dismissed EB-2 NIW Case: Entrepreneurship

U.S. Citizenship 
and Immigration 
Services 
In Re: 23073543 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: APR. 21, 2023 
Form 1-140, Immigrant Petition for Alien Worker (National Interest Waiver) 
The Petitioner, an entrepreneur, seeks employment-based second preference (EB-2) 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 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 although the record 
established the Petitioner's eligibility for the EB-2 classification, it did not show that he qualified for, 
or otherwise merited, a national interest waiver. 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 I&N Dec . 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
An advanced degree is any United States academic or professional degree or a foreign equivalent 
degree above that of a bachelor's degree. A United States bachelor's degree or foreign equivalent 
degree followed by five years of progressive experience in the specialty is the equivalent of a master's 
degree. 8 C.F.R. § 204.5(k)(2). 
If a petitioner demonstrates eligibility for the underlying EB-2 classification , they must then establish 
that they merit a discretionary waiver of the job offer requirement "in the national interest." 
Section 203(b )(2)(B)(i) of the Act. While neither the 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 U.S . Citizenship 
and Immigration Services (USCIS) may , as 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. ADV AN CED DEGREE PROFESSIONAL 
The Director concluded in his decision that the Petitioner is eligible as a member of the professions 
holding an advanced degree. However, after review of the record, we disagree. The evidence includes 
a translated copy of the Petitioner's diploma froml luniversityl I dated 
February 18, 2008, which states that he "completed a full course" in finance and credit was granted 
the qualification of "economist." It also indicates that he was admitted tol I in 2001, but the 
record does not include official academic transcripts from the university showing semesters attended 
or credits earned by the Petitioner. 
A U.S. bachelor's degree usually requires four years of university studies. Matter of Shah, 17 I&N 
Dec. 244, 245 (Comm'r 1977). Here, the diploma indicates that the Petitioner completed his studies 
over seven years, but he does not claim, nor does the evidence support, that he earned an advanced 
degree. 2 Although the Petitioner indicates that he began working part-time during the course of his 
studies in 2006, he does not explain how this affected his education, or offer any documentary evidence 
to corroborate this statement. The evidence is therefore insufficient to establish that over the course 
of seven years, the Petitioner completed coursework equivalent to that required for a United States 
baccalaureate degree. 
The Petitioner also submitted a document titled "Evaluation of Education and Work Experience." But 
this document does not indicate that the evaluator reviewed the coursework completed by the 
Petitioner or the number of credits earned, or performed any type of analysis of such data. Further, 
the evaluator does not state that the Petitioner's diploma is the equivalent of a bachelor's degree, or 
any other degree, from a United States college or university. Rather, they offer the following 
conclusory statement: 
Considering that a Economist Degree followed by more than five years of full-time 
work experience in the field of Finance is equivalent to a Master's degree in Finance, 
it is my expert opinion that [the Petitioner] with an Economist degree and 13 years of 
experience, has the equivalent of a U.S. Master's degree in Finance. 
USCIS may reject or give lesser evidentiary weight to credential evaluations inconsistent with the 
record or "in any way questionable." Matter of Caron Int'!, Inc., 19 I&N Dec. 791, 795 (Comm'r 
1988). There is no provision in the regulations which allows for the combination of work experience 
with any degree other than a United States baccalaureate degree or a foreign equivalent degree to reach 
the equivalent of an advanced degree. As the evaluation does not state that the Petitioner's diploma 
2 As noted by the Director, counsel stated in her brief submitted in response to the request for evidence (RFE) that the 
Petitioner graduated from BSEU with a Master's degree in finance. Assertions of counsel do not constitute evidence. 
Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988) (citing Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 
(BIA 1980)). Counsel's statements must be substantiated in the record with independent evidence, which may include 
affidavits and declarations. Such evidence is not present in the record. 
2 
is equivalent to United States baccalaureate degree or a foreign equivalent degree, or provide any 
analysis to support its conclusions, it will not be given evidentiary weight. 3 
Because the Petitioner has not established that he holds a United States baccalaureate degree or foreign 
equivalent degree, he is not eligible as a member of the professions holding an advanced degree. He 
also does not assert that he is eligible for the EB-2 classification as an individual of exceptional ability. 
He has therefore not established his qualification for the underlying EB-2 classification, and we 
withdraw the Director's decision in that regard. 
III. NATIONAL INTEREST W AIYER 
As the Petitioner has not established that he is eligible for the EB-2 immigrant classification, he is not 
eligible for a national interest waiver. Nevertheless, we will briefly consider his claims under the 
Dhanasar analytical framework. 
The Petitioner initially indicated on Form I-140, Immigrant Petition for Alien Worker, that his 
proposed endeavor was as an entrepreneur. In expanding upon this in his initial statement, he stated 
that he would be an independent business consultant, providing services to small and medium sized 
businesses. As this description was not sufficiently detailed, the Director sought further evidence 
regarding the Petitioner's proposed endeavor. 
