The Petitioner, a lawyer and legal entrepreneur, 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 attached to this classification. See Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2).
SCOPS denied the Form 1-140, Immigrant Petition for Alien Workers (petition), concluding that the record established the Petitioner qualified for the underlying visa classification, but she did not merit a discretionary waiver of the job offer requirement in the national interest. The matter is now before us on appeal under 8 C.F.R. § 103.3. The Petitioner bears the burden ofproofto demonstrate eligibility to U.S. Citizenship and Immigration Services (USCIS) 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. 537, 537 n.2 (AAO 2015). Upon de novo review, we will dismiss the appeal.
Law
To qualify for the underlying EB-2 visa classification, a petitioner must establish they are an advanced degree professional or an individual of exceptional ability in the sciences, arts, or business. Section 203(b )(2)(A) of the Act.
Ifa petitioner establishes eligibility for the underlying EB-2 classification, they must then demonstrate that they merit a discretionary waiver of the job offer requirement "in the national interest." Section 203(b )(2)(B)(i) ofthe Act. Matter ofDhanasar, 26 I&N Dec. 884, 889 (AAO 2016), provides the framework for adjudicating national interest waiver (NIW) petitions. Dhanasar states that USCIS may, as matter of discretion, 1 grant an NIW 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.
Id.
Analysis
SCOPS determined the Petitioner qualified as an advanced degree professional. Accordingly, the sole issue on appeal is whether the Petitioner merits an NIW of the EB-2 classification's job offer requirement as a matter of discretion. We agree with SCOPS conclusion that she does not.
National Interest W Aiyer
The Petitioner has a legal background and was a lawyer outside the United States. She will continue that effort in the United States where she plans on establishing a business that will offer legal services focusing on "company incorporation processes, contracts reviewing and negotiations, business data privacy and protection, and cyberattack prevention." She stated the endeavor will help businesses of all sizes primarily focused on startups and will provide pro bono services targeted towards women in business and low-income students.
A. Substantial Merit and National Importance
SCOPS made a favorable determination relating to the endeavor's substantial merit, but their decision regarding its national importance was adverse to the Petitioner. They responded to the Petitioner's claim ofthe existence ofan occupational demand noting that DOL already addresses shortages through other programs and methods. SCOPS also discussed the business plan and the support letters the Petitioner offered but determined she did not demonstrate her proposed endeavor would adequately impact the industry or the field.
When we evaluate national importance, the relevant question is not the importance of the industry or profession in which the alien will work. Rather, we focus on the "the specific endeavor that the alien proposes to undertake" and we look to evidence illustrating the "potential prospective impact" oftheir actual proposed work. See Dhanasar, 26 I&N Dec. at 889. A petitioner must demonstrate the proposed endeavor will "impact the field ... more broadly" (Id. at 893) and that it has "broader implications" (/d. at 889). Such endeavors may have "national or even global implications within a particular field" (Id. at 889), "significant potential to employ U.S. workers or [have] other substantial positive economic effects, particularly in an economically depressed area, for instance" (Id. at 890), or has the potential to widely advance and broadly affect U.S. strategic interests (/d. at 892). p. 3 Support letters. In the appeal, the Petitioner notes SCOPS "includes a verbatim copy-and-paste of the entire letters of support [] which were submitted to support the second prong, without providing any analysis or reasoned assessment of their content." (Emphasis in original). The Petitioner alleges SCOPS cited to a precedent decision-Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971)-without explaining how that decision was applicable to the letters.Not eligible at the time of filing A review of SCOPS' decision does not support the Petitioner's allegations here.
