dismissed EB-2 NIW Case: Mining

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: NOV. 14, 2023 In Re: 28808586 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Worker (National Interest Waiver) 
The Petitioner, a chief executive/entrepreneur in mining, seeks employment-based second preference 
(EB-2) 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 classification. See 
Immigration and Nationality Act (the Act) section 203(b )(2), 8 U.S.C. § 1153(b )(2). 
The Acting Director of the Texas Service Center denied the petition, concluding that the Petitioner did 
not establish that a waiver of the classification's job offer requirement, 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 Christo 's, Inc., 26 l&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. 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. 
An advanced degree is any U.S. academic or professional degree or a foreign equivalent degree above 
that of a bachelor's degree. 1 8 C.F.R. § 204.5(k)(2). A U.S. bachelor's degree or a foreign equivalent 
degree followed by five years of progressive experience in the specialty is the equivalent of a master's 
degree. Id. 
1 Profession shall include, but not be limited to, architects, engineers, lawyers, physicians, surgeons, and teachers in 
elementary or secondary schools, colleges, academics, or seminaries. Section 10l(a)(32) of the Act. 
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, 889 (AAO 2016), provides the framework for adjudicating national 
interest waiver petitions. 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 their proposed endeavor; and 
• On balance, waiving the job offer requirement would benefit the United States. 
II. ANALYSIS 
The Petitioner states that he has more than 30 years of experience in mining, as well as extensive 
business and entrepreneurial experience, founding and managing a variety of businesses. Describing 
his proposed endeavor he states, "I intend to continue using my expertise and knowledge to work as 
an Entrepreneur and contribute to the U.S. economy through business development and consulting 
activities." The Petitioner states that, through his own business, I I
I [ he will "offer management consulting services to other corporations - explicitly 
those involved in the mining sector. Primarily, [serving] businesses involved in the production of 
construction aggregates, such as limestone and asphalts." 
The Petitioner asserts that he is eligible for the EB-2 classification as a member of the professions 
holding an advanced degree. With the initial filing the Petitioner submitted evidence of his education 
and experience, a professional history and personal statement describing his proposed endeavor and 
claimed eligibility for a national interest waiver, recommendation and support letters, a business plan, 
and an expert opinion letter. He also submitted industry reports and articles discussing the importance 
of entrepreneurship and immigration. 
A. Member of Professions Holding an Advanced Degree 
The Petitioner asserts that he qualifies for advanced degree professional classification by virtue of a 
foreign education equivalent to a U.S. baccalaureate degree and more than five years of post­
baccalaureate experience in the specialty, in accordance with 8 C.F.R. § 204.5(k)(3)(i)(B). He does 
not make any claim to qualify as an individual with exceptional ability. 
The Director found that the Petitioner qualifies for classification as a professional holding an advanced 
degree, however, the Director did not explain the basis for this determination. After reviewing the 
record, we disagree with the Director's determination. 
As noted above, a petition for an advanced degree professional must include evidence that a petitioner 
possesses a "United States academic or professional degree or a foreign equivalent degree above that 
2 See also Poursina v. USC1S, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
2 
of baccalaureate [or] 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." 8 C.F.R. § 204.5(k)(2). In addition, a petitioner must meet all of the eligibility 
requirements of the petition at the time of filing. 8 C.F.R. § 103.2(b)(l), (12). 
In order to show that a petitioner holds a qualifying advanced degree, the petition must be accompanied 
by "[a]n official academic record showing that the [individual] has a United States advanced degree 
or a foreign equivalent degree." 8 C.F.R. § 204.5(k)(3)(i)(A). Alternatively, a petitioner may present 
"[a]n official academic record showing that the [individual] has a United States baccalaureate degree 
or a foreign equivalent degree, and evidence in the form ofletters from current or former employer(s) 
showing that the [individual] has at least five years of progressive post-baccalaureate experience in 
the specialty." 8 C.F.R. § 204.5(k)(3)(i)(B). 
The Petitioner submitted his diploma, titled Bacharel em Direito, and academic transcripts from 
.________ __, in Brazil. He also submitted an academic evaluation, demonstrating that he has a 
foreign equivalent of a U.S. bachelor's degree in law awarded on September 19, 2016. The academic 
evaluation cites to the Electronic Database for Global Education (EDGE), which is a web-based 
resource for the evaluation of foreign educational credentials created by the American Association of 
Collegiate Registrars and Admissions Officers (AACRAO). 3 USCIS considers EDGE to be a reliable 
source of information about foreign credentials equivalencies. According to EDGE, the Bacharel em 
Direito represents attainment of a level of education comparable to a bachelor's degree in the United 
States. 
