dismissed EB-2 NIW Case: Entrepreneurship

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: OCT. 19, 2023 In Re: 28458591 
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 although the Petitioner 
was eligible for the EB-2 classification, the record did not establish that he was eligible for, and 
otherwise merited 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 of Chawathe, 25 l&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). 
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 
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 T&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. EB-2 CLASSTFICA TION 
The Petitioner claims to be eligible for the EB-2 immigrant classification as a member of the 
professions holding an advanced degree and as an individual of exceptional ability. In their decision, 
the Director concluded that the Petitioner holds an advanced degree, and therefore qualifies as a 
member of the professions holding an advanced degree. As per the below discussion, we withdraw 
the Director's conclusion. 
The Petitioner submitted the following evidence related to his education: 
• Certificate of completion ofl Ipostgraduate course, MBA in Business Management, 
University! lJune 11, 2021 
• Transcripts for the above certificate, showing that the Petitioner completed 11 classes during 
the period from August 7, 2020 to May 20, 2021 
• Title of Technologist in Industrial Production diploma,! !University, March 9, 2015 
• Bachelor of Theology diploma,! IJanuary 12, 2018 
• Transcripts for the above diploma, showing that the Petitioner completed 11 courses from 
November 2016 to August 21, 2017 
• Certificate for completion of Religious Science course, Educational Societ~ IJune 
4,2021 
• Transcripts for the above certificate, indicating that the Petitioner completed 6 courses from 
November 4, 2020 to February 26, 2021 
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). 
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). 
2 
• Certificate for completion of Theology course,I I December l0, 2016 
• First education evaluation (initially submitted)] Idated September 
28, 2021, concluding that the Petitioner has the equivalent of 3 years of study m an 
undergraduate program in theology from an accredited university in the United States 
• Second education evaluation ( submitted in response to RFE),.__ ________ ____. dated 
September 28, 2021, concluding that the Petitioner has the equivalent of a Master's degree in 
Business Management from an accredited university in the U,....n_it'""'e--'-d'--S"'"t"""a"'-te'-'s'---------, 
• Third education evaluation (submitted in response to NOID),.__ ________ __. dated 
January 28, 2023, concluding that the Petitioner has the equivalent of a Master's degree in 
Business Management from an accredited university in the United States 
The first educational evaluation focused only on the Petitioner's bachelor's degree in theology from 
the I I Despite not mentioning the Petitioner's certificate from the 
I I it appears to have incorporated that certificate in the evaluation, as it concludes that 
he has the equivalent of three years of undergraduate study in theology from a regionally accredited 
university in the United States. Nevertheless, this evidence does not demonstrate that the Petitioner 
holds the equivalent of a United States bachelor's degree. 
In responding to the Director's RFE, the Petitioner submitted the second education evaluation, which 
appears to be a different evaluation issued by the same evaluator on the same date as the first. 
However, this second evaluation reaches conflicting conclusions regarding the equivalency of the 
Petitioner's education. It contains several discrepancies which render it meaningless, including the 
following: 
• The header section includes the same conclusion as the previously submitted evaluation, while 
the summary section states that the Petitioner holds the equivalent of a master's degree in 
business management from an accredited U.S. university 
• The awarding institution is listed as I Inot University._ !_____,
I lwhich issued the Petitioner's latu sensu in MBA in business management 
• The evaluation states that completion of this degree grants access to "further undergraduate 
programs," belying the conclusion in the summary that the degree is equivalent to a master's 
degree 
• The overview section discusses the 3-year Titulo de Bacharel degree issued in Brazil, not the 
latu sensu diploma referred to in the summary 
It is the Petitioner's burden to resolve these discrepancies in the record with independent, objective 
evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Here, 
although the Director made no mention of the discrepancies in the second evaluation when issuing the 
NOID, the Petitioner submitted the third evaluation from the same evaluator with his response, dated 
January 28, 2023. While this version lacks most of the discrepancies from the second evaluation, the 
overview section continues to discuss the Titulo de Bacharel degree, not the latu sensu diploma of MBA 
in business management that is referred to in the remainder of the evaluation. So this third evaluation 
does not resolve all of the discrepancies in the second evaluation, nor does it include an analysis of the 
credential which it states was evaluated. Due to the remaining discrepancy and the lack of analysis of the 
Petitioner's educational credentials, we will not afford the educational evaluations any weight in 
determining the Petitioner's eligibility. 
