remanded EB-2 NIW Case: Education Technology

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 17, 2024 In Re: 29534555 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an instructional coordinator for schools and businesses, seeks classification under the 
employment-based, second-preference (EB-2) immigrant visa category and a waiver of the category's 
job offer requirement. See Immigration and Nationality Act (the Act) section 203(b )(2)(B)(i), 8 U.S.C. 
§ 1153(b)(2)(B)(i). U.S. Citizenship and Immigration Services (USCIS) has discretion to excuse a job 
offer in this category - and thus a related requirement for certification from the U.S. Department of 
Labor (DOL) - if a petitioner demonstrates that waiving these U.S.-worker protections would be "in 
the national interest." Id. 
The Acting Director of the Texas Service Center denied the petition. While finding the Petitioner 
qualified for the requested EB-2 category, the Director concluded that she did not demonstrate a 
waiver's merits. On appeal, the Petitioner contends that the Director erred in finding insufficient 
evidence of her positioning to advance her proposed work and that, on balance, a waiver would benefit 
the United States. 
The Petitioner must demonstrate eligibility for the requested benefit by a preponderance of the 
evidence. See Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). Exercising de novo 
appellate review, see Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015), we conclude 
that, in finding insufficient evidence of her positioning to advance her proposed endeavor, the Director 
omitted relevant factors and overlooked evidence. We also conclude that the Director did not explain 
his specific reasons for finding that the Petitioner did not demonstrate a waiver's benefit to the United 
States. We will therefore 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 national interest waivers, petitioners must first demonstrate their 
qualifications for the requested EB-2 immigrant visa category, either as members of the professions 
holding "advanced degrees" or noncitizens of "exceptional ability" in the sciences, arts, or business. 
See section 203(b )(2)(A) of the Act. To protect the jobs of U.S. workers, this category generally 
requires prospective employers to offer jobs to noncitizens and obtain DOL certifications to 
permanently employ them in the country. See section 212(a)(5)(D) of the Act, 8 U.S.C. 
§ 1182(a)(5)(D). To avoid the job offer/labor certification requirements, petitioners must demonstrate 
that waivers of the U.S.-worker protections would be in the national interest. Section 203(b)(2)(B)(i) 
of the Act. 
Neither the Act nor regulations define the term "national interest." Thus, to adjudicate these waiver 
requests, we have established a framework. See Matter ofDhanasar, 26 I&N Dec. 884, 889-91 (AAO 
2016). If otherwise qualified as advanced degree professionals or noncitizens of exceptional ability, 
petitioners may merit national interest waivers of the job-offer/labor certification requirements if they 
establish that: 
• Their proposed U.S. work has "substantial merit" and "national importance;" 
• They are "well positioned" to advance their intended endeavors; and 
• On balance, waivers of the job offer/labor certification requirements would benefit the United 
States. 
Id. 
II. ANALYSIS 
A. The Proposed Endeavor 
The record shows that the Petitioner earned a bachelor's degree in social communication in Brazil in 
2006. She then remained working in Brazil, her home country. Her work included more than six 
years as an instructional coordinator, developing educational courses for schools and businesses. In 
2015, she came to the United States to further her studies. She earned a bachelor's degree in business 
leadership in 2020 and then pursued a master's degree in education, specializing in instructional 
technology. She also gained U.S. experience in internships related to her studies and jobs on her 
school's campus. 
At the time of the petition's filing in November 2022, the Petitioner stated her intent to remain in the 
United States to establish a "consulting, advisory, and training company in content development and 
educational technology." She stated that the firm would help medium- and large-sized schools and 
businesses develop online, "distance learning" courses. Her business plan projects that, within five 
years of operation, her company would generate annual revenues of $743,424 and employ eight 
people. On appeal, she submits evidence that, in July 2023, a U.S. hospital offered her a job in its 
"center for learning excellence" as an instructional designer. 
A petitioner must demonstrate eligibility "at the time of filing the benefit request." 8 C.F.R. 