To begin with, when SCOPS quoted from the letters, it briefly detailed the shortcoming with the letters. SCOPS stated the letters did "not show that the petitioner's role as a Lawyer and Legal Entrepreneur would extend beyond the petitioner's company or employer and its clients to impact the petitioner's field more broadly. They did not sufficiently explain and support with evidence how the petitioner's proposed endeavor would have a national impact on the broad government initiatives discussed." Second, SCOPS did not cite the Katigbak decision when discussing these letters as is alleged in the appeal brief Third, the Petitioner's appeal brief does not explain which of the letters should be evaluated and how each aid in her eligibility under Dhanasar's first prong. And finally, as the Petitioner points out in the brief: the letters were meant for SCOPS to consider under Dhanasar 's second prong and not this prong. Considering these collective factors, the Petitioner has not demonstrated SCOPS erred here and she has not met her burden of proof.
Business Plan. Next, the Petitioner raises the issue of the projections detailed in her business plan. The Petitioner lists the evidence she relies on to demonstrate she has satisfied Dhanasar 's prong one requirements. She states the business is projected to create 11 jobs within five years, with cumulative payroll figures of $817,021. The brief reflects these are not speculative claims, but documented forecasts supported with operation planning and market research. She farther notes that small business will be the proposed endeavor's primary client base, and they represent 99.9 percent ofU.S. businesses and have been responsible for more than 61 percent of net new job creation since 1995.
She also reiterates her endeavor's output will contribute to "economic inclusivity and digital equity" resulting in a systemic social impact. She sums it up claiming she has not only identified a nationally significant problem through the legal and cybersecurity vulnerabilities of U.S. small businesses, but she has also proposed a viable job-creating solution.
Aligning with federal priorities. Considering the proposed endeavor directly aligns with federal priorities associated with cybersecurity vulnerabilities, she indicated the proposed "work aligns with the United States' priorities of safeguarding sensitive information, mitigating the impact of cyberattacks, and fostering a secure digital economy. Her efforts will contribute to protecting businesses from financial losses due to data breaches, which, according to industry reports, cost U.S. organizations billions annually." She claims broad impacts as the "initiative will have broader economic and societal impacts. By empowering startups and small businesses to navigate complex regulatory landscapes, she will enable these entities to grow and thrive, creating jobs and contributing to economic resilience, particularly in economically distressed areas." Additionally, she addresses economic inclusivity and digital equity her pro bono services will provide to female entrepreneurs and low-income students, and how it will extend the reach of her endeavor beyond profit and into systemic social impact farther aligning with national goals.
We note that having the potential to impact a matter relating to federal priorities or goals is inadequate. The Petitioner should demonstrate how her law practice will produce an impact rising to the level of national importance or result in substantial positive economic impacts. Without sufficient information or evidence regarding any projected U.S. economic impact or job creation attributable to the Petitioner's specific proposed endeavor, the record does not reflect the benefits to the U.S. regional or national economy resulting from her work as a lawyer would reach the level of substantial positive economic effects contemplated by Dhanasar.Job creation or economic claims unsupported Id. at 890. Merely working in an important field, or on consequential issues, is insufficient to establish a proposed endeavor's national importance. Potential prospective impact. To answer the question of her proposed endeavor's potential prospective impact, she relies on the projected employment and payroll projections in her business plan. But the plan does not explain how these forecasts were calculated, or adequately clarify how these projections will be realized, nor does the record contain evidence to support the business plan's financial projections. For instance, in the organization's first year the plan projects the firm will employ only three personnel but will produce $297,000 in sales resulting in more than an 11 percent profit. Four years later, after hiring eight additional personnel, sales are projected to increase to more than $1.1 million. The plan only reflected the method to achieve that goal was through website search engine optimization, digital marketing primarily focused on Google Ads keyword advertising campaigns, a social media presence, and word of mouth from their customers.
While these are essential components in today's business landscape, they appear to represent baseline expectations rather than a distinctive approach. The Petitioner did not explain how such a routine marketing strategy would increase the endeavor's potential to have broader implications in the industry.No broader implications shown The proposed endeavor's potential to prospectively impact the industry relies, in part, on whether the business can effectively attract and retain customers. The failure to establish the endeavor is able to do so significantly reduces its potential to have much of any impact in the industry locally, much less at a broader level in the way that the Dhanasar decision requires. The rote marketing strategy presented in the business plan tends to undermine the Petitioner's claims under Dhanasar 's first prong. In sum, the Petitioner has not demonstrated the projections in the business plan are more likely than not to occur.
