The Petitioner, an entrepreneur with experience in the baking 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 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 Petitioner had not established that a waiver of the required job offer, and thus of the labor certification, 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 ofproofto demonstrate eligibility by a preponderance ofthe 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, we will dismiss the appeal.
Law
537 n.2 (AAO 2015). Upon de novo review,
To establish eligibility for a national interest waiver, a for the underlying EB-2 visa classification, as either an 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).
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 U.S. Citizenship and petitioner must first demonstrate qualification advanced degree professional or an individual p. 2 Immigration Services (USCIS) may, as matter of discretion, petitioner shows: grant a national interest waiver if the
- 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.
Analysis
The Petitioner earned a bachelor's degree in business administration from _ _ _ _ _ _ _ _ in Brazil in 1999 and completed a one-year post-graduate program in industrial administration at the __________
The record reflects she has since gained over 15 years of experience as an entrepreneur in the bakin indust in Brazil where she served as artner executive director, and business advisor w i t h between
1999 and 2014. The documentation submitted shows that _ __,specializes in the production and distribution of industrial bakery machinery. At the time she filed this petition in December 2016, the Petitioner provided a resume indicating that since October 2014 she had been employed as a market research analyst byl JFlorida, after the sale ofthe company tol I I2
The Director determined that the Petitioner established her eligibility as a member of the professions holding an advanced degree. the Petitioner has established that a waiver of the requirement of a job offer, and thus a labor certification, would be in the national interest.
The first prong of the Dhanasar framework, "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 l&N Dec. at 889. The Petitioner indicated on the Form 1-140, Immigrant Petition for Alien Worker, that she intends to work in the United States as an entrepreneur to "[p]lan, direct, or coordinate the operations of public or private sector organizations." The Petitioner initially provided a personal statement indicating:
Accordingly, the remaining issue to be determined on appeal is whether I am a professional holding an advanced degree . . . with more than twenty-two (22) years ofprogressive work in my field ofexpertise as an industrial administrator. My expertise is well recognized for my achievements and unique methodologies applied in designing and implementing effective international and country specific planning strategies, business plans and process across industries, such as bakery and pastry equipment manufacture and distribution. waiver to be discretionary in nature).
I am certain that my experience will substantially benefit prospectively the national economy and work conditions in the United States, in a field that is highly sought by employers in the United States ofAmerica, that ofBusiness and Industrial Administration I am an expert industrial and business administrator, able to obtain outstanding business results in this field. I have developed a distinguished reputation and I am certain that I will substantially contribute to the improvement of work conditions of U.S. workers reducing as well the risk ofpenalties and fines ofU.S. corporations conducting business or planning to conduct business in Brazil - which certainly holds substantial intrinsic merit in the current global business context . . . .
In response to the Director's RFE dated April 2021, the Petitioner stated that during the "five years of waiting for an answer from USCIS [she] positioned herself in the local market . . .." She submitted an updated resume, indicating that her employment withl Iended in November 2016 and that she now worked as a real estate broker associate with IFlorida. She also provided a "Personal Plan and Statement" reflecting:
Since 2014 I am a Licensed Real Estate Agent with residential and commercial sales experience and recently a Real Estate Broker Associate.
[T]his year I have started working withl II provide real estate investment allocation, commercial and residential real estate sale, purchase, construction, and remodeling . . . Iand I offer a complete service to investors looking to start a business in the U.S. or purchase a residential or commercial property in Florida.
My proposed endeavor in the United States is to continue providing specialized business and real estate advisory services to attract primarily international investments and buyers originating from Brazil and other Latin American countries to the U.S. The goal of the proposed endeavor is to directly contribute to the higher revenues and profits of U.S. companies in the real estate industry and indirectly contribute to the business development and improved performance of the construction, financial, creative, and other complementary industries.
The Iand I have a diversified business model, including real estate sale and purchase and investment consulting to all international investors interested in real estate.
The Director determined that the Petitioner demonstrated the proposed endeavor's substantial merit but not its national importance. On appeal, the Petitioner's brief indicates that she intends to continue her work as a real estate broker in the United States, "attracting volumes of Brazilian investors who want to relocate to the U.S. or want to buy a vacation home" and "orchestrating a real estate development strategy that targets Brazilians during an historic favorable currency exchange rate."
As indicated, the Petitioner initially claimed that she intended to continue to work as an entrepreneur to "[p]lan, direct, or coordinate the operations ofpublic or private sector organizations" in the field of "Business and Industrial Administration." However, in response to the Director's RFE, the Petitioner asserted that she intended to work as a real estate broker associate withI Iand submitted 4 The Petitioner must establish that all eligibility requirements for the immigration benefit have been satisfied from the time of filing and continuing through adjudication. See 8 C.F.R. § 103.2(b)(l). Moreover, a petition cannot be approved at a future date after the petitioner becomes eligible under a new set of facts. Matter ofIzummi, 22 I&N Dec. 169, 175 (Comm'r 1988). That decision further provides, citing Matter ofBardouille, 18 I&N Dec. 114 (BIA 1981), that USCIS cannot "consider facts that come into being only subsequent to the filing of a petition."