As required by 8 C.F.R. § 204.5(k)(3)(i)(B), the Petitioner must document his post-baccalaureate 
experience from September 19, 2016. The Petitioner must establish eligibility at the time of filing. 8 
C.F.R. § 103.2(b)(12); Matter ofKatigbak, 14 I&N Dec. 45, 49 (Comm'r 1971). The record does not 
establish that the Petitioner possessed five years of progressive post-baccalaureate experience at the 
time the petition was filed, on August 12, 2021. The Petitioner's diploma, academic transcripts and 
an evaluation of his academic credentials state his graduation date as September 19, 2016. Here, the 
petition was filed less than five years after the Petitioner earned his baccalaureate degree. As the 
Petitioner did not possess five years of post-baccalaureate experience at the time of filing, the 
Petitioner has not established that he possessed an advanced degree as required by 8 C.F.R. § 
204.5(k)(2). 
We note that the Petitioner's academic transcripts state that his "course conclusion" date was July 5, 
2016. However, nothing in the record demonstrates that this earlier date represents the date by which 
the Petitioner satisfied all substantive degree requirements. Instead, the record includes official 
academic records and an evaluation of the Petitioner's academic credentials all concurring that the 
Petitioner earned his baccalaureate degree on September 19, 2016. 
Even if we considered the course conclusion date as the date the Petitioner earned his baccalaureate 
degree, which we do not, the record does not establish that he possessed five years of post­
baccalaureate experience from the earlier date. The regulation at 8 C.F.R. § 204.5(k)(3)(i)(B) provides 
that a petitioner present "evidence in the form of letters from current or former employer( s) showing 
3 AACRAO is a nonprofit professional association of more than 11,000 higher education admissions and registration 
professionals who represent more than 2,600 institutions in over 40 countries. See http://www.aacrao.org/who-we-are. 
3 
that the [petitioner] has at least five years of progressive post-baccalaureate experience in the 
specialty." The record includes the following letters describing the Petitioner's work experience: 
• A letter, dated August 5, 2021, stating that the Petitioner was a "partner/investor of 
I Ifrom August 16, 2016 to December 2020, as a Law 
intern." 
• A letter, dated July 10, 2021, stating that the Petitioner worked for I I
I lfrom April 2004 to present and "is currently a Superintendent and Financial 
Director." 
• A letter, dated December 2, 2019, stating that the Petitioner is "attorney in Fact as 
Superintendent and Financial Director at.__ ______ ~from July 1997 until 
present date." 
• A letter, dated December 5, 2019, stating that the Petitioner was a partner and 
manager with I Ifrom December 1998 to 
January 2019. 
The four experience letters in the record do not indicate whether the Petitioner's experience was foll­
or part-time. However, the letters appear to document overlapping experience with four different 
employers. 4 
Additional inconsistencies farther preclude us from determining that the Petitioner possesses five 
years of post-baccalaureate experience. The Petitioner submitted prior non-immigrant visa 
applications in 2015 and 2019. In his 2015 application the Petitioner listed his primary occupation as 
"retired," and listed his previous employment as "Director Comercial" with.__ ______ ~ from 
February 10, 1997 to September 10, 2010. This conflicts with the experience letter claiming the 
Petitioner's continued employment with.__ ______ ~ through at least December 2, 2019. In 
his 2019 application the Petitioner again listed his primary occupation as "retired." He also listed no 
previous employment, conflicting with the experience letters describing the Petitioner's employment 
beyond 2019. 
The Petitioner must resolve inconsistencies with independent, objective evidence pointing to where 
the truth lies. Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). 
In sum, the record does not demonstrate that the Petitioner has at least five years progressive 
experience following his bachelor's degree as required by 8 C.F.R. § 204.5(k)(2). However, because 
the Petitioner was not on notice of these issues, this does not form the basis of our dismissal, but the 
Petitioner must address and resolve the inconsistencies in his employment history and claimed 
qualifying experience in any farther filings. 
