dismissed EB-2 NIW Case: Entrepreneurship

U.S. Citizenship 
and Immigration 
Services 
In Re: 23607658 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: DEC. 12, 2022 
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 Nebraska 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. 
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 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. 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. 
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. 
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) 
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. USCIS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
2 
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 Director concluded that the Petitioner qualifies as a member of the professions holding an 
advanced degree. 4 Accordingly, the remaining issue to be determined on appeal 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. 
The first prong relates to substantial merit and national importance of the specific proposed endeavor. 
Dhanasar, 26 I&N Dec. at 889. The Petitioner initially provided a "Professional Plan & Statement" 
indicating: 
I intend to continue using my experience and knowledge in the fields of entrepreneurship, 
social entrepreneurship, business management, business development, operations 
management, and strategic management by working as an Entrepreneur in the U.S ..... 
My career plan in the United States is to continue my career working as an Entrepreneur, 
to advise U.S. agribusiness companies on how to properly plan, start, fund, establish and 
direct the operation of their business ventures .... 
In response to the Director's RFE, the Petitioner submitted a "Definitive Statement" reflecting: 
I intend to continue using my expertise and knowledge, gained through my over 25 years 
of professional experience, to work as an Entrepreneur and contribute to the U.S. 
economy, and its societal welfare, through the development and expansion of my 
company based out of the in state of Florida. 
I'll be able to contribute to the Health and Fitness industry and also change the interface 
of working out all over the US. I will generate jobs for U.S. workers across underserved 
U.S. regions, as well as create continuous, significant, and profitable opportunities for the 
national economy .... 
The Director determined that the Petitioner demonstrated the proposed endeavor's substantial merit but 
not its national importance. On appeal, the Petitioner states that he "intends to continue his career in 
the United States as an Entrepreneur, which capacity he will contribute to the U.S. economy, and its 
social welfare, through the development and expansion of his company, I I As 
3 See Dhanasar, 26 T&N Dec. at 888-91, for elaboration on these three prongs. 
4 Although not indicated in the decision, the Director informed the Petitioner in the request for evidence (RFE), that he 
qualifies as a member of the professions holding an advanced degree; and therefore, did not need to evaluate whether he 
also qualified as an individual of exceptional ability. 
3 
indicated, the Petitioner initially claimed that he intended "to continue [his] career working as an 
Entrepreneur, to advise U.S. agribusiness companies." However, in response to the Director's RFE, the 
Petitioner asserted that he intended to create a new business, I I and submitted a business 
plan. 5 The Petitioner must establish that all eligibility requirements for the immigration benefit have been 
satisfied from the time filing and continuing through adjudication. See 8 C.F.R. § 103.2(b)(l). In fact, 
the appeal brief states that "[i]nl I 2021, [the Petitioner] founded his new company,! I 
and the petition was filed in April 2019. Moreover, a petition cannot be approved at a future 
date after the petitioner becomes eligible under a new set of facts. Matter of Izummi, 22 I&N Dec. 169, 
175 (Comm'r 1988). That decision further provides, citing Matter of Bardouille, 18 I&N Dec. 114 (BIA 
1981 ), that USCIS cannot "consider facts that come into being only subsequent to the filing of a petition." 
Id. at 176. Accordingly, we will not consider the Petitioner's materially changed proposed endeavor of 
creating I I 
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 
foreign national proposes to undertake." See Dhanasar, 26 I&N Dec. at 889. Although in his RFE 
response he provided evidence relating to the impact of the coronavirus on small businesses, the 
importance of small businesses, and the positive effects of immigrants on the economy, the Petitioner 
must demonstrate the national importance of his specific, proposed endeavor rather than the 
importance of small businesses and immigrants to the U.S. economy. In Dhanasar, we 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 addition, the Petitioner stresses his "twenty-five (25) years of progressive experience in the business 
field." The Petitioner's experience and abilities 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. 
Moreover, 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. The 
Petitioner did not offer specific information and evidence to corroborate his assertions that the 
prospective impact of continuing his work as an entrepreneur and advising agribusiness companies 
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, the record does not show through supporting documentation 
how his entrepreneurship/agribusiness consulting stands to sufficiently extend beyond the businesses 
that might employ him, to impact the industry or the U.S. economy more broadly at a level 
commensurate with national importance. 
5 The Petitioner's "Professional Plan & Statement" made no mention of and his resume does not show any 
involvement with this business at initial filing. 
4 
Finally, the Petitioner did not show that his initial proposed endeavor has significant potential to 
employ U.S. workers or otherwise offers substantial positive economic effects for our nation. Without 
evidence regarding any projected U.S. economic impact or job creation attributable to his future work, 
the record does not show any benefits to the U.S. regional or national economy resulting from his 
entrepreneur or agribusiness position would reach the level of "substantial positive economic effects" 
contemplated by Dhanasar. Id. at 890. 
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. 6 
III. CONCLUSION 
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, we conclude 
that he has not demonstrated that 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. 
6 See INS v. Bagamasbad, 429 U.S. 24. 25 (1976) (stating that ·'courts and agencies are not required to make findings on 
issues in the decision of which is unnecessary to the results they reach"); see also Matter ofL-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). 
5