dismissed EB-2 NIW Case: Food Industry

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 18, 2024 In Re: 29449589 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an entrepreneur in the food industry, seeks classification as a member of the professions 
holding an advanced degree or of exceptional ability, Immigration and Nationality Act (the Act) 
section 203(b)(2), 8 U.S.C. § 1153(b)(2). The Petitioner also seeks a national interest waiver of the 
job offer requirement that is attached to this employment based second preference (EB-2) 
classification. See section 203(b )(2)(B)(i) of the Act, 8 U.S.C. § 1153(b )(2)(B)(i). 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. See Poursina v. USCIS, 936 
F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest waiver to be 
discretionary in nature). 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that a waiver of the required job offer and thus of a labor certification, would be in the 
national interest. 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 Christa'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 immigrant 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. 
The regulation at 8 C.F.R. § 204.5(k)(2) defines exceptional ability as "a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business." To demonstrate 
exceptional ability, a petitioner must submit at least three of the types of evidence listed at 8 C.F.R. 
§ 204.5(k)(3)(ii): 
(A) An official academic record showing that the alien has a degree, diploma, 
certificate, or similar award from a college, university, school, or other institution of 
learning relating to the area of exceptional ability; 
(B) Evidence in the form of letter(s) from current or former employer( s) showing that 
the alien has at least ten years of foll-time experience in the occupation for which he or 
she is being sought; 
(C) A license to practice the profession or certification for a particular profession or 
occupation; 
(D) Evidence that the alien has commanded a salary, or other remuneration for services, 
which demonstrates exceptional ability; 
(E) Evidence of membership in professional associations; or 
(F) Evidence of recognition for achievements and significant contributions to the 
industry or field by peers, governmental entities, or professional or business 
organizations. 
If the above standards do not readily apply, the regulations permit a petitioner to submit comparable 
evidence to establish the beneficiary's eligibility. 8 C.F.R. § 204.5(k)(3)(iii). 
And because this classification requires that the individual's services be sought by a U.S. employer, a 
separate showing is required to establish that a waiver of the job offer requirement is in the national 
interest. Whilst neither the statute nor the pertinent regulations define the term "national interest," we 
set forth a three-prong analytical framework for adjudicating national interest waiver petitions in 
Matter ofDhanasar, 26 I&N Dec. 884 (AAO 2016). Dhanasar states that USCIS may as a matter of 
discretion grant a national interest waiver of the job offer, and thus of the labor certification, to a 
petitioner classified in the EB-2 category if they demonstrate that (1) the noncitizen's proposed 
endeavor has both substantial merit and national importance, (2) the noncitizen is well positioned to 
advance the proposed endeavor, and (3) that on balance it would be beneficial to the United States to 
waive the requirements of a job offer and thus of a labor certification. 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
noncitizen 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. 
The second prong shifts the focus from the proposed endeavor to the noncitizen. To determine whether 
the noncitizen is well positioned to advance the proposed endeavor, we consider factors including but 
not limited to the individual's education, skills, knowledge, and record of success in related or similar 
efforts. A model or plan for future activities, progress towards achieving the proposed endeavor, and 
the interest of potential customers, users, investors, or other relevant entities or individuals are also 
key considerations. 
2 
The third prong requires the petitioner to demonstrate that, on balance of applicable factors, it would 
be beneficial to the United States to waive the requirements of a job offer and thus of a labor 
certification. USCIS may evaluate factors such as whether, in light of the nature of the noncitizen' s 
qualification or the proposed endeavor, it would be impractical either for the noncitizen to secure a 
job offer or for the petition to obtain a labor certification; whether, even assuming that other qualified 
U.S. workers are available, the United States would still benefit from the noncitizen's contributions; 
and whether the national interest in the noncitizen's contributions is sufficiently urgent to warrant 
forgoing the labor certification process. Each of the factors considered must, taken together, indicate 
that on balance it would be beneficial to the United States to waive the requirements of a job offer and 
thus of a labor certification. 
