remanded EB-2 NIW Case: Business Management

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAR. 08, 2024 In Re: 29828695 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a business manager, seeks classification as a member of the professions holding an 
advanced degree or of exceptional ability, 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 employment based second preference (EB-2) 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. See 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Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts (and Third in an unpublished decision) 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 USCIS' decision to grant or deny a national interest waiver to be discretionary in 
nature). 
The Director of the Texas Service Center denied the petition, concluding the record did not establish 
that a waiver of the required job offer, and thus of the labor certification, would be in the national 
interest. 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 I&N Dec. 53 7, 537 n.2 (AAO 2015). Upon de novo review, 
we will withdraw the Director's decision and remand the matter for entry of a new decision consistent 
with the following analysis. 
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. 
Whilst 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). Dhanasar states that users may as a matter of discretion 
grant a national interest waiver of the job offer, and thus of the labor certification, to a petitioner 
classified in the EB-2 category if they demonstrate that (1) the noncitizen's proposed endeavor has 
both substantial merit and national importance, (2) the noncitizen 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 the 
noncitizen 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 noncitizen. To determine whether 
the noncitizen 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, progress towards achieving the proposed endeavor, and 
the interest of potential customers, users, investors, or other relevant entities or individuals are also 
key considerations. 
The third prong requires the petitioner to demonstrate that, on balance of applicable factors, it would 
be beneficial to the United States to waive the requirements of a job offer and thus of a labor 
certification. users may evaluate factors such as whether, in light of the nature of the noncitizen' s 
qualification or the proposed endeavor, it would be impractical either for the noncitizen to secure a 
job offer or for the petition to obtain a labor certification; whether, even assuming that other qualified 
U.S. workers are available, the United States would still benefit from the noncitizen's contributions; 
and whether the national interest in the noncitizen's contributions is sufficiently urgent to warrant 
forgoing the labor certification process. Each of the factors 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. 
II. ANALYSIS 
As stated above, once the Petitioner has established their categorical eligibility for the EB-2 immigrant 
category based on having earned an advanced degree or establishing that they are a noncitizen of 
exceptional ability, the Director will evaluate the national interest in waiving the requirement of a job 
offer and thus a labor certification under the three prongs of the analytical framework we first 
discussed in Dhanasar. The Director concluded that the Petitioner qualifies as a member of the 
professions holding an advanced degree. The sole 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. 
The Director's request for evidence (RFE) only requested the Petitioner provide evidence of their 
eligibility under the second prong of the Dhanasar analytical framework to evaluate how well 
positioned the Petitioner was to advance their proposed endeavor. The RFE did not request evidence 
or otherwise meaningfully address and analyze whether the Petitioner's proposed endeavor is of 
substantial merit and national importance or whether a waiver of the labor certification requirement 
2 
and thus of a job offer benefitted the United States interest on balance of applicable factors. And the 
Director ultimately concluded the Petitioner's proposed endeavor, whilst substantially meritorious, 
lacked the national importance required under the first prong of the Dhanasar analytical framework, 
that the Petitioner was not well-positioned to advance their proposed endeavor, and that on balance of 
applicable factors a waiver did not benefit the United States interest. This resulted in a functional 
deprivation of opportunity for the Petitioner to address the Director's concerns regarding the national 
importance of their endeavor and whether on balance of applicable factors a waiver would benefit the 
United States interest. 
Our exercise of discretion to waive the requirement of a job offer, and therefore a labor certification, 
requires adherence to all three of the Dhanasar framework's prongs. So we conclude that a remand 
is warranted in this case because the Director's decision is insufficient for review. 
A. Substantial Merit and National Importance of the Proposed Endeavor 
The substantial merit of an endeavor can be shown in any number of areas such as business, 
entrepreneurialism, science, technology, culture, health, education, arts, or the social sciences. The 
furtherance of human knowledge, potential economic impact on, and economic benefits for the United 
States can also be evaluated to determine the substantial merit of a proposed endeavor. The Director 
concluded the Petitioner's proposed endeavor was substantially meritorious and we see no error in 
their conclusion. 
