dismissed EB-2 NIW Case: Intellectual Property Law

U.S. Citizenship 
and Immigration 
Services 
In Re: 22568211 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : OCT . 6, 2022 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, an intellectual property (IP) specialist, seeks second preference 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 EB-2 classification. See Immigration and 
Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2) . 
The Director of the Nebraska 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. 
In these proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit 
sought. Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova 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. 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. 
Section 203 (b) of the Act sets out this sequential framework: 
(2) Aliens who are members of the professions holding advanced degrees or aliens of 
exceptional ability. -
(A) In general. - Visas shall be made available ... to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or 
who because of their exceptional ability in the sciences, arts, or business, will 
substantially benefit prospectively the national economy, cultural or 
educational interests, or welfare of the United States, and whose services in the 
sciences, arts, professions, or business are sought by an employer in the United 
States. 
(B) Waiver ofjob offer-
(i) National interest waiver. ... [T]he Attorney General may, when the Attorney 
General deems it to be in the national interest, waive the requirements of 
subparagraph (A) that an alien's services in the sciences, arts, professions, or 
business be sought by an employer in the United States. 
Furthermore, while neither the statute nor the pertinent regulations define the term "national interest," 
we set forth a framework for adjudicating national interest waiver petitions in the precedent decision 
Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). 1 Dhanasar states that after a petitioner has 
established eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) 
may, as matter of discretion 2, grant a national interest waiver if the petitioner demonstrates: (1) that 
the foreign national's proposed endeavor has both substantial merit and national importance; (2) that 
the foreign national 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 
foreign national 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 foreign national. To determine 
whether he or she 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; any progress towards achieving the proposed 
endeavor; and the interest of potential customers, users, investors, or other relevant entities or 
individuals. 
The third prong requires the petitioner to demonstrate 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. In performing 
this analysis, USCIS may evaluate factors such as: whether, in light of the nature of the foreign 
national's qualifications or the proposed endeavor, it would be impractical either for the foreign 
national to secure a job offer or for the petitioner to obtain a labor certification; whether, even assuming 
that other qualified U.S. workers are available, the United States would still benefit from the foreign 
national's contributions; and whether the national interest in the foreign national's contributions is 
sufficiently urgent to warrant forgoing the labor certification process. In each case, the factor(s) 
1 In announcing this new framework. we vacated our prior precedent decision, Matter of New York State Department of 
Transportation. 22 l&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
2 See also Poursina v. USCIS. No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or 
deny a national interest waiver to be discretionary in nature). 
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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. 3 
II. ANALYSIS 
The Director concluded that the Petitioner qualifies as a member of the professions holding an 
advanced degree. Accordingly, the 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. For the reasons discussed below, we agree with the Director that the Petitioner 
has not sufficiently demonstrated eligibility under the first prong of the Dhanasar analytical 
framework. 
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: 
[IP] law [as] well as art law are very important for the economic growth and technological 
progress. The U.S. Chamber of Commerce supports the development of the [IP] law. I 
made a lot of research about the national and international application of rules and 
methods, which can protect the [IP] and rights of authors and other actors of the art market. 
My research achievements are beneficial for the whole U.S. nation and satisfy national 
goals given by government agencies. 
In response to the Director's request for evidence, the Petitioner stated: 
Through implementation my system of the IP audit, I can help US companies and 
individuals successfully protect, develop, and reinforce their IP assets, identifying IP 
development current needs, opportunities, and risk. 
This system can be applied in many areas, but it provides the greatest advantage for tech, 
biotech and pharmaceutical domains, and the sphere of Arts. IP audit can be applicable 
for large companies and small businesses. 
My endeavor to permit companies and individuals protect and develop their IP presents 
an advantage for many areas, such as business, culture, education, and economic 
development. 
In addition, the Petitioner submitted a business plan reflecting: 
[The Petitioner] plans to provide IP audits and IP management analyses as an IP Specialist 
in the U.S .... [The Petitioner] plans to contribute to IP development and protection by 
using her specialized IP knowledge. Over the next ten years, [the Petitioner] plans to set 
up her own company and will specialize in providing IP-related service to biotech, tech, 
and art companies. 
