dismissed EB-2 NIW Case: Furniture Importation And Interior Design

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 30, 2024 In Re: 29422164 
Motion on Administrative Appeals Office Decision 
Form I-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, the chief 
executive officer and sales director of furniture importation and interior 
design businesses in Spain and Florida, seeks classification as a member of the professions holding an 
advanced degree and as an individual of exceptional ability in the sciences, the arts, or business . See 
Immigration and Nationality Act (the Act) section 203(b )(2), 8 U.S.C. § l 153(b )(2). The Petitioner 
also seeks a national interest waiver of the job offer requirement that is attached to this EB-2 immigrant 
classification. See section 203(b )(2)(B)(i) of the Act. 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. 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
establish that he qualifies for a national interest waiver of the statutory job offer requirement. We 
dismissed a subsequent appeal. The matter is now before us on combined motions to reopen and 
reconsider. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). Upon review, we will dismiss the 
motion. 
The Director determined that the Petitioner had not met the three prongs of the framework set forth in 
Matter ofDhanasar, 26 I&N Dec. 884,889 (AAO 2016). We dismissed the appeal, withdrawing the 
Director's determination regarding the second Dhanasar prong but affirming the Director's 
detennination about the first prong and reserving argument on the third prong. We also concluded 
that the Petitioner had not shown eligibility for the underlying EB-2 classification, an issue that the 
Director had not addressed in the denial decision. 
On motion, the Petitioner maintains that he qualifies for classification both as a member of the 
professions holding an advanced degree and as an individual of exceptional ability in the sciences, the 
arts, or business. The Petitioner also asserts that he meets the Dhanasar requirements for the national 
interest waiver. 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F .R. 
§ 103.5(a)(2). Our review on motion is limited to reviewing our latest decision. 8 C.F.R. 
§ 103.5(a)(l)(ii). We may grant motions that satisfy these requirements and demonstrate eligibility 
for the requested benefit. See Matter of Coelho, 20 I&N Dec. 464, 4 73 (BIA 1992) (requiring that 
new evidence have the potential to change the outcome). 
On motion, the Petitioner submits letters from former employees; tax documentation from 2014 and 
2016; documentation regarding his bachelor's degree; and printouts relating to claimed media 
coverage of his business. The Petitioner asserts that these new facts establish his eligibility for 
classification as a member of the professions holding an advanced degree; his company's creation of 
U.S. jobs; and the reputations of media outlets that have covered his business. 
A motion to reconsider must establish that our prior decision was based on an incorrect application of 
law or policy and that the decision was incorrect based on the evidence in the record of proceedings 
at the time of the decision. 8 C.F.R. § 103.5(a)(3). We may grant motions that satisfy these 
requirements and demonstrate eligibility for the requested benefit. 
On motion, the Petitioner contests the correctness of our prior decision. In support of the motion, the 
Petitioner relies on Matter ofDhanasar and unpublished appellate decisions. 
Several of the new facts and arguments on motion relate to our detennination that the Petitioner had 
not established eligibility for the underlying EB-2 immigrant classification. While that determination 
was new to the proceeding, we also agreed with the Director's conclusion that the Petitioner had not 
established eligibility for the national interest waiver. As explained below, we conclude that the 
Director correctly determined that the Petitioner had not established eligibility for the national interest 
waiver, and the Petitioner has not overcome that detennination on motion. We therefore reserve the 
issue of the Petitioner's eligibility for the underlying EB-2 classification, because such discussion 
would not change the outcome of the present decision. 1 
A. Motion to Reopen 
Some of the new facts asserted on motion relate to the Petitioner's claimed eligibility for the EB-2 
immigrant classification. As explained above, we need not consider that issue unless and until the 
Petitioner overcomes the initial denial ground by establishing eligibility for the national interest 
waiver. For the reasons below, we conclude that the Petitioner has not done so. 
In our discussion of the national interest waiver, we noted that the Petitioner's business plan projected 
that his company would employ seven individuals within five years. We stated: "the record lacks any 
documentation of [the Petitioner's company's] financial or job creation history." On motion, the 
Petitioner submits copies ofIRS Fonns W-2, Wage and Tax Statements, as "evidence ofjobs created 
in the U.S. by" the Petitioner. The submitted forms indicate that, in 2014, seven employees each 
earned between $4,000 and $25,142, averaging $9,804 for the year. The Petitioner also submits one 
Form W-2 from 2016, indicating that the employee earned $9,962. 
