dismissed EB-2 NIW Case: International Tax

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: DEC. 19, 2023 In Re: 28980877 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an international tax specialist, seeks classification as a member of the professions 
holding an advanced degree or of exceptional ability. See Immigration and Nationality Act (the Act) 
section 203(b )(2), 8 U.S.C. § 1153(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, 8 U.S.C. § 1153(b )(2)(B)(i). 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 Nebraska Service Center denied the petition, concluding the Petitioner qualified 
for classification as a member of the professions holding an advanced degree but that they 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 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 l&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 petition 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. 
Whilst 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). Dhanasar states that USCIS may as a matter of discretion 
grant a national interest waiver of the job offer, and thus of the labor certification, to a petitioner 
classified in the EB-2 category if they demonstrate that (1) the noncitizen' s proposed endeavor has 
both substantial merit and national importance, (2) the noncitizen 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 
noncitizen 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 noncitizen. To determine whether 
the noncitizen 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, progress towards achieving the proposed endeavor, and 
the interest of potential customers, users, investors, or other relevant entities or individuals are also 
key considerations. 
The third prong requires the petitioner to demonstrate that, on balance of applicable factors, it would 
be beneficial to the United States to waive the requirements of a job offer and thus of a labor 
certification. USCIS may evaluate factors such as whether, in light of the nature of the noncitizen' s 
qualification or the proposed endeavor, it would be impractical either for the noncitizen to secure a 
job offer or for the petition to obtain a labor certification; whether, even assuming that other qualified 
U.S. workers are available, the United States would still benefit from the noncitizen's contributions; 
and whether the national interest in the noncitizen's contributions is sufficiently urgent to warrant 
forgoing the labor certification process. Each of the factors 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. 
II. ANALYSIS 
The Director observed that the Petitioner was eligible for EB-2 classification as an individual who is 
a member of the professions holding an advanced degree. But the Director ultimately concluded that 
the Petitioner's substantially meritorious 1 proposed endeavor did not rise to a level of national 
importance as required by the first prong of Dhanasar. The Director also determined that the 
Petitioner was not well positioned to advance their proposed endeavor. And the Director concluded 
that on balance of applicable factors, a waiver of the requirement of a job offer, and thus a labor 
certification, would not be beneficial to the national interest. 
On appeal, the Petitioner contends the Director's decision was based on an erroneous conclusion of 
law and facts. Specifically, the Petitioner contends the Director applied a higher standard of proof 
1 The Petitioner submitted numerous articles, web pages, and reports from non-profit research organizations and executive 
level agencies related to foreign direct investment in the United States. This evidence supported the overall merit of the 
Petitioner's proposed field of endeavor. So the Director conectly concluded the Petitioner's proposed endeavor had 
substantial merit. But, contrary to the Petitioner's assertions, the same evidence does not adequately describe how the 
Petitioner's specific proposed endeavor would elevate foreign direct investment in a manner commensurate with matters 
of national importance. 
2 
than the preponderance of the evidence standard, disputes the Director's conclusion that the Petitioner 
materially changed their endeavor in response to the Director's request for evidence (RFE), 
erroneously used a female pronoun for the Petitioner (who identifies as male),2 and in summary did 
not consider the totality of the evidence the Petitioner submitted. They state on appeal that the 
evidence they submitted in the record prior to and at appeal demonstrated that the Petitioner meets all 
three prongs under the Dhanasar framework and merits a discretionary waiver of the job offer, and 
thus the labor certification, in the national interest. 
A. The Proposed Endeavor 
In Part 6 of the initial petition, the Petitioner described their endeavor as an "international tax advisor" 
who would "analyze accounting reports to determine how to ensure [a] company's compliance with 
all international tax laws and regulations, such as paying international income taxes ... organizing and 
filing tax returns, accounting reports, and doing other paperwork necessary for compliance or audits." 
Specifically the Petitioner's proposed endeavor, as described in their statements and their business 
plan, sought to attract foreign direct investment to the United States from "high-net-worth investors" 
via employment as an international tax consultant with I l I I, 
andl IThe investment by foreign "high-net-worth" investors, primarily from 
Brazil, via the Petitioner's endeavor utilizing a "methodology" the Petitioner developed was 
anticipated to result in tax generation, indirect and direct job creation, and overall economic growth. 
The Petitioner also asserted their proposed endeavor supported critical infrastructure and conferred a 
benefit to "overall societal welfare" from their endeavor during the COVID-19 response. 3 
B. National Importance 
The Director concluded that the Petitioner did not demonstrate their proposed endeavor was of national 
importance because the Petitioner did not demonstrate the broader implications of the proposed 
endeavor or its potential positive economic effects. For the below reasons, we agree. 