Even if we presume all the projections in the business plan were accurate, the record lacks evidence demonstrating that its impact would be nationally important.Plan or projections not corroborated The Petitioner's business plan contends that this business will help startup companies through the incorporation process and safeguard businesses from cyber threats. For the proposed endeavor's effects on the economy, the Petitioner cites national statistics but does not explain how those national-level figures relate to the business she proposes, such that she demonstrates the proposed endeavor will "impact the field ... more broadly." Id. at 893. Again, it is not the importance of the industry in which the Petitioner will work, but "the specific endeavor that the alien proposes to undertake" and we look to evidence illustrating the "potential prospective impact" of her actual proposed work.Argued the field's importance, not the endeavor's Id. at 889. While we agree that advice for startups and cyber security enhancements will have some positive economic effects, the Petitioner's specific contributions to the unspecified individuals and organizations is not sufficiently established to support her claim that the endeavor will result in substantial economic growth on the level of national importance.
It is also unclear how the endeavor would achieve the projected sales goals when the Petitioner places a significant amount of the endeavor's efforts on pro bono services to women and low-income student startups. And relating to the services in which the endeavor will receive compensation in the cyber security realm, she cites to national-level statistics and indicates her services will be essential for guiding individuals and organizations through the cyber landscape. Lacking is the nexus between those national statistics and how the proposed endeavor will achieve similar results.
Throughout the filing before SCOPS, the Petitioner discussed the concept of competition and expressing her endeavor's competitive advantage in the industry, but a significant shortcoming of the business plan is the lack of sufficient content and analysis relating to the endeavor's primary competitors, to include their strengths and weaknesses. Also, the vague statement of what will set the proposed endeavor apart from the competition lacks a clear strategy for differentiating it in the market. This adversely affects the Petitioner's claims relating to the endeavor's potential prospective impact to the broader field or industry.
The Petitioner closes her prong one discussion with a conclusory statement that the record demonstrates the proposed endeavor will have substantial positive economic effects as the Dhanasar decision intended and she identifies several evidentiary exhibits she presented in the proceedings before SCOPS. But she neglected to discuss that material in any fashion to first identify what the evidence was, and then to explain its significance and how it might aid her in addressing the prong one requirements.
In visa petition proceedings, it is a petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act; Matter ofOtiende, 26 l&N Dec. 127, 128 (BIA 2013). Commensurate with that burden is the responsibility for explaining the significance ofoffered evidence. Repaka v. Beers, 993 F. Supp. 2d 1214, 1219 (S.D. Cal. 2014). It is the filing party's responsibility to inform us of what errors the lower entity committed and how their claims and evidence satisfy which eligibility requirements. Nolasco-Amaya v. Garland, 14 F.4th 1007, 1012-13 (9th Cir. 2021); Spear Mktg., Inc. v. BancorpSouth Bank, 791 F.3d 586, 599 (5th Cir. 2015); S.E.C. v. Thomas, 965 F.2d 825, 827 (10th Cir. 1992). A petitioner's burden of proof comprises both the initial burden of production, as well as the ultimate burden of persuasion. Matter ofY-B-, 21 l&N Dec. 1136, 1142 n.3 (BIA 1998). And she has not satisfied that burden here.
Because the Petitioner has not sufficiently established her proposed endeavor's national importance as Dhanasar 's first prong requires, she has not demonstrated eligibility for a waiver of the job offer requirement.
Conclusion
The appeal will be dismissed for the above stated reasons, with each considered an independent and alternative basis for the decision. In visa petition proceedings, it is a petitioner's burden to establish eligibility for the immigration benefit sought. The Petitioner has not met that burden.
ORDER: The appeal is dismissed.