dismissed EB-2 NIW Case: Frozen Fruit Distribution

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: FEB. 08, 2024 InRe: 30817609 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an entrepreneur with experience in frozen fruit distribution, seeks second preference 
immigrant classification as a member of the professions holding an advanced degree and as an 
individual of exceptional ability, as well as a national interest waiver of the job offer requirement 
attached to this EB-2 classification. See Immigration and Nationality Act (the Act) section 203(b)(2), 
8 U.S.C. § ll 53(b )(2). 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner had not 
established that a waiver of the required job offer, and thus of the labor certification, would be in the 
national interest. We initially dismissed the Petitioner's appeal, but subsequently reopened it on 
service motion. 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, under section 203(b )(2) of the Act. Next, a 
petitioner must then demonstrate 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 that U.S. Citizenship and Immigration Services (USCIS) may, as a matter of 
discretion, 1 grant a national interest waiver if the petitioner shows: 
• The proposed endeavor has both substantial merit and national importance; 
1 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 discretionary in nature). 
• 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. CHRONOLOGY 
In September 2023, rather than dismissing the appeal on its merits, for efficiency we dismissed the 
Petitioner's appeal as moot when we determined that he has a subsequent, approved EB-2 petition. 
The Petitioner filed a complaint in the United States District Court for the Southern District of Florida, 
which is currently pending. Garcia-Garcia et al v. Jaddou, Case No. 1 :23-cv-23379-CMA (S.D. Fla. 
filed Sept. 3, 2023). In November 2023 we reopened the Petitioner's appeal sua sponte, pursuant to 
8 C.F.R. § 103.5(a)(5)(ii), to consider the merits of the claims contained in his appellate brief. The 
Petitioner was permitted a period of 30 days in which to provide a supplemental brief. 
In the Petitioner's supplemental brief he asserts, "[g]iven that both petitions are substantially identical 
to each other and seek the same immigrant visa classification, the approval of the latter petition 
strongly indicates that the first petition is also meritorious and warrants approval." He, therefore, 
requests that we sustain the appeal so that he may use the benefit of the earlier filing date of the instant 
petition as a priority date, to apply for adjustment of status to that of lawful permanent resident. 3 We 
note that each petition is separate and independent and must be adjudicated on its own merits. In 
addition, a petitioner must meet eligibility requirements at the time of filing the petition. 8 C.F.R. 
§ 103.2(b)(l). 4 Further, we note that a denied EB-2 petition will not establish a priority date. See 
8 CFR §204.5(e)(3); see also 7 USCIS Policy Manual A.6(C)(3), https://www.uscis.gov/policy­
manual. 
III. ANALYSIS 
The record reflects that the Petitioner has gained over 10 years of experience as an entrepreneur in the 
United States, where he has served as owner and vice president of sales and logistics forl ID since 2008. 5 The documentation submitted shows that Florida is 
engaged in the import, distribution, and sale of frozen fruits produced in Mexico by ._______. 
.____________________.6 and that the Petitioner is its sole employee . 
The Director concluded that the Petitioner qualifies as a member of the professions holding an 
advanced degree. 7 Accordingly, the remaining issue to be determined on appeal is whether the 
Petitioner has established that a waiver of the requirement of a job offer, and thus a labor certification, 
would be in the national interest. 
2 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
3 The instant petition was filed on September 2, 2020; the approved petition has a priority date of February 22, 2023. 
4 See also Matter ofKatigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971 ). A petition cannot be approved at a future date 
after the petitioner becomes eligible under a new set of facts. Matter of Izummi, 22 I&N Dec. 169, 175 (Assoc. Comm'r 
1998). That decision, citing Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981), further provides that USCIS cannot 
"consider facts that come into being only subsequent to the filing of a petition." Id. at 176. 
5 The record indicates that the Petitioner initially received E-1 nonimmigrant classification in 2008 as the beneficiary of a 
petition filed byl I., along with several extensions of his status from 2010 to 2020. 
6 The record shows tha~ !is run by the Petitioner and members of his family. 
7 The Director indicated that since the Petitioner qualifies as a member of the professions holding an advanced degree, he 
need not evaluate whether the Petitioner also qualified as an individual of exceptional ability. 
2 
The first prong relates to substantial merit and national importance of the specific proposed endeavor. 
