dismissed EB-2 NIW Case: Management Consulting

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date : JUN . 08, 2023 In Re: 25672545 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner , a management consultant , seeks classification as a member of the professions holding 
an advanced degree or of exceptional ability . 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 employment based second preference (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 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 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. LEGAL FRAMEWORK 
To establish eligibility for a national interest waiver , a petition must first demonstrate qualification for 
the underlying EB-2 immigrant 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. 
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 the sciences, arts, or business." To demonstrate 
exceptional ability , a petitioner must submit at least three of the types of evidence listed at 8 C.F.R. § 
204.5(k)(3)(ii) : 
(A) An official academic record showing that the alien has a degree, diploma, 
certificate , or similar award from a college, university , school, or other institution of 
learning relating to the area of exceptional ability ; 
(B) Evidence in the form of letter( s) from current or former employer( s) showing that 
the alien has at least ten years of foll-time experience in the occupation for which he or 
she is being sought; 
(e) A license to practice the profession or certification for a particular profession or 
occupation; 
(D) Evidence that the alien has commanded a salary, or other remuneration for services, 
which demonstrates exceptional ability; 
(E) Evidence of membership in professional associations; or 
(F) Evidence of recognition for achievements and significant contributions to the 
industry or field by peers, governmental entities, or professional or business 
organizations. 
If the above standards do not readily apply, the regulations permit a petitioner to submit 
comparable evidence to establish the beneficiary's eligibility. 8 e.F.R. § 204.5(k)(3)(iii). 
And 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. Whilst 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 ofDhanasar, 26 I&N Dec. 884 (AAO 2016). Dhanasar states that users may as a matter of 
discretion grant a national interest waiver of the job offer, and thus of the labor certification, to a 
petitioner classified in the EB-2 category if they demonstrate that (1) the noncitizen's proposed 
endeavor has both substantial merit and national importance, (2) the noncitizen 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 
noncitizen 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 noncitizen. To determine whether 
the noncitizen 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, progress towards achieving the proposed endeavor, and 
the interest of potential customers, users, investors, or other relevant entities or individuals are also 
key considerations. 
The third prong requires the petitioner to demonstrate that, on balance of applicable factors, it would 
be beneficial to the United States to waive the requirements of a job offer and thus of a labor 
certification. users may evaluate factors such as whether, in light of the nature of the noncitizen' s 
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qualification or the proposed endeavor, it would be impractical either for the noncitizen to secure a 
job offer or for the petition to obtain a labor certification; whether, even assuming that other qualified 
U.S. workers are available, the United States would still benefit from the noncitizen's contributions; 
and whether the national interest in the noncitizen's contributions is sufficiently urgent to warrant 
forgoing the labor certification process. Each of the factors 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. 
II. ANALYSIS 
A. Categorical Ineligibility for EB-2 Classification 
In the first instance, we find that the Petitioner has not provided relevant, material, or probative 
evidence to demonstrate their categorical eligibility for classification as an EB-2 immigrant. The 
Petitioner attests that they are eligible for EB-2 classification as a noncitizen of exceptional ability. In 
support they presented evidence of their completion of a course in business administration from a 
foreign institution, ten years of foll-time experience in the field, membership in a professional 
organization, and recognition in their field through the receipt of "awards." 1 
The Petitioner has not presented evidence of an official academic record showing their degree, 
diploma, certificate, or similar award from a college, university, school, or other institution ofleaming 
relating to their area of exceptional ability. A petitioner must file a benefit request such as this 
immigrant petition with all required initial evidence. See 8 C.F.R. § 103.2(b)(l). When seeking 
classification as a noncitizen of exceptional ability, an official academic record showing receipt of a 
degree, diploma, certificate, or similar award from a college, university, school, or other institution of 
learning relating to the area of exceptional ability is mandatory. The record at present contains a 
translation of what the Petitioner purports to be their educational credential. The regulation at 8 C.F.R. 
