dismissed EB-2 NIW Case: Food Distribution

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAY. 01, 2024 In Re: 30210456 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a wholesale and retail food distributor, 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 although the Petitioner 
established his eligibility for EB-2 classification as a member of the professions holding an advanced 
degree, he did not demonstrate that a waiver of the required job offer, and thus of the labor certification, 
would be 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 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). 
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. 2 
II. ANALYSIS 
According to the Petitioner's resume, he worked as a national sales manager with _______ 
a business specializing in the production, commercialization, and distribution of dairy products, from 
2009 until 2022. The Petitioner entered the United States in May 2022 as a B-2 nonimmigrant visitor 
for pleasure and filed this petition in August 2022. The Director found that the Petitioner qualifies as a 
member of the professions holding an advanced degree. 3 Therefore, the sole issue before us is whether 
the record establishes that a waiver of the job offer requirement, and thus of a labor certification, would 
be in the national interest. 
Although the Director found substantial merit in the proposed endeavor, and that the Petitioner is well­
positioned to advance it, the Director concluded that the Petitioner did not establish that his proposed 
endeavor has national importance and that, on balance, waiving the job offer requirement would be 
beneficial to the United States. For the reasons provided below, we conclude that the Petitioner has 
not established the national importance of his proposed endeavor and therefore is not eligible for a 
national interest waiver as a matter of discretion. 
A The Proposed Endeavor 
The Petitioner did not identify his proposed occupation on the Form I-140, Immigrant Petition for 
Alien Workers. At the time of filing, the Petitioner submitted a "Personal Statement" in which he 
indicated that his plan is to establish a company in California "dedicated to the commercialization of 
food products, which at the beginning would be fruits and vegetables." The proposed endeavor would 
require his investment "in refrigeration and transportation equipment necessary to be able to market 
the product and have it delivered to the final customer, either directly in central food depots, self­
service stores, or home deliveries." He indicated that "[ o ]nee the business is established, essential 
products such as dairy products, cold meats or specific products required by Clients can be added." 
The Petitioner's personal statement also provided: 
My role in the company would be General or Regional Manager. This position would 
have the following responsibilities: 
1 See also 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 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
3 The Petitioner provided an official academic record documenting his completion of a master of business administration 
at a Mexican university, along with an educational evaluation indicating that this foreign degree is equivalent to a U.S. 
master's degree in the same field. See 8 C.F.R. § 204.5(k)(2) (defining '·advanced degree"). 
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• Development of the Work Plan or Project until it's implementation and 
operation. 
• Management ofprocedures and permits required for the establishment and start-
up of the business. 
• Location and contracting of a warehouse and business premises to operate. 
• Leasing of delivery equipment for the distribution of products. 
• Direct dealings with Accountants and Lawyers. 
• Recruitment and training of personnel. 
Further, the personal statement indicated that "approximately 8 to 12 months after the start of the 
company's operation, we will have at least 10 collaborators" in the positions of administrator; shop 
manager; warehouse manager; delivery supervisor; pre-sales agent, delivery drivers; and general 
helpers. 
In response to the Director's request for evidence (RFE), the Petitioner submitted a "National Importance 
Statement," in which he indicated that his company will be of major importance because it will: 
strengthen and enhance supply chain and logistics in the fruits and vegetables industry in the U.S.; create 
new job opportunities; work closely with local and regional growers and producers strengthening their 
economies by marketing and distributing their products; deliver healthy food to the community to avoid 
health risk related with obesity; and create new job opportunities for employees, collaborators, suppliers, 
and service providers which will contribute to the economic growth of the region and, consequently, of 
the country. The Petitioner's RFE response also included a "Proposed Endeavor Statement," in which he 
provided that his wholesale/retail fruits and vegetables distribution company "will ensure the flow of sales 
of small local producers' products, while expanding consumer choices and promoting healthy 
consumption habits." 
