dismissed EB-2 NIW Case: Tattoo Art

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: FEB. 5, 2024 In Re: 29666925 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner is a tattoo artist who seeks employment-based second preference (EB-2) 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 classification. See Immigration and Nationality 
Act (the Act) section 203(b )(2), 8 U.S.C. § l 153(b )(2). 
The Director of the Texas Service Center determined that despite qualifying for the underlying EB-2 
visa classification as an individual of exceptional ability, 1 the Petitioner did not establish that a waiver 
of the required job offer, and thus of the labor certification, would be in the national interest. 
Specifically, applying the three-prong analytical framework set forth in Matter ofDhanasar, 26 I&N 
Dec. 884, 889 (AAO 2016), the Director concluded that the Petitioner did not establish that his 
endeavor has national irnportance2 and that on balance, waiving the job offer requirement would 
benefit the United States. 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 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal because the Petitioner did not establish that his endeavor satisfies the 
national importance element, which is part of the first prong requirement of the Dhanasar analytical 
framework. Because the identified basis for denial is dispositive of the Petitioner's appeal, we decline 
to reach and hereby reserve any appellate arguments regarding the third prong of the Dhanasar 
analytical framework, which contemplates whether on balance, waiving the job offer requirement 
would benefit the United States. See INS v. Bagamasbad , 429 U.S. 24, 25 (1976) ("courts and agencies 
are not required to make findings on issues the decision of which is unnecessary to the results they 
1 The Director determined that the Petitioner met at least three of the six categories of evidence and therefore qualifies for 
the underlying EB-2 visa classification as an individual of exceptional ability. However, the Director did not conduct a 
final merits determination to explain the basis for the favorable determination, and the record as currently constituted lacks 
sufficient evidence showing that the Petitioner qualifies for the EB-2 classification as an individual of exceptional ability. 
See 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual /volume-6-part-f-chapter-5 . But because our 
conclusions regarding the national interest waiver are sufficient to determine the outcome of this appeal, no further 
discussion of the EB-2 issue is necessary at this time. 
2 The Director determined that the Petitioner demonstrated that his proposed endeavor has substantial merit and that he is 
well-positioned to advance the endeavor. 
reach"); see also Matter of L-A-C-, 26 I&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach 
alternative issues on appeal where an applicant is otherwise ineligible). 
After a petitioner first demonstrates qualification for the underlying EB-2 visa classification, they must 
then demonstrate they merit a discretionary waiver of the job offer requirement "in the national 
interest." Section 203(b )(2)(B)(i) of the Act. Matter ofDhanasar, 26 I&N Dec. 884, 889 (AAO 2016) 
provides that U.S. Citizenship and Immigration Services (USCIS) may, as matter of discretion 3, grant 
a national interest waiver if the petitioner shows: 
• 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. 
The Director reviewed and analyzed the Petitioner's claims under the three prongs of Dhanasar, 
acknowledging the Petitioner's submission of a business plan containing five-year staffing and growth 
projections. However, the Director pointed out that the Petitioner did not specify where he intends to 
employee the 10-person staff that is projected for his business's fifth year of operation and determined 
that the Petitioner did not establish his endeavor's significant potential to employ U.S. workers or 
create other substantial positive economic effects, particularly in an economically depressed area. The 
Director farther determined that the Petitioner's endeavor will likely benefit only the clients that will 
use his services and thus it does not stand to impact the regional or national population at a level that 
is consistent with having national importance. 
On appeal, the Petitioner argues that the Director imposed "a stricter standard of proof . . . and 
erroneously applied the law to the detriment of the Appellant." We disagree. Except where a different 
standard is specified by law, the "preponderance of the evidence" is the standard of proof governing 
immigration benefit requests. See Matter of Chawathe, 25 I&N Dec. at 375 (AAO 2010); see also 
Matter ofMartinez, 21 I&N Dec. 1035, 1036 (BIA 1997); Matter ofSao Hoo, 11 I&N Dec. 151, 152 
(BIA 1965). Accordingly, "preponderance of the evidence" is the standard of proof governing national 
interest waiver pet1t10ns. See generally l USCIS Policy Manual, E.4(B), 
https://www.uscis.gov/policy-manual. While the Petitioner asserts that he has provided evidence 
sufficient to demonstrate eligibility for the EB-2 classification and a national interest waiver, he does 
not farther explain or identify a specific instance in which the Director applied a standard of proof 
other than the preponderance of evidence in denying the petition. 
The Petitioner also contends that his endeavor "is a vital aspect to U.S. Healthy [sic] and Art industry" 
and "contributes to a revenue-enhanced business ecosystem, and an enriched, productivity-centered 
economy." However, the Petitioner does not offer evidence to support these claims of the endeavor's 
broad impact on the U.S. "business ecosystem" and economy. Likewise, the Petitioner offers no 
evidence to demonstrate that his endeavor will positively impact "the health and well-being of 
Americans" on such a scale that the endeavor should be deemed to have national importance. And 
while the Petitioner asks that we consider "the importance of the field, industry or profession" of the 
endeavor, this factor does not necessarily impart national importance to the specific endeavor. In 
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). 
2 
determining an endeavor's national importance, the relevant question is not the importance of the field, 
industry, or profession in which the individual will work; instead, we focus on the "the specific 
endeavor that the foreign national proposes to undertake," taking into consideration the proposed 
endeavor's potential prospective impact. Matter ofDhanasar, 26 I&N Dec. at 889. 
In sum, the Petitioner does not provide any new evidence or arguments that overcome the Director's 
determination regarding the national importance element of the first prong of the Dhanasar 
framework. 
Upon review of the entire record, we adopt and affirm the Director's decision on the issue of the 
national importance element of the first prong. See Matter ofBurbano, 20 I&N Dec. 872, 874 (BIA 
1994); see also Giday v. INS, 113 F.3d 230,234 (D.C. Cir. 1997) (noting that the practice of adopting 
and affirming the decision below has been "universally accepted by every other circuit that has 
squarely confronted the issue"); Chen v. INS, 87 F3d 5, 8 (1st Cir. 1996) (joining eight U.S. Courts of 
Appeals in holding that appellate adjudicators may adopt and affirm the decision below as long as they 
give "individualized consideration" to the case.") 
ORDER: The appeal is dismissed. 
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