In determining national importance under Dhanasar, the relevant question is not the importance of the 
field, 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. In 
Dhanasar, we farther noted that "we look for broader implications" of the proposed endeavor and that 
"[ a ]n undertaking may have a 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 
2 We have noted and considered the single occurrence of incorrect pronoun usage error by the Director in their decision 
and conclude it did not impact the ultimate decision in this matter. 
3 In their response to the Director's request for evidence (RFE), the Petitioner maintained that their proposed endeavor 
would be performed via their emplorment as an international tax consultant with I I 
I A petitioner must establish eligibility for the benefit they are seeking at the time the 
petition is filed. See Matter of Katigbak, 14 T&N Dec. 45, 49 (Reg'l Comm'r 1971). A petitioner may not make material 
changes to a petition in an effort to make a deficient petition conform to USCTS requirements. Sec Matter of lzummi, 22 
T&N Dec. 169, 176 (Assoc Comm'r 1998). We depart from the Director's conclusion that the Petitioner made a material 
change to their endeavor in response to the RFE. The record here supports that the Petitioner consistently expressed the 
nature of their proposed endeavor at initial filing and in the professional plan they submitted in response to the Director's 
RFE. 
3 
economically depressed area, for instance, may well be understood to have national importance." Id 
at 890. What is critical in determining the national importance under Dhanasar is whether the 
proposed endeavor has a potential prospective impact with broader implications which rise to the level 
of national importance. So it is not what duties or what occupation the noncitizen will fill or perform 
but their actual plan with their occupation and duties that is examined. 
As stated above, the Petitioner's proposed endeavor is to continue their career as a "international tax 
advisor" working with "high-net-worth individuals" interested in investing and forming companies in 
the United States. The Petitioner roots their eligibility under this first prong of the Dhanasar 
framework by touting the byproducts of their employment, the host for their proposed endeavor. The 
Petitioner submitted two personal statements, their curriculum vitae, academic documents, 
evaluations, and certificates, job offer, letter of interest, photos, several letters of recommendation, a 
work sample, two expert opinion letters, and wage and tax statements. 4 The Petitioner contends that 
national importance is broadly implicated by the potential value of their continued work in their field 
of endeavor achieving their investment objectives on behalf of their high-net-worth clients. 
The Petitioner asserts that they constrained the scope of the documentation they presented to support 
their assertions "due to the extremely confidential nature of [the Petitioner's] endeavor, which is 
inextricably linked to ... financial and fiscal sensitive data." Although the evidentiary standard in 
immigration proceedings is the lowest preponderance of the evidence standard, the burden is on the 
Petitioner alone to provide material, relevant, and probative evidence to meet that standard. Section 
291 of the Act, 8 U.S.C. § 1361. A petitioner's burden of proof comprises both the initial burden of 
production, as well as the ultimate burden of persuasion. Matter ofY-B-, 21 I&N Dec. 1136, 1142 n.3 
(BIA 1998); also see the definition of burden of proof from Black's Law Dictionary (11th ed. 2019) 
(reflecting the burden of proof includes both the burden of production and the burden of 
persuasion). First, a petitioner must satisfy the burden of production. As the term suggests, this 
burden requires a filing party to produce evidence in the form of documents, testimony, etc. that 
adheres to the governing statutory, regulatory, and policy provisions sufficient to have the issue 
decided on the merits. So the Petitioner's self-imposed restriction to the scope of evidence they choose 
to submit into the record to support their assertions of eligibility for the immigration benefit they seek 
does not relieve them of their burden of proof 
The infirmity in the Petitioner's description of their endeavor is patent upon examination into the 
evidence and argument they introduced into the record. The Petitioner's evidence and argument do 
not help them carry their burden of production and persuasion because it does not relate to the proposed 
endeavor's national importance under the first prong of the Dhanasar framework. 
The Petitioner essentially stresses that it is their execution of the proposed endeavor is what will elevate 
it to a level of national importance due to their continuous work in the field over 15 years. The 
Petitioner stated that their past work experience and achievements render their work in their proposed 
endeavor likely to achieve results that will benefit the United States national interest. On appeal, the 
Petitioner essentially attempts to convince us that their many years of progressive experience 
representing over 120 "ultra-high-net-worth foreign investors" to establish and maintain new 
companies as investments elevates any endeavor they propose to undertake in the United States raised 
4 While we may not discuss every document submitted, we have reviewed and considered each one. 
4 
to the level of national importance. They also highlight their self-professed status as a "leader" in 
international tax and "intimate knowledge of and ability in" South American and US tax legislation as 
evidence that their proposed endeavor is "aligned with the national interest of the United States." But 
the Petitioner's claims are not persuasive. The Petitioner's argument spotlights a fundamental 
misunderstanding of the Dhanasar framework's first prong. The first prong focuses on the proposed 
endeavor; not on the Petitioner's execution of that proposed endeavor. The Dhanasar framework is 
consequently unconcerned with the success of the proposed endeavor or the Petitioner's track record 
in their field of endeavor previously. The Petitioner's contentions about their successful past 
performance in the field of endeavor they propose, as well as evidence and information of their 
achievements and recognition, would better serve a demonstration of eligibility under the Dhanasar 
framework's second prong. So the Petitioner's contentions about their successful career-to-date, as 
well as evidence and information of their achievements and recognition such that they are, are 
irrelevant to an examination of their eligibility under the first prong of the Dhanasar analytical 
framework. 
