remanded EB-2 NIW Case: Supermarket Industry

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: OCT. 20, 2023 In Re: 28513067 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an entrepreneur in the supermarket 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 
contains factual errors, 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. 
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. See 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." 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. 
II. ANALYSIS 
The record supports the Director's determination that the Petitioner qualifies as a member of the 
professions possessing an advanced degree. In addressing the Petitioner's eligibility for a national 
interest waiver, the Director determined that he established the substantial merit of the proposed 
endeavor, but did not demonstrate its national importance, that he is well-positioned to advance it, and 
that, on balance, it would benefit the United States to waive the job offer requirement. 
The record contains a personal statement from the Petitioner describing his proposed endeavor to serve 
as an owner and senior manager o±1 la Florida company established in 2019, along with a 
business plan for this company that he submitted in response to the Director's request for evidence 
(RFE) in March 2023. The record shows that I lwas operating a supermarket in Florida at 
the time of filing, and the Petitioner indicated in his initial statement that he would also be providing 
advisory services to other businesses in his field. The business plan submitted in response to the RFE 
detailed the company's five-year plan to expand its supply chain consulting services business in the 
supermarket and retail sector, while other evidence submitted in response to the RFE indicated that 
the company's own supermarket remained operational. 
The Director concluded that "discrepancies and inconsistencies" in the Petitioner's statements made 
it "unclear as to what your specific endeavor is." The Director farther found that the evidence indicates 
that the Petitioner "is the manager orl [ not the owner/founder," noting that "an occupation 
and the general work performed in an occupation does not constitute an endeavor." Based on these 
findings, the Director concluded that "[t]he evidence suggests you have no proposed endeavor" and 
therefore they could not determine "whether your endeavor meets the requirements of the Dhanasar 
framework." 
The Director's determination that the record does not describe a proposed endeavor is contrary to the 
evidence submitted and contrary to the Director's own affirmative determination that the Petitioner 
established the substantial merit of his proposed endeavor. The Petitioner consistently described his 
plans to both oversee an existing supermarket business and to provide consulting or advisory services 
to other businesses in this sector. The Director's unsupported conclusion that the Petitioner has "no 
proposed endeavor" led to an insufficient analysis of the Petitioner's eligibility for a national interest 
waiver under the Dhanasar framework. Accordingly, for the reasons discussed below, we will 
withdraw the Director's decision and remand the matter for farther review and entry of a new decision. 
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 
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whether the proposed endeavor has national importance, we consider its potential prospective impact. 
Dhanasar, 26 I&N Dec. at 889. 
Here, the Director acknowledged that the Petitioner submitted a "detailed business plan" but does not 
meaningfully address the plan's description of his proposed endeavor and its national importance, or 
other evidence that addresses the first prong of the Dhanasar framework. Nor does the decision 
address the Petitioner's specific claims and evidence as to how his proposed work will have substantial 
positive economic effects and national implications within his field, its potential to broadly enhance 
societal welfare, and its impact on a matter that a government entity has described as having national 
importance. These factors are relevant to a determination regarding the potential prospective impact 
of his work under the Dhanasar framework and should be weighed as part of the first prong analysis. 
In fact, the Director had specifically instructed the Petitioner to address such factors in his response to 
the RFE, but then failed to give those claims due consideration. While the evidence of record may be 
insufficient to demonstrate the national importance of the proposed endeavor, the Director's 
determination that the Petitioner did not satisfy the first prong was conclusory, did not adequately 
address the evidence and arguments submitted, and therefore did not sufficiently explain the reasons 
for denial. 
The second prong of the Dhanasar framework shifts the focus from the proposed endeavor to the 
individual. To determine whether they are well positioned to advance the proposed endeavor, we 
consider factors including, but not limited to: their 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. Id. at 890. 
In concluding that the Petitioner did not establish that he is well-positioned to advance his proposed 
endeavor, the Director listed the evidence the Petitioner submitted, which included his academic and 
professional credentials, a business plan for future activities, evidence that he was already employed 
b~ lat the time of filing (pursuant to an approved 0-1 nonimmigrant petition), evidence 
that he has received awards and media coverage in Venezuela based on his operation of a successful 
supermarket chain, and recommendation letters from clients and business contacts in the United States 
and abroad. The Director determined that the business plan "could not be verified for accuracy," and 
therefore found, without further explanation, that the Petitioner had no "model/plan for future 
activities." The Director also concluded that the Petitioner did not demonstrate sufficient expertise or 
a record of success in his field because he did not show he "had made a significant contribution" to 
the field, demonstrate that his work "has served as an impetus for progress" in the field, or establish 
that he has "generated substantial positive discourse in the ... industry." The Director appears to have 
applied heightened standards that are outside the scope of the second prong of the Dhanasar 
framework. In doing so, the Director overlooked or was dismissive of evidence relevant to the second 
prong analysis and did not sufficiently explain the reasons for denial. 
As to the third prong of the Dhanasar framework, the Director concluded that the Petitioner "has not 
established 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 stated the law and the relevant 
considerations in performing the third prong's balancing analysis. However, the Director did not 
sufficiently identify or discuss the evidence they weighed in balancing those considerations or 
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meaningfully address the Petitioner's specific claims regarding his eligibility under the third prong. 
The Director also appeared to reject the Petitioner's claim that obtaining a labor certification would 
be impractical, noting that "the evidence suggests you are the manager of the company as opP.osed to 
the owner/founder." It is unclear which evidence led the Director to that conclusion. Based onl II !formation documents, tax returns, financial records, and other evidence in the record, it appears 
that the Petitioner is in fact both a member and manager of the limited liability company and it would 
therefore be impractical for him to obtain a labor certification for employment with this company. 
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). Here, for the 
reasons discussed above, the Director incorrectly determined that the Petitioner has no proposed 
endeavor, and the decision did not sufficiently explain the reasons for denial. 
Therefore, we will withdraw the Director's 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. The Director may 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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