3 
The transcripts for the Petitioner's latu sensu diploma in MBA in business management show that he 
attended courses for one academic year, although it is not clear whether this was full time or part time 
study.4 Nor is it clear which of the Petitioner's previous diplomas were considered to meet entry 
requirements for this program, as the transcripts do not include this information. Regarding his 
theological education, even if we assume that the Petitioner's claimed two years of study in theology 
at theI I were accepted for entry into I Iwhich is not 
apparent from the record, the bachelor's degree from that institution was awarded after only one 
additional year of study. In order to have education and experience equating to an advanced degree 
under section 203(b )(2) of the Act, the Petitioner must have a single degree that is the "foreign 
equivalent degree" to a United States baccalaureate degree (plus five years of progressive experience 
in the specialty). See 8 C.F.R. § 204.5(k)(2). A United States baccalaureate degree is generally found 
to require four years of education. See Matter ofShah, 17 I&N Dec. 244, 245 (Reg'l Comm'r 1977). 
There is no provision in the statute or the regulations that would allow a petitioner to qualify under 
section 203(b )(2) of the Act as a member of the professions holding an advanced degree with anything 
less than a full baccalaureate degree (plus five years of progressive experience in the specialty). 5 
Based on the information contained in the record, we conclude that the Petitioner has not met his 
burden to establish the U.S. equivalency of his foreign education in accordance with 8 C.F.R. § 
204.5(k)(3)(i)(B). 
In addition, we reviewed the AACRAO EDGE database to determine whether the Petitioner's foreign 
education is comparable to any U.S. degree. The AACRAO EDGE database is a reliable resource 
concerning the U.S. equivalencies of foreign education. See generally American Association of 
Collegiate Registrars and Admissions Officers, Electronic Database for Global Education, 
https://www.aacrao.org/edge (last visited October 18, 2023). It contains extensive information 
regarding the Brazilian educational system, including latu sensu certificates. The database states that 
lato sensu programs are for professional development and specialization, and lead toward professional 
certificates instead of graduate degrees. In addition, it states that a three-year Titulo de Bacharel 
degree is the equivalent of three years of undergraduate study in the United States, whereas diplomas 
awarded after four of five years of study are equivalent to a bachelor's degree in the United States. As 
discussed above, the Petitioner has not established that he completed at least four years of study 
towards his Bachelor of Theology degree. Therefore, the information from the EDGE database, 
together with the discussion above, shows that the Petitioner does not hold a degree that is the foreign 
equivalent of a baccalaureate degree from an accredited university in the United States. 
As the Petitioner has not established that he has the foreign equivalent of a United States baccalaureate 
degree, he is not eligible as an advanced degree professional, and we withdraw that portion of the 
Director's decision. He also claimed eligibility for the EB-2 immigrant classification as an individual 
of exceptional ability. However, because we conclude that he 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 
I I
4 
4 The record indicates that the Petitioner was attending courses at the University and the Educational 
Societ~ lat the same time. The Petitioner also states on his resume and on Form ETA-7508 that he was working 
full time through most of this period. 
5 We further note that even if either the Petitioner's bachelor's of theology degree or his latu sensu in MBA in business 
management were equivalent to a United States baccalaureate degree, there would not have been sufficient time between 
the award of either degree and the filing of his petition for him to have earned five years of progressive, post-degree 
experience in his specialty. 
hereby reserve the issue of his eligibility as an individual of exceptional ability. 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 ofL-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). 
III. NATIONAL INTEREST W AIYER 
In the Petitioner's initial 
statement, he proposed to start his own business which would offer electronic 
document management services to small and medium-sized companies in the I I Florida area. 
Although his RFE response offered conflicting references to "high-level consulting services" and 
financial management consulting, in addition to the hiring for a confusing array of unrelated job titles 
("sales representative - housewares from Brazil" was just one example), the Petitioner returned to the 
original description of his proposed endeavor in responding to the Director's NOID. 
A. Substantial Merit and National Importance 
The first prong of the Dhanasar analytical 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 Director did not include in their decision a determination of whether the Petitioner's proposed 
endeavor is of substantial merit, but did mention in their RFE and NOID that this requirement had 
been met. Based upon the evidence regarding the economic importance of small businesses such as 
the Petitioner's proposed business and its proposed clients, the record is sufficient to show that the 
proposed endeavor would be of substantial merit in the areas of business and entrepreneurialism. 
