dismissed EB-2 NIW Case: Occupational Health And Safety

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JULY 5, 2024 In Re: 30967610 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an occupational health and safety expert, 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 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 she 
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 l&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. Section 203(b )(2)(B)(i) of the Act. 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. 
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). Dhanasar states that U.S. Citizenship and Immigration 
Services (USCIS) may, as matter of discretion, 1 grant a national interest waiver of the job offer, and 
thus the labor certification, to a petitioner classified in the EB-2 category if the petitioner demonstrates 
that (1) the noncitizen's proposed endeavor has both substantial merit and national importance; (2) the 
1 See also Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
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. USCIS may evaluate factors such as whether, in light of the nature of the noncitizen' s 
qualification or the proposed endeavor, it would be impractical either for the noncitizen to secure a 
job offer or for the petitioner to obtain a labor certification; whether, in light of the nature of the 
noncitizen's qualification or the proposed endeavor, it would be impractical either for the noncitizen 
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 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 
The Petitioner proposes to offer consultancy services to businesses through her New York-based 
consulting company. She aims to leverage her experience in creating occupational safety and health 
administration (OSHA) systems to train both employees and 
employers on OSHA-related issues. The 
Director concluded that the Petitioner qualified as a member of the professions holding an advanced 
degree. Accordingly, the remaining issue to be determined on appeal is whether the Petitioner has 
established that a waiver of the requirement of a job offer, and thus of a labor certification, would be 
in the national interest. For the reasons discussed below, the Petitioner has not established that a 
waiver of the requirement of a job offer is warranted. 
The Director concluded that the Petitioner's proposed endeavor has substantial merit. The Director 
determined, however, that the Petitioner did not establish the proposed endeavor is of national 
importance, that she is well-positioned to advance it, and that, on balance, it would benefit the United 
States to waive the job offer requirement. 
On appeal, the Petitioner argues that the Director's decision contains "instances of a misunderstanding 
and misapplication of law that go beyond harmless error and reach the levels of abuse of discretion." 
2 
The Petitioner contends that "ample evidence was provided" with the petition and in response to the 
Director's request for evidence to demonstrate the proposed endeavor's national importance. The 
Petitioner further claims the Director failed to review the totality of the evidence submitted, including 
industry reports that establish the proposed endeavor's alignment with national and government 
initiatives. 
The Petitioner maintains that her proposed endeavor is of national importance because she will 
advance "national initiatives to protect worker health and safety in the United States" while enhancing 
the productivity and success of small and medium-sized enterprises. She states that she will lead the 
process of identifying occupational hazards, reduce accident rates and severity, and improve working 
conditions based on assessments that will be conducted within companies. Consequently, the 
Petitioner claims her proposed endeavor will reduce injury-related budgets for small and medium­
sized businesses, generate substantial positive economic effects, and employ 15 individuals directly. 
In the decision denying the petition, the Director acknowledged and discussed the Petitioner's 
submission of a business plan, an updated statement, letters of interest, and industry articles. The 
Director's decision also specifically considered the Petitioner's proposed endeavor as outlined in her 
statement and business plan. The Director nonetheless determined that the Petitioner did not establish 
her proposed endeavor has broader implications, has significant potential to employ U.S. workers, and 
that it would broadly enhance societal welfare or cultural or artistic enrichment. Furthermore, the 
Director found that the Petitioner did not provide sufficient evidence to confirm whether her proposed 
endeavor will have substantial positive economic effects, particularly in an economically depressed 
area as contemplated by Dhanasar. Id. at 890. Our focus in considering national importance is not 
on the industry itself; instead, we focus on "the specific endeavor that the foreign national proposed 
to undertake." Id. at 889. In determining whether a proposed endeavor has national importance, we 
consider its potential prospective impact. Id. In Dhanasar, we further 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." Id. at 890. As noted by the Director, the record does not show that 
Petitioner's specific proposed endeavor's impact stands to sufficiently extend beyond her own 
company and its clientele to impact her field or industry, the U.S. economy, or societal welfare at a 
level commensurate with national importance. 
Accordingly, we adopt and affirm the Director's analysis and decision regarding the national 
importance of the proposed endeavor as required by the first prong of the Dhanasar precedent 
decision. See Matter ofBurbano, 20 I&N Dec. 872, 874 (BIA 1994); see also Giday v. INS, 113 F.3d 
230, 234 (D.C. Cir. 1997) (noting that the practice of adopting and affirming the decision below has 
been "universally accepted by every other circuit that has squarely confronted the issue"); Chen v. 
INS, 87 F3d 5, 8 (1st Cir. 1996) (joining eight U.S. Courts of Appeals in holding that appellate 
adjudicators may adopt and affirm the decision below as long as they give "individualized 
consideration" to the case). As the Petitioner has not met the Dhanasar' s first prong, we conclude 
that she has not established eligibility for, or otherwise merits, a national interest waiver as a matter 
of discretion. 
3 
Since this issue is dispositive of the Petitioner's appeal, we decline to reach and also hereby reserve 
the appellate arguments regarding her eligibility under the second and third prongs outlined in 
Dhanasar. 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 Dhanasar analytical framework's requisite first prong, we conclude 
that she has not established 
that she 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. 
ORDER: The appeal is dismissed. 
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