Dhanasar, 26 I&N Dec. at 889. The Petitioner initially provided a statement indicating: 
I am proud to say that my marketing strategies have enabled me to capture world 
renowned clients, including! I
I I.... By communicating directly with my clients, I am able 
to produce tailor made products precisely to the clients' specifications, further building 
trust and reliance onl I 
I plan on continuing to run my U.S. company, I I and making it [a] 
commercial success, selling and distributing frozen fruits to U.S. and international 
conglomerates, such a~-----------------------~ 
andl I and attaining millions in sales. As such, I hope that my visa 
petition will be approved so that I may pursue to my endeavor in Frozen Fruit 
Distribution in the U.S. and promote the U.S. economy and health of its citizens. 
In addition, the Petitioner initially provided an Impact Analysis and Business Plan dated June 2020 
indicating: 
The company serves as the U.S. sales representative of the Mexican manufacturer of 
frozen fruits, Having an office in Miami allows 
I Ito serve as an intermediary between its Mexican supplier and U.S. clients 
.... The fruit is delivered directly after being processed and warehoused inl I 
Texas. 
Among the Company's products are the following: individually quick-frozen 
strawberries; block-frozen strawberries, with or without sugar; strawberry puree; 
individually quick-frozen mango; block-frozen mango; creamed mango; individually 
quick-frozen papaya and papaya puree. 
Fruitsolutions has laid out the following goals designed to ensure its future success: 
• To add blueberry and blackberry to its product offering. 
• To build the Company's brand through online communications, participation in 
industry events, and direct outreach to clients. 
• To further penetrate the U.S. market through the identification ofnew buyers of frozen 
fruit and fruit preparations 
• To provide distribution seryices for qther fruit producers, as long as the products are 
complementary to those ot1~----~J 
On appeal, the Petitioner maintains that he has demonstrated the national importance of his proposed 
endeavor of "delivering frozen fruit products to top U.S. food manufacturers." The Director 
3 
determined that the Petitioner demonstrated the proposed endeavor's substantial merit but not 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. 8 
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. The Petitioner has 
provided evidence relating to the importance of imported fruit to the America economy and an 
increased demand for frozen food during the COVID-19 pandemic. The Petitioner must demonstrate, 
however, the national importance of his specific, proposed endeavor rather than the national 
importance of frozen fruit distribution. 
In Dhanasar, 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. We also stated 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. 
Throughout the record and on appeal, the Petitioner emphasizes his "over ten (10) years of experience" 
in frozen fruit distribution. The Petitioner's experience and abilities in his field relate to the second prong 
of the Dhanasar framework, which "shifts the focus from the proposed endeavor to the foreign national." 
Id. at 890. The issue here is whether the specific endeavor that he proposes to undertake has national 
importance under Dhanasar's first prong. 
To evaluate whether the Petitioner's proposed endeavor satisfies the national importance requirement, 
we look to evidence documenting the "potential prospective impact" of his work. Dhanasar, 26 T&N 
Dec. at 889. On appeal, the Petitioner asserts that the Director "disregarded the current and future 
positive economic effects of [his] Frozen Fruit Distribution endeavor." Specifically, the Petitioner 
references recommendation letters froml Iclients, business invoices the compaly sent tol 
its clients, the companys 2017-2020 tax returns, an expert letter from Professor M-B-S with 
I and an Updated Impact Analysis. 
The Petitioner provided a letter from L-B-, a project manager at.
____________ ~ who 
indicates that.__ _______ ~is one of its four suppliers of frozen strawberries for its market in 
the United States and Canada. She states that the company modified its product packaging, storage, 
and sugars to align with I !sustainability goals and nutrition commitments. In addition, a letter 
from J-A-, a purchasing coordinator of.__ _____ __,in New Jersey, states that the Petitioner's 
company is essential to her company as its main supplier of frozen strawberries and one of its larger 
importers. 
The Petitioner asserts that the above authors indicate their companies "depend on I I for 
thousands and even millions of dollars' worth of frozen fruit to manufacture and produce their 
8 While we may not discuss every document submitted, we have reviewed and considered each one. 
4 
products." We acknowledge that the aforementioned letters of support, as well as others not discussed 
in this decision, detail the Petitioner's effectiveness and skills in his previous and current work as a 
frozen fruit distributor in the United States, but they do not address the national importance of his 
proposed endeavor. 