But, whilst we share the Petitioner's concerns 1 with the manner of the development of the proceedings 
below, we are not convinced that the record as it is currently constituted supports the Petitioner's 
eligibility for a discretionary waiver of the labor certification requirement and thus a job offer. In 
support of their petition, the Petitioner submitted the following: 2 
• Diplomas, certificates, and courses completed by the Petitioner; 
• Evaluation of Academic Qualifications & Experience by Dr. I I professor,.-------"----=======;--~
department of data analytics and information science, under the auspices 
of Morningside Evaluations; 
• Letter ofl Inow owned by ....,I---~ 
describing a "business partnership" of more than 10 years as an employee of LJ and 
subsequently a "partnership" or provision of contractual services in a manner other than that 
of an employee from April 2001 to October 2009; 
• Unsigned declaration from l~---------'-----------~I describing the 
Petitioner as a representative ofl lfrom June 1, 2010 to April 15, 
2013 accompanied by document purporting to be a "Clicksign" electronic legal document 
validation; 
1 We do not, however. agree with the Petitioner's contention that the list of documents the Director mentioned in their 
decision "was not the documentation submitted." The Petitioner appears to mistakenly consider the Director's list to refer 
to documentation submitted in response to the RFE. The Director's list consists of evidence and documentation the 
Petitioner submitted initially with their petition. So we do not agree that the Director committed a "serious error in the 
analysis of forwarded documents." 
2 Whilst we may not discuss every piece of evidence submitted, we have reviewed and considered each one. 
3 
• Co of contract to rovide commercial mana er services executed between ~I-~ 
and on June 1, 2010; 
• Recommendation letter from 
• Letter from.__ _______ __. accountant for I I attesting that the Petitioner was 
a business manager from September 2002 to August 2018; 
• Statement from accounting manager.__ ______ ~ attesting to the ongoing operational 
nature ofl I 
• Proof of legal registration ofl lby the National Registry of Entities in Brazil; 
• Certificate of debt and a certificate of discharge of federal taxes issued by Brazilian Finance 
Ministry; 
• The Petitioner's resume; 
• Print out of U.S. Department of Labor, Bureau of Labor Statistics, Occupational Employment 
and Wages for General and Operations Managers dated May 2021; 
• Letter ofl I human resources manager, I I listing the Petitioner's salary while 
working withl Ibetween May 2013 and November 2013 as a business manager; 
• Letter of1 Ipeople analyst I l(now owned byl ~ listing the 
Petitioner's salary while working withl lbetween June 3, 1996 and October 13, 1999 
as a business manager; 
• Copies of the Petitioner's paystubs; 
• Certificate of cancellation of business registration for. _____________ _. dated 
May 19,~20_2_2_.__~ 
• Letter ofl linformation systems technology coordinator of theII lofBrazil describing the Petitioner's work as a business manager~;______ _. 
• Letter of~_________ __, information technology manager,! lof 
Brazil, describing the Petitioner's work as a business manager; ~----------~ • Copy of legal announcement in Official Diary of the Union by.__ __________ ~ 
of a ointment of as coordinator of information technolo of the 
• Copy of legal announcement in Official Diary of the Union by National Press regarding the 
acquisition of license of use of product ORACLE, version of Operational System Windows 
2000; 
• Co of legal announcement in Official Diary of the Union by .____________ __. 
