dismissed EB-2 NIW Case: Law

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JUN. 18, 2024 In Re: 31456554 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Worker (National Interest Waiver) 
The Petitioner, a legal consultant, 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 the Petitioner did not 
establish her eligibility for the EB-2 classification as a member of the professions holding an advanced 
degree as she claimed. The Director also concluded that the Petitioner did not show that a waiver of 
the required job offer, and thus labor certification, would be in the national interest. This matter is 
now before us on appeal, which we review de novo. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 
n.2 (AAO 2015). The Petitioner bears the burden of establishing her eligibility by a preponderance of 
the evidence. Matter ofChawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). Upon de novo review, 
we will dismiss the appeal. 
I.LAW 
To be eligible for a national interest waiver, a petitioner must first establish eligibility for the 
underlying EB-2 visa classification, as an advanced degree professional or an individual of exceptional 
ability in the sciences, arts, or business. Section 203(b)(2)(A), (B) of the Act; 8 C.F.R. § 204.5(k)(l). 
If a petitioner establishes eligibility for the underlying EB-2 classification, they must then demonstrate 
that they warrant 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 l&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 1, grant a national interest waiver if 
the petitioner establishes that: (1) the proposed endeavor has both substantial merit and national 
importance; (2) they are well-positioned to advance their proposed endeavor; and (3) on balance, 
waiving the job offer and thus labor certification requirements would benefit the United States. Id. 
1 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts (and Third 
in an unpublished decision) in holding that USCIS' decision on a national interest waiver is discretionary in nature) . 
II. EB-2 CLASSIFICATION -ADVANCED DEGREE 
As a preliminary matter, to establish that a petitioner holds a qualifying advanced degree for EB-2 
classification purposes, the petition must 
be accompanied by an official academic record evidencing 
a U.S. advanced degree or a foreign equivalent degree. 8 C.F.R. § 204.5(k)(3)(i)(A). Advanced degree 
means a U.S. academic or professional degree or a foreign equivalent degree above that of a 
baccalaureate; and a U.S. baccalaureate degree or a foreign equivalent degree followed by at least five 
years of progressive experience in the specialty shall be considered the equivalent of a master's degree. 
8 C.F.R. § 204.5(k)(2). A petitioner thus may alternatively present an official academic record 
evidencing a U.S. baccalaureate or a foreign equivalent degree, and evidence in the form of letters 
from current or former employer(s) showing at least five years of progressive post-degree experience 
in the specialty. 8 C.F.R. § 204.5(k)(3)(i)(B); see also 8 C.F.R. § 204.5(k)(2). Evidence of qualifying 
experience must be in the form ofletters from current of former employers and shall include the name, 
address and title of the writer and a specific description of the duties performed, but if that evidence 
is unavailable, other documentation will be considered. 8 C.F.R. § 204.5(g)(l). 2 
As the Director concluded in a request for evidence (RFE), the Petitioner has a law degree in Brazil, 
which she agrees is equivalent to a U.S. bachelor's degree. A copy of her "Bachelor of Laws" diploma, 
underlying school record, and an academic evaluation the Petitioner submitted, shows that she has a 
foreign-equivalent bachelor's degree. 3 The Petitioner therefore must establish, as of the date of filing, 
that she has at least five years of progressive experience in the specialty from the date she obtained 
her bachelor's degree, January 9, 2015, to demonstrate that she holds an advanced degree for EB-2 
classification purposes. 8 C.F.R. § 204.5(k)(3)(i)(B) 
Turning to the requisite five years of progressive post-degree experience in the specialty, the Petitioner 
maintains that reference letters from her former employers and colleagues satisfy the evidentiary 
requirement as set forth under 8 C.F.R. § 204.5(k)(3)(i)(B). However, these letters mainly describe 
the Petitioner's credentials and the writers' working relationships with her, including her general tasks, 
and do not collectively demonstrate the required five years of qualifying experience as she claims. 
