dismissed EB-2 NIW Case: Organizational Psychology

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: OCT. 25, 2023 In Re: 28447143 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an organizational psychologist, seeks classification as a member of the professions 
holding an advanced degree. 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 EB-2 immigrant classification. See section 203(b)(2)(B)(i) of the Act. 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 record did not 
establish that a waiver of the job offer requirement is 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 I&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 immigrant 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. 
Once a petitioner demonstrates eligibility as either a member of the professions holding an advanced 
degree or an individual of exceptional ability, the petitioner must then establish eligibility for a 
discretionary waiver of the job offer requirement "in the national interest." Section 203(b )(2)(B)(i) of 
the Act. While neither statute nor the pertinent regulations define the term "national interest," Matter 
ofDhanasar, 26 I&N Dec. 884, 889 (AAO 2016), provides the framework for adjudicating national 
interest waiver petitions. Dhanasar states that USCIS may, as a matter of discretion, 1 grant a national 
interest waiver if the petitioner demonstrates that: 
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) . 
• 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 
Director determined that the Petitioner qualifies for the EB-2 classification as an advanced degree 
professional and that the proposed endeavor has substantial merit. However, the Director found that 
the Petitioner did not establish the national importance of the proposed endeavor nor that, on balance, 
waiving the job offer requirement would benefit the United States. The Director did not make a finding 
as to the second prong, whether the Petitioner is well-positioned to advance the proposed endeavor. 
On appeal, the Petitioner submits a brief and a copy of evidence previously submitted and contends 
that she has established eligibility for a national interest waiver. 
A. Qualification for the EB-2 Classification 
As stated above, the Petitioner seeks to qualify for the EB-2 classification as an advanced degree 
professional. Specifically, the Petitioner claims to possess the foreign equivalent of a bachelor's 
degree followed by at least five years of progressive experience in the specialty. See 8 C.F.R. 
§ 204.5(k)(2) ( a U. S. bachelor's degree or the foreign equivalent degree followed by at least five years 
of progressive experience in the specialty is equivalent to a master's degree). To establish the requisite 
post-baccalaureate experience, the regulations require that a petitioner submit "letters from current 
and former employer(s)" that include "the name, address, and title of the writer, and a specific 
description of the duties performed." 8 C.F.R. § 204.S(g)(l). If this evidence is unavailable, other 
documentation will be considered. Id. 
The record shows that the Petitioner obtained the foreign equivalent of a bachelor of science degree 
in psychology in 2009. Additionally, the Petitioner states that from 2009 to 2012 she was a partner in 
a human resources (HR) management firm in Brazil, and that from 2013 to 2018 she operated her own 
consultancy firm in Brazil, offering HR management, organizational psychology, and life coaching 
services. To demonstrate this experience, the Petitioner submitted reference letters from prior clients 
who used her consulting services. Although the Director concluded that these qualify as employer 
letters containing the relevant employment dates and job duties, as required by 8 C.F.R. § 204.S(g)(l), 
we disagree. While the letters describe the services the Petitioner provided and the timeframe during 
which the services were rendered, the letters are from clients, not employers. We will consider other 
documentation to establish experience if employer letters are unavailable, such as in the context of 
self-employment. See id. However, the record is not clear as to whether the Petitioner offered these 
services regularly and continuously during the timeframes provided and whether these were the 
Petitioner's only clients, and thus whether operating this business and offering services as an 
organizational psychologist and life coach was equivalent to five years of progressive experience. 
To help establish that the Petitioner's experience operating her business represents at least five years 
of progressive work experience in the specialty, counsel asserts in a brief submitted in response to the 
request for evidence (RFE) that: 
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[The Petitioner] took on the challenge to work for her own business, which she did 
successfully for nearly a decade in Brazil. As an owner of her own small business, the 
hours [the Petitioner] was required to work each week were immense, she serviced 
multiple companies providing occupational psychology training regularly for years on 
end. It is widely known that small business owners work in excess of 40, 50 or even 
60 hours weekly. 
