dismissed EB-2 NIW Case: Food Service

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEPT. 18, 2023 In Re: 28051255 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a food service manager and entrepreneur, seeks employment-based second preference 
(EB-2) immigrant classification as 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 a waiver of the job offer requirement is 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 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. 
"Exceptional ability" in the sciences, arts, or business 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. See 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. 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. 2 
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 bas previously con finned the applicability of this two-part adjudicative approach in the context of individuals of 
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 
A. EB-2 Visa Classification 
The Petitioner claims to qualify for EB-2 classification as an individual of exceptional ability. 
However, the Director did not make a finding as to whether the Petitioner qualifies as an individual of 
exceptional ability. The Petitioner acknowledges this on appeal but does not address the underlying 
EB-2 visa classification and solely argues her eligibility for a national interest waiver. 4 Since the 
evidence in the record does not establish by a preponderance of the evidence that the Petitioner is 
eligible for, or otherwise merits, a national interest waiver as a matter of discretion, we will reserve 
the issue of whether she qualifies for EB-2 classification as an individual of exceptional ability for 
future consideration should the need arise. 5 
B. National Interest Waiver 
The Petitioner proposes to establish a bakery in Florida that will produce healthy meals, sweets, and 
desserts. The Petitioner states that her endeavor "aims to introduce to Americans the Brazilian culinary 
[sic] with special focus on sweets." 
The first prong of the Dhanasar analytical framework, substantial merit and national importance, 
focuses on the specific endeavor that the individual proposes to undertake. Dhanasar, 26 I&N Dec. 
at 889. The endeavor's merit may be demonstrated in a range of areas, such as business, 
entrepreneurialism, science, technology, culture, health, or education. Id. For example, endeavors 
related to research, pure science, and the furtherance of human knowledge may qualify. Id. 
exceptional ability. See general~v 6 users Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual/volume-6-
part-f-chapter-5. 
3 See also Poursina v. users, 936 F.3d 868 (9th Cir. 2019) (finding USCTS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
4 We therefore deem this ground to be waived. An issue not raised on appeal is waived. See, e.g., Matter of O-R-E, 28 
T&N Dec. 330. 336 n.5 (BIA 2021) ( citing Matter ofR-A-M-, 25 T&N Dec. 657, 658 n.2 (BIA 2012)). 
5 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-e-, 26 l&N Dec. 516, 526 n.7 (BIA 
2015) ( declining to reach alternate issues on appeal where an applicant is otherwise ineligible). 
2 
In her decision, the Director determined that the Petitioner's proposed endeavor is of substantial merit, 
and we agree. Turning to the national importance of her endeavor, the Director concluded that the 
Petitioner did not establish its national importance. 
On appeal, the Petitioner contends that the Director did not give due regard to her professional plan 
and statement; letters of recommendation; and industry reports and articles. In addition, the Petitioner 
relies, in part, on her over 16 years of experience in the food service industry to establish the national 
importance of her proposed endeavor. However, the Petitioner's expertise and record of success in 
previous positions are considerations under Dhanasar's second prong, which "shifts the focus from 
the proposed endeavor to the foreign national." Id. at 890. The issue here is whether the Petitioner 
has demonstrated, by a preponderance of the evidence, the national importance of her proposed work. 
We reviewed the Petitioner's letters of recommendation from her professional acquaintances. The 
authors praise the Petitioner's abilities in the food service industry, and the personal attributes that 
make her an asset to the workplace. While the recommendation letters evidence the high regard the 
Petitioner's professional acquaintances have for the Petitioner and her work, they do not offer 
persuasive detail concerning the impact of the Petitioner's proposed endeavor or how such impact 
would extend beyond her customers. As such, the letters are not probative of the Petitioner's eligibility 
under the first prong of Dhanasar. 
Through industry reports and articles, the Petitioner emphasized the importance of food service 
management in the hospitality industry, and the shortage of professionals in the field with her 
background in the United States. 6 We agree that the field of food service management is important, 
and that success in the field may lead to greater career opportunities and economic advantages. 
However, in determining national importance, the relevant question is not the importance of the 
industry or profession in which the individual will work; instead, we focus on "the specific endeavor 
that the foreign national proposes to undertake." See Dhanasar, 26 I&N Dec. at 889. We farther 
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. While the Petitioner proposes to work in an important industry or field, this is 
not necessarily sufficient to establish the national importance of the specific proposed endeavor. 
Further, the articles and reports do not discuss any particulars of the Petitioner's proposed endeavor 
or its prospective impact rising to the level of national importance. 
In Dhanasar, we determined 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. Likewise, the 
Petitioner has not established how her independent bakery stands to sufficiently extend beyond her 
customers to impact the food service sector more broadly at a level commensurate with national 
importance. 
We also reviewed the Petitioner's business plan, including its revenue and employment projections. 
The Petitioner did not sufficiently describe the origin or basis for these projections and, even if she 
6 A shortage of food service professionals in the United States does not render her proposed endeavor nationally important 
under the Dhanasar framework. In fact, such sh01iages of qualified workers are directly addressed by the U.S. Department 
of Labor through the labor ce1iification process. 
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had, they would not establish the national importance of the proposed endeavor. 7 As we explained in 
Dhanasar, "[ 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 demonstrated that 
the specific endeavor she proposes to undertake has significant potential to employ U.S. workers or 
otherwise offers substantial positive economic effects for our nation. Without sufficient information 
or evidence regarding any projected U.S. economic impact or job creation directly attributable to her 
future work, the record does not show that benefits to the U.S. regional or national economy resulting 
from the Petitioner's proposed endeavor would reach the level of "substantial positive economic 
effects" contemplated by Dhanasar. Id. 
Because the Petitioner has not established eligibility under the first prong of the Dhanasar test, we 
need not address her eligibility under the remaining prongs, and we hereby reserve them. 8 The burden 
of proof is on the Petitioner to establish that she meets each eligibility requirement of the benefit 
sought by a preponderance of the evidence. Matter of Chawathe, 25 I&N Dec. at 375-376. The 
Petitioner has not done so here and, therefore, we conclude that she has not established eligibility for 
a national interest waiver as a matter of discretion. 
ORDER: The appeal is dismissed. 
7 The Petitioner must support her assertions with relevant, probative, and credible evidence. See Matter of Chawathe, 25 
l&N Dec. at 376. 
8 See INS v. Bagamasbad, 429 U.S. at 25 and Matter ofL-A-C-, 26 l&N Dec. at 526 n. 7. 
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