1 See INS v. Bagamasbad, 429 U.S. 24, 25 ( 1976) (stating that agencies are not required to make "purely advisory findings" 
on issues that are unnecessary to the ultimate decision); see also Matter ofL-A-C-, 26 I&N Dec. 516, 526 n.7 (BIA 2015) 
( declining to reach alternative issues on appeal where the applicant did not otherwise meet their burden of proof). 
2 
In our appellate decision, we concluded that the Petitioner had not established "that the direct 
employment of six individuals other than the Petitioner ... would have a substantial positive economic 
effect in thel larea such that the proposed endeavor would have a broader impact." The new 
evidence submitted on motion does not address this concern. Rather, it shows that only one employee 
earned more than $10,000 in 2014, and a single Form W-2 from 2016 is the only new documenta1y 
evidence that the company had any employees after 2014. 
Earlier in the proceeding, the Petitioner had cited the "Special Evidentiary Considerations for 
Entrepreneurs" in 6 USCIS Policy Manual F.5(D)(4), https://www.uscis.gov/policy-manual, which 
indicates that an entrepreneur's supporting evidence might include published materials about the 
petitioner and the petitioner's U.S. business. The USCIS Policy Manual states: 
Relevant published materials may consist of printed or online newspaper or magazine 
articles or other similar published materials evidencing that the petitioner or the 
petitioner's entity, with some reference to the petitioner's role, has received significant 
attention or recognition by the media. Petitioners may submit evidence of the media 
outlet's reputation for officers to consider when evaluating this evidence. 
Id. In our dismissal decision, we noted that. _________________ ____. magazine 
interviewed the Petitioner in late 2021. We stated: "The magazine describes itself on its website as 
I I premiere business and lifestyle magazine,' but no independent documentary evidence 
was submitted regarding I !reputation." 
On motion, the Petitioner submits what he calls "new inde endent documentar evidence regarding 
I I reputation in the form of an article b The quoted passage L_____,-----,_ _____ __J 
asserts that "top decision-makers and influencers" rely on~_~for "in-depth business reporting" and 
"must-see content expounding local, pertinent business strategies." 
The submitted printout, however, does not support the Petitioner's claim that the quoted material is an 
independent article aboutl IThe printout describes! lnot as a publication providing objective 
local journalism, but as "a membership association uniting and building the software, engineering, 
~and information technology industry verticals throughout! !Florida." The paragraph about 
L__Jis part of a "Member Profile," and as such it appears to be promotional in nature. 
The Petitioner also submits a rintout of a 2014 article from what he calls "another prestigious trade 
publication, '-------~-------..-----~-____. To establish the magazine's 
reputation, the Petitioner submits a printout from described as a subscription service with 
"a selection of over 1000 magazines." The .______.printout callsl l"the go-to destination for 
all things home and design." As before, this language appears in promotional material on a website 
that sells jagazile subscriptions. Likewise, a submitted printout froml Iown website calls the 
magazine Florida's premier upscale home and design publication." We need not rely on the 
self-promotional material of the publisher. See Braga v. Poulos, No. CV 06 5105 SJO (C. D. CA July 
6, 2007) aff'd 2009 WL 604888 (9th Cir. 2009) (concluding that the AAO did not have to rely on a 
publisher's "self-serving assertion" regarding a magazine's status). 
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The Petitioner also submitted promotional material regarding.__ _______ _., which publishes 
I I The Petitioner does not establish that he or his company have received coverage in any other 
magazine published byl I In the absence of wider coverage, the relevant 
consideration is the reach and reputation ofl [ rather than its parent publisher. 
The Petitioner's new evidence does not establish that the reputations of.
________ ~ give 
significant weight to the articles published in those magazines, and the Petitioner has not established 
that these two atiicles show that he and his company have received significant attention or recognition 
by the media. 
