dismissed EB-2 NIW Case: Entrepreneurship

U.S. Citizenship 
and Immigration 
Services 
In Re: 24829781 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 09, 2023 
Form 1-140, Immigrant Petition for Alien Worker (National Interest Waiver) 
The Petitioner, an entrepreneur with experience in the retail sector, 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 the record did not 
establish that the Petitioner merits, as a matter of discretion, a national interest waiver of the EB-2 
classification's job offer requirement. 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 of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo . Matter of Christa'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 visa classification, as either an advanced degree professional or an individual 
of exceptional ability in the sciences, arts, or business. See section 203(b )(2) of the Act. 
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 (USeIS) may, as matter of discretion 1, grant a national interest waiver if 
the petitioner demonstrates that: 
• 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 determined that the Petitioner established his eligibility as a member of the professions 
holding an advanced degree. 2 The issue on appeal is whether he meets the requirements of the three 
prongs of the Dhanasar analytical framework and otherwise merits a national interest waiver as a 
matter of discretion. 
As a preliminary matter, we will address the Petitioner's assertion that the Director was required to 
issue a request for evidence (RFE) or notice of intent to deny (NOID) prior to issuing a final decision 
in this case. The Petitioner maintains that the Director's failure to do so was contrary to users policy 
and thus constitutes a clear error. 
The regulation at 8 C.F.R. § 103.2(b )(8)(iii), provides that if all required initial evidence has been 
submitted, but the evidence submitted does not establish eligibility, users may deny a benefit request 
for ineligibility, issue an RFE, or issue a NOID. The Director's authority to deny a petition without 
first issuing an RFE or NOID is likewise stated in current users policy guidance. See generally I 
USCIS Policy Manual E.6(F), https://www.uscis.gov/policy-manual (stating that "USCIS has the 
discretion to deny a benefit request without issuing an RFE or NOID"). Therefore, the Petitioner's 
assertions are not persuasive. 
Further, while the Petitioner indicates that an RFE or NOID would have provided an opportunity "to 
cure or clarify any issues by presenting additional evidence," we observe that the Director's decision, 
as required by 8 e.F.R. § 103.3(a)(l)(i), explains the specific reasons for denial and addresses 
evidentiary deficiencies in the record. The Petitioner therefore had adequate notice and opportunity 
to address those deficiencies on appeal. As the Petitioner has neither established that the Director 
committed a procedural error nor submitted new evidence on appeal that the Director should review 
in the first instance, we will not remand the matter to the Director for issuance of an RFE or NOID. 
A. The Proposed Endeavor 
The Petitioner received a bachelor's degree in industrial design in Brazil in 1995. The record reflects 
he has since gained over 20 years of experience as an entrepreneur in the retail flower industry in 
1 See also Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (finding USCTS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
2 The record establishes that the Petitioner holds the foreign equivalent of a bachelor's degree from an institution of higher 
education in the United States, and that he has at least five years of progressive, post-baccalaureate experience in his 
specialty. See 8 C.F.R § 204.5(k)(3). 
2 
I I Brazil, where he served as the founding partner, owner, and CEO of three retail stores between 
1995 and2017. 3 
The Petitioner submitted a professional plan stating his intent to use his expertise and knowledge "in 
the fields of entrepreneurship, business management, business development, operations management, 
procurement management, financial management and strategic management" to "help advance the 
economy in the United States." In describing the proposed endeavor, he indicated he would "provide 
expert service to U.S. companies" particularly "those doing business or planning on expanding their 
business intemationaIIy." 
The Director concluded that the Petitioner did not submit "a detailed description of the proposed 
endeavor" and we agree. The Petitioner did not identify a particular type or size of company he intends 
to target as a provider of "expert service," nor did he indicate in what industry sector or geographic 
region he intends to work. The Petitioner indicated on the Form I-140, Immigrant Petition for Alien 
Worker, that he intends to work in the United States as an entrepreneur and would be responsible for 
planning, directing, or coordinating a company's operational activities. However, he did not state or 
submit evidence that he has established, or has specific plans to establish, his own company in the 
United States, either as a consultant to other businesses, or as a business owner in the retail sector, 
where he has gained all of his work experience to date. 
In addition to submitting his professional plan, the Petitioner provided an "advisory evaluation" of his 
eligibility for a national interest waiver from a professor at I I College's School of Business. 