In support of this statement, counsel cites to an online article that discusses a survey of small business 
owners and their workload. But counsel's assertion regarding the Petitioner providing trainings 
"regularly for years on end" for multiple companies is not 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 entitle to any evidentiary weight"). The Petitioner's statement does not discuss the 
specific regularity and consistency of the services she provided, nor do the client reference letters. 
There is also a lack of clarity regarding the timeframe during which the Petitioner operated her 
business. Although counsel asserts that the Petitioner operated her business for nearly a decade, the 
Petitioner states that she operated her business only from 2013 to 2018 and that she worked for a 
different HR firm from 2009 to 2012. The Petitioner did not provide an employer letter from the firm 
where she was employed from 2009 to 2012. Additionally, she did not provide documentation related 
to the operation of her business, such as business registration documents, invoices to or contracts with 
clients, tax returns or other financials, or other documents that would help establish that the Petitioner 
operated her business consistently and regularly such that she obtained at least five years of 
progressive post-baccalaureate experience. The Petitioner would need to address these deficiencies in 
any future proceedings where attainment of work experience is required to establish eligibility. See 
8 C.F.R. § 204.5(k)(3)(i)(B); see also 8 C.F.R. § 204.5(g)(l). 
B. Eligibility for a National Interest Waiver 
We tum now to the Petitioner's eligibility for a national interest waiver under the Matter ofDhanasar 
framework. The Petitioner proposes to establish a consultancy firm in the United States,! I I I"to provide medium-sized and small businesses with specialized human resources consulting 
services that will aim to contribute to their growth and benefit the United States as a whole." The 
Petitioner states that she will be the head of the company and its organizational psychologist. She 
states that the role of a corporate or organizational psychologist is to "consult and work with human 
resource offices and departments, aiming to increase business efficiency and improve organizational 
structure, while improving overall quality oflife for employees (and their employers)." The Petitioner 
also states that the company will create and use an artificial intelligence (AI) system that will provide 
more efficient services. The company business plan states that this AI system "was already conceived 
by [the Petitioner] and will be folly developed by a team of in-house employees." 
1. Whether the Proposed Endeavor has Both Substantial Merit and National Importance 
A petitioner may demonstrate their proposed endeavor's substantial merit "in a range of areas such as 
business, entrepreneurialism, science, technology, culture, health, or education." Matter ofDhanasar, 
26 I&N Dec. at 889. As stated above, the Director determined that the Petitioner established the 
substantial merit of the proposed endeavor. Based upon the evidence in the record regarding the 
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importance of HR services and management to business operations, we agree with the Director that 
the proposed endeavor has substantial merit. 
In finding that the Petitioner did not establish the national importance of the endeavor, the Director 
stated that the record does not show that the proposed endeavor stands to sufficiently extend beyond 
the Petitioner's organization or its clients, or the individuals the Petitioner would serve as a life coach, 
to impact the industry or field more broadly. The Director also determined that there was not sufficient 
information and evidence to illustrate the number of individuals that the business would hire, train, 
and support, and no evidence to illustrate that the rate of pay that the company intends to pay its current 
or prospective employees would have substantial positive economic effects to the regional or national 
economy that would reach the level contemplated by Matter ofDhanasar. The Director acknowledged 
that the Petitioner's statements reflect her intention to provide specialized HR services to her clients 
but found that the Petitioner did not demonstrate how her individual work as an organizational 
psychologist and entrepreneur addresses the psychology or HR field on a level commensurate with 
national importance. 
On appeal, the Petitioner asserts that the Director improperly imposed a higher standard of proof than 
a preponderance of the evidence and did not sufficiently consider the Petitioner's business plan, 
personal statement, and the opinion letters submitted. The Petitioner contends that the record 
demonstrates, by a preponderance of the evidence, that the proposed endeavor has national 
importance. 