4 Although prior to degree completion, we note that in 2010 the Petitioner was approved for temporary employment in the 
United States as a multinational executive with I I a business engaged in the development of franchise 
I 
frozen yogurt stores 
I
in the United States. USCTS records demonstrate that the Petitioner worked in the United States with 
from 2010 to 2014. This experience further overlaps with the Petitioner's claimed employment described 
in the experience letters in the record, casting further doubt on the full-time nature of his experience with each of the 
claimed employers. 
4 
B. Substantial Merit and National Importance 
The Director determined that while the Petitioner established that the proposed endeavor has 
substantial merit, he did not establish that the proposed endeavor is of national importance as set forth 
under the first prong of the Dhanasar analytical framework. We agree, for the reasons explained 
below. 
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. 
Matter ofDhanasar, 26 I&N Dec. at 889. 
Following initial review, the Director issued a request for evidence (RFE), allowing the Petitioner an 
opportunity to submit additional evidence in attempt to establish his eligibility for the national interest 
waiver. The Petitioner's response to the RFE includes additional letters of support and 
recommendation, additional industry reports and articles, and copies of evidence previously submitted. 
After reviewing the Petitioner's RFE response, the Acting Director determined that the Petitioner 
submitted sufficient evidence to demonstrate that the proposed endeavor has substantial merit. 
However, she concluded that the Petitioner had not demonstrated that his proposed endeavor had 
national importance. The Acting Director stated that the record did not demonstrate that the 
Petitioner's business will have a regional or national impact at a level consistent with having national 
importance, or that the Petitioner's work will have broader implications in his field of endeavor, going 
beyond his own business and clients. Additionally, the Acting Director determined that the Petitioner 
did not demonstrate national interest factors such as the impracticality of a labor certification, the 
benefit of his prospective contributions to the United States, an urgent national interest in his 
contributions, the potential creation ofjobs, or that his self-employment does not adversely affect U.S. 
workers. 
On appeal, the Petitioner submits a brief and asserts that the Acting Director "did not apply the proper 
standard of proof in this case, instead imposing a stricter standard, and erroneously applied the law." 
He further asserts that the Acting Director did not give due regard to all evidence in the record, 
including his resume, his professional plan, evidence of his work in the field, letters of 
recommendation, and industry reports and articles. In his brief on appeal, the Petitioner references 
evidence already in the record and states that this evidence demonstrates by a preponderance of the 
evidence that he merits a national interest waiver. 
In Dhanasar, we 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. 
5 
The Petitioner submits articles and industry reports describing the importance of mining in the United 
States, the value of limestone and other minerals, and the economic role that immigrants play in the 
U.S. economy. 5 However, the Petitioner does not explain how this demonstrates that his proposed 
endeavor is of national importance. A 2022 statement from the Deputy Assistant Secretary of Land 
and Minerals Management of the U.S. Department of the Interior addresses the need for reform of 
mining laws. However, in describing his proposed endeavor, the Petitioner does not discuss any role 
he intends to play in legislative reform. A 2022 industry report titled "Mining in the U.S." describes 
decelerating revenue growth projections, as well as constraints for new companies entering the market. 
The Petitioner does not explain how this report demonstrates the national importance of his proposed 
endeavor. Also included in the record is a 2022 article titled 'The critical minerals industry 
desperately needs new engineers." However, the Petitioner does not claim to be an engineer and he 
does not describe how a shortage of engineers demonstrates the national importance of his proposed 
endeavor. When 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 id. at 889. Much of the Petitioner's 
evidence relates to shortage, trends and needs in the field generally, rather than his specific proposed 
endeavor. Even considering the articles, reports, and statistics collectively and in the totality of 
circumstances, we still conclude that they do not support a finding that his specific proposed endeavor 
has national importance. 
The Petitioner also submits his professional plan and statement to support the national importance of 
his proposed endeavor. As noted, to establish national importance, the Petitioner must demonstrate 
the proposed endeavor's impact. In Dhanasar, we 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. at 889. Although the Petitioner 
states that his proposed endeavor "will generate jobs for U.S. workers, as well as create continuous, 
significant, and profitable opportunities for the national economy," he has not supported these 
assertions with sufficient independent, objective evidence. The Petitioner's business plan projects that 
the company's investments will "gradually grow each year, totaling US$806,925.63 of investments in 
the first five years of operation," allowing the creation of 33 new positions. However, these 
investments appear to be profits reinvested in the business itself, and the Petitioner does not describe 
how these investments will contribute to the field broadly. The evidence does not suggest that the 
Petitioner's skills differ from or improve upon those already available and in use in the United States. 
