dismissed EB-2 NIW Case: Entrepreneurship

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAR. 21, 2024 In Re: 30338728 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an entrepreneur, seeks classification as an advanced degree professional. Immigration 
and Nationality Act (the Act) section 203(b)(2) , 8 U.S.C. § l 153(b)(2). The Petitioner also seeks a 
national interest waiver of the job offer requirement that is attached to this EB-2 immigrant 
classification. See section 203(b )(2)(B)(i) of the Act. U.S. Citizenship and Immigration Services 
(USCIS) may grant this discretionary waiver of the required job offer, and thus of a labor certification, 
when it is in the national interest to do so. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish either the Petitioner 's qualification as an advanced degree professional or that a waiver of 
the job offer requirement is in the national interest. 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 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 immigrant classification
, as either a member of the professions holding an 
advanced degree 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 at least five years of progressive experience in the specialty is the equivalent of a 
master's degree. 8 C.F.R. § 204.5(k)(2). "Exceptional ability" means a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business. Id. 
Once a petitioner demonstrates eligibility as either an advanced degree professional or an individual 
of exceptional ability, the petitioner must then establish eligibility for a discretionary waiver of the job 
offer requirement "in the national interest." Section 203(b )(2)(B)(i) of the Act. While neither 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 USCIS may, as a 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 concluded that the 
record does not demonstrate that the Petitioner qualifies for the EB-2 
classification. The Director also concluded that the record does not demonstrate the national 
importance of the proposed endeavor, that the Petitioner is well-positioned to advance it, or that, on 
balance, waiving the job offer requirement would benefit the United States. The Petitioner proposes 
to work as an entrepreneur, developing and selling an ice cream product that she describes as "a guilt­
free dessert option" that is high in protein and low in sugar. 
A. The Petitioner's Qualification for the EB-2 Classification 
The Petitioner claims to qualify for the EB-2 classification as an advanced degree professional, based 
upon obtaining a bachelor's degree followed by at least five years of progressive experience in the 
specialty. 8 C.F.R. § 204.5(k)(2). The Director concluded that although the Petitioner obtained a 
bachelor's degree,2 she did not demonstrate five years of post-baccalaureate experience in the 
specialty. 
To document her work history, the Petitioner submitted letters from four prior employers. The letters 
reflect that the Petitioner was employed as follows: 
• As a pastry chef from January 19, 2017 to February 28, 2018 (approximately 13 months) 
• As a hostess and then senior hostess at a restaurant from March 24, 2018 to January 28, 2019 
( approximately 10 months) 
• As a restaurant operations manager from March 20, 2020 to February 28, 2021 (approximately 
11 months) 
• As a chief of operations for a bakery shop from March 1, 2021 to February 28, 2022 
(approximately 1 year) 
1 See also Flores v. Garland. 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts (and 
the Third in an unpublished decision) in concluding that USCTS' decision to grant or deny a national interest waiver is 
discretionary in nature). 
2 The record shows that the Petitioner obtained a bachelor's degree from the in hotel and restaurant 
management in 2016. 
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Additionally, the Petitioner claims that she operated a business making and selling ice cream from 
September 2018 to March 2020. In a statement, the Petitioner states that she tested and developed a 
low-sugar, high-protein ice cream recipe and obtained lab testing to confirm the nutritional content 
and safety of the product. The Petitioner states that she established relationships with several 
restaurants, cafes, and other retail points inl IPeru to sell her ice cream. 
The Director concluded that, although the letters indicate that the Petitioner "was employed from 
January 2017 to present in various positions," the evidence did not demonstrate that the Petitioner 
obtained five years of "progressive" experience in the specialty as "demonstrated by advancing levels 
ofresponsibility and knowledge." The Director specifically cited to the Petitioner's employment as a 
restaurant hostess as not being progressive in nature. The Director also noted that the Petitioner's 
endeavor is to be an entrepreneur operating an ice cream business, but that the letters did not 
demonstrate the Petitioner has experience in entrepreneurialism. 
