dismissed EB-2 NIW Case: Entrepreneurship

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: OCT. 16, 2023 In Re: 28467041 
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 and/or an individual of 
exceptional ability, 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 is eligible for, and merits as a matter of discretion, 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 
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). 
Exceptional ability means a degree of expertise significantly above that ordinarily encountered in the 
sciences, arts, or business. 8 C.F.R. § 204.5(k)(2). A petitioner must initially submit documentation 
that satisfies at least three of six categories of evidence. 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F) . 1 Meeting 
1 If these types of evidence do not readily apply to the individual's occupation, a petitioner may submit comparable 
evidence to establish their eligibility. 8 C.F.R. § 204.5(k)(3)(iii) . 
at least three criteria, however, does not, in and of itself, establish eligibility for this classification. 2 If 
a petitioner does so, we will then conduct a final merits determination to decide whether the evidence 
in its totality shows that they are recognized as having a degree of expertise significantly above that 
ordinarily encountered in the field. 
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 3, 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 
As stated above, in order 
to be eligible for a national interest waiver, a petitioner must establish that 
they are eligible for the EB-2 classification, either as a member of the professions holding an advanced 
degree or as an individual of exceptional ability. The Director did not include a determination of the 
Petitioner's eligibility for the EB-2 classification in their decision. However, because we conclude 
that she is not eligible for, and does not merit, a national interest waiver, and this is dispositive of the 
Petitioner's appeal, we decline to reach and hereby reserve the issue of her eligibility for the EB-2 
classification. 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 an applicant is otherwise ineligible). 
In part because the Petitioner did not clearly articulate the nature of her proposed endeavor in her 
initial filing, the Director issued a request for evidence (RFE) seeking further information and 
evidence. Her response to the RFE included a business plan in which the Petitioner indicated that she 
would be the majority owner and general manager for a franchise. For 
the first time on appeal, she submits a business plan for a different enterprise,.__ ____. for which 
she would serve as chief executive officer and lead marketing consultant. But a petitioner may not 
make material changes to a petition in an effort to make a deficient petition conform to USCIS 
requirements. See Matter ofIzummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). As the nature of 
the proposed endeavor is the sole focus of the first prong of the Dhanasar analytical framework, it is 
material to eligibility for a national interest waiver. In addition, a petitioner must meet eligibility 
requirements for the requested benefit at the time of filing the petition. 8 C.F.R. § 103 .2(b)(1 ). The 
Petitioner's business plan for I I dated after her petition was denied, cannot retroactively 
2 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of aliens of 
exceptional ability. 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5. 
3 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 discretionmy in nature). 
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establish eligibility. Accordingly, we will not consider the Petitioner's new proposed endeavor on 
appeal, but will base our determination of her eligibility on the business plan and other supporting 
evidence in the record initially and submitted in response to the RFE. 
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. 
The Director determined that the Petitioner's proposed endeavor, serving as the majority owner and 
general manager for al Ifranchise, was not of substantial merit or of national importance. On 
appeal, the Petitioner does not address the decision's conclusion regarding substantial merit, or provide 
arguments in favor of the substantial merit of her planned work for this company. While we note that 
the business plan projects the hiring of employees and sales at a certain level, the record does not 
include evidence showing that the Petitioner's ownership and operation of this franchise would be of 
substantial merit in the areas of entrepreneurial ism or business. 
Turning to the national importance of the proposed endeavor, the Director noted that the initial 
evidence was devoid of a detailed description of the endeavor. They concluded that the RFE response 
did not show that the proposed endeavor has national or global implications within the field of 
business, or that it has a significant potential to employ United States workers or will have other 
substantial positive economic effects. 
In her appeal, the Petitioner bases her arguments on the business plan forl Inot the plan she 
initially submitted forl IShe makes assertions concerning the importance of small businesses in 
general, discusses her experience in sales and marketing positions, and then claims thatl lwill 
employ 15 workers and create a total of 48 new jobs. But these same arguments may be considered 
with relation to the evidence aboutc=J For instance, whether the Petitioner's endeavor employs 
15 workers or the 6 claimed forc=]"ilie Petitioner has not demonstrated that that proposed level of 
employment would constitute a significant potential to employ U.S. workers as envisioned in 
Dhanasar. Dhanasar at 890. The Petitioner does not suggest that her proposed business location lies 
within an economically depressed area, a potentially influential factor noted in Dhanasar. We also 
note that the projected employment figures presented in the c=]business plan are not supported by 
relevant data or analysis. Further, while the Petitioner's work experience in sales and marketing, as 
well as entrepreneurship, may be considered when determining whether she is well positioned to 
advance her proposed endeavor under the second prong of the Dhanasar analytical framework, these 
factors are not relevant to whether her proposed endeavor is of national importance. 
The Petitioner also focuses on the importance of the marketing and management consulting industry, 
similar to her focus on the economic impact of the pet care industry in her I I business plan. 
However, it is the Petitioner's specific proposed endeavor that is the focus of the first prong of the 
Dhanasar analytical framework, not the broader industry or field in which it will operate. The 
Petitioner has not shown that her planned ownership and management of a pet food and grooming 
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franchise would have substantial positive economic effects, or would have national or even global 
implications within that industry. 
For all of the reasons discussed above, the Petitioner has not established that her proposed endeavor 
is of substantial merit and national importance. She therefore does not meet the first prong of the 
Dhanasar analytical framework. 
III. CONCLUSION 
The Petitioner also argues on appeal that she meets Dhanasar's second and third prongs by showing 
that she is well positioned to advance her proposed endeavor and that, on balance, a waiver of the job 
offer requirement would be in the national interest. However, as she does not meet the first prong of 
the Dhanasar analytical framework, she has not established her eligibility. As this is dispositive of the 
Petitioner's appeal, we decline to reach and hereby reserve the issue of her eligibility for the remaining 
prongs. See Bagamasbad, 429 U.S. at 25; see also Matter ofL-A-C-, 26 I&N Dec. at 526 n.7. 
ORDER: The appeal is dismissed. 
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