II. ANALYSIS 
A. Categorical Ineligibility for EB-2 Classification 
We disagree with the Director's conclusion that the Petitioner is eligible for classification as a 
permanent immigrant in the employment based second preference category as an individual of 
exceptional ability and withdraw it. We conclude as set out below that the record as it is currently 
composed does not contain sufficient relevant, material, or probative evidence to demonstrate the 
Petitioner's eligibility for classification as a permanent immigrant in the employment based second 
preference category. The Petitioner has not earned the single source equivalent of a U.S master's or 
higher degree of the single source equivalent of a U.S. bachelor's degree followed by at least five 
years of progressive work experience. So we conclude that the Petitioner is not qualified for EB-2 
immigrant classification as an advanced degree professional. And, as stated above, we conclude the 
record does not contain sufficient evidence to establish that the Petitioner qualifies for EB-2 immigrant 
classification as an individual of exceptional ability. So the Petitioner is categorically ineligible for 
EB-2 permanent immigrant classification. 
1. The Petitioner Has Not Sufficiently Demonstrated Eligibility For EB-2 Classification As An 
Advanced Degree Professional 
The evidence the Petitioner submitted into the 
record does not sufficiently establish the Petitioner's 
eligibility for EB-2 classification as a member of the professions holding an advanced degree. The 
regulation at 8 C.F.R. § 204.5(k)(2) defines advanced degree to mean any United States academic or 
professional degree or a foreign equivalent degree above that of a baccalaureate. A United States 
baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive 
experience in the specialty shall be considered the equivalent of a master's degree and so permit 
classification as an EB-2 permanent immigrant. Progressive experience can be demonstrated by the 
Petitioner by providing letters from current or former employers showing that they have at least five 
years of progressive post-baccalaureate experience in the specialty. The regulation at 8 C.F.R 
§ 204.S(g)(l) requires letters from current or former employers include the name, address, and title of 
the writer, and a specific description of the duties performed. 
The Petitioner submitted an education equivalency evaluation equating a combination of the 
Petitioner's education and work experience to demonstrate they earned the equivalent of a four-year 
bachelor's degree in marketing from an accredited United States institution of higher education. To 
3 
be eligible under section 203(b )(2), 8 U.S.C. § 1153(b )(2)(A), the Petitioner must have a single degree 
that is the "foreign equivalent degree" to a United States master's degree or a single degree that is the 
"foreign equivalent degree: to a United States baccalaureate degree plus five years of progressively 
responsible work experience. The equivalency evaluation is not probative to establish the Petitioner's 
categorical eligibility for classification as a permanent immigrant in the employment based second 
preference category as an advanced degree professional. 
The Petitioner also submitted an academic transcript from.
________________ __. 
indicating they had earned some credits towards a bachelor's dewee prior to their withdrawal from the 
institution. They further submitted an academic transcript froml I I !reflecting 60 credit hours they earned in furtherance of a qualification. The Petitioner 
additionally submitted their high school completion certificate. The record also contains several 
documents in Portuguese the Petitioner submitted with English translation purporting to reflect 
professional certificates. 1 These documents are also not relevant, material, or probative to 
demonstrating the Petitioner has earned a single degree that is the "foreign equivalent degree" to a 
United States master's degree or a single degree that is the "foreign equivalent degree: to a United 
States baccalaureate degree plus five years of progressively responsible work experience. 
The Petitioner does not possess a single "foreign equivalent degree" to a United States master's degree 
or a single degree that is the "foreign equivalent degree" to a United States baccalaureate degree plus 
five years of progressively responsible work experience. So the record does not contain adequate 
evidence to demonstrate the Petitioner's eligibility for EB-2 classification as a professional with an 
advanced degree. 
