dismissed EB-2 NIW Case: Water Rescue Training

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAY 14, 2024 In Re: 31108926 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner 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 that is attached to this EB-2 immigrant 
classification. See section 203(b)(2)(B)(i) of the Act, 8 U.S.C. § 1153(b)(2)(B)(i). U.S. Citizenship 
and Immigration Services (USCIS) may grant this discretionary waiver of the required job offer, and 
thus of a labor certification, when it is in the national interest to do so. 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
demonstrate that: 1) he qualified for the EB-2 classification as either a member of the professions 
holding an advanced degree or as an individual of exceptional ability; or 2) he merited a national 
interest waiver, as a matter of discretion, under the three-prong framework outlined in Matter of 
Dhanasar, 26 I&N Dec. 884 (AAO 2016). 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 Christa'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 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. 
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." Id. While 
neither the statute nor the pertinent regulations defme the term "national interest," Matter ofDhanasar, 
26 I&N Dec. 884, 889 (AAO 2016), provides the framework for adjudicating national interest waiver 
pet1t10ns. Dhanasar states that USCTS 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. 
See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
TT. ANALYSTS 
A. EB-2 Classification 
In order to qualify for a national interest waiver, the Petitioner must first show that he qualifies for the 
EB-2 classification under section 203(b )(2)(A) of the Act, either as an advanced degree professional 
or an individual of exceptional ability. In denying the petition, the Director concluded that the did not 
qualify for the EB-2 classification as an advanced degree professional or as an individual of 
exceptional ability. 
On appeal, in addition to providing previously submitted evidence, the Petitioner submits new 
employment verification letters and a recent letter from a school he attended. As a preliminary matter, 
because the Petitioner was put on notice and given a reasonable opportunity to provide this evidence, 
we will not consider it for the first time on appeal. See 8 C.F .R. § 103 .2(b )(11) (requiring all requested 
evidence be submitted together at one time); Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 1988) 
( declining to consider new evidence submitted on appeal because "the petitioner was put on notice of 
the required evidence and given a reasonable opportunity to provide it for the record before the 
denial"). As discussed below, the Petitioner has not presented adequate reasons or evidence on appeal 
to overcome the Director's determination that he is ineligible for 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 issue of his EB-2 eligibility. See INS v. Bagamasbad, 429 U.S. 24, 25 
(1976) (stating that agencies are not required to make "purely advisory findings" on issues that are 
unnecessary to the ultimate decision); 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). 
B. National Interest Waiver 
With regard to the Petitioner's proposed endeavor, he initially indicated that he intended to operate a 
water rescue training facility specializing in instructing 
members of law enforcement. 
The first 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. In determining 
1 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) Goining the Ninth, Eleventh, and D.C. Circuit Comts (and Third 
in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver to be 
discretionary in nature). 
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whether the proposed endeavor has national importance, we consider its potential prospective impact. 
Dhanasar, 26 I&N Dec. at 889. 
The Director concluded in the denial notice that, while the Petitioner demonstrated the substantial 
merit of his proposed endeavor, he did not establish its national importance. On appeal, the Petitioner 
reiterates his purported qualifications and cites evidence previously included in the record. On appeal, 
the Petitioner does not address specific conclusions reached by the Director in denying the petition, 
nor does he articulate any erroneous conclusion of law or statement of fact. This alone is grounds for 
summary dismissal. 8 C.F.R. § 103.3(a)(l)(v). 
Further, the Director comprehensively discussed the evidence of the Petitioner's proposed endeavor 
to operate a business in the United States providing scuba diving and water rescue instruction. In 
accordance with the framework for adjudicating national interest waiver petitions provided in Matter 
of Dhanasar, 26 I&N Dec. 884, 889 (AAO 2016), the Director considered whether the submitted 
evidence established that the Petitioner's proposed endeavor had both substantial merit and national 
importance. 2 The Director explained that the Petitioner did not describe his endeavor with detail 
sufficient to differentiate it from any other occupation. The Director further explained that the 
Petitioner did not establish how his endeavor would impact the industry or field more broadly, nor did 
he demonstrate that the endeavor would have significant potential to employ U.S. workers or otherwise 
offer substantial positive economic effects for the nation. As stated above, while the Director 
determined that the Petitioner's proposed endeavor had substantial merit, the Director properly 
concluded that the Petitioner's endeavor did not reach a level of national importance to warrant a 
waiver of the job offer requirement. As discussed, the Petitioner provides no indication on appeal as 
to why this determination on the part of the Director was in error. The Petitioner only revisits 
assertions concerning his skills and experience; however, evidence of the Petitioner's job experience 
and performance generally relates not to the national importance of an endeavor, as discussed in the 
first prong of the Dhanasar framework, but to the second. Therefore, we adopt and affirm the 
Director's decision. See Matter of Burbano, 20 l&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 F.3d 5, 8 (1st Cir. 1996) (joining eight circuit courts in holding that appellate 
adjudicators may adopt and affirm the decision below as long as they give "individualized 
consideration" to the case). 
The record does not establish the national importance of the proposed endeavor as required by the first 
prong of the Dhanasar precedent decision. Therefore, the Petitioner has not demonstrated eligibility 
for a national interest waiver. Because the identified reasons for dismissal are dispositive of the 
Petitioner's appeal, we decline to reach and hereby reserve remaining arguments concerning eligibility 
under the Dhanasar framework. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (stating that agencies 
are not required to make "purely advisory findings" on issues that are unnecessary to the ultimate 
decision); 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). 
2 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on the three evidentiary prongs used to evaluate whether an 
individual qualifies for a national interest waiver. 
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ORDER: The appeal is dismissed. 
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