dismissed EB-2 NIW Case: Restaurant Management

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-J-H-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 15, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an entrepreneur restaurant owner, seeks second preference immigrant classification as 
an alien of exceptional ability or, alternatively, 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 153(b)(2). After the petitioner 
has established eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) 
may, as matter of discretion, 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. 
Matter of Dhanasar, 26 I&N Dec. 884 ( AAO 2016). 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish, as required, that the Petitioner qualifies for EB-2 classification as an alien of exceptional 
ability. In addition, she found that a waiver of the required job offer, and thus of a labor certification, 
would not be in the national interest. 
On appeal, the Petitioner asserts that she qualifies as an alien of exceptional ability, and should be 
granted a national interest waiver. 
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: 
Matter of S-J-H-
(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 of job 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. 
In addition, the regulation at 8 C.F.R. § 204.5(k)(2) includes the following definitions: 
(2) Definitions. As used in this section: Advanced degree means any United States academic 
or professional degree or a foreign equivalent degree above that of baccalaureate. A United 
States baccalaureate degree or a foreign equivalent degree followed by at least five years 
of progressive experience in the specialty shall be considered the equivalent of a master's 
degree. If a doctoral degree is customarily required by the specialty, the alien must have a 
United States doctorate or a foreign equivalent degree. 
Exceptional ability in the sciences, arts, or business means a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business. 
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. 1 Dhanasar states that after EB-2 eligibility has been established, USCIS 
may, as a matter of discretion, grant a national interest waiver when the below prongs are met. 
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 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 I&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
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Matter of S-J-H-
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) 
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. 2 
11. ANALYSIS 
The Petitioner seeks second preference immigrant classification, but did not clearly indicate whether 
she was eligible as an alien of exceptional ability or as a member of the professions holding an 
advanced degree. In his notice of intent to deny (NOID), the Director therefore sought evidence under 
both provisions, but noted that the Petitioner had indicated on Form ETA 750 that she possessed a 
baccalaureate degree in journalism, and that this "does not appear to be field of employment in which 
the beneficiary is seeking employment." However, the definition of "advanced degree" listed above 
does not require that a foreign national must hold a degree in a particular field in order to qualify as a 
member of the professions holding an advanced degree. It does require that the required five years of 
progressive experience be "in the specialty." We will therefore first consider whether the evidence 
establishes the Petitioner's eligibility for the second preference immigrant classification as a member 
of the professions holding an advance degree. 
A Member of the Professions Holding an Advanced Degree 
In response to the Director's NOID, the Petitioner submitted official transcripts from 
in Korea which show that she completed a four-year Bachelor of Arts program 
with a major in communication in 1990. Also included was a "Certificate of Degree" from the same 
institution which verifies this information. This evidence establishes that she holds a foreign degree 
that is equivalent to a United States baccalaureate. 
Regarding the required five years of progressive experience in the field, the Petitioner submitted letters 
from her CPA, the AK, and other local government and businesspeople which verify 
that she has owned and operated ________ restaurant since 2011. 
As the Petitioner has submitted evidence which demonstrates that she holds the equivalent of a United 
States baccalaureate degree , and has more than five years of experience as the owner and CEO of her 
restaurant , she has established her eligibility as a member of the professions holding an advanced 
2 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
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Matter of S-J-H-
degree. As she therefore qualifies for the second preference immigrant classification, we need not 
determine whether she also qualifies as an alien of exceptional ability. 
B. National Interest Waiver 
As noted above, the Petitioner intends to come to the United States to continue to own and operate a 
restaurant in Alaska. Although she also mentioned a second restaurant in the 
record does not include further information about this restaurant or the Petitioner's ownership, 
management or future plans for it. For the reasons discussed below, we find that the Petitioner has 
not established her eligibility for a national interest waiver under the analytical framework set forth in 
Dhanasar. 
1. Substantial Merit and National Importance of the Proposed Endeavor 
The Petitioner submitted information about the small size and remoteness of the area, as well 
as letters from local officials and business owners testifying to the restaurant's positive reception in 
the community. In his decision, the Director found that the Petitioner's proposed endeavor as a 
business owner has substantial merit. We agree that the venture's positive economic impact on the 
community meets the requirements of this initial half of the first prong. 