§ 103.2(b)(l); see also Matter of Izummi, 22 I&N Dec. 169, 175 (Assoc. Comm'r 1998) ("[A] 
petitioner may not make material changes to a petition that has already been filed in an effort to make 
an apparently deficient petition conform to Service requirements.") As the Petitioner filed her petition 
in 2022, her proposed endeavor cannot comprise or include the work the hospital offered to her in 
2023. We therefore consider her proposed endeavor to include only her initial plan to establish a 
consulting and training company. 
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The Director found the Petitioner eligible for the requested EB-2 category as an advanced degree 
professional. The Director also concluded that she meets Dhanasar' s first prong, finding that her 
proposed endeavor has both substantial merit and national importance. The Petitioner challenges the 
Director's findings of insufficient evidence of her positioning to advance her proposed venture under 
Dhanasar's second prong and a waiver's benefits to the United States under the third prong. 
B. Positioning to Advance the Endeavor 
To determine whether a petitioner is well positioned to advance their proposed endeavor, we must 
focus on the noncitizen. Matter ofDhanasar, 26 I&N Dec. at 890. We must consider multiple factors, 
including: 
• their education, skills, knowledge, and record of success in related or similar efforts; 
• the existence of a model or plan for future activities; 
• any progress towards achieving their proposed endeavor; and 
• interest in the endeavor by potential customers, users, investors, or other relevant entities or 
individuals. 
Id. A petitioner need not demonstrate that their endeavor would more likely than not succeed. But 
they must establish that they are well-positioned to further it. Id. 
The Director acknowledged the Petitioner's skills and experience in the education technology field. 
But the Director found insufficient evidence of her success in endeavors related or similar to her 
proposed U.S. venture to establish an education technology company. The Director also found that 
the Petitioner did not demonstrate interest in her endeavor from other parties, such as potential 
customers or investors. 
The Director did not consider all relevant factors. While discussing interest in the Petitioner's 
proposed endeavor and her education, skills, knowledge and record of success, the Director did not 
consider the existence of a model or plan for future activities or progress towards achieving the 
proposed venture. 
Also, the Director overlooked the following evidence, most of which the Petitioner submitted in 
response to the Director's request for additional evidence: 
• Copies of bank statements and a letter from a Brazilian "angel investor" who would 
purportedly invest about $50,000 in the proposed endeavor; 
• Evidence that the Petitioner owns a home in Brazil that she claims she could sell for money to 
invest in her venture; 
• Letters from potential customers, including a church and a real estate company; 
• A letter from a potential U.S. investor; and 
• Evidence that the Petitioner co-founded a nonprofit organization in Brazil, possibly indicating 
a record of success in a similar venture. 
As the Director insufficiently considered the Petitioner's pos1t10ning to advance her proposed 
endeavor, we will withdraw the Director's finding. To avoid considering factors and evidence in the 
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first instance under this prong, we will next review the Director's decision under Dhanasar's third 
prong. 
C. A Waiver's Benefits to the United States 
Dhanasar's third prong requires a petitioner to demonstrate that, on balance, a waiver of the job offer 
and labor certification requirements would benefit the United States. Matter of Dhanasar, 26 I&N 
Dec. at 890. When considering a waiver's benefits to the United States, USCIS must weigh competing 
interests. Id. On one hand, Congress sought to further the national interest by requiring job offers and 
labor certifications to protect domestic workers. Id. On the other hand, by creating the national interest 
waiver, Congress recognized that other factors could outweigh benefits inherent in the labor 
certification process. Id. 
In performing this balancing analysis, USCIS must evaluate factors such as whether: 
• in light of the nature of a noncitizen's qualifications or proposed endeavor, securement of a 
job offer or labor certification would be impractical; 
• even assuming that other qualified U.S. workers are available, the United States would still 
benefit from a noncitizen's contributions; and 
• the national interest in a noncitizen's contributions is sufficiently urgent to warrant forgoing 
the labor certification process. 
Matter ofDhanasar, 26 I&N Dec. at 890-91. 
The Director concluded that "the petitioner has not submitted documentary evidence that demonstrates 
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 Director's decision lists the potential factors to be considered. 
But the decision does not apply any factors to the Petitioner's case or explain why her evidence did 
not demonstrate a waiver's benefits. See 8 C.F.R. § 103.3(a)(l)(i) (requiring USCIS to "explain in 
writing the specific reasons for denial"). 