of appointment ofI I as coordinator of information technology of the 
• Copy of legal announcement in Official Diary of the Union by executive secretary of the 
general secretary of the presidency of the republic's designation ofl I 
I Ito act as an eventual substitute in the commissioned function of the executive ower 
in coordination of'-----------------------------~ 
• The Petitioner's Professional Plan; 
• Letter of I I senior business development, I I soliciting the Petitioner for a 
"business partnership"; 
• Letter ofi Ichief executive officer,I Isoliciting the Petitioner for a "business 
partnership"; 
4 
• Letter of I I hiring team director, ._I-..,....-_........,I s=o=li=.-citing the Petitioner for the 
fourth step of their hiring process in connection withl Ibilingual customer success 
manager position; 
• Copies of email correspondence between the Petitioner and recruiters for contract sales 
positions at their respective organizations; 
• Copy of contract with 12-month duration between the Petitioner and,,_I_________ _,, 
Company for the Petitioner's services as a non-employee agent ofthe ....l _________ _. 
Compan+-'-·--------. 
• Letter of planning and budget analyst - information technology specialist, 
'---------~ describing the Petitioner's work as a business manager; 3 
In response to the Director's RFE, the Petitioner submitted additional course certification certificates, 
evidence concerning the life insurance and annuities segment of the "American market," evidence of 
their licensure as an insurance a ent in the State of Florida, contractor agreements with I I 
.____________________________ __. for employment services, and 
documentation supporting their gifted child's educational achievement and educational path. 4 
The Petitioner proposed to apply their experience in product and project development, strategic 
planning, and commercial management. The Petitioner expressed that it was their intention to 
"contribute to the U.S. economy as a Business Manager." The Petitioner aimed to "contribute to foster 
small, medium and large companies growth" and "continue [their] activities as a Business Manager 
utilizing all of [their past] knowledge ... " such as "innovative strategic solutions" utilizing information 
technology for business management in "sales and commercial areas with a focus on business 
expansion, providing skillful market intelligence, development and implementation of strategic 
planning, identifying technologies and market partnerships that can add value to each company, 
effectively research the organization and understand its needs, understanding the segment, and 
customer preferences to determine the focus of sales and budget efforts, building, analyzing and 
maintaining accurate forecasts of sales opportunities and statistics." The Director, as they develop the 
record, may elect to further investigate whether the Petitioner's proposed endeavor is essentially a job 
search. Because the purpose of a national interest waiver is not to facilitate a petitioner's U.S. job 
search. 
Moreover, in Dhanasar we focused the first prong of our analysis on the potential impact of a 
Petitioner's specific proposed endeavor to consider its substantial merit and national importance. In 
determining national importance under Dhanasar, the relevant question is not the importance of the 
field, industry, or profession in which the individual will work; instead, we focus on "the specific 
endeavor that the foreign national proposes to undertake." See Dhanasar, 26 I&N Dec. at 889. In 
3 The Petitioner asserts on appeal that the Director misidentified evidence submitted initially with the petition as evidence 
submitted in response to the RFE. Contrary to the Petitioner's assertions, the Director's decision does not identify how 
the evidence they specifically mention in the decision was submitted into the record. 
4 The Petitioner's appeal makes special mention of their gifted child as well as the child's universe of opportunities in the 
United States and encourages us to consider these favorably. And whilst we recognize the Petitioner's gifted child and 
their accomplishments thus far, our consideration of whether to exercise discretion to waive the job offer requirement, and 
thus the requirement of a labor certification, in the national interest is governed solely by the three prong Dhanasar 
analytical framework. The Dhanasar analysis does not make provision for the evaluation of the individual merits of 
dependent family members. 
5 
Dhanasar, we farther noted that "we look for broader implications" of the proposed endeavor and that 
"[ a ]n undertaking may have a 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. So what is critical in determining the national importance under Dhanasar is whether the 
proposed endeavor has a potential prospective impact with broader implications which rise to the level 
of national importance. It is not what duties or what occupation the noncitizen will fill or perform but 
their actual plan with their occupation and duties that is examined. 
