U.S.
Citizenship
and Immigration
Services
Non-Precedent Decision
of
the
Administrative Appeals Office
Date: JAN.
18,
2024 In
Re:
28446570
Appeal
of
Texas Service Center Decision
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver)
The Petitioner, a petroleum engineer, seeks employment-based second preference (EB-2) immigrant
classification as a member
of
the professions holding an advanced degree and/or
an
individual
of
exceptional ability,
as
well
as
a national interest waiver
of
the job offer requirement attached
to
this
classification. See Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C.
§ 1153(b)(2).
The Director
of
the Texas Service Center denied the petition, concluding that the record did not
establish that the Petitioner merited a national interest waiver
as
a matter
of
discretion. 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
l&N Dec. 537, 537 n.2 (AAO 2015). Upon
de
novo review,
we will dismiss the appeal.
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. Section 203(b )(2)(B)(i)
of
the Act.
An
advanced degree
is
any United States academic or professional degree or a foreign equivalent
degree above that
of
a bachelor's degree. A United States bachelor's degree or foreign equivalent
degree followed by five years
of
progressive experience in the specialty
is
the equivalent
of
a master's
degree. 8 C.F.R. § 204.5(k)(2).
Exceptional ability means a degree
of
expertise significantly above that ordinarily encountered in the
sciences, arts, or business. 8 C.F.R. § 204.5(k)(2). A petitioner must initially submit documentation
that satisfies at least three
of
six categories
of
evidence. 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F).
1
Meeting
1
If
these types
of
evidence
do
not readily apply
to
the individual's occupation, a petitioner may submit comparable
evidence
to
establish their eligibility. 8 C.F.R. § 204.5(k)(3)(iii).
at least three criteria, however, does not, in and
of
itself, establish eligibility for this classification.
2
If
a petitioner does so, we will then conduct a final merits determination to decide whether the evidence
in its totality shows that they are recognized
as
having a degree
of
expertise significantly above that
ordinarily encountered in the field.
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
of
Dhanasar, 26 I&N Dec. 884, 889 (AAO 2016), provides the
framework for adjudicating national interest waiver petitions. Dhanasar states that U.S. Citizenship
and Immigration Services (USCIS) may,
as
matter
of
discretion
3
,
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 Petitioner is a petroleum engineer with relevant education and experience
whl
propos s to manage
and provide services through her company, which she recently established in the
1
, Texas area.
In her decision, the Director determined that the Petitioner did not meet any
of
the three prongs
of
the
Dhanasar analytical framework, and had thus not established that she merited a national interest
waiver
of
the EB-2 classification's job offer requirement. For the reasons discussed below, we agree
that she has not established that her proposed endeavor is
of
national importance, and therefore that
she does not meet the framework's first prong and does not merit a national interest waiver.
A.
Substantial Merit and National Importance
The first prong
of
the Dhanasar analytical framework, 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 whether the proposed endeavor has national importance, we
consider its potential prospective impact. Dhanasar, 26 I&N Dec. at 889.
The Petitioner has established a company through which she intends to provide consulting services for
small businesses, including the development
of
business plans and organizational models,
as
well
as
project management services for companies in the oil and gas industry. In her decision, the Director
concluded that this proposed endeavor was
of
substantial merit, but that the Petitioner did not
demonstrate it to be
of
national importance. Specifically, the Director reviewed the business plan for
the Petitioner's company and determined that its projections for revenue and job creation would not
have the type
of
"substantial positive economic effects" that were noted in Dhanasar
as
positive
2
USCIS has previously confirmed the applicability
of
this two-part adjudicative approach in the context
of
aliens
of
exceptional ability. 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5.
3
See also Poursina
v.
USCIS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision
to
grant or deny a national interest
waiver to be discretionmy in nature).
2
factors in establishing the national importance
of
an endeavor.
Id.
at 890. The Director concluded
that the Petitioner's proposed endeavor would not have broader implications within its field or
otherwise be
of
national importance.
On appeal, the Petitioner asserts that the Director erred in focusing solely on the business plan for her
company and not considering the other evidence she submitted, including her statement (which she
refers to
as
her "endeavor"). But that statement devotes fourteen
of
its eighteen pages to a description
of
her career achievements, and only a few paragraph to a description
of
her proposed endeavor. That
description states that the Petitioner plans to establish a company to "provide specialized advice ... in
matters
of
oil fields," and adds that this includes "giving talks, conferences, tutorials, among others."
