dismissed EB-2 NIW Case: Law

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: AUG. 31, 2023 In Re: 28048589 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a legal analyst and entrepreneur, seeks employment-based second preference (EB-2) 
immigrant classification as a member of the professions holding an advanced degree. 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 Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner qualifies for a national interest waiver. 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 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 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. 
If a petitioner demonstrates eligibility for the underlying EB-2 classification , they must then establish 
that they merit a discretionary waiver of the job offer requirement "in the national interest." Id. While 
neither the statute nor the pertinent regulations define the term "national interest," Matter ofDhanasar , 
26 I&N Dec. 884, 889 (AAO 2016), provides the framework for adjudicating national interest waiver 
petitions. Dhanasar states that USCIS may, as matter of discretion, 1 grant a national interest waiver 
if the petitioner demonstrates that: 
1 See also Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
• 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. 2 
II. ANALYSIS 
The Director concluded that the Petitioner qualifies as a member of the professions holding an 
advanced degree. The record supports that determination. The remaining 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. 
A. Substantial Merit and National Importance 
The Petitioner intends to expand his current business providing law consultancy services in Brazil into 
the United States as part of a partnership. The Petitioner initially provided a definitive statement that 
includes the following description of his company: 
In a nutshell, [the company] is focused on consultancy and legal services with a major 
focus on corporate law and regulation. Overall legal consultancy, advisory in tax and 
civil laws, and hands-on involvement in the production of trade contracts, in general, 
will be among the many services offered by [the company's] portfolio. My company's 
services will help U.S. companies start doing business abroad or consolidate and secure 
the position of those that already operate in Brazil and other countries. 
My company's primary target market (pilot market) will be the state of California with 
an expansion plan to Utah and Arizona. I relied on the U.S. government database from 
Small Business Administration - SBA HUBZone to define my location. The 
HUBZone program fuels small business growth in historically underutilized business 
zones. The decision to locate the business here arose from my desire to take a stand 
and create a positive impact, generating jobs for U.S workers in underutilized areas in 
the state of California with an expansion plan to Utah and Arizona, improving the 
wages and the working conditions of U.S workers, helping the local community to 
attract investments in the region, and thus encouraging economic development. 
Moreover, a financial forecast shows that [the company] is expected to generate 
$2,745,000 in annual revenues for Year 5, with $700,000 paid in total taxes over those 
5 years. During this same 5-year period, I intend to generate a total of 36 jobs, with a 
total investment of$1,000,000 reinvested into the company from retained earnings and 
an initial ignition capital of $150,000. 
The Director determined that the Petitioner's endeavor to provide consultancy services and contribute 
to the U.S. economy has substantial merit. The Director further determined that the endeavor has 
national importance. The Director's decision summarizes the Petitioner's intentions, stating that the 
2 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
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"proposed endeavor will help U.S . companies start doing business abroad or consolidate and secure 
the position of those that already operate in Brazil and other countries." The decision lists the evidence 
submitted that informed the Director's determination: certificates of education and experience, support 
letters, a business plan, a letter of intent, and "[ o ]ther material." 
The 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 determining 
whether the proposed endeavor has national importance, we consider its potential prospective impact. 
Dhanasar, 26 I&N Dec. at 889. 
While we agree that the Petitioner's proposed endeavor has substantial merit, we do not agree with 
the Director's determination that the endeavor has national importance. Because we conclude below 
that the Petitioner did not establish his eligibility for a national interest waiver under the second prong 
of the Dhanasar framework, we need not fully address the Petitioner's eligibility under the first prong. 
However, we will discuss the issue to inform the Petitioner that this should be addressed in any future 
national interest waiver proceedings. 
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. 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. Further, to 
evaluate whether the Petitioner's proposed endeavor satisfies the national importance requirement, we 
look to evidence documenting the "potential prospective impact" of his work. 
The Petitioner has not demonstrated that the endeavor he proposes to undertake has significant 
potential to employ U.S. workers or otherwise offers substantial positive economic effects for the 
nation. The Petitioner initially submitted a business plan that describes his intention to establish and 
expand his business in HUBZones. The goal of the Small Business Administration's HUBZone 
Program 3 is to fuel small business growth in economically depressed geographic areas, and the 
business plan states that his company intends to focus on servicing the following cities:I I 
California;! I Utah; andl !Arizona. The business plan, however, does not clarify 
how the anticipated creation of 36 jobs by the company's fifth year would have substantial positive 
economic effects for those areas. In addition, the business plan does not describe what businesses or 
industries the Petitioner has identified within the intended HUBZones as potential clients in order to 
achieve revenue targets totaling $2,745,000 by the company's fifth year of operation. Also of note is 
the fact that, while the Petitioner emphasizes his expertise in facilitating cross-border trade and that 
he can use it "to make the U.S. market more attractive to foreign businesses and/or investors," he does 
not explain how he would incentivize foreign entities to invest in businesses in economically depressed 
areas. Further, while the business plan provides a table depicting investments of $75,000 each from 
3 See https://www.sba .gov/federal-contracting /contracting-assistance-programs /hubzone-program . 
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the Petitioner and his business partner to create the company in the U.S., the record does not include 
documentation to demonstrate the availability or existence of these investment funds; the record 
includes only formation documents for the Petitioner's partnership in Brazil and a contract from 2020 
citing the sources of funds intended for use as investments into that company. Further, while the 
business plan anticipates reinvestment into the company from retained yearly earnings, the growth 
forecast figures do not appear to originate from objective sources; absent probative evidence to show 
the realistic potential of the business operate at all, it is not evident that the company will generate 
revenue to create jobs, to expand, or to otherwise notably impact the economies of the cities in which 
it intends to operate. 4 Without sufficient information or evidence regarding any projected U.S. economic 
impact or job creation attributable to his future work, the record does not show that benefits to the U.S. 
regional or national economy resulting from the Petitioner's company would reach the level of 
"substantial positive economic effects" contemplated by Dhanasar. Id. at 890. 
