dismissed EB-2 NIW Case: Law

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date : WL. 11, 2023 In Re : 26964963 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Worker (National Interest Waiver) 
The Petitioner, an international legal consultant, seeks second preference immigrant classification as 
a member of the professions holding an advanced degree or an individual of exceptional ability, as 
well as a national interest waiver of the job offer requirement attached to this EB-2 immigrant 
classification. See Immigration and Nationality Act (the Act) section 203(b )(2), 8 U.S.C. § l l 53(b )(2). 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
qualify for the EB-2 classification either as a member of the professions holding an advanced degree 
or as an individual of exceptional ability . The Director also concluded 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. 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 Christo '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 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. 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. 
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definitions: 
Advanced degree means any United States academic or professional degree or a foreign 
equivalent degree above that of baccalaureate. A United States 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. If a doctoral degree is 
customarily required by the specialty, the alien must have a United States doctorate or a foreign 
equivalent degree. 
Exceptional ability in the sciences, arts, or business means a degree of expertise significantly 
above that ordinarily encountered in the sciences, arts, or business. 
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 (AAO 2016), provides the framework for adjudicating national interest 
waiver petitions. 1 Dhanasar states that U.S. Citizenship and Immigration Services (USCIS) may, as 
matter of discretion 2, 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 the proposed endeavor; and 
• On balance, waiving the requirements of a job offer and a labor certification would benefit the 
United States. 
II. ANALYSIS 
We will first address the threshold requirement that the Petitioner must qualify for classification under 
Section 203(b )(2)(B)(i) of the Act, as a member of the professions holding an advanced degree or as 
an individual of exceptional ability. 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Dept. of 
Transportation, 22 l&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
2 See also Poursina v. USC1S, 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). 
2 
Regarding the Petitioner's eligibility as an advanced degree professional, the Director focused on the 
expert opinion written b~ Ian associate teaching professor oflaw atl I 
University, and concluded that this expert letter did not sufficiently evaluate the Petitioner's 
educational background to establish that the Petitioner has a foreign equivalent degree followed by at 
least five years of progressive experience in the specialty. 8 C.F.R. § 204.5(k)(2). However, upon 
reviewing the record, it appears that this letter was intended to evaluate the Petitioner's eligibility for 
the national interest waiver under the Dhanasar's three prongs, not his academic credentials. 
The record contains a diploma of the Petitioner's bachelor's degree in law from thel !University 
.______ ~Iin Brazil and an official academic transcript listing legal courses he has taken from 
1992 to 1997. On appeal, the Petitioner offers an academic evaluation from I I of 
Silvergate Evaluations demonstrating that his degree is equivalent of a U.S. bachelor's degree in legal 
studies. In addition, the Petitioner resubmits an affidavit stating that he has been self-employed at his 
own companies, .______________ ~since 2003 and I I 
._______.I (his solo firm) since 2016. The Petitioner's other supporting documents, such as his 
resume, recommendation letters, company registration certificates, and evidence of his lawyering, 
corroborate the details provided in this affidavit. 
Considering the evidence in totality, we conclude the Petitioner has established, more likely than not, 
that he possessed the foreign degree equivalent of a bachelor's degree, and at least five years of 
progressive post-baccalaureate experience in the specialty at the time of filing of the petition. We find 
therefore that the Petitioner is eligible for the EB-2 classification as an advanced degree professional 
in accordance with 8 C.F.R. § 204.5(k)(3)(i) and withdraw the Director's finding in this matter. 
As the Petitioner met the EB-2 classification as an advanced degree professional, we need not evaluate 
whether the Petitioner also meets the eligibility for an individual of exceptional ability and reserve our 
opinion regarding this issue. 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"). 
We now tum to the Petitioner's eligibility for the national interest waiver under Dhanasar. The 
Director concluded that the Petitioner's endeavor has substantial merit but not national importance 
under the first prong of the Dhanasar framework. 3 The Director stated that the record does not 
demonstrate how the Petitioner's proposed endeavor as an international legal consultant stands to have 
a broader impact on his field or would offer substantial economic benefits to the region where it 
operates or to the nation. We agree with the Director's decision. 
The Petitioner initially described his proposed endeavor as providing consultation services to both 
American and Brazilian companies "in the areas of labor, civil and environmental law of Brazil, 
focusing on environmental issues and connecting companies both in Brazil and in the United States to 
join forces in solving this ever growing important issue." The Petitioner claimed that his endeavor is 
of national importance because his company,.__ ______________ ____. "will provide 
significant impact in the betterment of the Environment, create new job opportunities, by providing 
solutions for companies and individuals working hard to restore, maintain and save the environment." 
3 The Director also found that the Petitioner did not meet the second or third prongs of the Dhanasar analytical framework. 
3 
In response to the Director's request for evidence (RFE), the Petitioner describes his proposed 
endeavor as follows: 
My proposed endeavor is to create the._________________ _,to provide 
consultancy and legal advice to Brazilian and American individuals/companies to introduce 
themselves into foreign territory in a structured, and therefore, competitive manner. My 
company will provide various services such as: international business consulting, international 
business strategy, international market entry, international implementation recruitment and 
training consulting, business formation and business strategies for corporate organization, 
management and strategic consulting. 
Unlike the initial description of his proposed endeavor which concentrated on the legal matters of 
labor, civil, and environmental laws, the Petitioner's latter description involves business strategies, 
marketing, recruitment, and business formation. Because a petitioner seeking a national interest 
waiver must, under the first prong of the Dhanasar framework, demonstrate the substantial merit and 
national importance of their proposed endeavor, a change in the nature of that endeavor from legal 
consulting to business consulting is material to eligibility for the waiver. 