In determining whether a proposed endeavor has national importance, we consider its potential 
prospective impact. Matter ofDhanasar, 26 I&N Dec. at 889. An endeavor that has national or global 
implications within a particular field, such as those resulting from certain improved manufacturing 
processes or medical advances, may have national importance. Id. Additionally, an endeavor that is 
regionally focused may nevertheless have national importance, such as an endeavor that has significant 
potential to employ U.S. workers or has other substantial positive economic effects, particularly in an 
economically depressed area. Id. at 890. 
The record contains four opinion letters, and the Petitioner emphasizes on appeal that these establish 
the national importance of the endeavor. Each letter is from a university professor in an HR or business 
field, and each professor describes their academic, professional, and research backgrounds and states 
that they are qualified to provide an evaluation of the Petitioner's proposed endeavor. Each of the 
letters also describes the proposed endeavor in detail, provides background information on the HR 
field and states the writer's opinion that the proposed endeavor has national importance. 
One of the letters was submitted by I IAssociate Professor in Strategic 
Management and Entrepreneurship in thel ISchool of Business atl !University. ~I--~ 
states that their research and teaching interests include strategic alliances, community development 
enterprises, organizational legitimacy, and small business and startup funding. I I states that 
the proposed endeavor has national importance because it will have an impact on HR planning and 
entrepreneurship on a national level, will have substantial positive economic effects, and impacts a 
matter that is the subject of national initiatives. 
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However, we conclude that I ldoes not provide sufficient support for these conclusions. For 
example, in discussing how the proposed endeavor will have a national impact on HR planning and 
entrepreneurship,! Idiscusses the importance of the HR field and entrepreneurship in general, 
rather than the impact of the Petitioner's specific proposed endeavor. I I states that "well­
versed human resources specialists such as [the Petitioner] can play a crucial role in helping small and 
medium-sized companies improve their human resources practices" and that "[ e ]ntrepreneurship is 
crucial to the expansion of the American economy .... " Similarly, in concluding that the proposed 
endeavor will have substantial positive economic effects, I !describes the HR consultancy 
industry overall and its projected growth nationally. But in determining national importance, the 
relevant question is not the importance of the industry, field, or profession in which an individual will 
work; instead, we focus on the potential prospective impact of the "specific endeavor that the 
[noncitizen] proposes to undertake." See Matter of Dhanasar, 26 I&N Dec. at 889. Therefore, we 
conclude that these claims to do not sufficiently establish the national importance of the proposed 
endeavor. 
~---------- Associate Professor of Supply Chain Management atl !University, 
who states that his expertise is in supply chain management, retail operations, demand planning and 
forecasting, purchasing and collaboration, and sustainability, also provided an opinion letter in support 
of the Petitioner. Like I I also states the opinion that the proposed endeavor has 
national importance because it stands to have a national or even global impact, because it will have 
substantial positive economic effects, and because it will impact a matter that is the subject of national 
initiatives. But again, the bases for these conclusions are not well supported by the record or by Matter 
ofDhanasar. In support of the conclusion that the endeavor stands to have a national or even global 
impact,! I provides a lengthy discussion about the roles and duties of HR managers and their 
importance to an organization, rather than discussing the potential impacts of the Petitioner's lpecific I 
endeavor. In concluding that the endeavor will have substantial positive economic effects, 
states that HR is one of the fastest growing fields in the United States and discusses the importance of 
small businesses to the U.S. economy. Again,I ldoes not provide his opinion regarding the 
potential impact of the Petitioner's specific endeavor. 
Finally, in support of the claim that the proposed endeavor impacts a matter that is the subject of 
national initiatives,! lpoints out that there are many federal laws that govern employment issues, 
such laws prohibiting discrimination against employees and labor laws establishing a minimum wage, 
overtime rules, and child labor laws. Although we agree that there are federal laws governing 
employment in the United States, we do not agree that this establishes that the Petitioner's HR 
consultancy firm is of national importance. Like .________ ___.conclusions as to the national 
importance of the endeavor are based upon a discussion of the industry overall, rather than the specific 
proposed endeavor. 