2. The Petitioner Is Not An Individual of Exceptional Ability 
We disagree with the Director's conclusion that the Petitioner established their eligibility for EB-2 
permanent immigrant classification as a non-citizen of exceptional ability and will withdraw it. The 
Director concluded that the evidence established the Petitioner had a degree of expertise that rose to the 
level of exceptional ability. But the evidence the Petitioner submitted into the record does not 
sufficiently establish the Petitioner's eligibility. So upon de novo review, we conclude that the 
Petitioner has not demonstrated that they met any of the six criteria contained at 8 C.F.R. § 204.5(k)(3)(ii) 
for the reasons set forth below. 2 
An official academic record showing that the alien has a degree, diploma, certificate, 
or similar award from a college, university, school, or other institution of learning 
relating to the area ofexceptional ability; 8 C.F.R. § 204.5(k)(3)(ii)(A). 
We do not agree with the Director's conclusion that the Petitioner met this criterion and consequently 
withdraw it. The record does not contain evidence that the Petitioner has a degree, diploma, certificate, 
1 Documents containing languages other than English must be accompanied by a full English translation which the 
translator has ceitified as complete and accurate, and by the translator's certification that they are competent to translate 
from the language into English. 
2 The Petitioner did not assert eligibility nor did they submit evidence in support of a salaiy, or other remuneration for 
services, which demonstrated their exceptional ability under the criteria contained at 8 C.F.R. § 204.5(k)(3)(ii)(D). 
4 
or similar award from a college, university, school, or other institution oflearning relating to their area 
of exceptional ability. 
As discussed earlier, the Petitioner submitted an education equivalency evaluation equating a 
combination of the Petitioner's education and work experience to demonstrate they earned the 
equivalent of a four-year bachelor's degree in marketing from an accredited United States institution 
of higher education. The education equivalency evaluation does not reflect a single degree, diploma, 
certificate or similar award from a college, university, school, or other institution of learning relating 
to their area of exceptional ability. So it is not probative to establish the Petitioner's categorical 
eligibility for classification as a permanent immigrant in the employment based second preference 
category as an advanced degree professional. 
The Petitioner also submitted an academic transcript from .________________ __, 
indicating they had earned some credits towards a bachelor's degree prior to their withdrawal from the 
institution. They further submitted an academic transcript from.__ _____________ ___, 
I Ireflecting 60 credit hours they earned in furtherance of a qualification. Neither of these 
forays in higher education by the Petitioner resulted in a single degree, diploma, certificate or similar 
award from a college, university, school, or other institution of learning relating to their area of 
exceptional ability. The Petitioner additionally submitted their high school completion certificate, but 
this is a general educational qualification not related to their area of exceptional ability. 
The Director concluded the Petitioner's certificates were issued by academic organizations. We 
discussed earlier that the record contains several documents in Portuguese the Petitioner submitted 
with English translation purporting to reflect professional certificates. 3 It is unclear whether the 
certificates were issued by a college, university, school, or other institution of learning. But, even if 
the certificates had been issued by a college, university, school, or other institution of learning, we 
would still conclude that they did not support the Petitioner's assertion of eligibility under this criterion 
because it is not clear if the institution that issued the certificates is related to entrepreneurship in the 
food industry, which is the Petitioner's claimed area of exceptional ability. So we cannot conclude that 
the Petitioner has earned a degree, diploma, certificate, or similar award from a college, university, school, 
or other institution of learning related to the area of exceptional ability corresponding to their proposed 
endeavor. 
Evidence in the form of letter(s) from current or former employer(s) showing that the noncitizen has 
at least ten years offitll-time experience in the occupation for which he or she is being sought. 8 
C.F.R. § 204.5(k)(3)(ii)(B). 
The Petitioner proposed to work as an entrepreneur in the food industry. In support of their experience 
with current or former employers, the Petitioner submitted several letters. Whilst there is no doubt 
that the letters were written by individuals who held the Petitioner in high esteem, these individuals 
were not current or former employers as required by the regulation. 4 
3 Documents containing languages other than English must be accompanied by a full English translation which the 
translator has ceitified as complete and accurate, and by the translator's certification that they are competent to translate 
from the language into English. 
4 The Petitioner submitted one letter on letterhead written by I I adveitising professional, attesting to the 
5 
The letters purporting to support the Petitioner's work experience in the occupation are not sufficient 
material, relevant, or probative evidence of at least ten years of the Petitioner's full-time experience 
in the occupation they seek to undertake in the United States. 
