dismissed EB-2 NIW Case: Entrepreneurship

U.S. Citizenship 
and Immigration 
Services 
In Re: 11283672 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: APR. 19, 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 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 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 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. 
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 
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. 
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 
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 does not include an official academic record showing that the Petitioner meets the 
requirements of an advanced degree specified at 8 C.F.R. § 204.5(k)(3)(i)(A) or (B).4 Accordingly, the 
3 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
4 The Petitioner submitted an academic evaluation from USA Evaluations stating that he has "satisfied requirements 
substantially similar to those required toward the completion of an Associate Degree in Business Administration from an 
accredited institution of higher education in the United States." This evaluation does not indicate that the Petitioner has 
"a foreign equivalent degree" to a United States advanced degree or a United States baccalaureate degree. In order to have 
education and experience equating to an advanced degree under section 203(6 )(2) of the Act, the Petitioner must have a 
3 
Petitioner has not demonstrated that he qualifies as a member of the professions holding an advanced 
degree. 
B. Exceptional Ability 
The Petitioner asserted that he meets at least three of the regulatory criteria for classification as an 
individual of exceptional ability. After reviewing the evidence, we conclude that the record does not 
support a finding that the Petitioner satisfies the requirements of at least three criteria. 
1. Evidentiary Criteria 
An official academic record showing that the alien has a degree, diploma, certificate, 
or similar award from a college, university, school, or other institution of learning 
relating to the area of exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(A). 
The Petitioner did not claim to meet this criterion. 
Evidence in the form ofletter(s)from current or former employer(s) showing that the alien 
has at least ten years offitll-time experience in the occupation for which he or she is being 
sought. 8 C.F.R. § 204.5(k)(3)(ii)(B) 
enence the Petitioner resented a June 201 7 letter As evidence of his ten years of entrepreneurial ex 
froml I an accountant w,....it___._ ____________ ----' stating that the 
Petitioner has served as "General Manager of since 2010." The record also 
includes a "Fourth Contrac.l""'......_......., ...... .....,,....,__....&.>.CL-~----------------------'-, 
a "Contractual Alteration of~-------~, and a "Power of Attorney" authorization for~-~ 
~---~-~I This criterion, however, calls for "letter(s) from current of former employers." The 
aforementioned letter from the Petitioner's accountant, contractual alterations, and power of attorney 
authorization do not meet this requirement, nor do they indicate that the Petitioner's experience was 
"full-time." This documentation falls short in demonstrating that he has at least ten years of full-time 
experience as an entrepreneur. 5 Accordingly, the Petitioner has not established that he meets the 
requirements of this regulatory criterion. 
A license to practice the profession or cert[fication for a particular profession or 
occupation. 8 C.F.R. § 204.5(k)(3)(ii)(C). 
The Petitioner did not claim to meet this criterion. 
single degree that is the "foreign equivalent degree" to a United States baccalaureate degree (plus five years of progressive 
experience in the specialty). See 8 C.F.R. § 204.5(k)(2). A United States baccalaureate degree is generally found to require 
four years of education. See Matter of Shah, 17 T&N Dec. 244, 245 (Reg'! Comm'r 1977). There is no provision in the 
statute or the regulations that would allow a petitioner to qualify under section 203(6 )(2) of the Act as a member of the 
professions holding an advanced degree with anything less than a full baccalaureate degree (plus five years of progressive 
experience in the specialty). 
5 The Form 1-140, Immigrant Petition for Alien Worker, in this matter was filed on January 10, 2018. The Petitioner, 
therefore, must demonstrate that he had at least ten years of full-time experience at the time of filing. See 8 C.F.R. 
§ 103.2(b)(l). 
4 
Evidence that the alien has commanded a salary, or other remuneration for services, 
which demonstrates exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(D). 
The June 201 7 letter from.__ ________ __. stated that the Petitioner "received in 2016 R$ 
162.000,00 as dividends, in 2015 174.000,00 as dividends, in 2014 168.000,00 as dividends." To 
satisfy this criterion, the evidence must show that an individual has commanded a salary or 
remuneration for services that is indicative of his claimed exceptional ability relative to others working 
in the field. 6 Here, the Petitioner has not offered documentation showing that his earnings are indicative 
of exceptional ability relative to others in his field. Based on the foregoing, the Petitioner has not 
demonstrated that he meets this regulatory criterion. 
