dismissed EB-2 NIW Case: Law

U.S. Citizenship 
and Immigration 
Services 
In Re: 17944664 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : AUG . 24, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a legal analyst and consultant, 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 qualified 
for classification as a member of the professions holding an advanced degree, but that he had not 
established that a waiver of the required job offer, and thus of the labor certification, would be in the 
national interest. On appeal, the Petitioner submits additional documentation and a brief asserting that 
he is eligible for a national interest waiver. 
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. 
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. 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 
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 found that the Petitioner qualifies as a member of the professions holding an advanced 
degree. The remaining issue to be determined 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 the national importance of his proposed endeavor under the first prong of the Dhanasar 
analytical framework. 
Regarding his claim of eligibility under Dhanasar' s first prong, the Petitioner indicated that his proposed 
endeavor in the United States is to help U.S. companies "already conducting, or looking to conduct 
business in Latin America, navigate the complex tax, labor, contractual, and public laws, thus allowing 
for the smooth operation of business in this new market." The Petitioner also stated he seeks to help 
"foreign companies looking to conduct business in the United States navigate this exciting and large 
market. As professionals from Latin America generally look for someone they trust when making major 
business decisions - generally including someone that speaks their language and understands their culture 
- I can consult them on movement into this territory." On appeal, the Petitioner indicates he will consult 
U.S. and foreign companies on "important issues relating to cross-border activities, such as 1) tax 
implications and tax treaties, 2) differing legal systems, 3) dispute resolution, 4) diplomacy, and 5) culture 
awareness." 
The record includes articles indicating the U.S. is the largest recipient of cross-border investment in 
the world while Brazil is the second largest economy in the Western Hemisphere and the United States' 
second largest trading partner. In addition, the Petitioner provided reports and articles indicating 
Brazil has a complex tax and commercial system as compared to other nations throughout the world. 
The record therefore supports the Director's determination that the Petitioner's proposed work as a 
legal analyst and consultant has substantial merit. 
In determining national importance, the relevant question is not the importance of the field or 
profession in which the individual will work; instead we focus on the "the specific endeavor that the 
foreign national proposes to undertake." 4 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 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. 
In his appellate brief, the Petitioner points to his background, education, work experience, and 
specialized training in his field. The Petitioner's knowledge, skills, and experience in his field relate to 
3 See Dhanasar, 26 T&N Dec. at 888-91, for elaboration on these three prongs. 
4 The issue here is not the value of the legal industry or the impact of consulting on our country's economy, but rather 
whether the Petitioner's specific proposed endeavor as a legal analyst and consultant rises to the level of national 
importance. 
3 
the second prong of the Dhanasar framework, which "shifts the focus from the proposed endeavor to the 
foreign national." Id. at 890. 5 The issue here is whether the specific endeavor that he 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 "potentia l prospective impact" of his work. 
In support of his proposed endeavor, the Petitioner submitted various letters from business owners in 
Brazil and the United States indicating their intention to hire the Petitioner.6 For exampleJ I I I owner oft I an~ I inl l FL, provided a letter indicating 
he intends to hire the Petitioner as a point of contact to refer him to the ri ht eo le should he "face any 
business or legal issues" in the U.S. A letter fro __ "L-------....--------,..--------1 director 
ofl I stated he intends to hire the Petitioner to help with....._ _ __,'s expansion into the U.S. 
and wants the Petitioner's help with issues his business could experience in the U.S. or Brazil.I I 
state he also wants the Petitioner to connect him to individuals who could serve as potential clients or 
investors. 
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. Although the 
Petitioner's statements reflect his intention to create a legal analyst and consulting business, he has 
not offered sufficient information and evidence to demon strate that the prospective impact of his 
proposed endeavor rises to the 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 proposed endeavor stands to sufficientl y extend beyond his business and clientele to 
impact his field or the industry more broadly at a level commensurate with national importance. 
Furthermore, the Petitioner has not demonstrated that the specific endeavor he proposes to undertake 
has significant potential to employ U.S. workers or otherwise offers substantial positive economic 
effects for our nation. Specifically, he has not shown that his consultant business activities stand to 
provide substantial economic benefits in Florida or the United States. While the Petitioner submitted 
articles and industry reports showing the U.S. legal services industry generated $400 billion in 2018, 
and employed 1,100,000 U.S. citizens in 2017, he has not submitted documentary evidence that would 
demonstrate that benefits to the regional or national economy resulting from the Petitioner's 
undertakings would reach the level of "substantial positive economic effects" contemplated by 
Dhanasar. Id. at 890. In addition, although the Petitioner asserts that his consulting business will employ 
U.S. workers, he has not offered sufficient evidence that the area where they will operate is 
economically depressed, that he would employ a significant population of workers in that area, or that 
his endeavor would offer the region or its population a substantial economic benefit through 
5 To establish that it would be in the national interest to waive the job offer requirement , a petitioner must go beyond 
showing her expertise in a particular field. The regulation at 8 C.F.R. § 204.5(k)(2) defines "exceptional ability" as "a 
degree of expertise significantly above that ordinarily encountered" in a given area of endeavor. By statute, individuals of 
exceptional ability are generally subject to the job offer/labor certification requirement; they are not exempt by virtue of 
their exceptional ability. Therefore, whether a given petitioner seeks classification as an individual of exceptional ability, 
or as a member of the professions holding an advanced degree, that individual cannot qualify for a waiver just by 
demonstrating a degree of expertise significantly above that ordinarily encountered in her field of expertise. See Dhanasar, 
26 I&N Dec. at 886 n.3. 
6 While we only discuss a sampling of the letters in our decision, we reviewed all submitted letters in the record. 
4 
employment levels or business activity. Nor has the Petitioner demonstrated that any increases in 
employment or income attributable to his consulting business 's operations stand to substantially affect 
economic activity or tax revenue in Florida or nationally. Accordingly, the Petitioner 's proposed work 
does not meet the fust prong of the Dhanasar framework. 
Because the documentation in the record does not establish the national importance of his 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 his eligibility under the second 
and third prongs outlined in Dhanasar , therefore, would serve no meaningful purpose. 
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. 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. 
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