._____________ ~ Associate Professor of Quantitative Management at ....I ____. 
University, also provided a letter expressing the opinion that the Petitioner's proposed endeavor has 
national importance. I I states that they are an expert in the field of quantitative 
management. I Iprovides a detailed discussion on the national implications of the HR 
management industry, stating that human resources "plays an important part in establishing and 
strengthening the relationship between employees and leadership" and that the "workforce is the 
foundation of any business and organization." I I also cites to a study finding that 
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businesses are having difficulty in finding skilled workers to fill job vacancies. Based on this, D 
I I states the conclusion that "it is clear that professionals like [the Petitioner], who have 
knowledge and expertise in Human Resources Management, can help to minimize the gap and improve 
human capital through training, programs, initiatives, and other related activities." 
~----~I also states the opinion that the proposed endeavor stands to have substantial positive 
economic effects, and again, bases this conclusion on the importance of small businesses overall to 
the U.S. economy and the expectation that the HR consultancy market is expected to grow. Similar 
to~-------~also opines that the proposed endeavor impacts a matter that is the subject 
of national initiatives based upon the various federal laws relating to labor and employment, such as 
the Equal Pay Act of 1963, the Fair Labor Standards Act, and the Workforce Innovation and 
Opportunity Act, among others. As with the opinion letters discussed above,I ldoes not 
provide their analysis and opinion as to the potential prospective impact of the Petitioner's company 
and its services, and for the same reasons as discussed above, we do not findl Ianalysis 
to be persuasive. 
Finally,! I, Professor of Management at the College of Business and Innovation 
at the University I I provides an opinion letter. I lstates that they teach courses, 
publish manuscripts, and advise companies related to HR management and is qualified as an expert in 
this area. I lopines that the Petitioner's proposed endeavor stands to have a national impact. 
I I provides background on the management consulting and HR consulting industries and 
describes the need for and the role of organizational consultants. I I also discusses the market 
size of the HR consulting industry in the United States and abroad, and the expectation that the number 
of jobs in the industry will grow. I I states that the Petitioner's proposed endeavor impacts 
national initiatives because consulting firms help businesses remain compliant with federal statutes 
and regulations. Finally,! lstates that the Petitioner's proposed endeavor will enhance 
individual and societal welfare because of the importance of HR and organizational consultants to 
businesses. I I conclusions, like those of the other professors, are based upon an analysis of 
HR services and consulting in general rather than the Petitioner's proposed endeavor. 
As a matter of discretion, we may use opinion statements submitted by the Petitioner as advisory. 
MatterofCaronint'l, Inc., 19 I&N Dec. 791,795 (Comm'r 1988). However, wewillrejectanopinion 
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 expert opinion letters are of little probative value as 
they conflate the importance of the HR consulting industry overall with the national importance of the 
Petitioner's specific endeavor. Additionally, only one of the writers states that they are an expert in 
the field of human resource management or consulting, and none of the writers state that they are 
experts in organizational psychology. The Petitioner emphasizes on appeal that the record contains 
four separate expert opinion letters each stating their conclusion that the proposed endeavor has 
national importance. However, rather than providing four separate, cumulative perspectives regarding 
the national importance of the endeavor, the four letters are substantially similar, repeat much of the 
same discussion about the industry overall, and do not meaningfully provide additional information or 
evidence. Eligibility for the benefit sought is not determined by the quantity of evidence alone but 
also the quality. Matter of Chawathe, 25 I&N Dec. at 376 ( citing Matter ofE-M-, 20 I&N Dec. 77, 
6 
80 (Comm'r 1989)). For the reasons discussed above, we conclude that the opinion letters do not 
establish the national importance of the proposed endeavor. 