The record also contains "certificates" purporting to indicate the dates the Petitioner was a "managing 
partner" or "business owner" of their own entity. Upon review, the "certificates," do not contain 
sufficient detail or description of what specific duties the Petitioner performed in their capacity with 
the company. Moreover, it is not readily apparent from the certificates as to what field the business 
operated in. Se we cannot evaluate from the "certificate" whether the Petitioner has at least ten years 
of full-time experience as an entrepreneur in the food industry. So, the letters and "certificates" the 
Petitioner submitted do not support a conclusion the Petitioner has at least ten years of full-time 
experience in the occupation of entrepreneur in the food industry. 
Evidence of a license to practice the profession or cert[fication for a particular profession or 
occupation. 8 C.F.R. § 204.5(k)(3)(ii)(C). 
We do not agree with the Director's conclusion that the Petitioner met this criterion and consequently 
withdraw it. The Petitioner submitted several certificates in numerous discrete topics such as "web 
creation," "art direction," "franchisor training," and "communication planning" ostensibly asserting 
that they possessed certifications for their particular profession or occupation. But the certificates are 
not persuasive to demonstrate the Petitioner's licensure or certification to perform a particular 
profession or occupation. 
Licenses and certifications show that a person has the specific knowledge or skill needed to do a job. 
A license, generally conferred by an official government body, confers legal authority to work in an 
occupation. A certification, whilst not always required to work in an occupation, generally requires 
demonstrating competency to do a specific job. 
The Petitioner's proposed endeavor is to perform the services of an entrepreneur in the food industry. 
The record does not sufficiently reflect how the Petitioner's certificates reflect certification in 
performing the role of an entrepreneur in the food industry. For example, it is unclear how the 
Petitioner's certificate for participation in "franchisor training" corresponds to their proposed 
entrepreneurial endeavor in the food industry. It is also not clear in the record how a "franchisor 
training" certificate reflects a competency to perform entrepreneurial duties in the food industry. So 
we cannot conclude that the Petitioner has a license to practice the profession or certification for a 
particular profession or occupation. 
Evidence o_fmembership in pro_fessional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
The Petitioner's membership in the L...------------------------~ .___________ ___. is not sufficient evidence of membership in a professional association. 
These organizations are not professional associations. The occupation of franchisor does not appear 
Petitioner's employment at.________ _.from 2007 to 2010. Although written by a former employer, this letter 
did not specify whether the Petitioner's employment was full-time and did not adequately establish that the Petitioner's 
employment with ._______ __. as an intern and ·'top designer" was in the food service entrepreneur field within 
which their proposed endeavor lies. 
6 
I 
in the list of professions contained at section 101(a)(32) of the Act, and it is not included as an 
occupation that customarily requires a bachelor's or higher degree. See Update to Appendix A to the 
Preamble-Education and Training Categories by O*NET-SOC Occupations; Labor Certification for 
Permanent Employment of Immigrants in the United States and Procedures To Establish Job Zone 
Values When O*NET Job Zone Data Are Unavailable, 86 Fed. Re . 63070 (Nov. 15, 2021 . 
Moreover, the record contains a letter from the 
Idescribing the criter._i_a_fi_o_r_m_e_m_b_e-rs_h_i_p_._T_h_e-re_q_u-ir_e_m-en_t_fi_o_r_m_e_m_b_e_r_sh_i__.p 
does not specify if a bachelor's degree is a minimum requirement for membership as a professional in 
the association. Moreover, it is not evident from the record how the occupation of "franchisor" relates 
to the Petitioner's proposed endeavor to serve as an entrepreneur in the food industry. Consequently, 
an association of franchisors is not a professional association as that term is contemplated in the 
regulations, and the Petitioner has not met this criterion. 
Evidence of recognition for achievements and sign[ficant contributions to the industry or _field by 
peers, governmental entities, or professional or business organizations. 