While the Petitioner's statements reflect his intention to provide consultancy services for his business 
clients, he has n ot provided sufficient information and evidence to demon strate that the prospective 
impact of his proposed endeavor rises to the level of national importan ce. The Petitioner's statements 
and business plan outline generalized descriptions of the legal consultancy services that the Petitioner 
intends to provide; neither an expert opinion letter nor recommendation letters include insight into 
how any specific endeavor proposed by the Petitioner is one that rises to a level of national importance. 
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, we 
conclude the record does not show that the Petitioner's propo sed endeavor stands to sufficiently extend 
beyond his company and its clientele to impact the legal consulting field or the U.S. economy more 
broadly at a level commensurate with national importance. 
The Petitioner has not established the national importance of his proposed endeavor. We will 
withdraw the Director's finding on this issue. In any future national interest waiver proceedings, the 
Petitioner must establish that he qualifies under the first prong of the Dhanasar framework. 
B. Well Positioned to Advance the Proposed Endeavor 
The second prong shifts the focus from the proposed endeavor to the individual. To determine whether 
they are well positioned to advance the proposed endeavor, we consider factors including, but not 
limited to: their 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. Id. at 890. 
The Director determined that the Petitioner did not establish that he is well positioned to advance his 
proposed endeavor. The Director's decision states that the documentation of the Petitioner's education 
and the letters of support from former employers and clients do not provide sufficient evidence of the 
Petitioner's professional experience at a level that demonstrates that he is well positioned to advance 
the proposed endeavor. 
4 The Petitioner must support assertions with relevant , probative , and credible evidence. See Matter ofChawathe, 25 I&N 
Dec. 369 at 376. 
4 
On appeal, the Petitioner alleges that, rather than applying the governing standard of review, 
preponderance of the evidence, 5 the Director "imposed novel substantive and evidentiary requirements 
beyond those set forth in regulations." Although the Petitioner asserts that he has provided evidence 
sufficient to demonstrate his eligibility for a national interest waiver, he does not farther explain or 
identify any specific instance in which the Director denied his petition applying a standard of proof 
other than that of preponderance of the evidence. The Petitioner submits a brief in which he reiterates, 
through his attorney, his education and experience. The brief also states the following with regard to 
the letters of recommendation: 
[The Director indicates that] these letters do not highlight the importance of the 
Appellant's work in the US economy or profession. In order to prove the contrary, I 
would revert your attention back to the skills and expertise of the Appellant. The 
Appellant has been a Managing Partner at [his company in Brazil] and achieved 
immense success in the legal field. 
The brief goes on to describe systems that the Petitioner devised to improve efficiencies and reduce 
client absences from court hearings. Upon review, it is evident that the details in the record concerning 
the Petitioner's legal and entrepreneurial accomplishments are found almost entirely within 
documentation generated by the Petitioner or his attorney; this documentation includes cover letters, 
the Petitioner's definitive statement, his business plan, his resume, and what appears to be pages from 
his company's website in Brazil promoting his plans to expand to the United States. Letters submitted 
as evidence of the Petitioner's work experience following his bachelor's degree provide only an 
overview of his duties. Three letters of recommendation submitted in response to a request for 
evidence speak generally of the quality of the Petitioner's work; while the authors describe their 
businesses and indicate that the Petitioner provided legal services to those businesses, they do not 
elaborate on the services provided or illuminate any specific accomplishments that would support the 
Petitioner's qualifications as an individual well positioned to advance a specific proposed endeavor of 
national importance. Also notable is the fact that, while evidence of investor interest in an endeavor 
may serve to demonstrate that a petitioner is well positioned to advance it, these letters are non­
committal and only generally refer to the Petitioner's interest in providing legal services in the United 
States; they are not supported by probative evidence to demonstrate genuine interest to invest in the 
Petitioner's business. The record also includes industry reports and articles discussing the legal 
profession and entrepreneur statistics; this information does not provide probative evidence that the 
Petitioner is well positioned to advance his proposed endeavor. 
The record does not establish the Petitioner is well positioned to advance the proposed endeavor as 
required by the second prong of the Dhanasar precedent decision. Therefore, the Petitioner has not 
demonstrated eligibility for a national interest waiver. Because the identified reasons for dismissal are 
dispositive of the Petitioner's appeal, we decline to reach and hereby reserve remaining arguments 
concerning eligibility under the Dhanasar framework. See INS v. Bagamasbad, 429 U.S. 24, 25 
(1976) (stating that agencies are not required to make "purely advisory findings" on issues that are 
unnecessary to the ultimate decision); see also Matter of L-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). 
5 See INS v. Cardoza-Foncesca, 480 U.S. 421,431 (1987) (discussing "more likely than not" as a greater than 50% chance 
of an occurrence taking place). 
5 
III. CONCLUSION 
The Petitioner has not met the requisite first and second prongs of the Dhanasar analytical framework. 
We conclude that the Petitioner has not established that he is eligible for or otherwise merits a national 
interest waiver. The petition will remain denied. 
ORDER: The appeal is dismissed. 
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