However, the Petitioner has not submitted sufficient evidence demonstrating that her proposed 
endeavor is of national importance. The Director noted that the restaurant's economic impact would 
affect only the local community. On appeal, the Petitioner refers to the Dhanasar decision's 
statement that even local businesses may be considered to have national importance, "particularly in 
an economically depressed area," and to evidence regarding the relatively high unemployment in 
Alaska. However, that portion of the Dhanasar decision stresses that such an endeavor would need 
to show "significant potential to employ U.S. workers" or have other "substantial positive economic 
effects." 
Here, the evidence indicates that the restaurant employed 20 workers in the fourth quarter of 2018, 
paying out total wages just above $68,000, or an average of $3,400 per worker. In addition, the 
Petitioner submitted a brief business plan which indicates that she intends to hire five to ten additional 
full-time employees, although she did not explain or support the business need for additional 
employees. This evidence does not sufficiently establish that the employment of 20 workers, or even 
potentially 30 workers, at the demonstrated rate of pay would have substantial positive effects in a 
community of approximately 14,000. In addition, it does not demonstrate that the proposed endeavor 
offers benefits which extend beyond the community to impact the restaurant industry more 
broadly. Accordingly , we agree with the Director and find that the Petitioner has not met the first 
prong of the Dhanasar framewor k. 
2. Well Positioned to Advance the Proposed Endeavor 
As noted above, there are several factors which we consider in determining whether the Petitioner is 
well positioned to advance the proposed endeavor . On appeal, the Petitioner asserts that the Director 
misapplied this prong when he considered only her brief business plan in determining that she was not 
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Matter of S-J-H-
well positioned. As the Petitioner notes, Schedule C of the Petitioner's tax returns for the years 2012 
through 2016 show sales almost doubling to $820,000 and net income increasing from $19,000 to 
nearly $68,000. However, those schedules are the only portion of the tax returns which were 
submitted, and do not include the Petitioner's signature or any indication that they were filed with the 
Internal Revenue Service. Without the complete tax returns, along with evidence that they have been 
filed, this evidence is not verifiable and thus does not sufficiently support the Petitioner's assertions 
regarding the success of her restaurant. 
In addition, the Petitioner's degree in communication has not been shown to be directly related to her 
proposed endeavor, and the record includes conflicting and incomplete information regarding her 
previous experience as a restaurant owner and operator. Specifically, the Petitioner submitted a 
resume which indicates that she served as the owner and president of a restaurant and bar in 
South Korea, from 2002 to 2007. However, the record also includes a "Certificate of Job 
Career" in Korean with an English translation, which states that she held the position of manager at 
another restaurant in from March 1, 2003 to April 20, 2007, working six days 
per week. The Petitioner has not explained how she apparently worked two full-time jobs during this 
period, and has not submitted evidence in support of her employment at Also, neither position 
is listed in Item 15 of the Form ETA-750B which the Petitioner completed and signed, despite 
instructions on the form which state that "any other jobs related to the occupation for which the alien 
is seeking certification" should be listed. Therefore, we find that the record does not adequately 
demonstrate that the Petitioner has the requisite education, skills and experience to establish that she 
is well positioned to advance her proposed endeavor. 
3. Balancing Factors to Determine Waiver's Benefit to the United States 
As explained above, 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. Here, the Petitioner claims that she is eligible for a waiver due to her successful operation 
of a restaurant and the positive economic impact that has on the Alaska community. However, 
as the Petitioner has not established that her endeavor is of national importance as required by the first 
prong of the Dhanasar framework, or that she is well positioned to advance her proposed endeavor, 
she is not eligible for a national interest waiver, and further discussion of the balancing factors under 
the third prong would serve no meaningful purpose. 
III. CONCLUSION 
The evidence establishes that the Petitioner is eligible for classification as a member of the professions 
holding an advanced degree. However, as she has not met the three prongs of the analytical framework 
set forth in the Dhanasar decision, we find that she is not eligible for or otherwise merit a national 
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. In visa petition 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; Matter of 
Skirball Cultural Ctr., 25 I&N Dec. 799, 806 (AAO 2012). Here, that burden has not been met. 
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Matter of S-J-H-
ORDER: The appeal is dismissed. 
Cite as Matter ofS-J-H-, ID# 2796031 (AAO Apr. 15, 2019)