dismissed EB-2 NIW Case: Entrepreneurship

U.S. Citizenship 
and Immigration 
Services 
In Re: 13092934 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JUNE 24, 2021 
Form 1-140, 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, 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 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 
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. 
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 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 
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. USC1S, 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). 
2 
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 
The record indicates that the Petitioner qualifies as a member of the professions holding an advanced 
degree. 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 asserted that he intends to 
continue "to work as an entrepreneur in the United States" and "to grow the operations of my existing 
businesses." He indicated that he is currently "developing new clients and projects ... through my 
businesses! I and I I In this way, I develop innovative food 
service products, motivated by current food trends and evolving food tastes." In addition, the Petitioner 
stated: "I am also seeking to establish my Brazilian network of restaurants and bars] I in the 
U.S .... In addition to expanding my own businesses, I can also help U.S. companies and investors 
navigate the complex tax laws and regulations that they will face when making business and investments 
in Brazil .... " 
With respect to his businesses, the Petitioner explained that he founded.__----.....-----~-~ 
"in order to streamline my business operations and investments in the U.S. market. Through this 
company, I acquired a 10% share ofl l."4 He further indicated 
thatl lis a "Florida-based company focused on the production of health-based popsicles, which 
are distributed throughout the U.S." Additionally, the Petitioner stated that he launched I 
.__ _____ ___, a Florida-based company that serves as I ts official distributor for small 
markets and tourist attractions in the state of Florida. The company also distributes products throughout 
North America and Brazil." Furthermore, the Petitioner asserted tha~ I is a bar and restaurant 
with three locations that serve "artisan beers in the state o~ I ... I also have plans to expand 
this company into the United States." 
The record includes information about the advantages of franchising, future trends for legal services, 
a projected shortage of lawyers in the state of Washington, business trends facing law firms in the 
United States, the positive effects of globalization on the U.S. economy, foreign-born entrepreneurs 
as drivers of American innovation, the entrepreneurial legacy of immigrants and their children, 
immigrants' effect on our country's economy, and immigrant entrepreneurship in America. In 
addition, the Petitioner provided articles discussing immigrants as successful entrepreneurs, the 
benefits of international trade and investment, international trade patterns and consequences of 
globalization, U.S. and Brazilian trade and investment, the contribution of immigrant-owned 
3 See Dhanasar 26 I&N Dec at 888-91 for elaboration on these three urauos 
4 The record in~ludes a Janu~ry 2018 c~rtificate issued by~I _______ ____.IPresident ofi~------~ 
indicating that the Petitioner has "l 0% of ownership interest" in the company. 
3 
businesses to our country's economy, immigrants' spending power and tax contributions, why 
immigrants are natural entrepreneurs, the rise in immigrant-founded businesses, and capital and 
innovation as a factor in the debate over immigration reform. He also submitted information about 
franchising as simpler way for immigrants to start their own business, the effect of trade on United 
States and state-level employment, cultural competency as a key to international brand success, U.S. 
support for Brazil's bid to join the Organization for Economic Cooperation and Development, the 
value of entrepreneurship to the U.S. economy, the contribution of immigrant-launched businesses, 
immigrants as drivers of economic growth, and entrepreneurs' involvement in promoting a more 
inclusive economy. The record therefore supports the Director's determination that the Petitioner's 
proposed work as an entrepreneur 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. 
In his appeal brief: the Petitioner asserts that he has "over 15 years of professional experience" in areas 
such as "business strategy, business development, mergers and acquisition, cross border transactions, 
international trade, tax requirements, among other key commercial matters." The Petitioner's skills and 
knowledge 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. 
Additionally, the Petitioner argues that his proposed endeavor stands to "motivate economic production 
and national development, as well as incentivize the domestic job market. His work within the United 
States will generate substantial revenues to the economy and promote significant transactions in high­
growth industries, which will in tum contribute to social progress and the national interest." He claims 
that his proposed work offers "a veritable impact of national importance to the United states, serving 
both social and economic needs." The Petitioner further states that his proposed endeavor will "benefit 
the U.S. economy, generate more revenue, increase the flux of foreign trade, and contribute to the 
generation of jobs in the country." He also contends that his undertaking "will strengthen economic 
ties between the U.S. and foreign markets" and "produce significant national benefits, due to the ripple 
effects of his professional activities." Furthermore, the Petitioner asserts that "his proposed endeavor 
will contribute to tax revenue, prioritize the domestic job market, and ultimately help increase the flow 
of money in the U.S. on a national level, which will contribute to U.S. gross domestic product (GDP)." 
Moreover, the Petitioner maintains that his undertaking stands to affect the national economy by 
"spurring economic initiatives on behalf of the United States." 
The Petitioner's appellate submission includes a blank 2020 Form 941 (Employer's Quarterly Federal 
Tax Return), 2018 and 2019 Forms W-2 (Wage and Tax Statements) for employees ofl I ~--~I, and 2018 and 2019 "Balancing Form(s) W-2/W-3 Totals to the Wage and Tax Register." 
4 
This documentation indicates thad I employed 32 employees in 2018 and paid 
them wage s totaling $590,860.75. In 2019, I I employed 12 employees and paid 
them wages totaling $209 ,504.11. The Petitioner , however , is only a ten percent co-owner and 
shareholder of this company and the record does not show that the capacity in which he proposes to 
work renders him mainly responsible for its business operations . 
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 expand the operations of his businesses and to seek out 
clients for investment project s, he has not offered sufficient information and evidence to demon strate 
that the prospective impact of his propo sed 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 sufficiently extend 
beyond his companies and his future clientele to impact his field or the food and beverage indust ry 
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. Specifically, he has not shown that his business plans and companies ' future 
staffing levels stand to provide substantial economic benefits in Florida or the United States. While 
the Petitioner provided documentation indicating that he is a partial owner and shareholder (ten percent) 
of a company that employs U.S. workers! L he has not offered sufficient evidence 
that he will be mainly responsible for running its future operations . Nor does the evidence show that 
the area where his companies operate is economically depressed , that his companies stand to employ 
a significant population of workers in that area, or that his endeavor offers the region or its population 
a substantial economic benefit through employment levels or investment activity. 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 propo sed work does not meet the 
fust 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 
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. 
5