dismissed EB-2 NIW Case: Transportation Sales

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAR. 14, 2024 In Re: 30134252 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an entrepreneur in the transportation sales industry, 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. § 1153(b)(2). 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish the Petitioner's eligibility for the requested 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 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. 53 7, 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 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. 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). 
Once 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 I&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 1, 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. 
II. ANALYSIS 
The Director determined that the Petitioner qualifies for the underlying EB-2 classification as an 
advanced degree professional. Therefore, the remaining issue is whether the Petitioner has established 
his eligibility for a national interest waiver under the Dhanasar framework. 
The first Dhanasar prong, 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. Dhanasar, 26 I&N Dec. at 889. In determining whether the proposed endeavor has 
national importance, we consider its potential prospective impact. Id. We agree with the Director's 
conclusion that the proposed endeavor has substantial merit as the endeavor falls within areas we 
concluded could demonstrate an endeavor of substantial merit: business and entrepreneurialism. Id. 
However, while the Petitioner has established that the proposed endeavor has substantial merit, the 
record does not show it has national importance. 
The record reflects that the Petitioner initially proposed to work in the U.S. as a sales manager / 
entrepreneur to manage and operate his U.S.-based management consultant service firm to "provid[e] 
marketing, sales process consulting, and hiring and headhunting services." Through his business, he 
asserted he would "advance U.S. business and trade," and "improv[e] business opportunities." He 
planned to rely on his "vast experience working with light to extra-heavy truck sales" to provide a 
unique value proposition that would "provide training and consulting focused on sales and marketing 
process and truck driving hiring ... targeting the transportation sector." The Petitioner provided a 
definitive statement, a five-year business plan, recommendation letters from prior customers attesting 
to his experience within the truck sales field, an expert opinion letter, and industry reports and articles 
detailing the economic importance of immigrants, entrepreneurs, small businesses, and the anticipated 
growth of the management consulting and sales industries. 2 
The Director concluded that the evidence did not establish that his proposed endeavor was of national 
importance because his business plan indicated that, in the first five years of business, the Petitioner 
anticipated hiring only six employees and planned to rely on the "import of truck drivers from Brazil" 
[sic] on a monthly basis. As such, the Director determined that the Petitioner did not show the 
endeavor had "a significant potential to employ U.S. workers," nor did the Petitioner establish that the 
endeavor would otherwise have a prospective impact rising to the level of national importance. 
1 See also Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts (and 
Third in an unpublished decision) in concluding that USCTS' decision to grant or deny a national interest waiver to be 
discretionary in nature). 
2 While we do not discuss each piece of evidence contained in the record individually, we have reviewed and considered 
each one. 
2 
On appeal, the Petitioner does not offer any explanation or clarification regarding the Director's 
conclusion. Instead, the Petitioner's brief discusses multiple endeavors, which are substantially 
different from the endeavor described in the record. In addition to discussing his proposed business 
as initially presented, the Petitioner states he will "offer his expertise as an [ e ]ntrepreneur in the areas 
of digital media and IT," and "provid[ e] Business Certification, IT Schools, Software Publishing, and 
IT Consulting in the U.S." As digital media, business certification, or IT services were not a part of 
the Petitioner's proposed endeavor in the record before the Director, we will not consider them for the 
first time on appeal. USCIS regulations affirmatively require a petitioner to establish eligibility for 
the benefit it is seeking at the time the petition is filed. See 8 C.F.R. § 103.2(b )(1 ); Matter ofKatigbak 
14 I&N Dec. 45, 49 (Comm'r 1971). The Petitioner cannot materially change the proposed endeavor 
on appeal in an effort to make a deficient petition conform to USCIS requirements. See Matter of 
Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). As such, we will only consider the endeavor 
as it was described before the Director. 
The Petitioner also generally alleges that the Director did not apply the correct burden of proof and 
failed to properly consider the evidence on record showing his experience in the field and the impact 
of his proposed business endeavor, noting that the Director's decision did not consider, among other 
things, the Petitioner's business plan and definitive statement. Yet, the Director based their conclusion 
primarily on their review of those exact documents, which included contradictory statements regarding 
the Petitioner's proposed employment of U.S. workers. While we acknowledge that "the potential to 
employ U.S. workers" is just one factor that we consider when evaluating an endeavor's national 
interest, the record does not show that the Petitioner's endeavor otherwise rises to the level of national 
importance contemplated under Dhanasar. 