Id. at 176. Accordingly, we will not consider the Petitioner's materially changed proposed endeavor of working as a real estate broker withl I In determining national importance, the relevant question is not the importance of the industry or profession in which the individual will work; instead, we focus on "the specific endeavor that the foreign national proposes to undertake."Argued the field's importance, not the endeavor's See Dhanasar, 26 I&N Dec. at 889. The Petitioner indicated in her initial personal statement that her endeavor will potentially result in: U.S. job creation; development of international business partnerships; the negotiation of lucrative projects and cross-border business transactions; new investment opportunities; and improvement in the working conditions of U.S. workers. For the reasons discussed below, the Petitioner has not sufficiently demonstrated the national importance of her proposed endeavor under the first prong of the Dhanasar 5 analytical framework.
In support of her claim that her proposed endeavor has substantial merit and national importance, the Petitioner provided an "advisory evaluation" ofher eligibility for a national interest waiver froml I I Ia professor at ISchool of Business. According to the evaluator, the Petitioner's proposed endeavor will entail "work as a business executive in the bakery and pastry equipment manufacturing and distribution industry or another manufacturing related industry for U.S.
Id. We also stated that "[a]n 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. at 890.
In addition, the Petitioner stressed her "more than twenty-two (22) years of progressive work in my field of expertise as an Industrial Administrator." Further, several testimonials describe the Petitioner's experience and skills in her field and assert she will be an asset in her "industrial m a n a g beakmeryecanreetr in the United States." For instance, in two letters a colleague at Istates that the Petitioner helped grow the com anytobecomeabaking industry leader by implementing work processes such as the and negotiating contracts with bakeries for Walmart, Carrefour, and S u b w a y indicates that the Petitioner's trade union negotiations with him improved wages and working conditions. I Imerger andacquisition consultant, asserts that the Petitioner's work on the company's purchase by generated "significant revenues for the shareholders of Ia representative of Ielectrical motors supplier, provides that the Petitioner utilized more efficient green engines that reduced the company's electricity costs.
The aforementioned letters of support, as well as others not discussed in this decision, detail the Petitioner's effectiveness and skills in her previous work as an industrial administrator in Brazil, but they do not address the national importance of her proposed endeavor. In addition, the Petitioner's experience and abilities in her field relate to the second prong of the Dhanasar framework, which "shifts the focus from the proposed endeavor to the foreign national." Id. at 890. The issue here is whether the specific endeavor that she proposes to undertake has national importance under Dhanasar's first prong.
As stated, to evaluate whether the Petitioner's proposed endeavor satisfies the national importance requirement, we look to evidence documenting the "potential prospective impact" of her work. The Petitioner did not offer specific information and evidence to corroborate her assertions that the prospective impact of continuing her work as an entrepreneur and advising in bakery and pastry equipment manufacture and distribution rises to the level of national importance. In Dhanasar, we determined that the petitioner's teaching activities did not rise to the level of having national importance because they would not impact his field more broadly. Id. at 893. Here, the record does not show, through supporting documentation, how the Petitioner's entrepreneurship and consulting in the baking industry stand to sufficiently extend beyond the businesses that might employ her, to impact the industry or the U.S. economy more broadly at a level commensurate with national importance.
Finally, the Petitioner did not show that her initial proposed endeavor has significant potential to employ U.S. workers or otherwise offers substantial positive economic effects for our nation.Job creation or economic claims unsupported For instance, despite indicating that job creation is a potential impact of her proposed endeavor, the Petitioner did not provide information and evidence to illustrate the number ofindividuals she expects any proposed new business to hire, train and support. She also did not address how her endeavor would have "substantial positive economic effects" based on job creation, and whether it would impact an economically depressed region. Without evidence regarding any projected U.S. economic impact or job creation attributable to her future work, the record does not show any benefits to the U.S. p. 6 regional or national economy resulting from her entrepreneur position would reach the level of "substantial positive economic effects" contemplated by Dhanasar. Id. at 890.
Because the documentation in the record does not establish the national importance ofher initial proposed endeavor as required by the first prong of the Dhanasar precedent decision, the Petitioner has not demonstratedeligibilityforanationalinterestwaiver. Furtheranalysisofhereligibilityunderthesecond As the Petitioner has not met the requisite first prong ofthe Dhanasar analytical framework, we conclude that she has not demonstrated that she is eligible for or otherwise merits a national interest waiver as amatterofdiscretion. Theappealwillbedismissedfortheabovestatedreasons,witheachconsidered as an independent and alternate basis for the decision.
ORDER: The appeal is dismissed.