dismissed EB-2 NIW Case: Nutritional Supplements

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JUL. 01, 2024 In Re: 30628050 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an entrepreneur in the area of nutritional supplements, 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 Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner merited a national interest waiver as a matter of discretion. The matter is 
now before us on appeal pursuant to 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 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
To qualify for the underlying EB-2 visa classification, a petitioner must establish they are an advanced 
degree professional or an individual of exceptional ability in the sciences, arts, or business. Section 
203(b)(2)(A) of the Act. 
An advanced degree is any U.S. academic or professional degree or a foreign equivalent degree above 
that of a bachelor's degree. A U.S. bachelor's degree or foreign equivalent degree followed by five 
years of progressive experience in the specialty is the equivalent of a master's degree. [If a doctoral 
degree is customarily required for the specialty, the non-citizen must possess a U.S. doctorate or a 
foreign equivalent degree. (delete if doctorate not an issue)] 8 C.F.R. § 204.5(k)(2). 
If a petitioner establishes eligibility for the underlying EB-2 classification, they must then demonstrate 
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, 1 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. 
Id. 
II. EB-2 CLASSIFICATION 
The Director concluded in her decision that the Petitioner "qualifies for the exceptional ability 
requirement" based on the evidence of his degree and letters providing proof of experience. However, 
as noted by the Petitioner on appeal, he did not seek eligibility as an individual of exceptional ability 
but as a member of the professions holding an advanced degree. Because this appears to be a 
typographical error by the Director, based on both the statements in her request for evidence (RFE) 
and the language in her decision, we will consider her conclusion to relate to the Petitioner's eligibility 
as a member of the professions holding an advanced degree. But we do not agree with that conclusion 
and withdraw it per the analysis below. 
The Petitioner submitted a copy of his bachelor of administration diploma, along with transcripts 
showing four years of study towards this degree and an educational evaluation equating it to a 
bachelor's degree in business administration from an accredited college or university in the United 
States. We agree with the Director's conclusion that this evidence establishes that the Petitioner holds 
the foreign equivalent of a U.S. bachelor's degree. 
Turning to the evidence of the Petitioner's post-degree work experience in the specialty, the regulation 
at 8 C.F.R. § 204.S(g)(l) states that this shall be in the form of letters from current or former employers 
which provide a specific description of the duties performed. Where such letters are unavailable, other 
evidence will be considered. Here, in her decision the Director mentioned a letter providing proof of 
the required experience and concluded that the Petitioner had established eligibility. This appears to 
be the letter from the accountant who served the Petitioner's business, ________ 
from 2006 to 2016, stating that the Petitioner served as 
the managing partner of this business. We note that a translation certificate was submitted along with 
the English translation of this letter, in accordance with 8 C.F.R. § 103.2(b )(3). But the record does 
not include a copy of the original letter in the Portuguese language, without which we cannot verify 
the authenticity of the translation. Accordingly, we cannot consider this evidence in determining 
whether the Petitioner gained at least five years of progressive, post-baccalaureate work experience. 2 
The record also includes documents relating to Nutrition Import, including its registration on 
September 5, 2006 and the Petitioner's sale of his interest in the company to his partner in 2016. In 
1 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts (and Third 
in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver is discretionary 
in nature). 
2 Even if we were to consider the English translation without the original, the letter lists the Petitioner's duties in this 
position in broad terms which do not show that he gained the required experience in his specialty. 
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addition, the Petitioner submitted three sales order sheets dated November 22, 2013 showing the 
purchases by lof a variety of sports nutrition products from a company in New Jersey. 
While these documents affirm that the Petitioner was a partner and manager of this company for 
approximately 10 years, and that it was actively trading for some period in late 2013, this evidence 
does not establish that the Petitioner was engaged in the foll-time management of this business for at 
least five years. We note that the Petitioner states in his resume that during the period of his 
involvement with he was also serving as the founder and manager of another 
companyJ lwhich he states operated and franchised sports nutrition and health supplement 
retail locations in several areas of Brazil. Although no further information about I I is 
provided, his concurrent ownership and management of two companies raises concerns regarding the 
amount of time devoted to his duties for each of them. The Petitioner also listed his employment with 
these companies on the required ETA Form 750B, Application for Alien Employment Certification, 
but he did not provide any detail about the duties he performed or the hours he worked for each of 
these companies on that form. Unlike his resume, the Petitioner signed and dated this document, 
attesting to the truth and correctness of the information provided. 
Other evidence submitted by the Petitioner relating to this requirement includes several letters from 
individuals stating that they did business with the Petitioner and I I One of those letters 
is from M-B-d-S-, who states that while working for a different company in 2006 he was contacted by 
the Petitioner to set up the importation of a supplement brand to Brazil. He states that the Petitioner 
"personally prepared the orders and did the calculations for the formatting of the national price list," 
and that the partnership resulted in the success of a particular supplement throughout Brazil. But there 
is no indication of how long this project lasted, and we note that the writer included his resume which 
states that he began working for I Ias a sales representative in February 2008. 
Other letters similarly describe doing business with the Petitioner in the sports supplement market in 
later years in his role with I I but also do not indicate how long these projects or 
interactions lasted and thus do not demonstrate that the Petitioner accrued at least five years of full­
time, post-degree experience in directing the company prior to selling his interest. 
Considering the deficiencies in the evidence noted above, we conclude that it does not demonstrate 
that the Petitioner gained the required five years of progressive, post-baccalaureate experience in the 
specialty. He is therefore not eligible as a member of the professions holding an advanced degree, and 
we withdraw the Director's conclusion. While this issue is dispositive of his appeal, we will also 
consider the merits of the Petitioner's request for a national interest waiver below. 
