dismissed EB-2 NIW Case: Food Distribution

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAY 24, 2024 In Re: 31137531 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner is a general operations manager who intends to own and operate I aa virtual 
specialty food distribution market. She seeks employment-based second preference (EB-2) immigrant 
classification as a member of the professions holding an advanced degree or an individual of 
exceptional ability in the sciences, arts, or business, 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 
established that she qualifies for the underlying EB-2 visa classification as an individual holding an 
advanced degree, 1 she did not establish that a waiver of the required job offer, and thus of the labor 
certification, would be in the national interest. Applying the three-prong analytical framework set 
forth in Matter of Dhanasar , 26 I&N Dec. 884, 889 (AAO 2016), the Director concluded that the 
Petitioner: (1) did not establish that her endeavor has national importance,2 (2) did not demonstrate 
that she is well-positioned to advance the endeavor, and (3) did not show that on balance, waiving the 
job offer requirement would benefit the United States. Id. 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 because the Petitioner did not establish that her specific proposed endeavor 
has national importance and thus, she did not meet the national importance requirement of the first 
prong of the Dhanasar framework. Because 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 two remaining Dhanasar prongs. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) 
("courts and agencies are not required to make findings on issues the decision of which is unnecessary 
1 The record contains and degree certificate and corresponding transcript showing that the Petitioner completed the required 
coursework and was awarded a bachelor's degree in "Social Communication - Advertising and Publicity" in December 
2005 and that she subsequently attained at least five years of progressive experience in the specialty as required. 
8 C.F.R. § 204.5(k)(2). 
2 While not discussed in the Director's decision, the record indicates that the Petitioner's endeavor has substantial merit. 
to the results they reach"); see also Matter ofL-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). 
Further, we adopt and affirm the Director's analysis and decision regarding the national importance 
of the Petitioner's endeavor. See Matter of Burbano, 20 I&N Dec. 872, 874 (BIA 1994); see also 
Giday v. INS, 113 F.3d 230, 234 (D.C. Cir. 1997) (noting that the practice of adopting and affirming 
the decision below has been "universally accepted by every other circuit that has squarely confronted 
the issue"); Chen v. INS, 87 F.3d 5, 8 (1st Cir. 1996) (joining eight circuit courts in holding that 
appellate adjudicators may adopt and affirm the decision below as long as they give "individualized 
consideration" to the case). 
In addressing the issue of national importance, the Director discussed the Petitioner's proposed 
endeavor to own and develop a food distribution company. Namely, the Director addressed the 
Petitioner's supporting statements and business plan, recognizing her years of experience in the sales 
and marketing field as well as her intent to operate her business as a digital marketplace and 
distribution center offering ethnic and specialty food products. However, the Director determined that 
the Petitioner did not establish that the impact from her endeavor would reach beyond her organization 
or its clients to more broadly impact her industry or field. 
The Director also determined that the Petitioner did not provide evidence to substantiate the growth 
projections in her business plan or demonstrate that her endeavor has significant potential to employ 
U.S. workers or benefit the regional or national economy to create "substantial positive economic 
effects" as contemplated in Matter ofDhanasar, 26 I&N Dec. at 890. Further, despite acknowledging 
the Petitioner's submission of articles and industry reports, the Director pointed out that neither the 
articles nor reports discussed the Petitioner's specific endeavor and thus they were deemed insufficient 
for the purpose of demonstrating the endeavor's national importance. 
After reviewing the evidence, the Director concluded that the Petitioner did not establish that her 
proposed endeavor would rise to the level of having national importance. 
On appeal, the Petitioner alleges that the Director "did not apply the proper standard of proof in this 
case, instead imposing a stricter standard ... to the detriment of the Appellant." Except where a 
different standard is specified by law, the "preponderance of the evidence" is the standard of proof 
governing immigration benefit requests. See Matter of Chawathe, 25 T&N Dec. at 375 (AAO 2010); 
see also Matter ofMartinez, 21 I&N Dec. 1035, 1036 (BIA 1997); Matter ofSoo Hoo, 11 I&N Dec. 
151, 152 (BIA 1965). Accordingly, "preponderance of the evidence" is the standard of proof 
governing national interest waiver petitions. See generally 1 USCTS Policy Manual, E.4(B), 
https://www.uscis.gov/policy-manual. While the Petitioner asserts that she has provided evidence 
sufficient to demonstrate eligibility for the EB-2 classification and a national interest waiver, she does 
not further explain or identify a specific instance in which the Director applied a standard of proof 
other than the preponderance of evidence in denying the petition. 
The Petitioner further contends that her endeavor "has broader implications within the field of sales 
and marketing," asserting that her business "will contribute to a more diverse and enriched 
marketplace" and that it will result in "broader cultural diversity and enrichment." However, the 
Petitioner has not provided evidence to demonstrate that her business would result in an impact of 
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regional or national importance or that she would operate on such a scale as to rise to the level of 
national importance. 
In addition, the Petitioner contends that the Director did not "give due regard" to her resume, business 
plan, letters of recommendation, or industry reports and articles that were previously submitted. 
However, as noted above, the Director specifically mentioned the Petitioner's business plan as well as 
the industry reports and articles, explaining how the evidence falls short of demonstrating the national 
importance of the proposed endeavor. As the Director correctly pointed out, the Petitioner has not 
substantiated the projections in her business plan, including her plan to hire 178 employees by her 
company's fifth year of operation. Moreover, the Petitioner did not establish that successful execution 
of her hiring plan would have broad implications for the U.S. labor market. We also note that a 
petitioner must establish eligibility based on the facts and circumstances that existed when the petition 
was filed. See 8 C.F.R. § 103.2(b)(l). Here, while the Petitioner's national importance claim hinges 
primarily on establishing I the record lacks evidence that the company has been formed 
and that it was in existence at the time of filing. 
Also, while the Petitioner stresses her credentials and work experience, which were also highlighted 
in her resume and recommendation letters, the Petitioner's knowledge, skills, education, and 
experience are considerations under Dhanasar's second prong, which "shifts the focus from the 
proposed endeavor to the foreign national." Matter ofDhanasar, 26 I&N Dec. at 890. Evidence of 
the Petitioner's credentials and experience in sales and marketing does not demonstrate the national 
importance of the proposed endeavor or establish that the impact of the endeavor would extend beyond 
the Petitioner's company and prospective customers. 
Lastly, the Petitioner argues that by selling "culturally diverse ingredients and specialty products," her 
endeavor will "enhance cultural or artistic enrichment." However, as noted earlier, the Petitioner has 
not provided evidence concerning the formation or her business, nor has she established that the 
potential prospective impact of her business would result in broader implications on national or global 
scale as contemplated in Matter ofDhanasar. Id. at 889. 
In sum, the Petitioner has not overcome the Director's adverse conclusion regarding the issue of 
national importance, and therefore she has not established that she merits a national interest waiver. 
ORDER: The appeal is dismissed. 
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