The Petitioner's submission on motion does not overcome our prior conclusion that the Petitioner has 
not established the national importance of his proposed endeavor to qualify for a national interest 
waiver. We will therefore dismiss the motion to reopen. 
B. Motion to Reconsider 
On motion, the Petitioner asserts that we denied him due process because we did not issue a request 
for evidence before concluding that he had not established eligibility for an EB-2 classification, and 
because we did not sufficiently explain the basis for our conclusion. 
While our conclusions regarding the Petitioner's eligibility for an EB-2 classification were 
new to the 
proceeding, we also agreed with the Director's conclusion that the Petitioner had not established 
eligibility for the national interest waiver. Because we agreed with the original basis for denial, a 
request for evidence relating to the Beneficiary's eligibility for the underlying classification would not 
have changed the outcome of the appellate decision. As noted above, we need not discuss the 
Petitioner's eligibility for EB-2 classification here because the Petitioner has not shown that the 
Director's original ground for denial was in error. 
The Petitioner also states that we "failed to articulate any material doubts and reasoning as to why the 
evidence submitted [by the Petitioner] was probably not true." Our dismissal of the appeal was not 
based on any determination that the Petitioner's "evidence ... was probably not true." Rather, we 
concluded that the Petitioner had not met his burden ofproof to establish eligibility by a preponderance 
of the evidence. The burden is on the Petitioner to substantiate his claims. Also, many of the 
Petitioner's arguments in suppo1i of his national interest waiver claim rest not on issues of 
demonstrable, objective fact, but on speculation about the potential impact of his business venture. 
For instance, the Petitioner stated that "interior design can have an impact on mental health," and 
therefore his involvement in the interior design industry would support "multiple government 
initiatives ... to address the mental health issues in the United States." The Petitioner did not establish, 
however, that these government initiatives relied to any significant extent on interior design. 
In our dismissal notice, we stated: "The record shows that the Petitioner exclusively imp01is (and 
plans to continue to import) furniture from Europe, and therefore does not support his assertion that 
his proposed endeavor would be of importance to the United States in terms of its impact on 
manufacturing and production of raw materials." On motion, the Petitioner protests that he "never 
asserted that his proposed endeavor would have such impacts on manufacturing or the production of 
raw materials." The Petitioner, however, had previously submitted an expeti opinion letter from a 
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faculty member at I I citing the "Impacts of [the] Furniture Industry," including 
"manufacturing." More importantly, the quoted passage from the appellate decision was part of a 
broader passage, in which we concluded that the Petitioner had not supported his claims that his 
proposed endeavor would benefit a wider range of industries. The dismissal of the appeal did not 
hinge on the reference to raw materials. 
The Petitioner repeats prior assertions regarding the claimed cultural impact of his proposed endeavor, 
and observes that there are several different ways that a petitioner could satisfy the "national 
importance" component of the first Dhanasar prong, such as "national implications within a particular 
field" and "substantial economic effects." The Petitioner asserts that we erred by requiring "evidence 
that his proposed endeavor both generates a level of employment that will provide a substantial 
economic benefit and evidence that the endeavor will also impact the field more broadly" ( emphasis 
in original). 
The Petitioner does not cite any passage from our appellate decision in which we required the 
Petitioner to establish both types of benefit to the United States. Nevertheless, the record shows that 
the Petitioner did argue both job creation and wider impact on the field as grounds for his national 
interest waiver claim. It was therefore appropriate for us to consider both arguments in our decision. 
With regard to job creation, the Petitioner argues that "the evidence ... need only show that the 
endeavor ... has significant potential to employ U.S. workers, not that it was going to generate 
employment to such a degree that the Service would find it imparts a substantial positive economic 
benefit." Here, the Petitioner appears to argue that the likelihood of employing U.S. workers ought to 
be a strong positive factor, regardless of the number of workers thus employed. But Dhanasar does 
not state that an intention to employ U.S. workers presumptively shows the national importance of a 
proposed endeavor. Rather, it refers to "[a]n endeavor that has significant potential to employ U.S. 
workers or has other substantial positive economic effects." Matter ofDhanasar, 26 I&N Dec. at 890. 