3 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
3 
Using her knowledge and experience gained in Russia and France, [the Petitioner] has 
developed her own system ofIP audit, which has been successfully implemented abroad. 
Namely, [the Petitioner] plans to implement this IP auditing system through her endeavor 
in the U.S. 
An IP audit is a systematic of the IP owned, used, or acquired by a company, necessary to 
evaluate and manage risk, remedy problems, and implement best practices in IP asset 
management. An IP audit is an indispensable tool for successfully managing, creating, or 
revising a company's IP strategy. Thorough IP audits help companies assess and protect 
their IP as well as identify IP development needs, opportunities, and risks. 
On appeal, the Petitioner maintains that her "endeavor helps US businesses and individuals to develop, 
protect and monetize their IP" and "[i]t is necessary to stress that IP of the whole country is the IP of its 
individuals and business." The Director determined that the Petitioner demonstrated the proposed 
endeavor's substantial merit but not its national importance. For the reasons discussed below, we agree 
with the Director that the Petitioner has not sufficiently shown the national importance aspect of her 
proposed endeavor. 
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 "the specific endeavor that the 
foreign national proposes to undertake." See Dhanasar, 26 I&N Dec. at 889. Here, the Petitioner 
must demonstrate the national importance of her providing specific IP services rather than the national 
importance of IP or the wide range of business fields or industries in which she intends to work. In 
Dhanasar, 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. 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. 
Furthermore, although she describes herself as "a valuable and well-known professional in the sphere of 
IP protection," the Petitioner's experience, skills, and abilities in her 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 she 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 her work. While she contends 
that the "development and protection of IP is a key factor of the development and growth of the US 
economy, culture and security," she has not offered sufficient, specific information and evidence to 
demonstrate that the prospective impact of her specific proposed endeavor rises to the level of national 
importance. Instead, the record contains evidence relating to general IP material, such as IP principles 
for advancing cures and therapies, Presidential proclamations, trade policies, and IP enforcement. In 
Dhanasar, 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. Id. at 893. Here, the 
record does not show that the Petitioner's proposed endeavor of providing IP audits and IP management 
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analyses as an IP Specialist stands to sufficiently extend beyond her potential or futuristic employers 
or clients, to impact the field or any other industries or the U.S. economy more broadly at a level 
commensurate with national importance. 
Furthermore, the business plan does not make any employment or revenue projections from her 
anticipated company or how her business would impact the economy. The Petitioner has not 
established that her company would employ a significant population of workers in the area or that her 
endeavor would offer the region or its population a substantial economic benefit through such 
employment levels or business activity. 4 As such, the Petitioner has not demonstrated that benefits to 
the regional or national economy resulting from the Petitioner's undertaking would reach the level of 
"substantial positive economic effects." Dhanasar, 26 I&N Dec. at 890. 
Because the documentation in the record does not establish the national importance of her proposed 
endeavor as required by the first prong of the Dhanasar precedent decision, the Petitioner has not 
demonstrated eligibility for a national interest waiver. Further analysis of her eligibility under the second 
and third prongs outlined in Dhanasar, therefore, would serve no meaningful purpose. 5 
III. CONCLUSION 
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, we conclude 
that she has not demonstrated that she is eligible 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. 
4 We note that the Petitioner contends that the Director erred in stating that "according to her business plan the petitioner plans 
to set up her own company over the next ten years." Specifically, the Petitioner asse1ts that "nothing in my business plan states 
that T[']m planning to set up my company in 10 years, T[']m planning to set up my company right after the approval of my 
petition." However. as indicated above. page IO of her business plan reflects that "[o]ver the next years, [the Petitioner] plans 
to set up her own company." 
5 See INS v. Bagamasbad, 429 U.S. 24. 25 (1976) (stating that ·'courts and agencies are not required to make findings on 
issues in the decision of which is unnecessary to the results they reach"); see also Matter ofL-A-C-, 26 l&N Dec. 516,526 
n. 7 (BIA 2015) ( declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
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