Specifically, the record contains reference letters from four individuals for whom the Petitioner claims 
she worked as an attorney at various times from 2015 to 2021, while operating her own law practice 
since 2017. As to relevant professional experience, a letter from S-R-D-J-4 states that she worked with 
the Petitioner "in direct partnership ... from 2018 to 2020, when she provided all intellectual and 
organizational support in [S-R-D-J-'s] office." Another letter from T-G- generally states that he 
"hired" the Petitioner "as an outsourced partner to help [T-G-] with some of [his] cases, especially 
dealing with from January/2017 to June/2018 [sic]" and that the Petitioner was "a fundamental part of 
the development of some cases." A similar letter from N-B-X-L- indicates that she also "hired" the 
2 Although the Petitioner may seek EB-2 classification as a professional holding an advanced degree and/or an individual 
of exceptional ability, she sought classification below only as a member of the professions holding an advanced degree, 
and the Director did not address whether she established EB-2 classification eligibility as an individual of exceptional 
ability. We therefore do not consider the Petitioner's assertions as to exceptional ability now raised before us for the first 
time on appeal. See Matter ofJ-Y-C-. 24 T&N Dec. 260,261 n. l (BIA 2007) (noting that matters not raised previously are 
waived on appeal); see also Matter of W-Y-C- & H-O-B-, 27 T&N Dec. 189, 190 (BIA 2018) (same; collecting cases). 
3 The Director's decision on advanced degree indicates that the Petitioner did not establish the requisite educational degree 
requirement in part because no underlying academic record was submitted. But the record contains such documentation, 
including her law school transcript and a diploma evaluation. We thus withdraw the Director's findings to the contrary. 
4 We use initials for individuals' privacy. 
2 
Petitioner "as an outsourced partner to help [N-B-X-L-] with some of [her] cases, especially dealing 
with from December/2016 to June/2021 [sic]." These letters lack specific dates of the Petitioner's 
claimed employment and do not otherwise delineate her professional duties, tasks, and the extent to 
which she was involved in the claimed projects as a partner or an employee. It is also unclear if she 
worked for the said individuals on a full-time basis. Further, the record does not contain any 
independent evidence of the claimed partnerships or employer-employee relationships, such as 
contracts and payment or other work-related records. Although the Petitioner also submitted a letter 
stating she worked initially as a trainee and then as a lawyer for K-V-D-S- from March 3, 2014, to 
August 28, 2015, under her "direct supervision," this letter does not clearly indicate K-V-D-S- was 
the Petitioner's former employer during this time. The remaining letters are reference or 
recommendation letters from colleagues ( and not from former employers, as required) attesting to their 
past work experiences with the Petitioner, and as such given limited evidentiary weight. 
While we recognize that the Petitioner has been self-employed for most of her career, the letters from 
the claimed employers lack specific dates and descriptions of the work done by or with her, and the 
record also lacks supporting evidence of the ongoing nature of her own business during the relevant 
time period, such as tax, financial and business records. 5 As stated, evidence of qualifying experience 
must be in the form ofletters from current of former employers and shall include, inter alia, a specific 
description of the duties performed, and where that evidence is unavailable, other documentation will 
be considered. 8 C.F.R. § 204.5(g)(l). Here, the Petitioner has not met this evidentiary burden to 
demonstrate she has the required five years of progressive experience in her specialty from the date 
she obtained her bachelor's degree on January 9, 2015, to the date she filed her petition. Consequently, 
the Petitioner has not established her eligibility for EB-2 classification as a member of the professions 
holding an advanced degree. 
III. NATIONAL INTEREST W AIYER 
Without first establishing her eligibility for EB-2 classification, the Petitioner cannot qualify for a 
national interest waiver as a matter of discretion. Even ifwe were to consider the merits of this waiver, 
we agree with the Director's decision denying the waiver because the record evidence did not satisfy 
the first prong ofDhanasar as it did not show that her proposed endeavor is of national importance. 