This phrasing shows that "a significant potential to employ U.S. workers" is one example of various 
types of "substantial positive economic effects." The Petitioner has not shown that his company's 
employment of seven people is significant in this context. 
In Dhanasar, we observed: 
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 a given area of endeavor. 
By statute, individuals of exceptional ability are generally subject to the job offer/labor 
certification requirement; they are not exempt by virtue of their exceptional ability. 
Therefore ... a given petitioner ... cannot qualify for a waiver just by demonstrating 
a degree of expertise significantly above that ordinarily encountered in his field of 
expertise. 
Id. at 886 n.3. The same logic applies when discussing the potential benefit that a given individual 
offers to the United States. By statute, EB-2 classification is intended for those who "will substantially 
benefit prospectively the national economy, cultural or educational interests, or welfare of the United 
States." Section 203(b )(2)(A) of the Act. But individuals offering this substantial prospective benefit 
are presumptively subject to the statutory job offer requirement. 
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The Petitioner contends that we did not give full consideration to the evidence submitted, including 
"the business plan, invoices, contracts, and letters from clients attesting to their on-going commitment 
to contracting and/or benefiting from the Appellant's services as well as an expert letter." The 
Petitioner does not explain in any detail how this evidence should have influenced our appellate 
decision. The Petitioner previously made a similar argument on appeal, which we addressed in our 
appellate decision, stating: 
The Petitioner also stresses on appeal that the Director's decision does not address the 
expert opinion letter that he submitted, and argues that this evidence, together with the 
client letters, show why his proposed endeavor is of national importance. In discussing 
the national importance of the Petitioner's endeavor, the expeti opinion letter cites to 
broad statistics concerning international trade, entrepreneurship, small businesses in 
the United States, and the furniture and interior design industries in general. But it 
bears repeating that the focus of the first prong in the Dhanasar analytical framework 
is a petitioner's specific proposed endeavor, not the broader industries or fields in 
which they work. See Dhanasar, 26 I&N Dec. at 889. At no point does the letter 
discuss the national importance of the Petitioner's specific proposed endeavor as the 
owner of a business engaged in interior design and furniture import and retail. 
On motion, the Petitioner repeats the assertion that we did not sufficiently consider the expert opinion 
letter. The Petitioner does not refute the conclusions quoted above, in which we specifically addressed 
that letter. A motion to reconsider is not a process by which a party may submit, in essence, the same 
brief presented on appeal and seek reconsideration by generally alleging error in the prior decision. 
Matter of0-S-G-, 24 I&N Dec. 56, 58 (BIA 2006). 
The Petitioner cites an unpublished appellate decision from 2018, stating: "the AAO has, before, 
sustained appeals by entrepreneurs like [the Petitioner], when the national importance of an endeavor 
appears to rest on the fact that the entrepreneurs' products are distributed widely." The cited decision 
was not published as a precedent decision under 8 C.F.R. § 103.3(c). Unpublished agency decisions 
and advisory legal opinions are not binding, even when they are published in private publications or 
widely circulated. R.L. Inv. Ltd Partners v. INS, 86 F. Supp. 2d 1014, 1022 (D. Haw. 2000), aff'd, 
273 F.3d 874 (9th Cir. 2001). 
The unpublished decision involved "an agribusiness entrepreneur" who "invents and manufactures 
crop biostimulants that are then sold by agrochemical distributors." The petitioner in that case 
established "that his biostimulants are aimed at helping infected trees survive ... a bacterial citrus 
greening disease that is a serious threat to citrus crops in Florida." We concluded that the petitioner's 
"work offers advancements in sustainable agriculture and the crop protection industry." The Petitioner 
in the present case has not established a similar level of benefit. Furthermore, with regard to "the 
entrepreneurs' products," the Petitioner does not claim to have developed any such products. Rather, 
he imports and sells furniture manufactured by third parties in Europe. 
Although the Petitioner has submitted additional evidence in support of the motion to reopen, the 
Petitioner has not established eligibility. On motion to reconsider, the Petitioner has not established 
6 
that our previous decision was based on an incorrect application of law or policy at the time we issued 
our decision. Therefore, we will dismiss the motion. 8 C.F.R. § 103.5(a)(4). 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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