III. NATTONAL INTEREST W AIYER 
The 
Petitioner proposes to start and manage a company to be engaged in the sports nutrition and health 
supplements market. He submitted a business plan which identifies two main areas of operation for 
this proposed company: consulting and training for existing companies and entrepreneurs seeking to 
export products, and attracting foreign investment to develop and produce new products in the United 
States, to be sold to customers such as gyms, food supplement specialty stores, and personal trainers 
and sports consultants. The plan projects that the business would employ six other individuals in the 
I Florida area and generate annual revenue of $1.65 million in its fifth year of operation. 
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I 
A. Substantial Merit and National Importance 
The first prong of the Dhanasar analytical framework, 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. 
In her decision, the Director concluded that the Petitioner's proposed endeavor has neither substantial 
merit nor national importance. Regarding the former, the Director specifically stated that while the 
business plan and articles discussed topics including health infrastructure, small business, and e­
commerce, they did not provide sufficient information regarding the area of sports nutrition to 
demonstrate that the proposed endeavor has substantial merit. But we disagree with this analysis, and 
withdraw the Director's determination. The evidence regarding the size of the sports nutrition industry 
is sufficient to establish the substantial merit of the proposed endeavor in the area of business. 
Turning to the proposed endeavor's national importance, the Director noted that the Petitioner's 
business plan, and the articles he submitted regarding entrepreneurship and small businesses in the 
United States, did not focus on the importance of his endeavor. On appeal, the Petitioner asserts that 
the Director did not consider the response to the request for evidence (RFE) written by his attorney. 
Specifically, he notes that the RFE response discussed how his proposed endeavor would be innovative 
in the area of food supplements, as he would develop supplements catered to individuals in specific 
occupations and athletes in specific sports. However, neither the appeal nor the RFE response refers 
to a section of the business plan, or other evidence in the record, which discusses this aspect of the 
proposed endeavor, nor could we locate such a discussion in our review. Counsel's unsubstantiated 
assertions do not constitute evidence. See, e.g., Matter of S-M-, 22 I&N Dec. 49, 51 (BIA 1998) 
("statements in a brief, motion, or Notice of Appeal are not evidence and thus are not entitled to any 
evidentiary weight"). As the record lacks evidence that the Petitioner proposes to engage in this type 
of targeted research and development of supplements as a part of his endeavor, we will not consider 
these statements by counsel. 
The Petitioner also refers to counsel's statements in the RFE response about the economic benefits to 
the United States from his proposed endeavor. An endeavor may have national importance, even if 
focused on one geographic area in the United States, if it has significant potential to employ U.S. 
workers or has other substantial positive economic effects. Dhanasar at 889-90. Specifically, he notes 
that the company "would create jobs, drive employment opportunities, and reduce unemployment 
rates." The Petitioner's business plan projects that the company would employ seven individuals, 
including himself, and also includes statistics about unemployment in the United States and poverty 
levels in the I I area. But the plan provides only generic job descriptions for these seven 
positions, and does not explain what these individuals would do in the context of his specific company. 
It is therefore not apparent how the Petitioner's proposed endeavor will create these jobs. In addition, 
when claiming that his company will also indirectly create 55 jobs, the Petitioner relies upon a broad 
"employment multiplier" figure for the consulting industry, even though it is not apparent which of 
his seven employees would be involved in consulting. With this lack of explanation and detail to 
support the Petitioner's job creation projections, the evidence does not show that his proposed 
endeavor has significant potential to employ U.S. workers. 
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Further, even if the Petitioner's business plan supported its projections with specific and relevant 
information, he does not explain how the direct employment of seven individuals would have a 
substantial positive economic effect in the I I area, or appreciably reduce unemployment rates 
as he claims. 
The Petitioner also quotes the section of his counsel's RFE response which asserts that his proposed 
endeavor will potentially improve public health and promote a healthy lifestyle. The section refers to 
a report from the United States Centers for Disease Control (CDC) which discusses how poor diet and 
low levels of physical activity can lead to obesity and chronic disease, and asserts that the supplements 
produced and marketed by the Petitioner's company "could contribute to improved public health 
outcomes." But the CDC report makes no mention of nutritional supplements, and two reports from 
the National Institutes of Health (NIH) about nutritional supplements do not support the Petitioner's 
assertions or those of counsel. Rather than improving health, the NTH report states that some 
supplements "might enhance [an athlete's] performance only when they add to, but do not substitute 
for, this dietary foundation." Similarly, the Petitioner's assertions that the products that his proposed 
company would develop and market would promote "an active and healthy lifestyle in the United 
States" are unfounded. 
As noted by the Director, much of the evidence submitted in response to the RFE focused on the 
impact of small businesses in the United States. Other evidence, such as an article on the website 
www.newamericaneconomy.org, stressed the importance of immigrant entrepreneurs to the U.S. 
economy. But when evaluating potential substantial merit and national importance, we look to the 
specific proposed endeavor. Id. at 889. Evidence pertaining to an entire industry, field, or group is 
insufficient to demonstrate that a specific proposed endeavor meets the first prong of the Dhanasar 
analytical framework. 
For all of the reasons discussed above, we conclude that the Petitioner has not established that his 
proposed endeavor is of national importance. 
III. CONCLUSION 
A petitioner must meet all three prongs of the Dhanasar analytical framework in order to establish 
their 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 the second and third prongs of the 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). 
ORDER: The appeal is dismissed. 
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