The Petitioner's employment verification letters, letters from employers, and letters of 
recommendation did not reflect how the proposed endeavor implicates national importance because 
the letters focused on the Petitioner's past work. When evaluating the national importance of a 
proposed endeavor under the first prong of Dhanasar, we are concerned with its potential prospective 
or future impact. The Petitioner's demonstration of prior similar work does not have an influence on 
the proposed endeavor's potential prospective impact based on its national importance. 
Moreover, the "scientific publications" edited or co-edited by the Petitioner as well as their educational 
certificates and certificates of artici ation in lectures and a "Road Show" under the auspices of the 
do not illuminate their endeavor's~------------------------~ national importance. The certificates earned by the Petitioner relate to them as an individual and their 
own personal participation in activities to enrich a community of professionals or promote business 
development. But the proposed endeavor's national importance stands separate and apart from the 
Petitioner's skills or experience. 5 
The Petitioner submitted a December 16, 2020 "Advisory Memorandum on Ensuring Essential Critical 
Infrastructure Workers' Ability to Work During the COVID-19 Response" 6 from the United States 
Department of Homeland Security's Cybersecurity and Infrastructure Security Agency (CISA) 
ostensibly to support their assertion that their international tax specialist duties performed in their 
proposed endeavor supported critical infrastructure. But CISA's advisory memorandum does not 
support the Petitioner's assertions. The advisory memorandum identified workers in 17 different 
industry categories with workers supporting critical infrastructure. The legal industry, which appears 
to fit the Petitioner's education and description of their proposed endeavor, is not included amongst 
the 17 different industry categories in CISA's advisory memorandum. And although the Petitioner 
provides international tax advice, the record does not adequately explain how the Petitioner's work is 
"supporting the operations of the judicial system including judges, lawyer, and other providing legal 
5 As stated previously, the Petitioner's education, skills, and knowledge are a relevant point for evaluation under 
Dhanasar 's second prong. 
6 The Petitioner submitted version 4.0 of this document with their RFE response received on February 17, 2023. We note 
that CISA issued a revised version 4.1 of the advisory memorandum on August 5, 2021, So the Petitioner's evidence was 
out of date and superseded on the date they submitted it to support their assertions. 
5 
assistance." In other words, it is unclear from the record how providing international tax advice would 
correspond to supporting judicial operations or other matters in a functioning court system as 
contemplated in the CISA advisory memorandum. And even if we emphasized the financial and tax 
aspects of the Petitioner's proposed endeavor and evaluated whether the Petitioner's proposed 
endeavor falls within the financial services industry category, we would still conclude the Petitioner's 
proposed endeavor does not support critical infrastructure. Whilst the category lists workers 
maintaining financial systems, orderly market operations, bank and non-bank financial services, 
financial call center, production and distribution of credit and debit card, point of sale terminal support, 
and workers supporting law enforcement requests, it does not include workers in international tax or 
performing similar duties to increase foreign direct investment. And in their brief on appeal, the 
Petitioner selectively includes workers from categories not related to the Petitioner's proposed 
endeavor, such as the education industry, because they highlighted their intention for their proposed 
endeavor to have a component wherein they educate clients and other professionals. The Petitioner 
does not sufficiently clarify with evidence in the record how the teaching aspect of their endeavor 
would characterize their endeavor as an occupation within the education category in CISA's advisory 
memorandum. Moreover, we have previously stated in Dhanasar that teaching activities did not rise 
to a level of having national importance because teaching activities do not have an impact on a specific 
field more broadly. Dhanasar at 893. 
As stated earlier, the Petitioner offered sufficient evidence to support the merit of increasing foreign 
direct investment in the United States and offered the same evidence to support the national importance 
of their proposed endeavor. But not every endeavor that purports to increase foreign direct investment 
in the United States is nationally important. We said in Dhanasar that we focus on "the specific 
endeavor that the foreign national proposed to undertake" and "look for broader implications" to 
determine the proposed endeavor's national importance. See Dhanasar, 26 I&N Dec. at 889. The 
evidence in the record did not sufficiently describe the magnitude of foreign direct investment the 
Petitioner's endeavor proposed to generate. The magnitude of the foreign direct investment the 
Petitioner expected their proposed endeavor to generate is a key consideration to evaluate whether the 
potential prospective impact of the Petitioner's proposed endeavor to increase foreign direct 
investment in the United States through primarily Brazilian ultra-high-net-worth individuals would 
rise to a level of national importance either through its broader implications or positive economic 
impact. The Petitioner offered a redacted "tax return form" they asserted "amounts to $3,261,765." 