Similarly, in offering his opinion regarding the national importance aspect of the Petitioner's proposed 
endeavor, Professor M-B-S- asserts that "by bringing his expertise in supply chains, food distribution, 
and business management to the United States, [the Petitioner] will be an important, experienced 
member of a niche workforce in a specialist field that is fulfilling a growing demand from American 
consumers, ensuring economic prosperity in American trade flows, and working towards overcoming 
supply chain issues and consumer demand changes brought by COVID-19." As stated, the Petitioner's 
knowledge, skills, and experience in his field relate to the second prong of the Dhanasar framework, 
which "shifts the focus from the proposed endeavor to the foreign national." Id. at 890. The issue 
here is whether the specific endeavor that he proposes to undertake has national importance under 
Dhanasar 's first prong. In addition, he does not sufficiently explain the basis for his conclusions 
regarding the positive economic impact of the proposed endeavor. 
The expert opinion letter also provides data and statistics regarding the steady growth in the demand 
for fruit imports and the large percentage of fruit the United States imports from Mexico, and 
emphasizes the resulting ongoing demand for specialists in the field of fruit importation and 
distribution. The Petitioner also submitted market and industry reports related to the increased demand 
for frozen food sales related to the COVID-19 pandemic. 
The professor concludes that the Petitioner's endeavor is "of merit and national importance, given its 
potential benefit to the United States food supply chains and logistics through the streamlining of 
products from Mexico to the United States, particularly the delivery of specific fruit products to a 
growing demand from American consumers." While we acknowledge that there is an ongoing demand 
in the field of frozen fruit distribution for persons who possess the Petitioner's skills, training, and 
experience, neither the Petitioner nor the individuals who provided letters in support of the petition 
sufficiently explain how the Petitioner's work as a frozen fruit distribution specialist would 
meaningfully impact this demand or the field of food distribution supply chains and logistics. 
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 non citizen's eligibility. The submission of letters from experts supporting 
the petition is not presumptive evidence of eligibility. Id., see also Matter ofD-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, as noted, much of the content of the 
advisory opinion letter is lacking relevance because it discusses the importance of the Petitioner's 
industry and occupation rather than addressing how the specific proposed endeavor would satisfy the 
national importance element of the first prong of the Dhanasar framework. Simply stating that his 
work would support an important industry is not sufficient to meet the "national importance" 
requirement under the Dhanasar framework. 
5 
Moreover, the Petitioner has not established that the specific endeavor he proposes to undertake has 
significant potential to employ U.S. workers or otherwise offers substantial positive economic effects 
for our nation. Within his response to the Director's request for evidence, the Petitioner provided an 
Updated Impact Analysis from visabusinessplans .com. 9 The analysis indicates thatl I 
"plans to generate nine (9) U.S. jobs by the end of Year 5 ... . " 10 
The Updated Impact Analysis also indicates the company has projected wholesale revenues of 
$10,571,000 in the first year; $11,628,082 in the second year; $13,953,678 in the third year; 
$15,349,055 in the fourth year; and $16,883,983 in the fifth year." Further, based on those projected 
wholesale revenues, the analysis provides the company's projected five-year "Pro-forma Profit and 
Loss Statement," showing its net profit before taxes will total $575,895 in the first year; $618,713 in 
the second year; $801,982 in the third year; $912,832 in the fourth year; and $1,074,872 in the fifth 
year. 
In his appeal brief, the Petitioner argues that the Updated Impact Analysis demonstrated the economic 
impact of his endeavor because it indicated that, in addition to adding 9 direct jobs.I I 
will generate indirect employment among "the manufacturers and suppliers that it works with for a 
total of five hundred seventy-four (574) indirect and induced jobs." The Petitioner concludes that 
based on the indirect and induced jobs mentioned in the Updated Impact Analysis the record 
demonstrated that his endeavor "has and will continue to substantially affect economic activity at a 
national level." 