Evidence o_f membership in pro_fessional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
The Petitioner contends that his membership in the Brazilian E-Commerce Association meets this 
criterion. As evidence for this criterion, the Petitioner provided a screenshot from the Brazilian E­
Commerce Association's website identifying him as an 1 I' This information is 
not sufficient to demonstrate that the Brazilian E-Commerce Association has a membership body 
comprised of individuals who have earned a U.S. baccalaureate degree or its foreign equivalent, or 
that the organization otherwise constitutes a professional association. 7 Accordingly, the Petitioner has 
not established that he meets this criterion. 
Evidence of recognition for achievements and significant contributions to the industry 
or field by peers, governmental entities, or professional or business organizations. 
8 C.F.R. § 204.5(k)(3)(ii)(F). 
As evidence for this criterion, the Petitioner provided recommendation letters from various colleagues 
discussing his business projects, but these letters are not sufficient to demonstrate his recognition for 
achievements and significant contributions to the industry or - example,! I I I a former Administrative and Controllin Technician a mentioned the Petitioner's 
work on ro · ects involvin 
I I in the area of events, .__ ________ __. ~-----,... 
I I and.__ __ ___." The record, however, does not include supporting documentation 
indicating that the Petitioner's work involving these projects has been recognized for significantly 
affecting the advertising industry or entrepreneurial field. 8 The evidence does not show that the 
Petitioner's work has had an impact beyond his employers, clientele, and their projects at a level 
indicative of achievements and significant contributions to the industry or field. For these reasons, the 
Petitioner has not established that he fulfills this criterion. 
6 See USCTS Policy Memorandum PM-602-0005 .1, Evaluation of Evidence Submitted with Certain Form 1-140 Petitions; 
Revisions to the Adjudicator's Field Manual (AFM) Chapter 22.2, AFM Update ADI 1-14 21 (Dec. 22, 2010), 
https://www.uscis.gov/legal-resources/policy-memoranda. 
7 The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definition: "Profession means one of the 
occupations listed in section 101 (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." 
8 Formal recognition that is contemporaneous with the individual's claimed contributions and achievements may have 
more weight than letters prepared for the petition "recognizing" the individual's achievements. See USCIS Policy 
Memorandum PM 602-0005.1, supra, at 23. 
5 
For the reasons set forth above, the Petitioner has not shown that he meets at least three of the six 
regulatory criteria at 8 C.F.R. § 204.5(k)(3)(ii). 
2. Comparable evidence 
The regulation at 8 C.F.R. § 204.5(k)(3)(iii) allows for the submission of "comparable evidence" if 
the above standards "do not readily apply to the beneficiary's occupation." A petitioner should explain 
why he has not submitted evidence that would satisfy at least three of the criteria set forth in 8 C.F.R. 
204.5(k)(3)(ii) as well as why the evidence he has submitted is "comparable" to that required under 
8 C.F.R. 204.5(k)(3)(ii). 9 
The Petitioner presented photographs relating to advertising campaigns and events in which he 
participated as other comparable evidence of eligibility, but he has not demonstrated that the standards 
at 8 C.F.R. § 204.5(k)(3)(ii) are not readily applicable to his occupation.10 He has not sufficiently 
explained why he has not submitted evidence that would satisfy at least three of the six regulatory 
criteria. As such, the Petitioner has not shown that he may rely on comparable evidence. 
In summary, the evidence does not establish that the Petitioner satisfies at least three of the criteria at 
8 C.F.R. § 204.5(k)(3)(ii) or meets the comparable evidence requirements at 8 C.F.R. § 204.5(k)(3)(iii), 
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 "working in the United states as an entrepreneur" and "opening up cross-border businesses." He 
asserted that his proposed endeavor involves providing "business intelligence consulting services in the 
area of international expansion, marketing and sales on behalf of U.S. corporations with the intention of 
doing business abroad, as well as promoting the investment of Brazilian companies in the American 
market." 11 The Petitioner further indicated that he plans "to manufacture the most easy-assemble compact 
elevators, at the best market price, in order to improve the quality of life of people with disabilities and 
9 See USCTS Policy Memorandum PM 602-0005.1, supra, at 22. 
10 "General assertions that any of the six objective criteria described in 8 CFR 204.5(k)(3)(ii) do not readily apply to the 
alien's occupation are not probative and should be discounted." See USCTS Policy Memorandum PM-602-0005.1. supra. 
at 22. 
