remanded EB-2 NIW Case: Restaurant Industry

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: OCT. 11, 2023 In Re: 28513686 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an entrepreneur in the restaurant 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 that is attached to this EB-2 immigrant 
classification. See section 203(b )(2)(B)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1153(b )(2)(B)(i). 
The Director of the Nebraska Service Center denied the petition, concluding that, although the 
Petitioner demonstrated his eligibility for EB-2 classification as a member of the professions holding 
an advanced degree, he did not establish that a discretionary waiver of the classification's job offer 
requirement 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 of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). While we conduct de novo review on 
appeal, Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015), we conclude that a remand 
is warranted in this case because the Director's decision is insufficient for review. The decision lacks 
sufficient analysis and discussion of the evidence in the record and reaches conclusory findings with 
respect to the Petitioner's eligibility for the requested national interest waiver. Accordingly, we will 
withdraw the Director's decision and remand the matter for entry of a new decision consistent with 
the following analysis. 
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. See section 203(b )(2)(B)(i) of the Act. The 
record supports the Director's determination that the Petitioner qualifies as a member of the 
professions possessing an advanced degree. 
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." Section 203(b )(2)(B)(i) of the Act. While neither the statute nor the pertinent regulations 
define the term "national interest," Matter ofDhanasar, 26 I&N Dec. 884, 889 (AAO 2016), provides 
the framework for adjudicating national interest waiver petitions. Dhanasar states that USCIS may, 
as matter of discretion, 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. 
The Director determined that the Petitioner established the substantial merit of the proposed endeavor 
and that he is well-positioned to advance it but concluded that the record did not establish the national 
importance of the endeavor and that, on balance, it would benefit the United States to waive the job 
offer requirement. 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
individual proposes to undertake. In determining whether the proposed endeavor has national 
importance, we consider its potential prospective impact. Dhanasar, 26 I&N Dec. at 889. 
The Director's decision acknowledges the Petitioner's initial evidence submitted in support of the first 
Dhanasar prong, and additional evidence he submitted with his response to a request for evidence, 
namely letters from his attorney, a resume, initial and updated business plans for his restaurant 
business, nine letters of recommendation, a letter from a potential investor, the initial financial results 
for his restaurant for 2022, an expert advisory opinion letter, and industry and media reports regarding 
the restaurant industry and immigrant entrepreneurship. However, in evaluating the national 
importance of the proposed endeavor, the Director simply summarized the claims made in counsel's 
cover letter, concluding that such claims were "generic in nature" and that "no evidence was submitted 
to support these statements." The Director referred to one fact stated in the business plan but did not 
otherwise address the detailed description of the proposed endeavor and the Petitioner's claims 
regarding its national importance, nor did they explain why the evidence described above was 
insufficient to meet the Petitioner's burden. 
We agree that the unsubstantiated assertions of counsel do not constitute evidence. See, e.g., Matter 
ofS-M-, 22 I&N Dec. 49, 51 (BIA 1998) ("statements in a brief, motion, or Notice of Appeal are not 
evidence and thus are not entitled to any evidentiary weight"). Here, however, the assertions made in 
counsel's letters specifically referenced supporting documentation that was part of the record. While 
such evidence may not support a determination that the Petitioner established the national importance 
of his proposed endeavor, the Director's conclusion that the Petitioner sought to rely on the 
unsubstantiated assertions of counsel is contrary to the evidence submitted and resulted in a lack of 
meaningful analysis of that evidence. As a result, the decision does not adequately explain the 
reasoning underlying the Director's adverse determination with respect to the first prong of the 
Dhanasar framework. 
The Director's analysis of the third prong under the Dhanasar framework contained similar 
deficiencies. The third prong requires a 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, we may evaluate factors such as: whether, in light of the nature of the 
individual's qualifications or the proposed endeavor, it would be impractical either for them to secure 
a job offer or to obtain a labor certification; whether, even assuming that other qualified U.S. workers 
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are available, the United States would still benefit from their contributions; and whether the national 
interest in their contributions is sufficiently urgent to warrant forgoing the labor certification process. 
In each case, the factor(s) considered must, taken together, establish 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. 
Id. at 890-91. 
The Director listed these factors, but provided minimal analysis before concluding that the Petitioner 
had not shown how it would be beneficial to the United States to waive the labor certification 
requirement. Further, the analysis that the Director did include was more applicable to the first and 
second prongs of the Dhanasar framework. Specifically, the Director's determination under the third 
prong was based on a finding that the Petitioner did not demonstrate his proposed endeavor would 
"have a potential impact at the national or global level," did not show any potential for job creation, 
and did not establish any interest from potential customers or investors. The Petitioner did in fact 
provide evidence of interest from customers and investors, as well as evidence that his restaurant had 
hired workers and was operating for most of 2022. In addition, the Director did not consider the 
Petitioner's arguments that he is self-employed in a manner that generally does not adversely affect 
U.S. workers in weighing whether he met the third prong of the Dhanasar framework. 
An officer must fully explain the reasons for denying a visa petition. See 8 C.F.R. § 103.3(a)(i). This 
explanation should be sufficient to allow the Petitioner a fair opportunity to contest the decision and 
to allow us an opportunity for meaningful appellate review. See, e.g., Matter ofM-P- 20 I&N Dec. 
786 (BIA 1994) (finding that a decision must fully explain the reasons for denying a motion to allow 
the respondent a meaningful opportunity to challenge the determination on appeal). 
Because the Director's decision did not sufficiently explain the reasons for denial, we will withdraw 
the decision. On remand, the Director should review the entire record, including the Petitioner's 
appeal, in considering whether he has established eligibility under each of the three prongs of the 
Dhanasar framework. On remand, the Director should consider the evidence provided in support of 
each prong and provide an analysis of that evidence to support their conclusion. The Director may also 
request any additional evidence considered pertinent to the determination prior to issuing a new 
decision. As such, we express no opinion regarding the ultimate resolution of this case on remand. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
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