§ 103.2(b )(3) requires that any document containing a foreign language be accompanied by a foll 
English translation and the translator's certification that they are competent to translate the foreign 
language into English. But here the original foreign language document is not present. Nor is it clear 
that the educational credential the translation purports to be a true and accurate English version of is 
an official academic record of a degree, diploma, certificate, or similar award. And it is not readily 
apparent whether the foreign institution listed in the unsupported translation is in fact a college, 
university, school, or other institution ofleaming as required by the regulations. 2 
Also, the recommendation letters submitted by the Petitioner are not sufficiently material, relevant, or 
probative to the question of whether the Petitioner has the required ten years of foll-time experience 
in the field. The regulations at 8 C.F.R. § 204.5(g)(l) require that "letter(s) from current or former 
employer(s) or trainer(s)" include "the name, address, and title of the writer, and a specific description 
of the duties performed by the alien or of the training received." The letters submitted by the Petitioner 
do not appear to have been written by former employers or representatives of former employers. They 
are not on the former employers' letterhead. Experience letters are required initial evidence pursuant 
1 The Petitioner has demonstrated by a preponderance of the evidence that they meet the criteria contained at 8 C.F.R. 
§ 204.5(k)(3)(ii)(E). 
2 Since provision of this missing initial evidence would not have any beneficial effect on the disposition of the Petitioner's 
requested benefit, we will not request it prior to rendering our decision. 
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to the regulations. See 8 C.F.R. § 204.5(g)(l ). When required evidence is missing or unavailable, 
the regulations permit the submission of secondary evidence upon a demonstration of nonexistence or 
unavailability. See 8 C.F.R. § 103.2(b )(2)(i). There is no evidence in the record addressing the 
unavailability of experience letters in the manner specified in the regulations. Moreover, even if the 
experience letters were compliant with the regulations, the duties ascribed to be performed by the 
Petitioner were not performed in the management consultant occupation that the Petitioner identifies 
as their proposed endeavor. 
The Petitioner presents evidence of awards they have earned over the course of their career. But there 
is no context provided for the awards reflecting whether the awards represent achievements or 
significant contributions in the proposed endeavor's field. In fact, in the Petitioner's own words, the 
awards are for "his contributions to the companies he served" and not from peers, government entities, 
professional, or business organizations in recognition of achievements and significant contributions to 
the industry or field. So the evidence does not demonstrate the Petitioner's eligibility under the 
regulatory criteria. 
The Petitioner has established eligibility in only one of the six criteria contained at 8 C.F.R. 
§ 204.5(k)(3)(ii). They cannot fulfill the initial evidentiary requirement of three criteria under 8 C.F.R. 
§ 204.5(k)(3)(ii). So we need not provide a final merits determination to evaluate whether the Petitioner 
has achieved the required level of expertise required for exceptional ability classification. The 
Petitioner is ineligible for the EB-2 immigrant classification as a noncitizen of exceptional ability. 
B. Eligibility for Discretionary Waiver of the Job Offer Requirement and thus of a Labor Certification 
Ordinarily, only after determining the Petitioner's eligibility under the EB-2 category can the Director 
proceed to determine whether a discretionary waiver of the job offer requirement, and thus a labor 
certification, is warranted. Section 203(b)(2)(B)(i) of the Act. But since the Director's decision here 
made specific findings about the Petitioner's eligibility for a national interest waiver in their decision, 
we will discuss the Petitioner's ineligibility for a discretionary waiver of the job offer requirement, 
and thus of a labor certification, notwithstanding their categorical ineligibility for the EB-2 permanent 
immigrant classification. 
The three-prong analytical framework in Dhanasar permits us to consider, as a matter of discretion, 
whether to grant a national interest waiver if a petitioner demonstrates that their proposed endeavor 
has both substantial merit and national importance; that they are well-positioned to advance their 
proposed endeavor; and on balance waiving the job offer requirement would benefit the United States. 
The Director determined that the Petitioner's proposed endeavor had substantial merit. But the 
Director concluded that the proposed endeavor did not have the required national importance to meet 
the first prong of the Dhanasar framework. We agree. 