The standard of proof in this proceeding is a preponderance of the evidence, meaning that a petitioner 
must show that what is claimed is "more likely than not" or "probably" true. Matter of Chawathe, 25 
I&N Dec. at 375-76. To determine whether a petitioner has met the burden under the preponderance 
standard, we consider not only the quantity, but also the quality (including relevance, probative value, 
and credibility) of the evidence. Id.; Matter ofE-M-, 20 I&N Dec. 77, 79-80 (Comm'r 1989). Upon 
a de novo review of the record, we see no error in the Director's evaluation of the evidence, as it does 
not establish, by a preponderance of the evidence, that the Petitioner's proposed endeavor has national 
importance as contemplated under the Dhanasar framework. 
Turning to the Petitioner's specific endeavor, the Petitioner asserts that, because the endeavor's goals, 
which include working with its customers to "optimiz[ e] logistics, enhance[ e] distribution networks, 
and improv[ e] overall efficiency in the road transport industry," align with federal initiatives aimed at 
modernizing infrastructure, this is sufficient to establish its national importance. We disagree. While 
the stated alignment of these goals with federal initiatives may speak to the substantial merit of the 
endeavor, it does not establish the specific endeavor's potential prospective impact. Moreover, the 
Petitioner has not shown how optimizing logistics and operations for his potential customers would 
improve the overall efficiency in the transportation industry or lead to "broader implications" 
commensurate with national importance. Dhanasar at 889. 
According to the business plan, the Petitioner will provide management consulting services with a 
particular focus on marketing, sales process consulting, and hiring and headhunting services. The 
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Petitioner asserted that this endeavor is also of national importance because it will "generate 
substantial ripple effects upon key commercial and business activities... " Yet, the record does not 
corroborate these assertions. The business plan claims that the company will have a positive impact 
on the management consulting industry and the U.S. economy due to its anticipated revenue of $3.6 
million, and the payment of $962,000 in wages for six direct jobs in the first five years of operations. 
Notably, only three of the six jobs will be full-time, and the Petitioner provides no explanation for the 
basis of these revenue projections, nor does he elaborate on how the proposed employment numbers 
will impact the area of intended operations. Even if the endeavor's revenue and job creation 
projections were more than conjecture, they nevertheless do not suggest that the endeavor would 
operate on a scale rising to the level of national importance. While any basic economic activity has 
the potential to positively impact the economy, the Petitioner has not demonstrated how the projected 
economic activity of his proposed endeavor rises to the level of national importance. 
The record reflects that the Petitioner has several years of experience working within the truck sales 
industry. The letters ofrecommendation commend the Petitioner for the development of "marketing 
strategies" which "increase[ed his customer's] business in terms of customer service, cost reduction, 
and target audience," and for providing his customers with knowledge and insight "the competition 
could not provide." Importantly, however, a petitioner's expertise and record of success are 
considerations under Dhanasar' s second prong, which "shifts the focus from the proposed endeavor 
to the foreign national." Id. at 890. The issue here is whether the Petitioner has demonstrated the 
national importance of his proposed endeavor. 
The Petitioner also submitted numerous articles identifying various leadership strategies, the 
importance of IT to sales management, the highest paying sales jobs, and how to increase sales and 
business operations. Notably, several of the articles are educational guides directed toward business 
professionals. Beyond a blanket statement that these articles demonstrate the economic implications 
of the Petitioner's endeavor, he did not adequately explain how they establish its national importance. 
In visa petition proceedings, it is a petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 
(BIA 2013). Commensurate with that burden is responsibility for explaining the significance of the 
proffered evidence. Repaka v. Beers, 993 F. Supp. 2d 1214, 1219 (S.D. Cal. 2014). Moreover, the 
reliance on the management consulting industry and the importance of entrepreneurship in general 
does not establish that the Petitioner's specific endeavor has national importance. 