8 C.F.R. § 204.5(k)(3)(ii)(F). 
The Petitioner submitted several letters of recommendation prepared contemporaneously with these 
immigrant petition proceedings to demonstrate that they have been recognized for achievements and 
significant contributions to their field by peers, governmental entities or professional or business 
organizations. But the evidence the Petitioner submitted did not meet the standard of proof because it 
did not satisfy the basic standards of the regulations. See Matter of Chawathe, 25 I&N Dec. at 3 7 4 
n.7. The regulation requires evidence of recognition of achievements and significant contributions. 
When read together with the regulatory definition of exceptional ability, the evidence of recognition 
of achievement and significant contributions should show expertise significantly above that ordinarily 
encountered in the field. 
The letters of recommendation are not evidence of the Petitioner's recognition of achievement and 
significant contributions reflecting their expertise as significantly above that ordinarily encountered in 
the field. For example, one letter credited the Petitioner with launching a business in "a very 
abandoned place" with "a need for revitalization" that "resulted in a 300% increase in the number of 
families who have come back to this area of the city." But the record does not contain adequate 
evidence to support this assertion. So we cannot evaluate whether it could be an achievement and 
significant contribution demonstrating expertise significantly above that ordinarily encountered in the 
field. 
Furthermore, several letters in the record credit the Petitioner with skill operating a successful 
business. However, simply carrying out job duties successfully and competently is not evidence of a 
significant contribution to the field. And it is not clear how the metrics the letter authors mentioned 
for the Petitioner's successful business operations reflected significant contributions demonstrating 
expertise significantly above that ordinarily encountered in the field. For example, the author of one 
letter the Petitioner submitted stated the Petitioner's hamburger kiosk grew "25% per month" 
necessitating a larger premises. The author also described the 20% EBITDA, 8% employee cost, and 
an expected payback of investment with 24 to 30 months as "astonishing." But the evidence in the 
record does not sufficiently highlight why the EBITDA, employee cost, and expected payback figures 
7 
the author mentioned were contributions or achievements of significance demonstrating expertise 
significantly above that ordinarily encountered in the field. 
And the Petitioner submitted many vocational certificates reflecting participation in workshops and 
courses. But the record does not evidence how completion of the workshop or courses the certificates 
the Petitioner possesses represent achievements and significant contributions above that ordinarily 
encountered in their field. So we cannot conclude that the Petitioner meets this ground of eligibility. 
The Petitioner has not established eligibility in any three of the six criteria contained at 8 C.F.R. 
§ 204.5(k)(3)(ii). They cannot fulfill the initial evidentiary requirement of three criteria under 8 C.F.R. 
§ 204.5(k)(3)(ii). So we need not provide a final merits determination to evaluate whether the 
Petitioner has achieved the required level of expertise required for exceptional ability classification. 
Consequently, we conclude the Petitioner has not demonstrated their eligibility for permanent 
immigrant classification in the EB-2 category. 
B. Eligibility for Discretionary Waiver of the Job Offer, And So a Labor Certification, in the National 
Interest. 
1. The Proposed Endeavor 
The 
Petitioner indicated entrepreneur as the proposed job title on their Form I-140, Immigrant Petition 
for Alien Worker. They described their endeavor's goal as helping the "US food industry become 
healthier, more efficient and safer through developing innovative and cost-effective solutions that have 
national and global scope." Specifically, the Petitioner's endeavor would seek to "create, implement 
and operationalize revolutionary projects in the food industry" in the form of ready to eat frozen 
Brazilian dinners. The conduit for the Petitioner's proposed endeavor is the operation ofl I I I, which will produce "frozen meal and then sell them across the U.S. through various 
channels." 
2. Substantial Merit and National Importance 
a) Substantial Merit 
An endeavor's merit may be demonstrated in a range of areas such as business, entrepreneurialism, 
science, technology, culture, health, or education. Dhanasar at 889. The record before us contains 
evidence of the characterization of the Petitioner's proposed endeavor as entrepreneurial, which falls 
within the range of areas we concluded could demonstrate endeavor of substantial merit. So the record 
supports the substantial merit of the Petitioner's proposed endeavor. 
b) National Importance 
Alongside demonstrating its substantial merit, a petitioner must also showcase the national importance 
of their proposed endeavor. We conclude that the Petitioner's proposed endeavor did not have the 
required national importance to meet the first prong of the Dhanasar framework. 