A petitioner may not make material changes to a petition in an effort to make a deficient petition 
conform to USCIS requirements. SeeMatterofizummi, 22 I&NDec. 169,176 (Assoc. Comm'r 1998). 
Since it appears the new endeavor raised in response to the RFE is a material change to the Petitioner's 
initial proposed endeavor, we will not consider it in this appeal. We will then evaluate the evidence 
for the endeavor the Petitioner submitted with the initial petition. 
In determining whether the proposed endeavor has national importance, "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. at 890. The 
Petitioner's primary evidence for establishing national importance of his endeavor consists of the 
industry reports, his business plan, and the expert opinion letter from ._________ _.of the 
I I University. Upon examination of each piece of evidence, we conclude that the record is 
not sufficient in linking the Petitioner's claims of national importance to his proposed endeavor, as 
discussed below. 
The Petitioner refers to web-based reports and statistics showing the consulting industry's potential 
for growth in the United States and emphasizes the importance of commercial and trade relations 
between Brazil and the United States. While these reports bring awareness to issues relevant to 
international legal consulting and highlight the field in which the Petitioner intends to work, they do 
not discuss the impact of the Petitioner's consulting services on his clients or to the consulting industry 
or establish how the specific proposed endeavor has national importance. The relevant question here 
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." Id. at 889. 
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. The Petitioner has submitted the same 
business plan several times throughout the proceedings. Each time, the Petitioner claims that his 
4 
consulting company has significant potential to employ U.S. workers as it intends to hire both direct 
and indirect employees. Yet the Petitioner's business plan does not include detailed projections for 
staff hiring to demonstrate that the benefits to the regional or national economy resulting from his 
business would reach the level of "substantial positive economic effects" contemplated by Dhanasar. 
Id. The business plan simply indicates that the company's office inl IFlorida, can 
accommodate only 10 professionals and in two years, the company may expand to having 15 foll time 
professionals "comprised of employees and possible business partners." 
The business plan's three-year projection farther estimates the company's income tax to the U.S. 
government during the first year to be $16,175 but the amount increases to $93,035 in year two and 
$179,199 in year three. The plan also anticipates the company's revenue to be $372,480 in year one, 
$585,220 in year two, and $832,560 in year three. However, the record does not sufficiently detail the 
basis for its revenue and tax projections or adequately support how these projections will be realized. 
The Petitioner must support his assertions raised in his business plan with relevant, probative, and 
credible evidence. See Matter of Chawathe, 25 l&N Dec. 369, 376 (AAO 2010). 
The Petitioner also suggests that his endeavor serves an economically depressed area because "12.8% 
of the population in I IFL, live below the poverty line, a figure that is 
higher than the national average of 12.3%." The Petitioner states that "r am aware that r must 
cooperate with these communities, and rhope, in the mature phase of my business, to be able to offer 
my services at affordable prices in order to be one of the promoters of development in these areas." 
However, the Petitioner does not offer any corroborating documentation to show how this area 
qualifies as an economically depressed area that would benefit from his business or how his consulting 
company specifically intends to serve this area. 
The Petitioner resubmits the expert opinion letter from._________ __,on appeal. The letter 
opines that the Petitioner's extensive knowledge of business laws and regulations in Brazil will 
somehow "improve operations and achieve better productivity and profitability levels" for U.S. small 
and medium-sized enterprises. Yet the letter lacks specific examples as to how the Petitioner can 
make such substantial economic impact to his field as a lone consulting company. The letter farther 
claims that the Petitioner's endeavor will generate revenues and create employment opportunities, 
which in tum increasing "tax revenues to the federal and state governments and increasing the fonds 
available to spend on hospitals, schools, roads, and other essential services" without indicating any 
projected U.S. economic impact or job creation specifically attributable to the Petitioner's services or 
company. Here, the expert opinion is of little probative value as it does not meaningfully address the 
details of the proposed endeavor and why it would have national importance. 
With the appeal, the Petitioner declares that "r qualify as an Entrepreneur" based on users' updated 
guidance from January 21, 2022. See generally 6 users Policy Manual F.5(D)(4), 
http://www.uscis.gov/policy-manual. However, the policy update that the Petitioner references 
explains how the Dhanasar framework can apply to entrepreneurs and does not automatically grant 
national interest waiver or attach national importance to any and all entrepreneurial endeavors. As 
such, we conclude that the Petitioner's reference to this policy update does not sufficiently identify an 
error in Director's decision nor establish the national importance of the proposed endeavor. 
5 
In the same way that Dhanasar finds that a classroom teacher's proposed endeavor is not nationally 
important because the effects of his/her work are primarily limited to his/her school or district, we find 
that the Petitioner has not established his proposed endeavor in this case will sufficiently extend 
beyond his clients to affect the regional or national economy more broadly. See Dhanasar, 26 I&N 
Dec. at 889. 
Based on the reasons above, we find the record does not establish the Petitioner's proposed work is of 
national importance. Because the Petitioner has not met the first prong of the Dhanasar's analytical 
framework, we decline to reach whether he meets the remainder of the second and third prongs under 
the Dhanasar framework. It is unnecessary to analyze any remaining independent grounds when 
another is dispositive of the appeal. See Bagamasbad, 429 U.S. at 25; see also 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). 
III. CONCLUSION 
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, we conclude 
that he has not established he is eligible for or otherwise merits a national interest waiver as a matter 
of discretion. 
ORDER: The appeal is dismissed. 
6