It is not clear from the Petitioner's assertion whether the amount is gross income, net income, or total 
investment. Moreover, the excerpted page from their client's Form 1040 indicated the "$3,261,765" 
corresponded to "total payments" and not investment or income. And to the extent the Petitioner is 
asserting that "$3,261,765" is the amount of tax paid by the Petitioner's client, that fact does not 
adequately describe the national importance of the Petitioner's proposed endeavor. The record does 
not contain evidence which would sufficiently support extrapolating one data point from one client's 
financial information to determine whether the potential prospective impact of the Petitioner's 
proposed endeavor has broader implications or positive economic impact rising to a level of national 
importance. 
The Petitioner also asserted that they have developed a "methodology" which they intend to utilize 
via their proposed endeavor to increase foreign direct investment in the United States. However, the 
sample "tax and investment plan" the Petitioner provided to illustrate their "methodology" appeared 
to be a presentation to a particular client summarizing their unique situation. The "tax and investment 
6 
plan" does not adequately describe the Petitioner's "methodology" implemented through their 
proposed endeavor such that we could evaluate the potential prospective impact of the proposed 
endeavor through its broader implication or positive economic effect. 
USCIS may, in its discretion, use as advisory opinion statements from universities, professional 
organizations, or other sources submitted in evidence as expert testimony. See Matter ofCaron Int 'I, 
19 I&N Dec. 791, 795 (Comm'r 1988). However, the submission ofletters from experts supporting 
the petition is not presumptive evidence of eligibility. Id. The Petitioner casts two letters from their 
employers as "expert opinion letters." We have earlier discussed that these letters focused on the 
Petitioner's past work and not on their proposed endeavor. 
The Petitioner specifically emphasized two "independent exfert opinion letters" from ProfessoB
I I, associate professor at the I . _ and [ Ipartner in 
~------~ to support assertions of the national importance of the Petitioner's proposed 
endeavor. But these "independent expert opinion letters" do not illustrate how the Petitioner's 
proposed endeavor rises to a level impacting national importance either. 
From the outset, we raise concerns with the reliability of the "independent expert opinion" provided 
by I I because it contains several inconsistencies. I I's resume accompanying their 
letter identified them as having earned a PhD and master's degree in governmental accounting. But, 
in their opinion letter,I I states they have earned a master's degree in "Public Administration" 
and a PhD in "Public Administration and Public Policy." Accordingly, it is not clear w
1
at fieldl II lis an expert in and what knowledge base and experience they base their opinion on. 
also evaluated the Petitioner's proposed endeavor's national importance in vague or generalized 
conclusions. For example, I I discussed how "taxes helr raise the standard or living in a 
country" and "is a vital source of revenue" for governments. But I does not describe how 
the tax collection related to the Petitioner's proposed endeavor, which is to increase foreign direct 
investment in the United States from ultra-high-net-worth individuals from South America in general 
and Brazil in specific. An~ Idiscussion of taxes does not sufficiently identify the broader 
implications of the Petitioner's proposed endeavor or any substantial positive economic effects, 
particularly in an economically depressed area. And I I emphasis on the Petitioner's 
education, skills, and experience is misplaced because we evaluate a proposed endeavor's substantial 
merit and national importance divorced from the individual Petitioner's credentials. 
An~ !opinion exclusively makes generalized pronouncements about the Petitioner's 
background and skill, both of which are wholly irrelevant to an evaluation of the Petitioner's proposed 
endeavor under the first prong of the Dhanasar framework. And whilst! Igenerally 
described the benefits of increasing tax revenues to support federal and state government's ability to 
fund hospitals, school, roads, and other essentials, they did not adequately describe the broader 
implications of the Petitioner's proposed endeavor which could cast its potential prospective impact 
as nationally important. 
So we conclude that the Petitioner has not established that their proposed endeavor is of national 
importance. 
III. CONCLUSION 
7 
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, we 
conclude that they do not merit a favorable exercise of discretion to waive the requirement of a job 
offer, and therefore a labor certification. And we reserve the issue of whether the Petitioner 
demonstrated eligibility under the remaining prongs of the Dhanasar analytical framework. See INS 
v Bagamasbad, 429 U.S. at 25 and Matter of L-A-C-, 26 I&N Dec. at 526 n.7. So we dismiss the 
Petitioner's appeal. 
ORDER: The appeal is dismissed. 
8