The same is true
of
the Petitioner's response to the Director's request for evidence (RFE), although
here she adds that the company's "main services" are the creation
of
business plans, strategic plans,
and organizational models, while also offering project management services for energy, construction
and engineering projects in addition to the previously mentioned consulting services for the oil and
gas industry. As the business plan for the company provided the most details about how this proposed
endeavor would potentially be
of
substantial merit and national importance, we disagree that the
Director erred in focusing on this evidence in her analysis under the first prong
of
the Dhanasar
analysis. Further, the Petitioner does not explain how the other evidence that the Director did not
analyze under the first prong, including letters
of
recommendation and her educational and training
credentials, establish the national importance
of
her proposed endeavor.
The Petitioner also explains on appeal that her statement describes her expertise in oil well operations
and management in detail, and that it is this expertise, which she would use to provide the services
described, that is
of
national importance. However, factors such
as
a petitioner's educations, skills,
and record
of
success in activities relating to the proposed endeavor are analyzed under the second
prong
of
the Dhanasar framework, wherein we determine whether the individual is well positioned to
advance their proposed endeavor. As noted above, the analysis under the first prong is forward-
looking, considering the specific endeavor's potential prospective impact.
In addition, the Petitioner conflates the two elements
of
the first prong
of
the Dhanasar framework
when quoting the language
of
our precedent decision in her brief. When arguing that the Director
"violated the criteria set forth in
Dhanasar" by analyzing her proposed endeavor's potential substantial
positive economic impact, she underlines and bolds the language stating that endeavors may qualify
without showing economic benefits for the United States.
Id.
at 889. But that language pertains to
the first element
of
the first prong, substantial merit, which the Director determined her proposed
endeavor met. While
Dhanasar does not require a petitioner to show potential substantial positive
economic effects
of
their proposed endeavor to establish its national importance, it was not an error
for the Director to consider that factor when making her determination.
The Petitioner further argues on appeal that her proposed endeavor meets both elements
of
the first
prong
of
the Dhanasar framework "due to the area
of
my skills and expertise demonstrated during
more than
18
years in the Venezuelan oil industry, with national significance." But Dhanasar notes
that it is the individual's speci fie endeavor that is the focus
of
the first prong analysis, not that
of
the
field or industry in which the individual proposes to engage.
Id.
It is the proposed endeavor's potential
broader impact on the field or industry that must be shown to be
of
national importance, not the
industry itself.
3
We note that the Petitioner mentions that her proposed endeavor also includes the provision
of
training
programs for workers in the oil and gas industry, specifically in her areas
of
expertise. However, at
no point does she provide details on the content, structure, development, or means
of
delivery
of
this
training. Her business plan, which describes the services to be offered by her company, does not list
training amongst those services. Further, even
if
such detail had been provided, the Petitioner has not
established that her training program would have broader implications for the U.S. oil and gas industry
beyond those workers that would be trained. Much like the proposed teaching activities
of
the
petitioner in Dhanasar, here the Petitioner has not shown that her training activities would impact the
industry more broadly.
Id.
at 893.
Finally,
as
noted by the Director in her decision, the business plan includes projections
of
income and
staffing levels. We agree with the Director that these projections are not well supported and
do
not
reflect that the Petitioner's proposed endeavor has a significant potential to employ U.S. workers or
has other substantial positive economic effects. See
id.
at 890.
For all
of
the reasons discussed above, we conclude that the Petitioner has not established that her
proposed endeavor is
of
national importance.
III. CONCLUSION
As the Petitioner has not shown that she meets both elements
of
the first prong
of
the Dhanasar
analytical framework, she has not established that she merits a national interest waiver
of
the EB-2
classification's job offer requirement. Since the identified basis for denial is dispositive
of
the
Petitioner's appeal, we decline to reach and hereby reserve the Petitioner's appellate arguments
regarding the second and third prongs
of
the framework. See INS
v.
Bagamasbad, 429 U.S. 24,
25
(1976) (stating that agencies are not required to make "purely advisory findings" on issues that are
unnecessary to the ultimate decision); see also Matter
of
L-A-C-, 26 I&N Dec. 516, 526 n.7 (BIA
2015) ( declining to reach alternative issues on appeal where an applicant is otherwise ineligible). Also,
since the Director did not make a determination regarding the Petitioner's eligibility for the underlying
EB-2 classification, we reserve that issue
as
well.
ORDER: The appeal is dismissed.
4