In responding to the Director's request for evidence (RFE), the Petitioner stated that he intends "to 
continue work in my area of expertise, namely the trucking industry." He submitted a business plan 
and company documentation for I which is described as a logistics company that 
will provide trucking services through independent contractor drivers. The business plan indicates 
that he will serve as the company's Operations Manager, with responsibilities for "overseeing the 
overall performance of the Company and supervising the work of its employees." 
The purpose of an RFE is to elicit information that clarifies whether eligibility for the benefit sought 
has been established, as of the time the petition is filed. 8 C .F.R. § § 103 .2(b )( 1 ), 103 .2(b )(8), 
l 03.2(b )( 12). A petitioner may not make material changes to a petition in an effort to make a deficient 
petition conform to USCIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. 
Comm'r 1998). The information the Petitioner provided in the response to the Director's RFE did not 
clarify or provide more specificity to his initially described proposed endeavor, but rather it changed 
the nature of his proposed endeavor from offering business consulting services to operating a trucking 
company. Accordingly, the RFE response presented a new set of facts regarding the work the proposed 
endeavor, which is material to eligibility for a national interest waiver. See Matter of Michelin Tire 
Corp., 17 I&N Dec. 248 (Reg'l Comm'r 1978); see also Dhanasar, 26 I&N Dec. at 889-90. 
3 The evaluation also makes a vague reference to a "3-for-1 Rule" and concludes that the Petitioner "attained sufficient 
years of specialized training and work experience to equate to the college coursework in Finance." The three-for-one 
formula alluded to in the evaluation applies only to H-IB nonimmigrant visa petitions, not to immigrant petitions. See 8 
C.F.R. § 214.2(h)(4)(iii)(D)(5) (describing a U.S. baccalaureate equivalency for H-IB purposes). 
3 
Because the information provided by the Petitioner in response to the RFE constituted an 
impermissible material change, we will only consider the evidence submitted in support of his original 
proposed endeavor. 
A. Substantial Merit and National Importance 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
individual 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. 
Dhanasar, 26 I&N Dec. at 889. Here, the Petitioner's proposed endeavor of providing business 
consulting services is in the area of business, but the record lacks evidence to support its merit. 
Although the Petitioner provides several statistics regarding the importance of small businesses in the 
United States, he did not submit documentary evidence to support these statements. He has thus not 
established the substantial merit of his proposed endeavor. 
Regarding national importance, the Petitioner again stressed the importance of small businesses to the 
United States' economy, claiming that his consulting services would assist in their successful 
development and therefore produce a benefit "of national caliber." However, we look to the 
individual's specific endeavor when determining its potential prospective impact, not the impact of an 
industry of field as a whole. Here, the Petitioner has not shown that his proposed consulting services 
would have broader implications for the U.S. economy or small businesses on a national level, beyond 
the relatively small number of businesses that he would serve. Id. Nor has he demonstrated that his 
proposed endeavor would have significant potential to employ U.S. workers, or would have other 
substantial positive economic effects. Id. at 890. The Petitioner did not claim that he would employ 
any U.S. workers, and did not provide projections of the impact of his business supported by verified 
data. 
For the reasons given above, the Petitioner has not established the substantial merit and national 
importance of his endeavor, and he therefore does not meet the first prong of the Dhanasar analytical 
framework. 
B. Well Positioned to Advance the Proposed Endeavor 
The second prong shifts the focus from the proposed endeavor to the individual. To determine whether 
they are well positioned to advance the proposed endeavor, we consider factors including, but not 
limited to: their 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. Id. at 890. 
As discussed above, while the Petitioner did provide evidence of education related to his proposed 
endeavor, he did not show that his diploma was equivalent to a bachelor's degree from a college or 
university in the United States. In addition, while the Petitioner provided employment letters 
documenting his experience in e-commerce consulting, sales, and marketing, those letters lacked 
sufficient detail to demonstrate a record of success relating to his proposed endeavor. Further, the 
Petitioner did not provide any details or supporting documentation regarding the startup and 
4 
development of his consulting business, and as previously noted appeared to abandon this endeavor 
when responding to the Director's RFE. As such, he has not demonstrated that he is well positioned 
to advance his initial proposed endeavor, and does not meet the second prong of the Dhanasar 
analytical framework. 
C. Whether on Balance a Waiver is Beneficial 
The Petitioner also asserts on appeal that because the labor certification process focuses on minimum 
qualifications and would not take into account his previous experience, it would be beneficial for the 
United States to waive that process in his case. However, we need not determine whether he meets 
the third prong of the Dhanasar analysis. As the Petitioner cannot meet all three prongs in the 
Dhanasar framework, we reserve this issue. 4 
III. CONCLUSION 
The Petitioner has not established his eligibility for the underlying EB-2 immigrant classification, and 
we withdraw the Director's decision in that regard. In addition, he has not shown that he is eligible 
for, and otherwise merits as a matter of discretion, a waiver of that classification's job offer 
requirement, and thus of a labor certification. The petition will remain denied. 
ORDER: The appeal is dismissed. 
4 See INS v. Bagamasbad, 429 U.S. 24, 25-26 (1976) (stating that, like courts, federal agencies are not generally required 
to make findings and decisions unnecessary to the results they reach). 
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