Likewise, while the economic importance of immigrants, entrepreneurs, small businesses, and the 
trucking industry to the U.S. economy is relevant, the pertinent question in determining national 
importance 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." See 
Dhanasar at 889. Accordingly, the Petitioner's reliance on background information and statistics 
concerning entrepreneurs and business development is not persuasive. 
We recognize the Petitioner intends to focus on the trucking and transportation industry; however, the 
Petitioner has not explained how his "vast experience working with light to extra-heavy truck sales" 
will translate to impactful services to the industry beyond his direct customers. In Dhanasar, we 
discussed how teaching would generally not impact the field of education more broadly in a manner 
which rises to national importance, as its impact is limited to a petitioner's immediate students. 
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Dhanasar at 893. Here too, the record does not show that the Petitioner 's proposed endeavor stands 
to sufficiently extend beyond his potential customers to impact his field more broadly at a level 
commensurate with national importance. 
We also reviewed the expert opinion from Dr. V-L-, and conclude the opinion provides little additional 
explanation to establish the national importance of the Petitioner's proposed endeavor. Dr. V-L- does 
not discuss the Petitioner's specific proposed endeavor and makes no mention of his planned business. 
In fact, a significant portion of the expert opinion letter is focused on the importance of marketing 
managers, which is not consistent with the Petitioner 's proposed endeavor of a sales manager / 
entrepreneur. users may, in its discretion, use as advisory opinions statements from universities, 
professional organizations, or other sources submitted in evidence as expert testimony. Matter of 
Caron Int'l, 19 I&N Dec. 791 , 795 (eomm'r. 1988). However, users is ultimately responsible for 
making the final determination regarding a foreign national's eligibility. The submission of letters 
from experts supporting the petition is not presumptive evidence of eligibility. Id., see also Matter of 
D-R-, 25 I&N Dec. 445, 460 n.13 (BIA 2011) ( discussing the varying weight that may be given expert 
testimony based on relevance, reliability, and the overall probative value). Here, much of the content 
of the expert opinion letter lacked relevance and probative value with respect to the national 
importance of the Petitioner's proposed endeavor. 
Finally, we note that the record shows the Petitioner intends to base his company in a Small Business 
Administration HUBZone, which is "linked to a National Initiative and, therefore, of National 
Importance." However, this misapplies the Dhanasar framework. In Dhanasar , we explained 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 be considered to 
have national importance." Dhanasar , 26 I&N Dec. at 890. While the Petitioner indicated that he had 
founded the company, the record does not contain any evidence establishing the company's formation, 
nor is there any evidence establishing its physical location. Therefore, the Petitioner has not offered 
sufficient evidence that his business will in fact be in a HUBZone, and the Petitioner's business plan 
states that he does not qualify3 and does not intend to be eligible for the HUBZone program. More 
importantly, the record does not adequately establish that increased employment in these designated 
underutilized business zones would have positive economic effects commensurate with national 
importance, especially given that the Petitioner only anticipates employing six employees in the next 
five years, three of which will be part-time positions. So, the fact that the Petitioner's proposed 
endeavor may be in a HUBZone does not establish that the Petitioner 's endeavor is of national 
importance. 
For all the reasons discussed, the evidence does not establish the national importance of the proposed 
endeavor as required by the first prong of the Dhanasar precedent decision. 
3 There are several required qualifications to participate in the program, including that the business seeking to participate 
in the HUBZone program must b e at least 51 % owned by U.S. citizens, a community development corporation, a n 
agricultural cooperative, an Alaska Native corporation, a Native Hawaiian organization, or an Indian tribe. 
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III. CONCLUSION 
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, we 
conclude that he has not established he is eligible for or otherwise merits a national interest waiver as 
a matter of discretion. Since the identified basis for denial is dispositive of the Petitioner's appeal, we 
decline to reach and hereby reserve the Petitioner's eligibility and appellate arguments under 
Dhanasar's second and third prongs. See INS v Bagamasbad, 429 U.S. 24, 25 ("courts and agencies 
are not required to make findings on issues the decision of which is unnecessary to the results they 
reached"); 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). 
ORDER: The appeal is dismissed. 
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