8 
In support of their claim of eligibility for a discretionary waiver of the job offer requirement, and thus 
of a labor certification, under Dhanasar the Petitioner submitted recommendation letters, two versions 
of their business plan, an evaluation of training, experience, and education accompanied by transcripts 
of partially completed degree programs at institutions of higher education, several vocational 
certificates of training, completion, and attendance, news articles, and a business award. 5 
When evaluating the national importance of a proposed endeavor, the relevant question is not the 
performance of the proposed endeavor which the individual will operate; instead, we focus on "the 
specific endeavor that the foreign national proposes to undertake." See Dhanasar, 26 I&N Dec. at 
889. So we are not concerned with the individual petitioner when evaluating the first prong of the 
Dhanasar analytical framework; we are focused on the petitioner's proposed endeavor. And to 
demonstrate the national importance of a proposed endeavor under Dhanasar 's first prong, we look to 
its potential prospective impact. In Dhanasar we said that when we look to a proposed endeavor's 
potential prospective impact "we look for broader implications." See Dhanasar, 26 I&N Dec. at 889. 
Broader implications are not necessarily evaluated from a narrow frame of reference such as 
geography; implications within a field which demonstrate a national or even international influence of 
broader scale can rise to a level of national importance. And substantial positive economic impacts, 
such as a significant potential to employ U.S. workers particularly in an economically depressed area, 
can also help a proposed endeavor rise to a level of national importance. The success of the endeavor, 
or attributes that could tend to make the endeavor more successful, are consequently not as important 
as determining whether the proposed endeavor itself stripped away from a petitioner has attributes that 
would highlight the prospective positive impact of its broader implications or positive economic 
effects rising to a level of national importance. 
The Petitioner intended to rely on their "food sector experience" to "contribute to the country by 
providing high-quality frozen meals." The Petitioner identified improving access to quality healthy 
nutrition for U.S. residents, improving food security and quality, economic growth through increasing 
gross domestic product, and direct and indirect job creation, But the record does not contain adequate 
evidence to identify any positive economic impact rising to a level of national importance from the 
Petitioner's endeavor. 
The record contains insufficient evidence to support the positive economic effects the Petitioner 
expects will be realized by their proposed endeavor. The Petitioner heavily emphasizes the "ripple 
effects" of their endeavor on the U.S. economy to support their assertion that their endeavor would 
increase economic growth and gross domestic product or GDP. But, when considering an endeavor's 
national importance, we focus on the particular endeavor. See Dhanasar, 26 I&N Dec. at 889. An 
endeavor's "ripple effects" oftentimes are significantly attenuated and unconnected with a particular 
proposed endeavor. And when it comes to the Petitioner's particular endeavor, the Petitioner identifies 
their ready to eat frozen Brazilian meals as an "innovation" in their food industry field. But the record 
does not adequately identify why producing frozen meals in particular international foods such as 
Brazilian foods broadly implicate matters rising to a level of national importance. It is unclear how 
preparation of frozen Brazilian food would impact economic growth and GDP to a degree implicating 
national importance. The record does not link how the branding, introduction, and proliferation of 
I products would broadly influence the food industry to the degree it increases 
5 While we may not discuss every document submitted, we have reviewed and considered each one. 
9 
I 
GDP in a manner implicating national importance. And whilst the Petitioner asserted that wider 
adoption of frozen food into diets would have a follow-on effect to eliminate food waste, they did not 
identify how wider adoption of.__ _______ __, products would reduce food waste at a level 
commensurate with matters on a level of national importance. 