We tum next to the Petitioner's business plan, which she asserts on appeal was not sufficiently 
considered by the Director in evaluating the importance of the endeavor. The Petitioner asserts that 
the business plan establishes that the scope of the Petitioner's work rises to the level of national 
importance and that the company will provide substantial positive economic effects. 
The business plan describes the company's proposed services, marketing strategy, intended 
organizational structure, and projected financials. The plan also states that the company will create 
and use an AI system to optimize HR tasks, such as talent sourcing, interview scheduling, candidate 
evaluation, training and development, and employee engagement. The plan farther states that, because 
these services can be delivered online, the company will be able to reach businesses around the 
country. The financial projections in the business plan state that the company will hire 9 employees 
in the first year and have a total of 29 employees by year five. The plan also projects sales of around 
$750,000 in year one and around $2.2 million in sales by year five. 
Although the Petitioner's business plan provides detailed information about the company's plan to 
provide consulting services for its clients, market those services, and hire the necessary employees to 
execute its organizational strategy, the business plan does not demonstrate how the business stands to 
have an impact on the HR consultancy or organizational psychology fields that would rise to the level 
of national importance. In Matter of Dhanasar, we gave as examples of nationally important 
endeavors those that might result in improved manufacturing processes or medical advances. Matter 
of Dhanasar, 26 I&N Dec. at 889. The business plan does not explain how the Petitioner's 
consultancy services have the potential to result in the type of broad impact that an original mechanical 
process or a medical advancement would in their respective fields. 
We also conclude that the business plan does not establish that the proposed endeavor stands to have 
substantial positive economic effects or employ U.S. workers at a level that would rise to national 
importance. Regarding the financials, the business plan does not provide the basis or methodology 
for the estimates in sales or operating expenses, and as such, we are unable to assess whether the plan's 
stated revenue projections and job creation estimates are credible. Additionally, the Petitioner has not 
provided evidence to demonstrate that the creation of 29 jobs, even in an economically depressed area, 
would result in an economic impact commensurate with national importance. As such, we conclude 
that the Petitioner has not met her burden to establish that the proposed endeavor stands to have 
"substantial positive economic effects." Id. at 890. 
The Petitioner's primary contention on appeal is that the Director generally disregarded the evidence 
in the record or did not properly consider it. In support, she largely restates the evidence in the record 
and the arguments already presented in her initial brief and RFE response. We have thoroughly 
reviewed the evidence in the record and conclude that although the Petitioner asserts that her proposed 
endeavor has national importance, she offers little corroborative evidence or explanation to support 
her claims. Although the record reflects the Petitioner's intention to provide valuable HR consulting 
services to her clients, the Petitioner has not offered sufficient information or evidence to demonstrate 
that the prospective impact of her proposed endeavor rises to the level of national importance. In 
Dhanasar, we determined that the petitioner's teaching activities did not rise to the level of having 
7 
national importance because they would not extend beyond his students to impact his field more 
broadly. Matter ofDhanasar, 26 I&N Dec. at 893. Here, we conclude the Petitioner has not shown 
that her proposed endeavor stands to sufficiently extend beyond her company and its clientele to 
impact the HR management industry or the U.S. economy at a level commensurate with national 
importance. 
2. The Second and Third Dhanasar Prongs 
The next issue is whether the Petitioner has established the second Dhanasar prong, requiring that she be 
well-positioned to advance the proposed endeavor. However, because the Petitioner has not established 
that the proposed endeavor has national importance, as required by the first Dhanasar prong, she is 
not eligible for a national interest waiver. Therefore, we need not address whether she has established 
the remaining Dhanasar prongs. 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 
alternate issues on appeal where an applicant is otherwise ineligible). We reserve our opinion 
regarding whether the record satisfies the second or third Dhanasar prong. 
III. CONCLUSION 
Because the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, we 
conclude that the Petitioner has not established that she is eligible for or otherwise merits a national 
interest waiver as a matter of discretion. 
ORDER: The appeal is dismissed. 
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