B. Substantial Merit and National Importance 
To satisfy the first prong under the Dhanasar analytical framework, the Petitioner must demonstrate 
that his proposed endeavor has both substantial merit and national importance. This prong of the 
Dhanasar framework focuses on the specific endeavor 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 T&N Dec. at 889. As 
stated, the Director concluded that the Petitioner established that his proposed endeavor has substantial 
merit but determined he did not meet his burden to establish the national importance of the endeavor. 
As noted, the Petitioner's National Importance Statement emphasizes the role that the fruits and 
vegetables industry can play in addressing the high level of obesity in the United States. In support of 
his claim that the proposed endeavor has national importance consistent with the first prong of the 
Dhanasar framework, the Petitioner provided published articles and reports, including from the Center 
for Disease Control and Prevention, addressing obesity-related health concerns. We do not question 
the significance of these issues and their direct bearing on public health in the United States. Further, 
the Petitioner provided copies of articles and reports from business, industry, and government 
publications, including from the U.S. Department of Agriculture, discussing importance to the U.S. 
agricultural and food sector of a food system that is fair, competitive, and resilient. Here, the Director 
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concluded that the submitted articles and government reports establish the Petitioner's endeavor has 
substantial merit. 
When determining national importance, however, the relevant question is not the importance of the 
industry, sector, or profession in which the individual will work; instead, we focus on "the specific 
endeavor that the foreign national proposes to undertake." Matter ofDhanasar, 26 I&N Dec. at 889. 
The Petitioner must still demonstrate the potential prospective impact of his specific proposed 
endeavor. In Dhanasar, we further noted that "we look for broader implications" of the proposed 
endeavor and that "[ a ]n undertaking may have national importance, for example, because it has 
national or even global implications within a particular field." Id. 
Specifically, the Director determined that the Petitioner had not shown how his proposed endeavor 
would have broader implications within his field that would reach beyond clients utilizing his services, 
or that it would broadly enhance societal welfare. In this regard, the Director observed that the 
Petitioner's claims that the proposed endeavor would contribute to U.S. food distribution efforts and 
access to nutritional foods did not appear to extend beyond his clients and customers to demonstrate 
the national importance of his endeavor. The Director further observed that the record did not 
demonstrate that the proposed endeavor has significant potential to employ U.S. workers, would 
impact an economically depressed area, or would have benefits to the regional or national economy 
that would reach the level of "substantial economic effects" contemplated by Dhanasar. Id. at 890. 
On appeal, the Petitioner maintains that the Director did not give due regard to his initial and updated 
personal statements regarding his proposed endeavor and industry reports and articles demonstrating 
its national importance. For the reasons provided below, we agree with the Director's determination 
that the Petitioner has not sufficiently demonstrated the national importance of his proposed endeavor 
under the first prong of the Dhanasar analytical framework. We have considered evidence related to 
the Petitioner's proposed activities as a wholesale and retail distributor of fruits and vegetables. 4 The 
Petitioner has not shown how the food distribution services he intends to provide would have broader 
implications in the field of fruit and vegetable distribution. 
The Petitioner maintains on appeal that he provided evidence that the services offered by his proposed 
business will have an impact on "improvements to the overall social fabric of the nation in expanding 
consumer choices and promoting healthy consumption habits," matters that are the subject of national 
initiatives by the U.S. government. USCIS will consider evidence demonstrating how a specific 
proposed endeavor impacts a matter that a government entity has described as having national 
importance or a matter that is the subject of national initiatives. 
Again, in determining national importance, the relevant question is not the importance of the industry 
in which the individual will work; instead, we focus on the "the specific endeavor that the foreign 
national proposes to undertake." See Dhanasar, 26 I&N Dec. at 889. Therefore, pursuing employment 
or operating a business in an area that is adjacent to or aligned with the subject of national initiatives 
is not sufficient, in and of itself, to establish the national importance of a specific endeavor. Here, the 
Petitioner has not sufficiently explained the potential prospective impact or broader potential 
4 While we do not discuss each piece of evidence individually, we have reviewed and considered each one. 
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implications of his specific endeavor on the referenced food distribution and heathy consumption 
initiatives. 
