dismissed EB-2 NIW Case: Performing Arts

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: APR. 22, 2024 In Re: 30649568 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Worker (National Interest Waiver) 
The Petitioner, a business owner and performer in a company specializing in events, festivals, and 
theatrical performances, seeks employment-based second preference (EB-2) immigrant classification 
as a member of the professions holding an advanced degree or as an individual of exceptional ability. 
See 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 attached to this EB-2 
immigrant classification. Id. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish the Petitioner met the requirements for a national interest waiver. 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 of Chawathe, 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 classification, as either an advanced degree professional or as an 
individual of exceptional ability in the sciences, arts, or business. Section 203(b )(2)(B)(i) of the Act. 
An advanced degree is any United States academic or professional degree or a foreign equivalent 
degree above that of a bachelor's degree. A United States 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. 8 C.F.R. § 204.5(k)(2). 
Exceptional ability means a degree of expertise significantly above that ordinarily encountered in the 
sciences, arts, or business. 8 C.F.R. § 204.5(k)(2). A petitioner must initially submit documentation 
that satisfies at least three of six categories of evidence. 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). 1 Meeting 
at least three criteria, however, does not, in and of itself, establish eligibility for this classification. 2 If 
a petitioner does so, we will then conduct a final merits determination to decide whether the evidence 
in its totality shows that they are recognized as having a degree of expertise significantly above that 
ordinarily encountered in the field. 
If a petitioner demonstrates eligibility for the underlying EB-2 classification, 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 T&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,3 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. 
TI. ANALYSIS 
A. EB-2 Classification 
The Director did not include a determination 
on the Petitioner's eligibility for the EB-2 classification. 
However, as the record does not establish by a preponderance of the evidence that the Petitioner is 
eligible for, or otherwise merits, a national interest waiver as a matter of discretion, we will reserve 
the issue of the Petitioner's eligibility for the EB-2 classification. 4 
B. National Interest Waiver 
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. Dhanasar, 26 I&N Dec. at 889. 
The Petitioner describes her proposed endeavor as being an "Independent Performer of Educational 
Shows." In her business plan, she states that her company's mission is to "produce entertaining plays, 
host family friendly festivals and events, and produce exciting media content for Jewish (English, 
1 If these types of evidence do not readily apply to the individual's occupation, a petitioner may submit comparable 
evidence to establish their eligibility. 8 C.F.R. § 204.5(k)(3)(iii). 
2 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of aliens of 
exceptional ability. See generally 6 USCIS Policy Manual F.5(8)(2), https://www.uscis.gov/policy-manual/volume-6-
part-f-chapter-5. 
3 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). 
4 See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("As a general rule courts and agencies are not required to make findings 
on issues the decision of which is unnecessary to the results they reach."). 
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Hebrew and Spanish-speaking) commumttes in South Florida and on a nationwide basis." The 
Director concluded that, while the Petitioner's proposed endeavor has substantial merit, the Petitioner 
did not meet any of Dhanasar's three prongs. For the reasons discussed below, we agree with the 
Director that the Petitioner has not demonstrated the national importance of her endeavor to establish 
eligibility under Dhanasar 's first prong. 
In a letter attached to her appeal,5 the Petitioner asserts that her proposed endeavor has national 
importance because it "address[ es] the very serious issue of advancing children's social and emotional 
development at a time when the United States' educational system, and the children it must prepare 
for a future, are in crisis." She further claims that her proposed endeavor of "creating programs to 
advance education in social issues, particularly with children, has global implications in so far as her 
reach extends to the most important resource the world has, children." 
Aside from these general claims, however, the Petitioner has not provided sufficient evidence to 
demonstrate that her proposed endeavor's potential prospective impact rises to the level of national 
importance. The Petitioner emphasizes the importance of children's education and submitted articles 
discussing problems in the American education system, including teacher shortages, children's mental 
health concerns, and learning gaps particularly after the COVID-19 pandemic. The Petitioner also 
submitted letters of support from various colleagues, who attested to the Petitioner's experience in the 
field and the general benefits of participation in theater and "outside the classroom" activities. 
While we acknowledge the Petitioner's claims regarding the value of quality education, the 
Petitioner's reliance upon the field's importance is insufficient to establish her proposed endeavor's 
national importance. The relevant question is not the importance of the industry or profession in which 
the individual will work. Instead, the focus is on the "specific endeavor that the foreign national 
proposes to undertake." Dhanasar, 26 I&N Dec. at 889. Here, the Petitioner has not established that 
her proposed endeavor stands to impact or significantly reduce any claimed problems in the 
educational system, such as teacher shortages, children's mental health concerns, or the consequences 
of any learning gaps. The record does not quantify any effects that would be directly attributable to 
her endeavor or elaborate how the endeavor will specifically cause such effects, beyond performing 
plays and other events for children and their families in the Jewish community on an intermittent basis. 
Likewise, although the Petitioner states that she intends to start her business in Florida and then expand 
it nationwide, she has not shown how her endeavor will benefit more than the direct clients it will 
serve or that the Petitioner's business would impact the education industry more broadly. 
In her Statement oflntent, the Petitioner also claims her endeavor will promote the local economy by 
hiring employees. A proposed endeavor may show national importance by having a "significant 
potential to employ U.S. workers" or "other substantial positive economic effects, particularly in an 
economically depressed area." Dhanasar, 26 I&N Dec. at 890. However, in this case, the Petitioner's 
business plan states that she intends to employ seven people with a staffing budget of $220,000 in the 
first year of operation, increasing to 15 people with a staffing budget of $498,038 by the fifth year of 
5 The Petitioner indicated on the Form I-290B, Notice of Appeal or Motion, and in a letter attached thereto, that she would 
submit a brief to the AAO within 30 days of filing the appeal. However, the record does not reflect she filed a written 
brief within the allowed timeframe. 
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operation. The Petitioner does not explain how these staffing levels and economic impact are 
substantial enough to rise to the level of national importance. 
Because the documentation in the record is insufficient to establish the national importance of the 
Petitioner's proposed endeavor as required by Dhanasar's first prong, she has not demonstrated 
eligibility for a national interest waiver. As the identified reasons for dismissal are dispositive of the 
Petitioner's appeal, we decline to reach and hereby reserve remaining issues concerning whether she 
has established eligibility for the EB-2 classification, as well as eligibility under the Dhanasar 
framework. 6 See INS v. Bagamasbad, 429 U.S. at 25. 
III. CONCLUSION 
The Petitioner has not met the requisite first prong of the Dhanasar analytical framework. We, 
therefore, 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. 
6 In the letter accompanying her appeal, the Petitioner did not address or contest the Director's findings regarding the third 
prong of Dhanasar. Accordingly, we deem this issue waived. See, e.g. , Matter of O-R-E-, 28 l&N Dec. 330, 336 n.5 
(BIA 2021) ( citing Matter ofR-A-M-, 25 I&N Dec. 657, 658 n.2 (BIA 2012) (providing that an issue not raised on appeal 
is deemed waived)). 
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