.R. § 204.5(g)(l ), (k)(2). Further, the 
Petitioner has not met the national importance requirement of the first prong of Matter ofDhanasar. 
We therefore conclude that the Petitioner has not established that she 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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