The Petitioner, an entrepreneur in the construction and trucking 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 although the Petitioner qualified as an advanced degree professional, he had not established that a waiver of the required job offer, and thus of the labor certification, would be in the national interest. 1 The matter is now before us on appeal. 8 C.F.R. § 103.3.
The Petitioner bears the burden ofproof to demonstrate eligibility by a preponderance ofthe evidence. Matter ofChawathe, 25 l&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.
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 USCIS may, as matter of discretion, 2 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 1 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). 2 See also Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts (and Third in an unpublished decision) in concluding that USCIS ' decision to grant or deny a national interest waiver to be discretionary in nature).
- On balance, waiving the job offer requirement would benefit the United States.
The Petitioner proposes to establish a construction and trucking business. The Petitioner states that the "[c ]onstruction and the trucking industry are the most important components of the American economy" and that is why they are "of exceptional value to the [United States]." He will focus "on meeting the increasing demand for skilled labor and renovation services in Florida, thereby enhancing the quality of life for homeowners, boosting home prices, and fostering prosperous communities." In addition, the Petitioner will be "dedicated to providing affordable services for disaster relief to those affected by floods, storms, and hurricanes." Regarding the trucking business, the Petitioner states in his business plan that he "will serve the construction, manufacturing, wholesaling, and retailing industry as well as individual users by providing superior-quality freight trucking services with the highest professional standards at competitive prices."
The first prong of the Dhanasar 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 Director determined that the Petitioner's proposed endeavor is of substantial merit, and we agree. Turning to the national importance of his endeavor, the Director concluded that the Petitioner did not establish that his proposed endeavor has national importance.
On appeal, the Petitioner generally contends that the Director did not give due regard to the evidence submitted with the initial petition and in response to the Director's RFE. Specifically, the Petitioner states that the Director failed to address or acknowledge the Petitioner's intention "to collaborate with foundations such as the American Red Cross, Florida Disaster Fund, and Gulf Coast Disaster Relief Fund" to help disaster victims by "delivering high-quality and timely [reconstruction] services at prices 20-30% lower than the market average" and "making a positive impact on the local community." In addition, the Petitioner contends that the Director misrepresented the business plan. 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 "the specific endeavor that the foreign national proposes to undertake." See Dhanasar, 26 I&N Dec. at 889. We further indicated that "we look for broader implications" of the proposed endeavor and that "[a ]n undertaking may have national importance for example, because it has national or even global implications within a particular field." 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.
We have reviewed the business plans and their projections that the company will directly employ 70 employees on the construction side and 20 employees on the trucking side within five years and, during that period, cumulatively pay wages of over $5 million and generate over $11 million in revenue. Importantly, these employment and revenue projections are not supported by details showing their basis. In addition, the record does not support that the direct creation of 90 additional jobs in this sector or the expected revenue generated by the company will have a substantial economic benefit p. 3 commensurate with the national importance element of the first prong of the Dhanasar framework.Job creation or economic claims unsupported While we acknowledge the Petitioner's stated commitment to "prioritizing recruitment in specific counties . . . facing economic challenges," he has not offered sufficient evidence that his company would employ a significant population of workers in these "opportunity zones." Although the Petitioner's business plan shows his intention to expand his company, the record does not show that benefits to the U.S. regional or national economy resulting from the Petitioner's proposed endeavor would reach the level of "substantial positive economic effects" contemplated by Dhanasar. Id. In addition, the Petitioner relies on more than his 25 years of experience in the construction industry. However, the Petitioner's expertise and record ofsuccess are considerations under Dhanasar's second prong, which "shifts the focus from the proposed endeavor to the foreign national." Id. at 890. The issue here is whether the Petitioner has demonstrated, by a preponderance ofthe evidence, the national importance of his proposed work.
While we may agree that the Petitioner's stated intentions are admirable, he has not offered sufficient information and evidence to demonstrate that the prospective impact of his proposed endeavor rises to the level of national importance. In Dhanasar, we determined that the petitioner's teaching activities did not rise to the level ofnational importance because they would not impact his field more broadly. Id. at 893. Here, we similarly conclude that the record does not show that the Petitioner's role stands to sufficiently extend beyond his own company and its clients to impact the industry more broadly at a level commensurate with national importance. Nor has he shown that the particular work he proposes to undertake offers original innovations that contribute to advancements in construction or trucking or otherwise has broader implications for his field.
Because the Petitioner has not established eligibility under the first prong of the Dhanasar test, we need not address his eligibility under the remaining prongs, and we hereby reserve them. 3 The burden ofproof is on the Petitioner to establish that he meets each eligibility requirement ofthe benefit sought by a preponderance of the evidence. Matter of Chawathe, 25 I&N Dec. at 375-376. The Petitioner has not done so here and, therefore, we conclude that he has not established eligibility for a national interest waiver as a matter of discretion.
ORDER: The appeal is dismissed.