The Petitioner plans to open a legal consulting firm called She has worked as 
a lawyer in Brazil after earning a bachelor's law degree in 2015 and has since taken additional law 
courses. The Petitioner proposes that as the managing partner of her consulting firm, she will advise 
U.S. companies seeking to enter the Brazilian market on the legal requirements, including labor and 
other related regulations, as well as on financial planning, and facilitate cross-border business 
expansion by helping them navigate complicated legal hurdles and ensuring regulatory compliance. 
5 Although the reference letters indicate that the Petitioner worked for or with the claimed employers from 2015 to 2021, 
we note that she indicated in her petition, which she filed in November 2022, that she only worked full-time for a law firm 
("A-D-T") from August 2015 to December 2016 and then a as a full-time solo practitioner from March 2017 to July 2019, 
without listing any other work experience. Further, she did not submit an employment letter from A-D-T-, and her resume 
also only lists the same prior work experience, clearly stating that she closed her own practice in 2019 and "did not take 
on new cases." Her general court docket list from Brazil shows she had only one case in 2015, five in 2016, nine in 2017, 
17 in 2018, and nine in 2019. Matter ofHo, 19 I&N Dec. 582, 591 (BIA 1988) (stating that where there are inconsistencies, 
petitioners must resolve the discrepancies with independent, objective evidence pointing to where the truth lies). 
3 
Dhanasar's first prong, substantial merit and national importance, focuses on the specific endeavor 
that the individual 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 
assessing whether the proposed endeavor has national importance, we consider its potential 
prospective impact. Id. at 889. 
The Director first noted that the Petitioner did not specify her endeavor, which may impede evaluation 
of the related evidence under Dhanasar's three-prong test. Although the Petitioner's own statement 
and general description of her proposed duties in her petition are lacking in many ways, considering 
the overall evidence, including her business plan and two briefs submitted below, we conclude that 
her proposed endeavor is sufficiently detailed to form a basis for Dhanasar evaluation. 6 
Nevertheless, the Director ultimately concluded that under the Dhanasar framework, the Petitioner 
did not establish that her proposed endeavor is of national importance in part because she did not 
demonstrate that her business would have significant potential to employ U.S. workers, broadly impact 
the legal consulting field beyond her business, or otherwise have broader economic implications rising 
to the level of national importance. On appeal, she alleges that the Director applied pre-Dhanasar 
framework and erroneously considered geographical implications and lack of hiring potential as key 
factors while ignoring other relevant factors. Upon de novo review, we conclude that the record 
evidence does not demonstrate that the Petitioner's proposed endeavor has national importance. 
Under the preponderance of the evidence standard, we consider not only the quantity, but also the 
quality (including relevance, probative value, and credibility) of the evidence. Matter of Chawathe, 
25 I&N Dec. at 375-76; Matter ofE-M-, 20 I&N Dec. 77, 79-80 (Comrn'r 1989). Here, the Director 
properly analyzed and weighed the Petitioner's documentation by a preponderance of the evidence to 
evaluate whether her proposed endeavor is of national importance as contemplated by Dhanasar. 
In asserting that her proposed endeavor has national importance, the Petitioner refers to her academic 
credentials and professional experience as well as the same market statistics information included in 
the industry reports and articles submitted below pertaining to trade between the United States and 
Brazil. She further reasserts that, given her background, which she claims ideally aligns with the great 
market potential and needs, her proposed endeavor will help remove barriers to cross-border trade and 
ultimately have a broader, substantial positive impact resulting from the improved economic 
conditions and trade relationships between the two countries. But the Petitioner's reliance on her 
credentials and experience relate to the second prong of the Dhanasar, which "shifts the focus from 
the proposed endeavor to the foreign national." Id. at 890. Under Dhanasar's first prong, at issue 
here, we evaluate whether the specific endeavor she proposes to undertake has broader implications, 
rather than the general descriptions of work of the entire industry in which she proposes to engage 
based on her background and skills. In doing so, we look to evidence showing the "potential 
prospective impact" of her proposed endeavor. Id. at 889. Here, as a managing consultant of her own 
firm, the Petitioner proposes to work with individuals and businesses by providing a variety of 
consulting services. Although we acknowledge that her proposed endeavor could have a positive 
impact on her business, she has not persuasively explained, and the evidence does not demonstrate, 
6 We do not further address the issue of specificity of the proposed endeavor here asDhanasar's national importance prong 
is dispositive of this appeal, as discussed below . 
