dismissed EB-2 NIW Case: Human Resources

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: NOV. 1, 2023 In Re: 28561596 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an entrepreneur in the field of human resources, seeks employment-based second 
preference (EB-2) immigrant classification as a member of the professions holding an advanced 
degree, as well as a national interest waiver of the job offer requirement attached to this classification. 
See Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2). 
The Director of the Texas Service Center denied the petition, concluding that although the Petitioner 
qualified as an advanced degree professional, she had not established that a waiver of the required job 
offer, and thus of the labor certification, would be in the national interest. The matter is now before 
us on appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
To establish eligibility for a national interest waiver, a petitioner must first demonstrate qualification 
for the underlying EB-2 visa classification as either an advanced degree professional or an individual 
of exceptional ability in the sciences, arts, or business. Section 203(b )(2)(B)(i) of the Act. 
"Advanced degree" means any U.S. academic or professional degree or a foreign equivalent degree 
above that of baccalaureate. 8 C.F.R. § 204.5(k)(2). A U.S. baccalaureate degree or a foreign 
equivalent degree followed by five years of progressive experience in the specialty shall be considered 
the equivalent of a master's degree. Id. 
"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 
Once a petitioner demonstrates eligibility as either a member of the professions holding an advanced 
degree or an individual of exceptional ability, 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 
As indicated above, the 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. The Director determined that the 
Petitioner is a member of the professions holding an advanced degree. However, upon de novo review, 
we disagree. 
The Petitioner provided a copy of her diploma for the title of public accountant and transcripts from 
the Universidad~--------~indicating that she began her studies in 2000 and completed 
them in 2002, a period of two years. 4 However, a bachelor's degree is generally found to require four 
years of education. Matter ofShah, 17 I&N Dec. 244 (Comm'r 1977). There is no provision in the 
statute or the regulations that would allow a petitioner to qualify under section 203(b )(2) of the Act as 
a member of the professions holding an advanced degree with anything less than a full baccalaureate 
degree (plus five years of progressive experience in the specialty). 
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 USCTS has previously confirmed the applicability of this two-part adjudicative approach in the context of individuals of 
exceptional ability. See generally 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 The Petitioner did not submit an academic evaluation to establish that her diploma from the Universidad~I----~ 
I lis the equivalent of a baccalaureate degree from an accredited college or university in the United States. 
2 
Moreover, we observe that although the information printed on the transcript letterhead is legible and 
crisp, the letterhead itself appears fuzzy and is often not legible and the information on the fourth page 
of the transcript covers a portion of the letterhead. These issues raise questions and concerns regarding 
the authenticity of the transcripts. Doubt cast on any aspect of a petitioner's proof may undermine the 
reliability and sufficiency of the remaining evidence offered in support of the visa petition. The 
Petitioner must resolve the inconsistencies with independent, objective evidence pointing to where the 
truth lies. Matter ofHo, 19 I&N Dec. 582,591 (BIA 1988). 
For the reasons we have discussed above, the Petitioner has not established by a preponderance of the 
evidence that she is a member of the professions holding an advanced degree and we withdraw the 
Director's finding on this issue. 
In addition, we note the Petitioner initially claimed she qualifies 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. 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 human resources consulting services business in Texas. In 
addition, the Petitioner states that her "clients will include construction workers and companies, small 
and medium-sized enterprises (SMEs), and 
foreign entrepreneurs looking to establish a business in the 
U.S. as well as individuals and soon-to-be retirees." 
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. 
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 that her proposed endeavor would have a broader impact on the human 
resources management field. 
On appeal, the Petitioner contends that the Director failed to consider all of her proposed endeavor's 
broader implications as shown in her business plan, industry reports, articles, and government 
initiatives. We have reviewed the staffing and revenue projections in the submitted business plan, 
which project that the company will directly employ 20 foll-time employees within five years and, 
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-C-, 26 l&N Dec. 516, 526 n.7 (BIA 
2015) ( declining to reach alternate issues on appeal where an applicant is otherwise ineligible). 
3 
during that period, cumulatively pay wages of over $900,000 and generate over $1 million in revenue. 
The business plan uses a multiplier published by the Economy Policy Institute to show that it will 
generate 83 indirect jobs by the company's fifth year of operation. Importantly however, these 
employment and revenue projections are not supported by details showing their basis or an explanation 
of how they will be realized, nor do they demonstrate a significant potential to either employ U.S. 
workers or to substantially impact the regional or national economy. Specifically, the record does not 
support that the direct creation of 20 additional full-time jobs and 83 indirect jobs in this sector or the 
expected revenue generated by the company will have a substantial economic benefit commensurate 
with the national importance element of the first prong of the Dhanasar framework. 
In addition, the business plan highlights the Petitioner's over 10 years of experience in human 
resources and financial management 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. 
Moreover, through industry reports and articles, the Petitioner emphasized the importance of the 
human resources management industry. We agree that the field of human resources 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 further noted that 
"we look for broader implications" of the proposed endeavor and that "[ a ]n undertaking may have 
national importance for example, because it has national or even global implications within a particular 
field." Id. 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. 
Regardless, 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 providing her human resources consulting services stands to 
sufficiently extend beyond her clients to impact the field more broadly at a level commensurate with 
national importance. 
We also reviewed the expert opinion letter from a university associate professor in the marketing field. 
The author discusses the Petitioner's skills and abilities as a human resources consultant and speculates 
on how her services can potentially improve business practices and improve productivity of companies 
but does not offer any persuasive detail concerning the Petitioner's proposed endeavor or how her 
endeavor's impact would extend beyond the companies that she will serve. Further, USCIS may, in 
its discretion, use as advisory opinions statements from universities, professional organizations, or 
other sources submitted in evidence as expert testimony. Matter o_fCaron Int'!, 19 I&N Dec. 791, 795 
(Comm'r. 1988). However, USCIS is ultimately responsible for making the final determination 
regarding a foreign national's eligibility. The submission of letters from experts supporting the 
petition is not presumptive evidence of eligibility. Id., see also Matter ofD-R-, 25 I&N Dec. 445, 460 
4 
n.13 (BIA 2011) (discussing the varying weight that may be given expert testimony based on 
relevance, reliability, and the overall probative value). 
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. 6 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. 
6 See id. 
5