In Dhanasar we focused the first prong of our analysis on the potential impact of a Petitioner's specific 
proposed endeavor to consider its national importance. The national importance of an endeavor is 
rooted in its potential impact and whether it has national or global implications within the field of 
endeavor. The broader implications, national and/or international, can inform us of the proposed 
endeavor's national importance. That is not to say that the implications are viewed solely through a 
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geographical lens. Broader implications can reach beyond a particular proposed endeavor's 
geographical locus and focus. The relevant inquiry is whether the broader implications apply beyond 
just narrowly conferring the proposed endeavor's benefit. And substantial positive economic effects 
can also elevate a proposed endeavor to one of national importance, for example when those effects 
have significant potential to employ U.S. workers or other positive economic effects particularly in an 
economically depressed area. 
The Petitioner's endeavor proposes to provide their management consulting services providing 
marketing, sales, and personnel training advice to retail businesses in the State of Florida. Specifically, 
the Petitioner will provide "marketing and sales solutions tailored to each client's requirements" by 
performing "services to businesses" such as "point of sale marketing," "personnel training," and 
"marketing and sales strategic planning." Essentially, the Petitioner aims to "serve as a one-stop shop 
for all marketing and sales consulting-related services." The Petitioner's endeavor is in the State of 
Florida and will target small and medium businesses in the brick-and-mortar retail sector attempting 
to overcome the growth of e-commerce. 
In support of their claims regarding the proposed endeavor's broader implications and potential 
prospective economic impact, the Petitioner submitted their business plan, a personal statement, letters 
purporting to be written by experts in the management consulting field, and management 
consulting/marketing industry reports. 
From the outset, the Petitioner's business plan couches their endeavor in terms of targeting their 
services to individual "businesses" and "clients" specifically in the State of Florida. The Petitioner's 
personal statement refers to these individual "businesses" and "clients" under the category of "small 
businesses." The record contains documentation reflecting the prevalence of small and medium-size 
business in the United States. The Petitioner highlights the pandemic as well as the growth in e­
commerce as explanations for a downward sales trend for small businesses in the retail sector and 
points to management consulting as a service through which these troubles can be addressed on the 
road back to profitability or net positive operations. The business plan states that the Petitioner's 
service will benefit the "overall U.S. economy" by "create[ing] a qualified workforce" and 
"employment opportunities." 
The Petitioner essentially argues that the ripples of their management consulting work with small 
businesses in the State of Florida will have broader implications rising to a level of national 
importance. However, the Petitioner does not connect their work in the State of Florida to any broader 
implications to the field outside of the work they are specifically doing in the State of Florida. As we 
said above, it is not required that the benefit of the Petitioner's proposed endeavor extend beyond the 
State of Florida's geographical bounds. Broader implications can reach beyond a particular proposed 
endeavor's geographical locus and focus. But the relevant inquiry is whether the broader implications 
apply beyond just narrowly conferring the proposed endeavor's benefit. The Petitioner has not 
demonstrated how conferring the benefit to their clients grows beyond their clients alone, who are 
overwhelmingly based in the State of Florida. 
The Petitioner argues that the services of management consultants will help small and medium sized 
business compete better, serve their customers better, grow their staffing, pay greater taxes, and 
thereby strengthen the U.S. economy. The Petitioner's plan, in summary, provides "marketing and 
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sales solutions tailored to each client's requirements" by performing "services to businesses" such as 
"point of sale marketing," "personnel training," and "marketing and sales strategic planning" to 
increase their emphasis on customer service both in marketing as well as business operations for their 
longevity and sustainability. But other than describing a potential to raise the marketability of 
individual clients who have engaged the Petitioner and their business for their advice, the Petitioner's 
business plan does not sufficiently demonstrate the potential prospective economic impact of the 
Petitioner's proposed endeavor to their field at large. The Petitioner's business plan also does not 
clearly demonstrate how improving the customer service of small businesses in the State of Florida 
connects to broader implications in the world of small businesses at large rising to a level of national 
importance. 