The Updated Impact Analysis bases its job creation predictions onl Iprojected revenues, 
applying modifiers based on a 2019 report published by the Economic Policy Institute. The Updated 
Impact Analysis, however, does not explain how the company's projected wholesale revenues, costs 
of goods sold, and expenses were calculated. The record, similarly, lacks supporting evidence 
demonstrating that the projected revenues in the Updated Impact Analysis present a realistic basis for 
employment creation predictions. Here, the Petitioner has not established the economic impact of his 
proposed endeavor by a preponderance of the evidence. See Chawathe, 25 l&N Dec. at 375-76. 
Furthermore, even if we were to assume everything the Petitioner claims will happen, the record lacks 
evidence showing that the revenues and potential job creation of the proposed endeavor rises to the 
level of national importance. 
In addition, while the Petitioner's five-year sales forecast indicates that his future projects for clients have 
growth potential, the record does not demonstrate that the benefits to the regional or national economy 
resulting from his undertaking would reach the level of "substantial positive economic effects" 
contemplated by Dhanasar. Id. at 890. For instance, although the Updated Impact Analysis provides 
projections on anticipated revenue, staffing levels, and indirect job creation, the Petitioner has not 
offered sufficient evidence that the areas where his company will operate are economically depressed. 
He has not shown that he would employ a significant population of workers in those areas. The record 
does not establish that his endeavor would offer the regions or their population a substantial economic 
9 We note that the analysis is written on the company 's letterhead but does not identify who performed the evaluation and 
is unsigned. 
10 The analysis includes the Petitioner 's position of "Vice President of Sales and Logistics" in its list of nine personnel to 
be hired "during Year 1 - Year 5." 
6 
benefit through employment levels, business activity, or tax revenue. 11 Nor does the expert letter from 
Professor M-B-S- mention any potential job numbers or detail any revenue benefits for regional areas 
or the nation. 
As observed by the Director, the Petitioner did not provide sufficient information regarding his 
proposed endeavor or sufficient supporting evidence to establish a strong connection between the 
proposed endeavor's activities and substantial economic benefits (such as job creation or tax revenues) 
on a level commensurate with national importance. InDhanasar, 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. Dhanasar, 26 I&N Dec at 893. 
Similarly, the proposed endeavor here may very well positively impact the businesses that engage the 
Petitioner for his services, but the evidence does not suggest that the Petitioner's services will be 
available on a level that has potential national implications in the field of frozen food distribution 
supply chains and logistics. Without sufficient information or evidence regarding any projected U.S. 
economic impact or job creation attributable to his future work, the record does not show that benefits 
to the U.S. regional or national economy resulting from the Petitioner's services would reach the level 
of "substantial positive economic effects" contemplated by Dhanasar. Id. at 890. 
The Petitioner has also asserted that his proposed endeavor "impacts a matter that U.S. government 
entities has described as having national importance and is subject to a myriad of national initiatives." 
Specifically, the Petitioner submitted a copy of President Biden's Executive Order 14017 of America's 
Supply Chains which highlights the importance of addressing disruptions in food and agriculture 
supply chains. 
The Petitioner claimed that his proposed endeavor addresses this priority highlighted in the executive 
order because it "has the potential to help food supply chains disruptions by streamlining the 
distribution, processing, and sales of fruit products to American markets and consumers," an area in 
which he has experience and training. However, the fact that a petitioner is qualified for and performs 
in a position in an industry or sector that is the subject of national initiatives is not sufficient, in and 
of itself, to establish the national importance of a specific endeavor. The Petitioner must still 
demonstrate the potential prospective impact of his specific endeavor in that area of national 
importance, and he has not met that burden. 
As discussed above, the documentation in the record does not establish the national importance of the 
Petitioner's proposed endeavor as required by the first prong of the Dhanasar precedent decision. 
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 second and third 
prongs. 12 
11 The Petitioner's evidence does not specify where the created direct and indirect jobs' workplaces would be located, and 
whether those job creations would have substantial positive economic effects in the context of those areas. 
12 See INS v. Bagamasbad , 429 U.S. 24, 25 (1976) (stating that, like courts, federal agencies are not generally required to 
make findings and decisions unnecessary to the results they reach); 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). 
7 
III. CONCLUSION 
As the Petitioner has not met the 
requisite first prong of the Dhanasar analytical framework, we conclude 
that he has not demonstrated eligibility for or otherwise merits a national interest waiver as a matter 
of discretion. The appeal will be dismissed for the above stated reasons, with each considered as an 
independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
8