According to the evaluator, the Petitioner's proposed endeavor will entail starting and growing new 
business ventures in the U.S. retail flower industry, assisting U.S. companies and investors seeking to 
enter the Brazilian and Latin American markets, and attracting Latin American investors to the cross­
border development potential between the United States and Brazil. We may, in our discretion, use 
advisory opinion statements submitted in evidence as expert testimony. However, where such a 
statement is not in accord with other information or is in any way questionable, we are not required to 
accept or may give less weight to that evidence. Matter of Caron Int'!, 19 I&N Dec. 791 (Comm'r 
1988). 
Here, the writer stated that his evaluation, which includes a description of the proposed endeavor, is 
"based on documents provided by [the Petitioner]" but it is evidently not based on the same 
professional plan that the Petitioner provided to USCIS for review. For instance, the Petitioner's 
professional plan does not mention his intent to start new ventures in the retail flower industry or to 
attract Latin American investors to the United States. As we are unable to determine the accuracy or 
reliability of the evaluator's description of the proposed endeavor, our analysis of the endeavor under 
the Dhanasar framework wiII be limited to the information the Petitioner provided in his professional 
plan. 
3 The record indicates that the Petitioner has been residing in the United States since May 2017 and was most recently 
admitted in F-2 nonimmigrant status in July 2018. He does not indicate that he has been employed since re-locating to the 
United States. 
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B. First Prong - Substantial Merit and National Importance 
The first prong of the Dhanasar framework, 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. 
The Petitioner stated in his professional plan that his endeavor will potentially result in: U.S. job 
creation and tax revenue; development of business partnerships; expansion of a company's market 
reach; the negotiation of lucrative contracts and partnerships; new investment opportunities; and 
networking with industry peers, competitors and prospective clients. In support of his claim that his 
proposed endeavor has substantial merit and national importance, he submitted eleven industry reports 
and articles that discuss the importance of entrepreneurship in the U.S. economy, the critical 
contributions of immigrants to America's start-up economy, and the successes of immigrant and first­
generation entrepreneurs who have founded and led Fortune 500 companies. The advisory opinion 
from the I !College professor similarly emphasizes the impact of immigrant entrepreneurs on 
the U.S. economy. He also discusses the Brazilian economy, explains why Brazil is already viewed 
as a major target for expansion for U.S. multinational companies, and states that many more U.S. 
companies are expected to do business in Brazil to take advantage of market opportunities there. 
The Director determined that the evidence was sufficient to established that the Petitioner's proposed 
endeavor has substantial merit but concluded that the Petitioner did not demonstrate that his proposed 
work meets the national importance element of the first prong of the Dhanasar framework. On appeal, 
the Petitioner emphasizes that the proposed endeavor is "national in scope," noting that he has already 
demonstrated "impressive entrepreneurialism," has the skills to "enhance strategic operational, 
marketing and sales management capabilities within the U.S. business environment," and will 
therefore "enhance American competitiveness domestically and internationally." 
The Director acknowledged the Petitioner's assertion that his proposed endeavor will result in job 
creation, increased tax revenue and investment opportunities, but emphasized that he did not identify 
the specific business in which he would be engaged or provide evidence of the economic impact of 
that business or endeavor. Therefore, the Director concluded that he did not show that his proposed 
endeavor would have an impact rising to the level of having national importance or that his work as 
an entrepreneur would have broader implications for businesses in the United States. 
The record supports the Director's conclusions. We stated in Dhanasar 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. The Director correctly determined that, despite mentioning job creation as a 
potential impact of his proposed endeavor, the Petitioner did not provide information and evidence to 
illustrate the number of individuals he expects any proposed new business to hire, train and support. 
He also did not address how his endeavor would have "substantial positive economic effects" based 
on job creation, and whether it would impact an economically depressed region. As the Petitioner did 
not submit a business plan or otherwise specify the type of endeavor he intends to pursue as an 
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entrepreneur in the United States, he did not support his assertion that his endeavor would be "national 
in scope" and capable of "enhancing American competitiveness" on a national and international scale. 
For the reasons discussed, the Petitioner has not demonstrated that his proposed endeavor would be of 
national importance, and he therefore does not meet the requirements of the first prong of the 
Dhanasar analytical framework. The Director, who did not address the second Dhanasar prong, also 
concluded that the Petitioner did not establish that he is eligible under the third Dhanasar prong. While 
the Petitioner address all three prongs in his appellate brief, a discussion of the remaining prongs 
cannot change the outcome of this appeal. Therefore, we reserve those issues and will dismiss the 
appeal.4 
III. CONCLUSION 
Because the Petitioner has not met the required first prong of the Dhanasar analytical framework, we 
conclude that he has not established eligibility for a national interest waiver as a matter of discretion. 
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); see also Matter of L-A-C-, 26 l&N Dec. 516, 526 
n. 7 (BIA 2015) ( declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
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