4 
how her proposed work would have the broader implications for the consulting services industry, 
U.S. economy, and international trade as she claims, beyond her business and potential clientele. 
In Dhanasar, we sought to avoid overemphasis on the geographic breadth of a proposed endeavor, 
specifically noting that endeavors with "significant potential to employ U.S. workers" or those having 
"substantial positive economic effects, particularly in an economically depressed area" may have 
national importance. Id. at 890. The Petitioner's business plan includes an organizational chart and a 
five-year "Personal Plan" listing her as "Managing Partner and Consultant" initially overseeing five 
employees comprising a junior consultant, a financial advisor, a paralegal, a sales representative, and 
an administrative assistant; and by year five, two financial advisors, two paralegals, two sales 
representatives, five junior consultants, and one administrative assistant. While the business plan also 
includes a "Hiring Plan" chart and general descriptions of the duties of these positions, the record does 
not include any evidence-based justifications for the staffing projections and need to employ additional 
employees, and thus does not demonstrate a significant potential to employ workers. 
The business plan also includes financial conjectures projecting a "Sales Forecast" ranging from 
approximately $500,000 in its first year of operation to over $1 million in its fifth year. The plan also 
projects the firm's initial ''Net Worth" of around $40,000 in its first year will increase eightfold by 
year five, to around $316,000. However, the record lacks corroborating evidence that would 
objectively substantiate these projections, such as underlying independent basis for the firm's claimed 
net worth and the source of the claimed sales and revenue. The record also does not contain any 
evidence as to how the Petitioner's firm will specifically achieve these projections. 
While the Petitioner continues to express her desire to contribute to the U.S. economy and international 
markets, she has not established with specific, probative evidence that her proposed endeavor will 
have broader implications in her field, have significant potential to employ U.S. workers, or have other 
substantial positive economic effects. Even assuming the Petitioner's business projections were to 
materialize, the record lacks evidence that hiring 12 employees and generating taxes of over $126,000 
with resulting net profit of $88,875 (after expenses) by the fifth year rises to the level of national 
importance. In sum, the Petitioner has not provided sufficient probative evidence to demonstrate that 
her consulting firm's future staffing levels and proposed business activities stand to provide the 
claimed substantial economic or other nationally important benefits as contemplated by the Dhanasar 
framework. Considering the foregoing, she has not demonstrated that her proposed endeavor as a 
managing legal consultant within the consulting services field has broader national implications. 
Lastly, the Petitioner also asserts that the Director failed to clearly notify her of the alleged evidentiary 
shortcomings related to the issue of national importance before denying her petition. But the issuance 
of an RFE is entirely within the Director's discretion. 8 C.F .R. § 103 .2(b )(8)(i). Further, the Director 
in fact issued an RFE specifically seeking competent evidence for the claimed national importance of 
the Petitioner's proposed endeavor as required by Dhanasar. The Petitioner's RFE response, however, 
did not include any additional evidence related to this issue. She therefore has not demonstrated that 
she warrants a national interest waiver. 
To be eligible for a national interest waiver, Dhanasar' s all three prongs must be met. As the identified 
basis for denial, the Petitioner's inability to meet the first prong, is dispositive of this appeal, we 
decline to reach the remaining appeal arguments as to the second and third prongs of the framework. 
5 
See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (stating that agencies are not required to reach issues 
that are unnecessary to the ultimate decision); 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). 
ORDER: The appeal is dismissed. 
6