As stated above, another of the potential positive effects of their endeavor identified by the Petitioner 
is their potential for job creation. But the record does not adequately support the Petitioner's statement 
in their business plan. The Petitioner asserts that their endeavor will create "46 direct in-house" jobs 
and "227 indirect final demand impact from all of the correlated other industries, businesses and 
resulting growth" within five years of its establishment. The Petitioner specified in their business plan 
that they intended to hire a mix of part time and full-time cooks, kitchen assistants, dishwashers, 
"general helpers," unit managers, financial assistants, operational assistants, marketing specialists, and 
business expansion/franchise specialists. But other than a nascent intention to establish "physical 
presence" in Florida, Massachusetts, the District of Columbia, and California the Petitioner does not 
identify where specifically the locus of employment for any new employees would be. So we are not 
able to consider whether the proposed job creation's significance or whether the job creation will be 
in an economically depressed area. The record does not support any potential positive economic 
effects, such as beneficially addressing high unemployment in economically depressed areas in a 
manner meaningful enough to implicate the national interest and rise to the level of national 
importance. 
The Petitioner identified Centers of Disease Control (CDC) and National Center for Chronic Disease 
Prevention and Health Promotion materials to assert good nutrition is essential to keeping current and 
future generations healthy across the lifespan. But even if we were to consider the frozen Brazilian 
meals the Petitioner intends to proliferate as nutritious and healthy, we would not conclude that the 
production of these foods by the Petitioner's proposed endeavor would implicate good health and 
nutrition in a manner rising to a level of national importance. The Petitioner has not sufficiently 
described how Brazilian frozen food impacts the landscape of the food industry to a degree broadly 
implicating matters of national importance. It is not evident from the record how the Petitioner's 
Brazilian frozen dinners, even if new to the market, would impact nutrition and health in U.S. residents 
at a magnitude commensurate with matters ascendant to a level of national importance. 
The record simply does not contain any meaningful analysis of the broader implications or potential 
positive economic impact rising to the level of national importance stemming from the Petitioner's 
specific performance of the duties of a general manager. The evidence in the record does not highlight 
how the prospective potential impact of the Petitioner's proposed endeavor could have broader 
implications implicating the national interest. For example, the letters ofrecommendation containing 
testimonials of the services the Petitioner performed do not describe how the Petitioner's previous 
activities in the food industry field connect to broader implications rising to national importance or 
any nationally important economic impact. It is unclear from the letters in the record how the 
Petitioner's past work in the Brazilian food industry influences the national importance of the proposed 
endeavor at hand. And it must be noted that assertions based on the Petitioner and their individual 
attributes is more relevant to an evaluation of the Petitioner's eligibility under the second prong of the 
Dhanasar framework. 
10 
A petitioner's burden of proof comprises both the initial burden of production, as well as the ultimate 
burden of persuasion. Matter ofY-B-, 21 I&N Dec. 1136, 1142 n.3 (BIA 1998); also see the definition 
of burden of proof from Black's Law Dictionary (11th ed. 2019) (reflecting the burden of proof 
includes both the burden of production and the burden of persuasion). The Petitioner has not met their 
burden of proof with persuasive material, relevant, and probative evidence which by a preponderance 
demonstrates the national importance of their proposed endeavor. 
3. Well-Positioned to Advance the Proposed Endeavor 
We disagree with the Director's conclusion that the Petitioner was well-positioned to advance their 
proposed endeavor and withdraw it. We conclude the Petitioner has not sufficiently demonstrated that 
they are well positioned to advance their proposed endeavor under the second prong of the Dhanasar 
analytical framework. In evaluating whether a petitioner is well positioned to advance their proposed 
endeavor under the second prong of Dhanasar, we review (A) a petitioner's education, skill, 
knowledge, and record of success in related or similar efforts; (B) a petitioner's model or plan for 
future activities related to the proposed endeavor that the individual developed, or played a significant 
role in developing; (C) any progress towards achieving the proposed endeavor; and (D) the interest or 
support garnered by the individual from potential customers, users, investor, or other relevant entities 
or persons. 
As stated above, a petitioner's burden of proof comprises both the initial burden of production, as well 
as the ultimate burden of persuasion. Y-B-, 21 I&N Dec. at 1142 n.3. The record contains evidence 
of the Petitioner's academic record and employment history. But simply having some education, skills 
from work experience, and/or knowledge in isolation do not place a petitioner in a position to advance 
their proposed endeavor. This is only one factor amongst many factors which are evaluated together 
to determine how well positioned a petitioner is to advance a proposed endeavor. 