The Petitioner further contends on appeal that he has submitted "ample documentation to corroborate 
the economic benefits of [his] proposed endeavor by and through the personal statements submitted 
with the initial petition and the RFE response." However, these statements are not supported by 
financial projections. The record lacks evidence that the proposed endeavor's future staffing levels 
and business activity would provide substantial economic benefits in California or in the United States, 
or that it otherwise has broader national implications within the field. Without this evidence, we 
cannot evaluate the proposed endeavor's impact on job creation or its overall economic impact. 
As such, the Petitioner has not supported a claim that his proposed endeavor is likely to, for example, 
introduce innovations that may have broader implications in the fruit and vegetable distribution field. 
Although the proposed endeavor may benefit the client companies and consumers that engage the 
Petitioner's services, the record does not sufficiently show that such benefits, either individually or 
cumulatively, would rise to the level of national importance. In Dhanasar, we determined that the 
petitioner's teaching activities did not rise to the level of having national importance because they 
would not impact his field more broadly. Id. at 893. The record does not provide adequate support 
for a determination that his specific proposed endeavor will have such a wide-reaching impact. 
We also stated in Dhanasar that "[a]n endeavor that has significant potential to employ U.S. workers 
or has other substantial positive economic effects, particularly in an economically depressed area, for 
instance, may well be understood to have national importance." Id. at 890. Here, the Petitioner has 
not offered sufficient evidence identifying the area where his company will operate; that it is 
economically depressed; that his company would employ a significant population of workers in that 
area; or that his endeavor would offer the region or its population a substantial economic benefit 
through employment levels or business activity. 
Moreover, in his personal statements and appellate brief, the Petitioner emphasized his professional 
experience in the field. The record also contains recommendation letters from his former clients in 
Mexico. While important, the Petitioner's expertise acquired through his academic and professional 
career primarily relates to the second prong of the Dhanasar framework, which "shifts the focus from 
the proposed endeavor to the foreign national." Id. The issue here is whether the specific endeavor 
the Petitioner proposes to undertake has national importance under Dhanasar 's first prong. A 
determination regarding the claimed national importance of a specific proposed endeavor cannot be 
inferred based on the Petitioner's past accomplishments, just as it cannot be inferred based on general 
claims about the importance of a given field or industry. 
Finally, we acknowledge that the Petitioner provided an expert opinion letter from C-D-S-, a business 
consultant. Much of the letter discusses the Petitioner's work experience as a national sales manager 
for The letter concludes that the Petitioner "is a highly qualified professional in 
supply chain, logistics, product development and sales within the food industry whose commitment to 
continuous improvement will serve the U.S. economically by supporting the local economy and 
producers and also socially by contributing and giving access to the healthy products to the 
community." However, the author does not indicate how the Petitioner's business plan supports a 
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determination that the proposed endeavor has significant potential to employ U.S. workers or has other 
substantial positive economic effects, or how it has national implications within field. 
We observe that USCIS may, in 
its discretion, use as advisory opinions statements from universities, 
professional organizations, or other sources submitted in evidence as expert testimony. Matter of 
Caron Int'l, 19 I&N Dec. 791, 795 (Comm'r. 1988). However, USCIS is ultimately responsible for 
making the final determination regarding a foreign national's eligibility. The submission of letters 
from experts supporting the petition is not presumptive evidence of eligibility. Id., see also Matter of 
D-R-, 25 I&N Dec. 445,460 n.13 (BIA 2011) (discussing the varying weight that may be given expert 
testimony based on relevance, reliability, and the overall probative value). Here, much of the content 
of the expert opinion letter lacked relevance and probative value with respect to the national 
importance of the Petitioner's proposed endeavor. 
In light of the above conclusions, the Petitioner has not met his burden of proof to establish that he 
meets the first prong of the Dhanasar national interest framework. Because the Petitioner has not 
established his proposed endeavor has national importance, he is not eligible for a national interest 
waiver under the Dhanasar analytical framework. 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 his eligibility under the third Dhanasar prong. 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 to the results they reach"); 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). 
III. CONCLUSION 
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, we 
conclude that he has not established he is eligible for or otherwise merits a national interest waiver as 
a matter of discretion. 
ORDER: The appeal is dismissed. 
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