remanded EB-2 NIW Case: Business / Entrepreneurship

U.S. Citizenship 
and Immigration 
Services 
In Re: 8421718 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: NOV . 25, 2020 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a martial arts apparel company founder and chief executive officer (CEO), 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 submits additional documentation and a brief asserting that he is eligible for 
the EB-2 classification as a member of the professions holding an advanced degree and for a national 
interest waiver under the Dhanasar framework. 
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 nova review, we will remand the matter to 
the Director for further action and consideration. 
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 ofjob 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. 
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definition: 
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. 
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 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. 
1 In announcing this new framework. we vacated our prior precedent decision, Matter of New York State Department of 
Transportation. 22 l&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
2 See also Poursina v. USC1S. No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or 
deny a national interest waiver to be discretionary in nature). 
2 
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 
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 
A. Member of the Professions Holding an Advanced Degree 
In order to show an individual is a professional holding an advanced degree, the petition must be 
accompanied by "[a]n official academic record showing that the alien has a United States advanced 
degree or a foreign equivalent degree." 8 C.F.R. § 204.5(k)(3)(i)(A). Alternatively, the Petitioner 
may present "[ a ]n official academic record showing that the alien has a United States baccalaureate 
degree or a foreign equivalent degree, and evidence in the form of letters from current or former 
employer(s) showing that the alien has at least five years of progressive post-baccalaureate experience 
in the specialty." 8 C.F.R. § 204.5(k)(3)(i)(B). The Director's decision did not analyze the Petitioner's 
"Bachelor's Degree in Administration" (2006) from.__ _____ ___.University ofl I or his 
subsequent experience in his specialty to make a finding as to whether he qualifies as a member of the 
professions holding an advanced degree. 
B. National Interest Waiver 
The remaining issue 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. 
1. Substantial Merit and National Importance of the Proposed Endeavor 
Regarding his claim of eligibility under Dhanasar' s first prong, the Petitioner indicated that as CEO of 
~--------~ his proposed endeavor involves "developing and commercializing his own 
proprietary and unique brand of Jiu-Jitsu apparel through his brandl I' He asserted that he is 
"working on developing a Jiu-Jitsu apparel manufacturing facility in the United States, which will not 
3 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
3 
only increase the cost effectiveness of the company's operations and brand exposure, but will certainly 
bring significant economic benefits to the United States through job creation and significant tax 
revenues." In addition, the Petitioner stated that he plans to participate in "government-sponsored social 
programs focused on youth sports education, anti-bullying, women's self-defense, prevention of domestic 
violence, suicide prevention, overall health and wellness, and other programs for the most vulnerable 
members of the community through the teachings of Jiu-Jitsu." 
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. The Director's 
decision concluded that the Petitioner has met Dhanasar' s first prong, but did not identify the evidence 
upon which this determination was based. 4 
2. Well Positioned to Advance the Proposed Endeavor 
As evidence for Dhanasar' s second prong, the Petitioner offered documentation relating to his 
company, including its articles of incorporation, bylaws, stock certificates, California corporate 
registration, business license, tax certificate, U.S. corporation income tax returns, commercial lease 
agreement, facility photographs, and product information. He also provided recommendation letters 
discussing his entrepreneurial success, the quality of his apparel, and interest in his company's 
products. In addition, the Petitioner submitted certificates of achievement and recognition, media 
coverage relating to his company, promotional material for his products, letters from potential 
investors, distribution agreements, and a detailed business plan. While the Director's decision 
mentioned the recommendation letters, it did not include a proper analysis of the content of the letters 
or a sufficient discussion of the other evidence presented under this prong of the Dhanasar 
framework. 5 
3. Balancing Factors to Determine Waiver's Benefit to the United States 
With respect to prong three of the Dhanasar precedent decision, the Petitioner asserted that he is eligible 
for a waiver due to his entrepreneurial skills and knowledge, business experience, impact on the field 
of Jiu-Jitsu, critical role as company CEO, innovative products, and the inapplicability of labor 
certification. The Director's decision listed five factors that USCIS may consider in determining 
4 Although the Petitioner's statements reflect his intention to expand his apparel company and to serve his community. the 
Director should consider whether the Petitioner has presented sufficient information and evidence to demonstrate that the 
prospective impact of his proposed endeavor rises to the level of national importance. 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. In the instant case, the Director should consider whether the record shows that the 
Petitioner's proposed endeavor stands to sufficiently extend beyond his company and its operations to impact the martial 
arts apparel industry or sport of Jiu-Jitsu more broadly at a level commensurate with national importance. Furthermore, 
the Director should consider whether the record demonstrates that the specific endeavor the Petitioner proposes to 
undertake has significant potential to employ U.S. workers or otherwise offers substantial positive economic effects for 
our nation. 
5 The Director's decision also incorrectly stated that "[t]he evidence does not show potential customers and investors have 
any interest in the beneficiary and her work specifically." The record, however, includes letters from the Petitioner's 
business partners. customers. and potential investors that render the Director's finding erroneous. The Director's decision 
also incorrectly refers to the Petitioner as a female in the aforementioned statement and at other times in the decision. In 
addition to analyzing the specific content of the recommendation letters, the Director should consider all of the evidence 
the Petitioner has provided under Dhanasar' s second prong. 
4 
whether, on balance, it would be beneficial to the United States to waive the requirement of a job offer 
and thus of a labor certification, but did not evaluate the Petitioner's arguments and evidence as they 
relate to these factors. Instead, the Director's decision improperly concluded that because the Petitioner 
had not satisfied the second prong of the Dhanasar framework, he therefore did not meet prong three. 6 
Without a proper evaluation of the evidence in accordance with the factors identified in the Dhanasar 
precedent decision, the Director's determination regarding prong three was in error. 
III. CONCLUSION 
We are therefore remanding the petition for the Director to consider whether the Petitioner has satisfied 
the eligibility requirements for classification as member of the professions holding an advanced 
degree. In addition, the Director should properly apply all three prongs of the Dhanasar analytical 
framework to make a determination as to 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. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for farther 
proceedings consistent with the foregoing opinion and for the entry of a new decision 
which, if adverse, shall be certified to us for review. 
6 The Director's decision stated: "Because [the Petitioner] did not demonstrate how he is well position [sic] to advance 
the endeavor or that his contribution equate [sic] to a record of successes, the balance does not favor waiving the 
requirement of a job offer." 
5