And the record does not reflect how the Petitioner's prior activities as described in the recommendation 
letters and the Petitioner's business plan is either a similar effort as that of their proposed endeavor or 
how it constitutes a record of success. The Petitioner's business plan listed "major projects" that they 
had mana ed and identified them by name as I t a gourmet hot dog venture, II 
1------,.-------' a sandwich shop, I I a central kitchen, I I a burger shop, and c==J 
.___ ___, a kebab snack restaurant. Whilst ostensibly in the food industry, the record does not 
adequately link the Petitioner's past "major projects" to their proposed endeavor such that we can 
evaluate if they are related or like one another. Moreover, none of these "major projects" was involved 
with the production of frozen food, which is the crux of the Petitioner's proposed endeavor. So we 
conclude that the Petitioner has not demonstrated a record of success in related or similar efforts. 
And whilst Petitioner's business plan and revised business plan describing.
________ ___,does 
consist of a plan or model for their future activities, it is not clear from the record that the Petitioner 
has made any progress towards following their plan and achieving their proposed endeavor. The 
Petitioner's business plan contains optimistic projections of the eventual health and success of their 
proposed endeavor, but these assertions are not supported by material, relevant, or probative evidence 
in the record which would aid in an evaluation of the Petitioner's posture to advance their proposed 
endeavor in the manner the business plan described. The recommendation letters the Petitioner 
submitted into the record, effusively described the Petitioner's past endeavors. But other than the 
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general encouragement one would expect from acquaintances when embarking on a business project, 
the letters do not adequately compose a body of evidence from which we could determine if the authors 
are users, customers, investors or other relevant entities or person with interest or in a position to 
support the Petitioner's proposed endeavor. Ultimately, it is not clear from the totality of the evidence 
in the record how an individualized consideration of the multifactorial analysis under Dhanasar 's 
second prong would demonstrate how well positioned the Petitioner is to advance their proposed 
endeavor. So the Petitioner has not demonstrated with material, relevant, and probative evidence that 
they are well-positioned to advance their proposed endeavor. 
4. Balancing Factors to Determine Benefit to the United States of Granting Waiver of the Job 
Offer Requirement so that the Petitioner can Undertake the Proposed Endeavor. 
If the Director had found that the Petitioner met the eligibility requirements contained in the first and 
second prongs of the Dhanasar framework they would have moved to evaluating whether, on balance, 
the Petitioner had demonstrated that, on balance, it would be beneficial to the United States to waive 
the requirements of a job offer and thus of a labor certification. 
The Director could have considered the impracticality of a labor certification, the benefit to the U.S. 
of a petitioner's contributions, the urgency of a petitioner's contributions to the national interest, the 
capacity for job creation, and any adverse effects on U.S. workers when conducting the balancing of 
the national interests of waiving the requirements of a job offer and therefore a labor certification. 
The record here does not demonstrate the Petitioner's eligibility under the first two prongs of the 
Dhanasar framework. But even if the first two prongs had been met, the petition could not have been 
approved because the record does not satisfy the third prong. The record does not contain sufficient 
evidence of factors like the impracticality of a labor certification, the benefit to the U.S. of a 
petitioner's contributions, the urgency of a petitioner's contributions to the national interest, the 
capacity for job creation, and any adverse effects on U.S. workers. So it is not evident in the record, 
on balance, that the requirement of a job offer and thus a labor certification, should be waived for the 
Petitioner. 
III. CONCLUSION 
The Petitioner has not demonstrated their categorical eligibility for EB-2 permanent immigrant 
classification. And the record contains insufficient evidence to establish they met the requisite prongs 
of the Dhanasar analytical framework. So we find that they have not established that they are eligible 
for or otherwise merit a national interest waiver as a matter of discretion, with each reason being an 
independent ground requiring dismissal of this appeal. 
ORDER: The appeal is dismissed. 
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