dismissed EB-2 NIW Case: Entrepreneurship

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAR. 07, 2024 In Re: 29045461 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (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 the record did not 
establish that the Petitioner merited a national interest waiver as a matter of discretion. The matter is 
now before us on appeal pursuant to 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 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. Section 203(b )(2)(B)(i) 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 (USCIS) 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 Petitioner is an entrepreneur who owned and managed small businesses with her husband in 
Brazil, 
including an eyewear store. She proposes to operate a company domiciled in the United States, 
~-----------___.which will sell prescription and nonprescription eyewear, initially 
only through a website. 2 The Petitioner states that the company's products would be sold at 
independent accessory shops and national chains "in the future." 
The Director concluded that the Petitioner established her eligibility for the EB-2 immigrant 
classification as a member of the professions holding an advanced degree. So the sole issue on appeal 
is whether she merits a national interest waiver as a matter of discretion. Per the analysis below, we 
conclude that she does not. 
The first prong of the Dhanasar analytical framework, concerning the substantial merit and national 
importance of the proposed endeavor, 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 Director determined that the Petitioner's proposed endeavor is of substantial merit, but did not 
provide an analysis explaining this conclusion. Included in the record are articles from several 
websites concerning the economic impact of small businesses and online retail, as well as the eyewear 
industry and trends. We conclude that this evidence is sufficient to establish the substantial merit of 
the Petitioner's proposed endeavor in the field of entrepreneurialism. 
When considering the second part of the Dhanasar framework's first prong, the national importance 
of the proposed endeavor, the Director noted that the Petitioner focused on her own work experience 
and background rather than the proposed endeavor. In addition, the Director determined that the 
record did not include sufficient evidence regarding the substantial positive economic effects I 
would have on the U.S. economy, which is one of the factors highlighted in Dhanasar. Id. at 890. 
On appeal, the Petitioner initially asserts that the Director did not adequately consider the articles and 
reports she submitted, orl Ibusiness plan. She states that the articles show the importance of 
1 Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts (and Third in an 
unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver is discretionary in 
nature). 
2 We note that the record includes conflicting statements, including within the business plan, about whether the Petitioner's 
company would sell prescription eyewear or glasses meant only as fashion accessories. 
2 
I 
small businesses such as hers, and that the business plan demonstrates her endeavor's significant 
potential to employ U.S. workers. Regarding the Petitioner's first point, we acknowledge the 
importance of the combined effect that small businesses have on the national economy. But in 
evaluating the national importance of a petitioner's proposed endeavor, we do not consider the impact 
of the industry, field, or economic sector in which they propose to engage. Rather, we focus on the 
specific proposed endeavor, which in this case is a srgle smill business that will sell eyewear. Id. at 
889. So the articles and reports, which do not discuss in particular, do not support the national 
importance of the Petitioner's proposed endeavor. 
As for the potential economic impact of her proposed endeavor, the Petitioner asserts on appeal that it 
will "create jobs and help the United States economy." Although she does not get into specifics in her 
brief: the business plan for I I includes projections for job creation. In a section titled 
"Organizational Structure," the business plan notes that in addition to the Petitioner and her husband, 
the company would employ nine individuals "as soon as we start up this business plan." An 
organizational chart shows positions encompassing a commercial manager, financial manager 
commercial, two assistant managers and their assistants, buyer, invoice, marketing design, inventory 
responsible, and eyewear consultant. Descriptions of the duties for these positions are not provided, 
nor is the need for these positions explained. However, later on in the "Personnel" section, the plan 
states that "personnel requirements will be minimal to begin with," and indicates that any labor needed 
for receiving or shipping would be contracted, while other functions would be filled with part-time 
employees at minimal wages. In Dhanasar, we noted that an endeavor that has "significant potential 
to employ U.S. workers" could very well have national importance. Id. These conflicting statements 
in I !business plan undermine the Petitioner's claim that its potential for job creation show 
her endeavor's national importance. 
The Petitioner also states in her appeal that her "particular field of endeavor has national implications," 
and goes on to cite to statistics about the size of the global eyewear market. She also refers to "several 
articles that supported substantial positive economic effects" without identifying specific articles or 
passages from those articles. But statistics about the global eyewear industry and articles about online 
shopping and small businesses do not show how the Petitioner's specific proposed endeavor of owning 
and operating I I would be of national importance. 
With her appeal, the Petitioner submits new evidence, including letters from individuals who state that 
they have purchased glasses from her. She asserts that these letters demonstrate how her proposed 
endeavor "has already impacted the live [sic] of her clients and therefore, the local community." 
Where a petitioner has been put on notice of a deficiency in the evidence and has been given an 
opportunity to respond to that deficiency, the AAO will not accept evidence offered for the first time 
on appeal. Matter ofSoriano, 19 I&N Dec. 764 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533 
(BIA 1988). In this case, the Director issued a request for evidence (RFE) seeking further 
documentation regarding the national importance of the Petitioner's proposed endeavor, and the 
Petitioner submitted a timely response. So these letters, and the other evidence submitted with the 
appeal, will not be considered. 
The Petitioner also submitted reference letters with her initial filing, and in response to the Director's 
RFE. For example, Dr.~----------~describes in her letter how she has been a client 
3 
of the Petitioner for years and is pleased with the eyeglass service she provides. 3 Dr.I I opines 
that the Petitioner will impact the lives of her customers in the U.S. "through visual comfort, where 
more people will meet their ophthalmological needs with multifocal lenses, increasing the selling of 
these products and moving the U.S. economy." Similarly, Professor.__ ________ ____.writes 
in his letter that the Petitioner's proposed endeavor "is of great value to move the optical market, with 
her enterprise of qualified and differentiated professionals to help the visual health of the population 
of the United States." While these letters show that the Petitioner's clients and former co-workers 
think highly of her, their claims of her proposed endeavor's prospective economic benefit to the U.S. 
economy are not supported in the record. The business plan for I I includes projections of its 
sales and net profits in its first two years of operation, but does not establish that these figures represent 
a substantial positive economic effect that would extend beyond the Petitioner and her husband to be 
of national importance. 
Per the discussion above, the Petitioner has not established that her proposed endeavor is of national 
importance. She has therefore not demonstrated that she meets the requirements of the first prong of 
the Dhanasar analytical framework. 
III. CONCLUSION 
A petitioner must meet all three prongs of the Dhanasar analytical framework in order to establish 
their eligibility for a national interest waiver. Since the identified basis for denial is dispositive of the 
Petitioner's appeal, we decline to reach and hereby reserve the Petitioner's appellate arguments 
regarding the second and third prongs of the framework. See INS v. Bagamasbad, 429 U.S. 24, 25 
(1976) (stating that agencies are not required to make "purely advisory findings" on issues that are 
unnecessary to the ultimate decision); see also Matter of L-A-C-, 26 T&N Dec. 516, 526 n.7 (BIA 
2015) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
ORDER: The appeal is dismissed. 
3 All of the reference letters already in the record have been reviewed and considered, including those not directly 
mentioned in this decision. 
4