Nor does the evidence demonstrate that the use of the Petitioner's experience will reach beyond 
benefitting his own company and clients or have broader implications within the field of athletic 
training. The record does not establish that his proposed endeavor stands to impact the field as a 
whole. 
The Petitioner also submits an expert opinion prepared b ._____________ __,University, 
as well as recommendation letters from current and former employers praising the Petitioner's 
education, experience, past success, personal qualities, and the results he achieved. However, these 
qualities relate to the second prong of the Dhanasar framework, that the individual is well-positioned 
to advance their proposed endeavor, which "shifts the focus from the proposed endeavor to the foreign 
5 While we discuss a sampling of these aiiicles and rep01is, we have reviewed and considered each one. 
6 
national." Id. at 890. The issue here is whether the Petitioner's specific endeavor has national 
importance under Dhanasar 's first prong. 
We acknowledge that the expert opinion includes an analris of the national importance of the 
Petitioner's proposed endeavor. In his analysis I cites to a 2021 industry report on stone 
mining in the United States, stating "industry revenue has grown at an annualized rate of 3.1 % to $19 .8 
billion over the five years to 2021." However, as noted above, the 2022 industry report of the same 
source discusses significant deceleration in the sector revenue growth, with "revenue forecast to 
decrease an annualized 4.1 %." As a matter of discretion, we may use opinion statements submitted 
by the Petitioner as advisory. Matter of Caron Int'l, Inc., 19 I&N Dec. 791, 795 (Comm'r 
1988). However, we will reject an opinion or give it less weight if it is not in accord with other 
information in the record or if it is in any way questionable. Id. We are ultimately responsible for 
making the final determination regarding an individual's eligibility for the benefit sought; the 
submission of expert opinion letters is not presumptive evidence of eligibility. Id. Here, the advisory 
opinion is of little probative value as it does not meaningfully address the details of the Petitioner's 
proposed endeavor and why it would have national importance. I Idoes not elaborate on 
how the Petitioner's proposed endeavor will have a prospective impact on the United States, including 
the national or global implications on mining operations, the potential to employ U.S. workers, or the 
positive economic effects. 
On appeal, the Petitioner relies upon the evidence he previously submitted and asserts that the Acting 
Director imposed a "stricter standard, and erroneously applied the law," and did not consider the 
evidence objectively. The Petitioner does not identify the Acting Director's standard or erroneous 
applications oflaw. While we acknowledge the Petitioner's appellate claims that the Acting Director 
did not duly consider certain pieces of evidence, we note that the decision discusses each of the claimed 
pieces of evidence the Petitioner's lists in his brief. Nevertheless, we address them again herein. The 
Petitioner continues to rely upon the asserted merits of the services he will provide, his personal and 
professional qualities and achievements, and the trends in mining. However, as set forth above, the 
evidence does not sufficiently demonstrate the proposed endeavor's national importance. Therefore, 
we conclude that the Petitioner has not met the requisite first prong of the Dhanasar framework. 
Because the documentation in the record does not sufficiently establish the national importance of the 
Petitioner's proposed endeavor as required by the first prong of the Dhanasar precedent decision, he 
has not demonstrated eligibility for a national interest waiver. Since the identified basis for denial is 
dispositive of the Petitioner's appeal, we decline to reach and hereby reserve the Petitioner's appellate 
arguments regarding his eligibility under the second and third prongs. 6 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 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). 
6 In her decision the Acting Director concludes that "the Petitioner has established that [he] is well positioned to advance 
the proposed endeavor" without providing an analysis. Although, we disagree based on the deficiencies noted in the 
claimed experience outlined above, because we conclude that the Petitioner has not established his proposed endeavor is 
of national impo11ance, this is dispositive of the appeal, and it is unnecessary to analyze any remaining issues. 
7 
III. CONCLUSION 
As the record does not establish that the Petitioner qualifies for second-preference classification as a 
member of the professions holding an advanced degree, or that he has met the requisite first prong of 
the Dhanasar analytical framework, we conclude that the Petitioner is not eligible for a national 
interest waiver as a matter of discretion. 
ORDER: The appeal is dismissed. 
8