On appeal, the Petitioner asserts that the Director did not carefully review the evidence in the record. 
The Petitioner contends that she does have entrepreneurial experience, based upon operating her 
business in Peru. Additionally, the Petitioner notes that the Director, when listing in the decision the 
employment letters summitted, did not include one of the employment letters in this list. The Petitioner 
also notes a typographical error in the decision's list of employment letters, specifically that the 
decision provides the translator's name in place of the letter writer's name in two instances. 
Despite the typographical error and the omission of one of the letters from the list in the decision, we 
conclude that the Petitioner has not established sufficient legal or factual error in the Director's 
decision. Although the decision omits one of the employment letters initially submitted, the decision 
does list another letter from the same employer, representing the same period of employment, that was 
submitted in response to the request for evidence (RFE). Therefore, the Director presumably did 
consider this period of employment in their decision. Additionally, the use of the translator's name 
appears to be a typographical error that is, at most, harmless. See generally Matter of O-R-E-, 
28 I&N Dec. 330, 350 n.5 (BIA 2021) (citing cases regarding harmless or scrivener's errors). The 
Petitioner has not established that this typographical error resulted in the Director not considering the 
substance of the evidence. 
Moreover, we agree with the Director that the Petitioner has not established that she possesses five 
years of progressive experience in the specialty. Although working as a restaurant hostess relates to 
the food service industry generally, the record does not establish how experience as a hostess 
represents additional progressive experience related to the specialty of manufacturing and selling ice 
cream. We further note that the employment letters, taken together, establish less than four years of 
experience. Although the Petitioner claims that she has additional experience operating a business, 
upon de novo review, we conclude that the Petitioner did not submit sufficient evidence to establish 
this claim. The Petitioner submitted only her own statement, affidavit, and a copy of her resume to 
demonstrate this period of self-employment. The Petitioner did not submit independent, documentary 
evidence to support her claims about operating this business, such as business registration 
documentation, evidence of sales, invoices, tax returns, or letters from employees or business partners 
regarding her job duties that would support her statements about operating a business. Additionally, 
the employment dates on the Petitioner's resume overlap with other employment, creating a lack of 
clarity as to when the Petitioner began operating the business. Finally, the Petitioner's statement and 
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affidavit lack sufficient details regarding the Petitioner's business operations and the specific duties 
that the Petitioner performed. We conclude that, without additional relevant, probative, and credible 
evidence, the Petitioner has not met her burden of proof to demonstrate her qualifying progressive 
experience in the specialty. See Matter of Chawathe, 25 I&N Dec. at 376. 
Because the Petitioner has not demonstrated that she possesses at least five years of post-baccalaureate 
progressive experience, the Petitioner does not qualify as an advanced degree professional. Having 
determined that the Petitioner does not qualify as an advanced degree professional, we conclude that 
the Petitioner has not demonstrated eligibility for the underlying EB-2 classification. 
B. The Petitioner's Eligibility for a National Interest Waiver 
The next issue is whether the Petitioner has established that a waiver of the classification's job offer 
requirement is in the national interest. Because the Petitioner has not established that she meets the 
threshold requirement of eligibility for the underlying EB-2 classification, we need not address whether 
she is eligible for, and merits as a matter of discretion, a waiver of that classification's job offer 
requirement. 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 I&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach alternative issues on 
appeal where the applicant is otherwise ineligible). 
III. CONCLUSION 
The Petitioner has not established 
that she satisfies the regulatory requirements for classification as a 
member of the professions holding an advanced degree. 8 C.F.R. §§ 204.5(g)(l), (k)(2). Because the 
Petitioner has not demonstrated eligibility for the underlying EB-2 immigrant classification, we 
conclude that the Petitioner is not eligible for a national interest waiver. We reserve our opinion 
regarding whether the Petitioner has satisfied any of the three prongs of the Dhanasar analytical 
framework. 
ORDER: The appeal is dismissed. 
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