The Director's lack of analysis prevents us from adequately reviewing the decision under Dhanasar's 
third prong. We will therefore withdraw the Director's decision on this prong and remand the matter. 
On remand, the Director should rewrite the decision under Dhanasar' s third prong, applying relevant 
factors to the Petitioner's case and explaining why her evidence did not demonstrate the benefits of a 
waiver. The Director should also rewrite the decision under Dhanasar' s second prong, considering 
all relevant factors and evidence of the Petitioner's positioning to advance her endeavor. 
D. National Importance 
Contrary to the Director's finding, the Petitioner also has not demonstrated that her proposed 
undertaking has national importance. 
In determining whether a proposed endeavor has national importance, USCIS must focus on the 
particular venture, specifically on its "potential prospective impact." Matter of Dhanasar, 26 I&N 
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Dec. at 889. "An undertaking may have national importance, for example, because it has national or 
even global implications within a particular field, such as those resulting from certain improved 
manufacturing processes or medical advances." Id. A nationally important venture may even focus 
on only one geographic area of the United States. Id. at 889-90. "An 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. 
Before the Director, the Petitioner contended that her proposed U.S. company would have national 
implications because education technology enhances student learning. She asserted the importance of 
her endeavor, stating that U.S. school districts and businesses need to "leverage" education technology 
"to realize its full potential for growth." The Petitioner also argued that her proposed business would 
create U.S. jobs and tax revenues and that USCIS recognizes the importance of progress in science, 
technology, engineering, and mathematics (STEM) fields. See generally 6 USCIS Policy Manual 
F.(5)(D)(2), www.uscis.gov/policy-manual. Further, the Petitioner submitted an expert opinion letter 
from a U.S. associate superintendent of schools, stating that education has national and global 
importance. 
We recognize that the Petitioner's proposal to start an education technology firm has substantial merit. 
As previously indicated, however, when considering national importance, USCIS must focus on the 
particular endeavor. Matter ofDhanasar, 26 I&N Dec. at 889 ("The first prong, substantial merit and 
national importance, focuses on the specific endeavor that the foreign national proposes to undertake.") 
( emphasis added). Thus, while the education technology field, as a whole, has potential to enhance 
students' learning and generate jobs and substantial economic benefits across the country, the 
Petitioner has not demonstrated that her particular endeavor has national implications. She has not 
explained how her proposed company, at its projected size and scope, could generate enough jobs and 
economic benefits to have a national impact. Nor does the record establish that her particular proposal 
would benefit an economically depressed area. Also, the Petitioner has not demonstrated how her 
specific proposal would introduce advancements to the U.S. education technology field. 
In Dhanasar, we found that a proposal to teach U.S. university students courses in STEM fields had 
substantial merit. Matter of Dhanasar, 26 I&N Dec. at 893. But we held that the venture lacked 
national importance because the proposal would not "more broadly" impact U.S. STEM education. 
Id. Similarly, the Petitioner has not demonstrated that her meritorious proposal to provide education 
technology to U.S. schools and businesses would have "broad" implications for the field or the national 
economy. 
The Director did not notify the Petitioner of this evidentiary deficiency. Thus, on remand, the Director 
should inform her of the insufficient evidence and provide her a reasonable opportunity to respond. 
If supported by the record, the Director may notify the Petitioner of any other potential denial grounds. 
But the Director must provide her a reasonable opportunity to respond to all issues raised on remand. 
Upon receipt of a timely response, the Director should review the entire record and enter a new 
decision. 
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III. CONCLUSION 
In finding insufficient evidence that the Petitioner is well positioned to advance her proposed 
endeavor, the Director omitted relevant factors and overlooked evidence. In finding that the Petitioner 
did not demonstrate a waiver's benefits to the United States, the Director did not specify reasons for 
the conclusion. The record also does not establish the claimed national importance of the Petitioner's 
proposed venture. 
ORDER: The Director's decision is withdrawn. The matter is remanded for entry of a new 
decision consistent with the foregoing analysis. 
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