dismissed EB-2 NIW Case: Legal Analysis

U.S. Citizenship 
and Immigration 
Services 
In Re: 19804359 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: FEB. 24, 2022 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a legal analyst, 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 Texas Service Center denied the petition, concluding that the Petitioner qualified 
for classification as a member of the professions holding an advanced degree but 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. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
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. ... the 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 a 
matter of discretion, 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 Dep 't of Transp., 
22 l&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
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. 2 
II. ANALYSIS 
The Director found that the Petitioner qualifies as a member of the professions holding an advanced 
degree. Although the Director found that the proposed endeavor has substantial merit, the Director 
concluded that the record does not establish that the Petitioner's endeavor has national importance. 
The Director also concluded the record did not satisfy the second and third Dhanasar prongs. For the 
reasons discussed below, the Petitioner has not established that a waiver of the requirement of a job 
offer is warranted. 
Initially, the Petitioner described the endeavor as a "career plan ... to work with law firms, businesses 
or corporations to provide expert advice as a [l]egal [ a ]nalyst." The Petitioner further asserted that his 
endeavor would entail the following: 
• Consulting on activities in the legal landscape and business environments of Brazil; 
• Participating in due diligence to research identify, and evaluate legal contingencies; 
• Aid in any possible commercial benefits for businesses, corporations, and 
individuals when doing business in developing markets; 
• Proposing solutions to minimize the burden and reduce the risk of any and all 
pertinent legal issues; 
• Advising companies looking to do international business on international laws, 
especially those that apply in Brazil; and 
• Creating a smooth transition for U.S. individuals or entities, especially those 
looking to do business in Brazil, Latin America, and abroad. 
The Petitioner also asserted, "I am confident I will contribute and generate revenue and jobs within 
the United States, should my application be approved." 
In response to the Director's request for evidence (RFE), the Petitioner rephrased his description of 
the proposed endeavor as follows: 
[M]y overall proposed endeavor in the United States is to work on nationally important 
investments, as well as contribute to cross-border activities through my extensive 
experience, knowledge, and contacts. I intend to pursue U.S. companies that will 
benefit from my distinguished abilities, and in-depth knowledge of the many features 
regarding the United States, Brazil, and Latin America's investments, taxation, and 
legal systems. 
Another focus of mine within the U.S. will be to earn a paralegal degree and start a 
career. 
2 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
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The Petitioner also asserted in response to the RFE: 
Currently, I serve as CEO and Owner of 
[sic] and I founded in Florida,  providing services to Brazilians 
living in the U.S., and those Brazilians living in Brazil and to U.S. companies and 
individuals, focusing on accounting, tax, legal, business development, and investments. 
I am looking for American partners in order to develop my consulting company. 
In the decision, the Director concluded the record does not establish that the proposed endeavor has 
national importance, observing that "[the Petitioner] has not established that his proposed work has 
implications beyond his current employer (or any prospective employers or self-owned company), 
their business partners, alliances, clients or his workplace at a level sufficient to demonstrate the 
national importance of his endeavor." The Director also concluded that "[the Petitioner] has not shown 
that his proposed endeavor offers broader implications, significant potential to employ U.S. workers, 
or substantial positive economic effects." 
On appeal, the Petitioner asserts: 
[The] proposed endeavor serves nationally important matters, including the U.S. 
economy, explicitly by: 
• Spurring economic initiatives on behalf of the United States, specifically 
serving high-growth, and economically important, industries-rebuilding small 
U.S. businesses that have been greatly impacted due to COVID-19. 
• Prioritizing the domestic job market-particularly because [the Petitioner's] 
business actions within the consulting services relate to employment growth, 
and because [the Petitioner] will employ U.S. workers within his companies 
and projects in the nation. 
The Petitioner also asserts on appeal that "the proposed endeavor is nationally important because of 
the ripple effects it generates upon the U.S. business industry." He asserts that previously submitted 
letters of recommendation, an industry report, and articles "demonstrat[ e] the national importance of 
the Petitioner's proposed endeavor." The Petitioner also emphasizes on appeal his "outstanding 
achievements, and record of accomplishments." 
The Petitioner presents a new set of facts on appeal that do not establish eligibility. A petitioner must 
establish eligibility at the time of filing a nonimmigrant visa petition. 8 C.F .R. § 103 .2(b )(1 ). A visa 
petition may not be approved at a future date after a petitioner becomes eligible under a new set of 
facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg'l Comm'r 1978). The Petitioner's 
initial description of the proposed endeavor, submitted with the petition in 2018, did not address 
"rebuilding small U.S. businesses that have been greatly impacted due to COVID-19," in part because 
the COVID-19 pandemic had yet to occur. Similarly, the Petitioner's initial description of the 
proposed endeavor did not address "[p]]rioritizing the domestic job market." On the contrary, the 
Petitioner asserted that his endeavor would "especially" focus on "U.S. individuals or entities ... 
looking to do business in Brazil, Latin America, and abroad." Because the Petitioner's assertions on 
appeal regarding "rebuilding small U.S. businesses that have been greatly impacted due to COVID-
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19" and "[p]]rioritizing the domestic job market" are inconsistent with the stated endeavor at the time 
of filing, they present a new set of facts and may not establish eligibility. See 8 C.F.R. § 103.2(b)(l); 
see also Matter of Michelin Tire Corp., 17 I&N Dec. 248. 
In determining national importance, the relevant question is not the importance of the industry, field, 
or profession in which an individual will work; instead, to assess national importance, we focus on the 
"specific endeavor that the foreign national proposes to undertake." See Dhanasar, 26 I&N Dec. at 
889. Dhanasar provided examples of endeavors that may have national importance, as required by 
the first prong, having "national or even global implications within a particular field, such as those 
resulting from certain improved manufacturing processes or medical advances" and endeavors that 
have broader implications, such as "significant potential to employ U.S. workers or has other 
substantial positive economic effects, particularly in an economically depressed area." Id. at 889-90. 
The Petitioner does not specify on appeal which letters of support and articles establish that the specific 
endeavor has national importance, and how that evidence does so. The letters in the record generally 
address work the Petitioner performed in the past in Brazil and his prior career accomplishments, not 
his prospective endeavor in the United States. Similarly, the articles and industry report in the record 
provide generalized information about Brazil and industries including business and legal services; but 
they do not address the Petitioner, his proposed endeavor, and how the specific endeavor will have 
substantial positive economic effects that rise to the level of national importance. See id. Relatedly, 
although the Petitioner's qualifications and prior career accomplishments, discussed on appeal, are 
material to the second Dhanasar prong, they do not address how the prospective endeavor may have 
national importance. See id. 
In summation, the Petitioner has not established that the proposed endeavor has national importance, 
as required by the first Dhanasar prong, and therefore he is not eligible for a national interest waiver. 
We reserve our opinion regarding whether the record satisfies the second or third Dhanasar prong. 
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"); 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). 
III. CONCLUSION 
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, we 
conclude that the Petitioner has not established eligibility for, or otherwise merits, a national interest 
waiver as a matter of discretion. 
ORDER: The appeal is dismissed. 
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