And whilst the Petitioner anticipates a hiring spree doubling their head count and nearly doubling their 
expenditures on salary, it is not clear from the record how this job creation for the proposed endeavor 
itself would have a substantial prospective positive economic effect commensurate with national 
importance. 
The Director issued a request for evidence (RFE) advising the Petitioner that they would need to 
provide additional evidence addressing the national importance of the proposed endeavor. In response, 
the Petitioner provided two letters purportedly written by experts in the field of management 
consulting and submitted several letters from entities that engaged the Petitioner's services. 3 
USCIS may, in its discretion, use as advisory opinion statements from universities, professional 
organization, or other sources submitted in evidence as expert testimony. See Matter of Caron J-nt'l, 
19 I&N Dec. 791, 795 (Comm'r 1988). However, the submission ofletters from experts supporting 
the petition is not presumptive evidence of eligibility. Id. Moreover, letters from relevant third-party 
reviewers such as prospective investors, retailers, or other industry experts will generally be more 
persuasive to support the merits of an entrepreneur's business, business plan, product or technology. 
The letters submitted by the Petitioner were specifically commissioned for purposes of these 
proceedings and not contemporaneously with the Petitioner's business operations addressing the 
merits of the entrepreneurial endeavor. Moreover, the letters' authors are not industry experts. One 
is an accounting professor, and the other is a marketing professor; neither appears to be an expert in 
the Petitioner's proposed endeavor of management consulting. Both describe in nearly identical terms 
that they have "extensive experience reviewing the academic and professional credentials of 
international applications, students, and prospective faculty" at their respective employers. The record 
does not make clear how their experience and individual qualifications render these writers industry 
experts such that their opinions could shed light on the endeavor's national importance. Setting aside 
the authors' credentials, we observe that much of the letters' content lacks relevance when it comes to 
the evaluation of whether the Petitioner's business and services rise to the level of national importance. 
For example, both letters overwhelmingly discuss the importance of the Petitioner's industry and 
occupation as well as the Petitioner's previous experiences. Neither provides any meaningful analysis 
of the endeavor's broader implications or potential prospective economic impact rising to the level of 
national importance. Similarly, the letters from entities that engaged the Petitioner's services do not 
3 The Petitioner's appeal repeats their previous arguments and largely resubmits previously submitted evidence. 
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describe how the benefits they have received connect to broader implications rising to national 
importance or any nationally important economic impact. 4 
A petitioner's burden of proof comprises both the initial burden of production, as well as the ultimate 
burden of persuasion. Matter ofY-B-, 21 I&N Dec. 1136, 1142 n.3 (BIA 1998); also see the definition 
of burden of proof from Black's Law Dictionary (11th ed. 2019) (reflecting the burden of proof 
includes both the burden of production and the burden of persuasion). The Petitioner has not met their 
burden of proof with persuasive material, relevant, and probative evidence which by a preponderance 
demonstrates the national importance of their proposed endeavor. 
III. CONCLUSION 
Because the identified reasons are dispositive of the Petitioner's appeal, we decline to reach and hereby 
reserve remaining arguments concerning eligibility under the remaining Dhanasar prongs. 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 alternate issues on appeal where an applicant is 
otherwise ineligible). 
The Petitioner is not eligible for EB-2 classification as an immigrant of exceptional ability. And they 
have not met the requisite first prong of the Dhanasar analytical framework. So we conclude that they 
have not established that they are eligible for or otherwise merit a national interest waiver of the job 
offer requirement, and thus of a labor certification. Accordingly the appeal will be dismissed. 
ORDER: The appeal is dismissed 
4 Much of the documentation the Petitioner has submitted focuses on their individual accomplishments and expertise when 
attesting to the national importance and substantial merit of the proposed endeavor. It is important to note that the 
Petitioner's accomplishments and expertise are more relevant to the second prong of Dhanasar, which "shifts the focus 
from the proposed endeavor to the foreign national." Dhanasar at 889. 
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