dismissed EB-2 NIW Case: Restaurant Management

U.S. Citizenship 
and Immigration 
Services 
In Re: 18038375 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEP. 2, 2021 
Form I-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner , a general and operational 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. § 1153(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. 
On appeal, the Petitioner asserts that he is eligible for a national interest waiver. 
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 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. 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 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. 
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 impmiance, 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 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 I&NDec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
2 See also Poursina v. USCJS, No. 1 7-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USC IS' decision to grant or 
deny a nationalinterestwaiverto be discretionaiy in nature). 
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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. 3 
II. ANALYSIS 
The Director concluded that the Petitioner qualifies as a member of the professions holding an 
advanced degree. The remaining issue to be determined 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 
For the reasons discussed below, we agree with the Director that the Petitioner has not sufficiently 
demonstrated eligibility under the first prong of the Dhanasar analytical framework. 
The first prong relates to substantial merit and national importance of the specific proposed endeavor. 
Dhanasar, 26 I&N Dec. at 889. At initial filing, the Petitioner claimed: 
Thru the experience acquired in Brazil from years in Business Administration (ie a large 
chain of restaurants), [he] is indispensable to enrich the American food industry. Wi1h his 
professional experience as an administrator, coupled with the vast experience of years in 
restaurants in Brazil, and added to the best technology that the USA offers, it will be 
possible to create a strong link of solid partnerships with other companies, fostering 1he 
American market, developing a gradual growth plan that will generate direct and indirect 
jobs for the American people. 
Besides, he intends to always practice a fair price with high-quality products, creating a 
relationship of confidence with the client, based on quality, efficiency, and honesty. 
According to research in BLS- Bureau of Labor Statistics, the job openings in the area 
o~ I where he intends to start his life in the U.S., are increasing. 
The Petitioner also submitted a business plan "envision[ing] the opportunity to open a restaurant in 1he 
mold of his existing ones, with delicious Brazilian food and the famous barbecue that attracts not only 
Brazilians, but meat lovers in general." In addition, the business plan claim~he idea of expansion 
to America is to open several units in the I I area and later to extend tcL_J" 
In response to the Director's request for evidence, the Petitioner provided a statement indicating: 
[D]ue to the knowledge and experience in the restaurant business, I am sure we can build 
a solid restaurant, with a differentiated management style and innovative ideas,generating 
employment and opportunities, since only then you can have a success case, especially in 
the current situation that we have lived due to COVID-10 where unemployment and 
companies foreclosures have been increasing every day. 
I have a proposal from the corporation for the openini=-g~o:..!..f~a~u:!c.!n.!.!i~t o~f!...!::::======~m. 
the region ofl ,I together with the comp an~ I a 
3 SccDhanasar, 26l&NDec. at 888-91, for elaboration onthesethreeprongs. 
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Brazilian company that has interest in investing in the project. We already have locations 
and stores prospected and the project in attachment. From January to March of this year 
I performed a consulting service for the company.__ ______ _. owner of the 
restaurant! l1ocated inl I where due to my experience in consulting 
and administration in different restaurants in Brazil, I was ab le to make important changes 
in the administration and processes of the restaurant and including it has been of great 
importance to overcome the challenges of COVID-19. 
The Petitioner also provided an updated business plan and documentation relating to potential investors. 
On appeal, the Petitioner maintains: 
In the United States, [he] intends to open a unit of the restaman~ lin the 
region oti I He has already locations and stores prospected, with some companies 
wanting to invest in his entrepreneurial project. 
To this end, [he] has a partnership proposal to open a unit of the restaurant specialized in 
Brazilian barbecue ! t in thel I region, having as a partner the 
company! l a Brazilian company interested in investing in the USA, 
willing to invest in $150,000 for the first restaurant star. 
The Director determined that the Petitioner demonstrated the substantial merit of his proposed endeavor, 
and the record supports that conclusion. For the reasons discussed below, we agree with the Director that 
the Petitioner has not sufficiently shown the national importance of his proposed endeavor. 
On appeal, the Petitioner stresses that "[e]ntrepreneurship is among the most vibrant and important 
parts of the economy" and "[e]ntrepreneurs throughout modern economic history have been 
disproportionately responsible for truly radical innovations." 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 "the specific endeavor that the foreign national proposes to undertake." See 
Dhanasar, 26 I&N Dec. at 889. Here, the Petitioner must demonstrate the national importance of his 
opening a restaurant in thel I Florida area rather than the national importance of restaurant 
entrepreneurism or entrepreneurism overall. 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, particularly in an economically depressed area, for instance, may well be 
understood to have national importance." Id. at 890. 
The Petitioner also emphasizes that his "expe1ience under consideration fulfills this category of 
professionals" and "[h]is proposed endeavor offers his intimate knowledge in the managerial and 
entrepreneurial fields, where, with his extensive training and hands-on experience, he is highly qualified 
to run a business that will surely contribute to the development of the community he is in." The 
Petitioner's experience and abilities in his field, however, relate to the second prong of the Dhanasar 
framework, which "shifts the focus from the proposed endeavor to the foreign national." Id. at 890. The 
issue here is whether the specific endeavor that he proposes to undertake has national importance 
under Dhanasar' s first prong. 
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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. Although the 
Petitioner discusses "the riches of Brazilian food," he has not offered sufficient, specific information 
and evidence to demonstrate that the prospective impact of his specific proposed endeavor rises to the 
level of national impmiance. 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, therecorddoesnotshowhowopeningandoperatingarestaurantitj I 
Florida stands to sufficiently extend beyond his own company and clientele, to impact the restaurant 
industry or the U.S. economy more broadly at a level commensurate with national importance. 
Furthermore, the Petitioner has not demonstrated that the specific endeavor he proposes to undertake 
offers substantial positive economic effects for our nation or has significant potential to employ U.S. 
workers. He has not shown that his restaurant's future business activity and staffing levels stand to 
provide substantial economic benefits to specific regions or the United States, as contemplated by 
Dhanasar, Id. at 890. In fact, none of his business plans discuss job creation or indicate the number 
of workers required at the restaurant, and they claim that his restaurant will initially earn a profit of 
$35K per month with an eventual profit margin of $80K per month. The Petitioner, however, did not 
off er any relevant supporting evidence to con-oborate his claims in the business plans and to 
substantiate that his company's future business activity stands to provide substantial economic benefits 
to specific regions or the United States rather than limited to thci I Florida area. Moreover, 1he 
Petitioner did not establish how monthly profits margins between $35K- $80K constitute "substantial 
positive economic effects" consistent with Dhanasar. 
In addition, the Petitioner has not offered evidence, for example, that the area inl I Florida 
where his restaurant would be located is economically depressed, that he would utilize a significant 
population of workers in that area, or that his endeavor would offer the region or its population a 
substantial economic benefit through employment levels or business activity. Nor has the Petitioner 
established that any increases in employment or investment attributable to his restaurant's operations 
stand to substantially affect economic activity or tax revenue in a state, region, or nationally. 
Accordingly, the Petitioner's proposed endeavor does not meet the first prong of the Dhanasar 
framework. 
Because the documentation in the record does not establish the national impmiance 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 inDhanasar, therefore, would serve no meaningful purpose. 
III. CONCLUSION 
As the Petitioner has not met the requisite first prong oftheDhan asar 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. 
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