11 The Petitioner stated: "Since 2018, I have been the Owner and Executive Director oti , I, a marketing, 
sales, and business development company registered in Florida, with the mission to establish cross-border transactions, 
and bring success to businesses in their trajectory to expand to the U.S." The record includes documentation relating to 
his formation o~ I such as the company's Articles of Organization, operating agreement. and tax forms. 
6 
present them a solution to move around in their homes." 12 He also explained that he plans to further 
develop hisl I partnership and expand its I I education system." 13 
The record includes information about the economic and fiscal consequences of immigration, 
immigrant entrepreneurship as a driver of U.S. economic growth, the value of entrepreneurs to the 
global economy, and the entrepreneurial legacy of immigrants and their children. In addition, the 
Petitioner provided articles discussing immigrants' contribution to the U.S. economy, the value of 
foreign direct investment to our country's economy, international companies' contribution to U.S. jobs 
and economic growth, immigrant-founded billion-dollar startups, and the value of immigrant 
entrepreneurs to American prosperity. He also submitted information about entrepreneurs' 
involvement in promoting a more inclusive economy, foreign-owned companies as a source of U.S. 
employment, the benefits of international investment, foreign-born entrepreneurs as drivers of 
American innovation, and immigrants as economic contributors. The record therefore shows that the 
Petitioner's proposed work as an entrepreneur and business consultant 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 argues that "he has nearly 25 years of experience working in, managing, 
and owning and co- owning companies in Brazil, and in the United States .... His experience and business 
acumen have been additionally developed by the very types of enterprises he owned throughout his 
career." 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. 
Furthermore, the Petitioner asserts that his proposed endeavor stands to incentivize "the U.S. domestic 
job market" and "allow for direct and indirect job creation across the U.S." He claims that his undertaking 
"will produce significant national benefits, due to the ripple effects of his professional activities." The 
Petitioner also states that his "endeavor will contribute to tax revenue, prioritize the domestic job 
12 The Petitioner presented a briness ]Ian he prepared fm~---------~' Regarding future staffing, his 
business plan anticipates that will employ four personnel in years one through three. In addition, the plan offers 
revenue projections of $260,515 in year one, $562,716 in year two, and $2,672,902 in year three. The Petitioner, however, 
does not adequately explain how these staffing and revenue forecasts were calculated. 
13 The Petitioner contends that an educational system based on~--------~provides "more 'employability' 
to economically active people than 1) the model of schools with their traditional training courses 2) the corprate camnetencf 
management model which most companies adopt." The record includes a business plan he prepared fo '----~~­
Regarding future staffing, this business plan anticipates employing three personnel in years one through three. Additionally, 
the plan offers revenue projections of$837,337 in year one, $1,024,901 in year two, and $1,359,019 in year three. Again, 
the Petitioner does not adequately explain how these staffing and revenue forecasts were calculated. 
7 
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)." Additionally , the Petitioner argues that his 
undertaking stands to affect the national economy by "[ o ]ffering economic convenience and agility," 
"[p]rioritizing the domestic job market," and "[d]riving competitive advantage for U.S. companies 
that wish to expand and internationalize their 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 his business operations and to offer consulting 
services to future clients, he has not offered sufficient infonnation and evidence to demonstrate that 
the prospective impact of his proposed endeavor rises to the level of national importance. In Dhana sar 
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 
company, partnerships, and clientele to impact his field or the 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. Specifically, he has not shown that his projects' future staffing levels and 
business activity stanl to prolide substantial economic benefits in Florida or the United States. While 
the sales forecasts for and I I indicate that these projects have growth potential, they do 
not demonstrate that benefits to the regional or national economy resulting from the Petitioner's 
undertakings would reach the level of "substantial positive economic effects" contemplated by Dhanasar. 
Id. at 890. In addition, although the Petitioner asserts thatl I andl I will employ U.S. 
workers, he has not offered sufficient evidence that the area where they will operate is economically 
depressed, that he would employ a significant population of workers in that area, or that his endeavor 
would offer the region or its population a substantial economic benefit through employment levels or 
business activity. Nor has the Petitioner demonstrated that any increases in employment or income 
attributable td l's operations stand to substantially affect economic activity or tax 
revenue in Florida or nationally. 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. 
8 
ORDER: The appeal is dismissed. 
9