Turning to the national importance of the proposed endeavor, the Director determined that the expert 
letter and business plan submitted by the Petitioner were insufficient to show that the Petitioner's 
proposed business would have a significant potential to employ U.S. workers, as they discussed the 
employment of only three workers in addition to him. Nor did they show that the proposed endeavor 
would have substantial positive economic effects beyond those few employees and the potential clients 
it would serve. 
On appeal, the Petitioner refers several times to the expert opinion letter he submitted. His first such 
reference is to a section of the letter which mainly discusses his work experience, but which also 
includes the writer's conclusory statement that the Petitioner's "work is sought after and has national 
importance in the service outsourcing and marketing industry." Such a statement, without explanation 
as to why the expert believes that the proposed endeavor is of national importance, carries little 
evidentiary weight. In addition, the discussion of the Petitioner's work experience is not relevant to 
his proposed endeavor's national importance, but is one consideration when determining whether he 
is well positioned to advance that endeavor under the Dhanasar framework's second prong. 
5 
The second section of the expert opinion letter that the Petitioner focuses on in his brief includes 
another conclusory statement regarding the proposed endeavor's national importance, then goes on to 
describe the role of operations managers in general as an explanation. But it is the Petitioner's specific 
proposed endeavor that must be shown to be of national importance, not that of an industry, or an 
occupation across all industries. See Dhanasar at 889. This statement does not show why the 
Petitioner's proposed work as the general manager of an electronic document management business 
would have broader implications for his field or the industry in which he proposes to operate. 
Later in his brief: the Petitioner points to the first paragraph of the expert opinion letter, wherein the 
writer opines: 
In addition, he is well qualified to teach business concepts to aspiring entrepreneurs 
and business professionals. It will reach a wider audience by offering seminars, 
lectures, courses or classes with the aim of transmitting information and disseminating 
its services with the aim of reaching potential future entrepreneurs. 
However, nowhere in the Petitioner's description of his proposed endeavor does he state that he intends 
to teach classes or seminars on business concepts. It is therefore not apparent to whom the writer is 
referring, or how this section of the letter is relevant to the national importance of the specific endeavor 
proposed by the Petitioner. 
The Petitioner also argues on appeal that the Dhanasar framework does not set out a minimum level 
of job creation when discussing the national importance of an endeavor "that has significant potential 
to employ U.S. workers or has other substantial positive economic effects, particularly in a depressed 
area." Dhanasar at 890. While the decision does not set forth a specific minimum amount of job 
creation that a petitioner would need to establish national importance, it does indicate that any positive 
economic effects must be "substantial." We agree with the Director's conclusion that the record does 
not establish that the potential creation of three relatively unskilled jobs is sufficient to constitute a 
substantial positive economic effect. Nor are the Petitioner's vague mentions of indirect job creation 
and revenue generation. 
The Petitioner also points to his business plan and statement as supporting the national importance of 
his proposed endeavor. But that business plan includes the same type of inconsistencies found in the 
Petitioner's statement in his RFE response. For example, in the section discussing the legal form of 
the Petitioner's proposed business, it describes the business as a financial analysis and bookkeeping 
office. Further, the business plan later describes the range of services to be provided by the business, 
including operational consulting, human resources services, sales services, and the organization of 
sales events. As the plan's revenue projections are based upon a company offering these services, as 
opposed to the electronic document management services briefly described in the Petitioner's initial 
statement and NOID response, they are not relevant in showing that the Petitioner's specific proposed 
endeavor would have a substantial positive economic effect, or would otherwise have a broader impact 
in the field of general management or the outsource services industry. 
For all of the reasons discussed above, the Petitioner has not established that his proposed endeavor is 
of national importance. He therefore does not meet the first prong of the Dhanasar analytical 
framework. 
6 
III. CONCLUSION 
The Petitioner also argues on appeal that he meets Dhanasar's second and third prongs by showing 
that he 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 he does not meet the first prong of 
the Dhanasar analytical framework, he has not established his eligibility for a national interest waiver. 
As this is dispositive of the Petitioner's appeal, we decline to reach and hereby reserve the issue of his 
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. 
7