dismissed EB-2 NIW Case: Operations Management

U.S. Citizenship 
and Immigration 
Services 
In Re: 20519530 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAY 9, 2022 
Form I-140 , Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a general and operations manager, 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 . § l l 53(b )(2). 
The Director of the Nebraska 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. 
In these proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit 
sought. 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. ... [T]he 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. 
Furthermore, 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 matter of discretion 2, 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 Department of 
Transportation. 22 l&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
2 See also Poursina v. USCIS, No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or 
deny a national interest waiver to be discretionary in nature). 
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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. 3 
II. ANALYSIS 
The Director concluded that the Petitioner qualifies as a member of the professions holding an 
advanced degree. Accordingly, the next issue to be determined on appeal is whether the Petitioner has 
established that a waiver of the requirement of a job offer, and thus a labor certification, would be in 
the national interest. 
The first prong relates to substantial merit and national importance of the specific proposed endeavor. 
Dhanasar, 26 I&N Dec. at 889. The Petitioner initially provided a "Professional Plan & Statement" 
indicating: 
My career plan in the United States is to continue working as [a] General and Operations 
Professional to advise U.S. companies on how to properly plan, direct, and coordinate the 
operations of public or private sector organizations. I intend to continue using my vast 
expertise and knowledge to provide expert managerial services to U.S. companies gained 
from over 21 years of experience. 
Additionally, my business experience working in the business and operations 
management of a company in the supermarket industry, will allow me to work with U.S. 
companies looking to capitalize in these sectors, especially including those doing business 
or planning on expanding their business internationally, with the greatest of ease. 
In response to the Director's request for evidence (RFE), the Petitioner submitted an updated 
"Professional Plan & Statement" reflecting: 
[M]y overall proposed endeavor in the United States is to offer my expertise to fill the gap 
of experienced professionals in the U.S., who have extensive expertise in managing brick­
and-mortar grocery stores as well as online grocery companies as well. As a consultant 
in the retail sector, I bring innovative results to local companies, organizations and 
individuals improving their monetary interests. My plan to establish a consulting firm 
here in the U.S. that will improve the bottom line through lean retailing, optimized 
sourcing, best practice supply chain management, and efficient store operations. Getting 
ready for sustainable success by building robust organizations, superior skills, and smooth 
change management processes. I also intend to train retail professionals locally, enabling 
them to work in these stores. These professionals will be part of the staff or consultants 
of the company. 
The Director determined that the Petitioner demonstrated the proposed endeavor's substantial merit but 
not its national importance. In his decision, the Director thoroughly discussed the Petitioner's claims 
and documentation and correctly concluded that they did not meet the national importance requirement 
of Dhanasar's first prong. Upon consideration of the entire record, including the arguments made on 
3 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
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appeal, we adopt and affirm the Director's decision relating to Dhanasar's first prong determination 
with the comments below. See Matter of P. Singh, Attorney, 26 I&N Dec. 623 (BIA 2015) (citing 
Matter of Burbano, 20 I&N Dec. 872,874 (BIA 1994)); see also Chen v. INS, 87 F.3d 5, 7-8 (1st Cir. 
1996) ("[I]f a reviewing tribunal decides that the facts and evaluative judgments prescinding from 
them have been adequately confronted and correctly resolved by a trial judge or hearing officer, then 
the tribunal is free simply to adopt those findings" provided the tribunal's order reflects individualized 
attention to the case). 
On appeal, the Petitioner states that "[ t Jo further emphasize the scope and prevalence of [his] proposed 
endeavor, please review the record, specifically the Industry Reports and Articles, which discuss the 
important role that General Operations Managers and Entrepreneurs play in the heart and foundation 
of American's future." In 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 specific 
endeavor that the foreign national proposes to undertake." See Dhanasar, 26 I&N Dec. at 889. 
Although he provided evidence relating to the general operations manager and entrepreneur positions 
and their roles, as discussed in the Director's decision, the Petitioner must demonstrate the national 
importance of his specific, prospective consulting services rather than the national importance of 
general operations managers and entrepreneurs in the supermarket industry or the wide range of the 
operation management field in which he intends to work. In Dhanasar, we noted that "we look for 
broader implications" of the proposed endeavor and that "[aa ]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. 
In addition, the Petitioner argues that he "will focus the impact of his U.S. business by providing 
consultation and services in the logistic and supply chain sectors with a focus on improving processes, 
enabling cost reductions, and improving operations through quality consultancy services." As 
indicated by the Director, the Petitioner initially claimed that his proposed endeavor would be to work 
as a "General and Operations Professional." However, in response to the Director's RFE, the Petitioner 
asserted that he intended "to establish a consulting firm here in the U.S." The Petitioner must establish 
that all eligibility requirements for the immigration benefit have been satisfied from the time filing and 
continuing through adjudication. See 8 C.F.R. § 103.2(b)(l). Moreover, a petition cannot be approved 
at a future date after the petitioner becomes eligible under a new set of facts. Matter of Izummi, 22 I&N 
Dec. 169, 175 (Comm'r 1988). That decision further provides, citing Matter of Bardouille, 18 I&N Dec. 
114 (BIA 1981 ), that USCIS cannot "consider facts that come into being only subsequent to the filing of 
a petition." Id. at 176. Accordingly, we will not consider the Petitioner's materially changed proposed 
endeavor of operating a consulting service. 
Moreover, the Petitioner claims that his proposed endeavor will "generate substantial ripple effects 
upon key business activities on behalf of the United States - namely, serving the vital functions of 
operational management, contract negotiations, cross-border transactions, strategic planning, among 
other[s], in the United States." To evaluate whether the Petitioner's proposed endeavor satisfies the 
national importance requirement, we look to evidence documenting the "potential prospective impact" 
of his work. As discussed in the Director's decision, the Petitioner did not offer specific information 
and evidence to corroborate his assertions that the prospective impact of his proposed endeavor rises 
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to the level of national importance. In Dhanasar, we determined that the petitioner's teaching 
activities did not rise to the level of having national importance because they would not impact his 
field more broadly. Id. at 893. Here, the record does not show through supporting documentation 
how providing general operation manager services stands to sufficiently extend beyond the businesses 
that employ him, to impact the industry or the U.S. economy more broadly at a level commensurate 
with national importance. 
Furthermore, the Petitioner contends that his "proposed endeavor will have multiple positive effects 
on U.S. business environment, thus enhancing societal welfare on behalf of the nation." As pointed 
out by the Director, the Petitioner did not show that his proposed endeavor has significant potential to 
employ U.S. workers or otherwise offers substantial positive economic effects for our nation. Without 
evidence regarding any projected U.S. economic impact or job creation attributable to his future work, 
the record does not show any benefits to the U.S. regional or national economy resulting from the 
Petitioner's operations manager or entrepreneur position would reach the level of"substantial positive 
economic effects" contemplated by Dhanasar. Id. at 890. 
Because the documentation in the record does not establish the national importance of his proposed 
endeavor as required by the first prong of the Dhanasar precedent decision, the Petitioner has not 
demonstrated eligibility for a national interest waiver. Further analysis of his eligibility under the second 
and third prongs outlined in Dhanasar, therefore, would serve no meaningful purpose. 4 
III. CONCLUSION 
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, we conclude 
that he has not demonstrated that he 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, with each considered 
as an independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
4 See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (stating that ·'courts and agencies are not required to make findings on 
issues in the decision of which is unnecessary to the results they reach"); see also Matter ofL-A-C-, 26 l&N Dec. 516,526 
n. 7 (BIA 2015) ( declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
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