The record reflects the Petitioner's proposed endeavor is to continue their career as a business manager 
focusing on sales utilizing information technology in their duties. In response to the RFE, the 
Petitioner emphasized that they would be focusing on the insurance field for their duties. The 
Director may also elect to consider that the Petitioner roots their eligibility under this first prong of 
the Dhanasar framework citing their previous professional experiences and contents of their 
"Professional Plan." Essentially, the Petitioner contends that it is their personal execution of their 
proposed endeavor which elevates it to a level of national importance. But this assertion expresses a 
fundamental misunderstanding of the first prong of the Dhanasar framework. The first prong of the 
Dhanasar framework focuses on the proposed endeavor; not on the Petitioner's execution of that 
proposed endeavor. As they perform their analysis, the Director may choose to consider the 
Petitioner's ineligibility under the first prong of the Dhanasar analytical framework when their 
assertions focus on their execution of the proposed endeavor and not on the national importance of 
their proposed endeavor separate and apart from themselves. 
The Petitioner also submitted several letters of recommendation from employers and "business 
partners" describing the work they Petitioner accomplished to support the potential prospective impact 
of their work in the proposed endeavor. They also submitted numerous certificates from a variety of 
places, such as I I purporting to support their skills in sub-disciplines of entrepreneurship, 
English, and information technology. The Petitioner contends that national importance is broadly 
implicated by the potential value that the U.S. economy will realize when they avail themselves of the 
Petitioner's work. In considering the national importance of the Petitioner's proposed endeavor, the 
Director may choose to evaluate the letters of recommendation submitted by the Petitioner to evaluate 
if their contents support the broader implication of the endeavor rising to a level of national 
importance. For example, it appears that the letters generally speak to the Petitioner's prior 
employment or independent contractual duties to the benefit of the individual employers or contractual 
partners. On appeal, the Petitioner highlighted letters from "private and public organizations in Brazil" 
that spoke to the Petitioner's "networking and experience in marketing and executing Information 
Technology (IT) solutions" such as the ~-------~of Brazil, I 
and other Brazilian Public Administration Agencies. But it is not clear how the Petitioner's past 
activities support the national importance of their proposed endeavor because, as stated before, when 
considering the first prong of the Dhanasar analytical framework, we are concerned with the proposed 
endeavor in isolation from the individual petitioner. The Director could weigh and draw a conclusion 
as to whether the Petitioner's demonstration of prior similar work has an influence on the proposed 
endeavor's potential prospective impact based on its national importance bearing in mind that the 
Petitioner's contentions about their successful past performance in the endeavor they propose, as well 
6 
I 
as evidence and information of their achievements and recognition would better serve a demonstration 
of eligibility under the second prong of the Dhanasar framework. 
Generally certificates or licenses earned by a Petitioner relate to them as an individual and their own 
personal development of their core skills. The national importance of the Petitioner's proposed 
endeavor stands separate and apart from the Petitioner's skills. The Director may ponder whether the 
certificates in various discrete business-related subjects like entrepreneurship, English, and 
information technology. from distance or online learning non-credit seminars froml lor similar 
as well as their Florida insurance agent licensure illuminate the national importance of the Petitioner's 
endeavor or are more indicative of the Petitioner's education, skills, and knowledge which are a 
relevant point for evaluation under Dhanasar 's second prong. 
B. Well Positioned to Advance the Proposed Endeavor 
Our analysis now turns to the Petitioner's eligibility under the second prong. As stated above, the second 
prong shifts the focus from a petitioner's proposed endeavor to the petitioner or individual themselves 
and how well positioned they are to advance their proposed endeavor. We are skeptical the record as 
it is currently constituted reflects that the Petitioner is well positioned to advance their proposed 
endeavor. 
Whilst performing an analysis under the second prong of Dhanasar, the Director may elect to gauge 
the following factors and any other relevant factors in evaluating whether the Petitioner is well 
positioned to advance their proposed endeavor: 
• A petitioner's education, skill, knowledge, and record of success in related or similar efforts; 
• A petitioner's model or plan for future activities related to the proposed endeavor that the 
individual developed, or played a significant role in developing; 
• Any progress towards achieving the proposed endeavor; and 
• The interest or support garnered by the individual from potential customers, users, investor, or 
other relevant entities or persons. 
On remand, the Director should conduct an individualized consideration of the multifactorial analysis 
under Dhanasar 's second prong to determine how well positioned the Petitioner is to advance their 
proposed endeavor. The Director could form an impression of the Petitioner's education, for example 
to determine if the Petitioner is well-positioned to advance their proposed endeavor bearing in mind 
that educational degrees, certificates, and skills in and of themselves are not a basis to determine that 
a person is well positioned to advance a proposed endeavor. Id. 
The Director may contemplate if the testimony of the writers of the letters of recommendation in 
combination with other objective evidence in the record demonstrates that the Petitioner is well 
positioned to advance their proposed endeavor. It is unclear from the record whether the Petitioner's 
proposed endeavor essentially selling insurance to the public and financial solutions to individuals in 
the education sector is a related or similar effort to their past work and whether the contents of the 
letters demonstrate a record of success. As stated above, the letters the Petitioner submitted only 
highlight past experiences and accomplishments, generally in information technology sales business 
management. The Director may conclude upon this consideration of the testimony from the writers 
7 
of letters of recommendation in the record that they do not show the Petitioner's progress towards 
achieving their proposed endeavor such that they have developed a record of success and are well­
positioned to advance it. 
The Petitioner submitted several letters, contracts, and correspondence emails purporting to 
demonstrate interest or support for their endeavor. But these documents appear to demonstrate that 
the Petitioner has entered or could enter into arrangements to provide a set of general or vague services 
as an agent. The Director may elect to develop the record to examine if the activities described in the 
contracts are representative of or support the progress of the Petitioner's proposed endeavor. For 
example, the Petitioner cites in their appeal correspondence with individuals named Ms. I land 
Mr.I I inviting them to join their "national sales team." But it is not clear from the record 
how employment, "partnership," or contracting with Ms.I land Mr. I !organization is 
indicative of interest or support for their endeavor. It is in fact unclear how any of the business 
opportunities the Petitioner presented for our evaluation, such as their service as an insurance agent 
with I Ior independent advisor withl I demonstrated 
how well they are positioned to advance their proposed endeavor because the record does not support 
their relation or context to the endeavor the Petitioner intends to undertake. The Director may choose 
to examine whether these activities reflect interest or support in the Petitioner's proposed endeavor or 
are simply randomized unconnected job solicitations without regard to the services the Petitioner 
intends to provide by and through their proposed endeavor. 
So we remand this matter with instructions to enter a new opinion consistent with the Dhanasar 
analytical framework described here. 
C. Balancing Factors to Determine Waiver's Benefit to the United States 
If the Director finds that the Petitioner meets the eligibility requirements contained in the first and 
second prongs of the Dhanasar framework they should move to evaluating whether, on balance, the 
Petitioner demonstrates that it would be beneficial to the United States to waive the requirements of a 
job offer and thus of a labor certification. 
The Director can consider the impracticality of a labor certification, the benefit to the U.S. of a 
petitioner's contributions, the urgency of a petitioner's contributions to the national interest, the 
capacity for job creation, and any adverse effects on U.S. workers when conducting the balancing of 
the national interests of waiving the requirements of a job offer and therefore a labor certification. 
III. CONCLUSION 
For the foregoing reasons, the matter will be remanded to the Director to determine whether the 
Petitioner has established: (1) the national importance of the Petitioner's proposed endeavor as 
required by the first prong of the Dhanasar precedent decision; (2) that the Petitioner is well positioned 
to advance the proposed endeavor under the second prong and; (3) on balance, it would be beneficial 
to the United States to waive the requirements of a job offer and thus of a labor certification for the 
Petitioner. The Director may request any additional evidence considered pertinent to rendering a 
decision under the foregoing analysis, and we express no opinion regarding the ultimate resolution of 
this case on remand. 
8 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
9