The Petitioner, a financial manager, seeks classification as a member of the professions holding an advanced degree or of exceptional ability. See Immigration and Nationality Act (the Act) section 203(b )(2), 8 U.S.C. § 1153(b )(2). The Petitioner also seeks 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 Act, 8 U.S.C. § 1153(b )(2)(B)(i). U.S. Citizenship and Immigration Services (USCIS) may grant this discretionary waiver of the required job offer, and thus ofa labor certification, when it is in the national interest to do so. See 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v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts (and Third in an unpublished decision) in concluding that USCIS ' decision to grant or deny a national interest waiver to be discretionary in nature).
The Director of the Texas Service Center denied the petition, concluding the record did not establish 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 pursuant to 8 C.F.R. § 103.3.
The Petitioner bears the burden ofproof to demonstrate eligibility by a preponderance of the evidence. Matter ofChawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter de novo. Matter of Christa 's, Inc. , 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, we will dismiss the appeal.
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. Because this classification requires that the individual's services be sought by a U.S. employer, a separate showing is required to establish that a waiver ofthe job offer requirement is in the national interest.
Whilst neither the statute nor the pertinent regulations define the term "national interest," we set forth a framework for adjudicating national interest waiver petitions in the precedent decision Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). Dhanasar states that USCIS may as a matter of discretion grant a national interest waiver of the job offer, and thus of the labor certification, to a petitioner p. 2 classified in the EB-2 category if they demonstrate that (1) the noncitizen' s proposed endeavor has both substantial merit and national importance, (2) the noncitizen is well positioned to advance the proposed endeavor, and (3) 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 first prong, substantial merit and national importance, focuses on the specific endeavor that the noncitizen 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. The second prong shifts the focus from the proposed endeavor to the noncitizen. To determine whether the noncitizen is well positioned to advance the proposed endeavor, we consider factors including but not limited to the individual's education, skills, knowledge, and record of success in related or similar efforts. A model or plan for future activities, progress towards achieving the proposed endeavor, and the interest of potential customers, users, investors, or other relevant entities or individuals are also key considerations.
The third prong requires the petitioner to demonstrate that, on balance of applicable factors, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. USCIS may evaluate factors such as whether, in light of the nature of the noncitizen' s qualification or the proposed endeavor, it would be impractical either for the noncitizen to secure a job offer or for the petition to obtain a labor certification; whether, even assuming that other qualified U.S. workers are available, the United States would still benefit from the noncitizen's contributions; and whether the national interest in the noncitizen's contributions is sufficiently urgent to warrant forgoing the labor certification process. Each of the factors considered must, taken together, indicate 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.
Analysis
The Director found that the Petitioner qualifies as a member of the professions holding an advanced degree. The remaining issue to be determined is whether the Petitioner has established that a waiver of the requirement of a job offer, and thus of a labor certification, would be in the national interest. The Director denied the petition, concluding that whilst the Petitioner was well positioned to advance their proposed endeavor, the proposed endeavor was not of national importance such that on balance a waiver of the requirement of a job offer and labor certification would be beneficial to the United States.Did not show the waiver outweighs labor certification We agree with the Director's overall decision that the Petitioner does not qualify for a national interest waiver, but we do not agree with and will withdraw the Director's specific finding that the Petitioner was well positioned to advance their proposed endeavor.
A. The Proposed Endeavor
The Petitioner initially proposed to continue working in their field for U.S. companies as a financial manager to address a shortage of financial professionals. Specifically, the Petitioner represented that their endeavor was to work as a financial manager for one of four U.S. companies that had offered p. 3 them employment positions in their field in the United States. The record initially contained the Petitioner's "autobiographical statement," U.S. Bureau of Labor Statistics report regarding employment offinancial managers, articles describing a global shortage offinancial advisors and other positions in accounting and financial services, job offer letters, letters ofrecommendation, educational documents, individual training completion certificates, documentation ofthe Petitioner's participation in investor clubs and related documents, copies of articles authored by the Petitioner, wage data and statistics from U.S. Bureau of Labor Statistics, and a copy of their resume. 1 The record developed initially at the time of filing demonstrated that the Petitioner's proposed endeavor was essentially a job search. And the purpose of a national interest waiver is not to facilitate a petitioner's U.S. job search. Moreover, shortages of able, willing, qualified, and available U.S. workers are addressed through the U.S. Department of Labor's labor certification process.
The Director issued a request for evidence (RFE) for additional evidence and clarification of the Petitioner's proposed endeavor to determine its substantial merit and national importance. In response to the RFE, and perhaps having conceded that their initial endeavor could not support a national interest waiver under the Dhanasar framework, the Petitioner submitted an educational evaluation, detailed business plan, expert opinion letter of _______________.recommendation letters, U.S. government generated reports and press releases, documentation ofa shortage ofqualified individuals for finance and accounting careers, business registration documentation for the Petitioner's proposed endeavor with business operations and financial documents, and evidence of the Petitioner's continuing education 2Relied on a labor shortage
B. Substantial Merit and National Importance
Whilst the Director found that the Petitioner's proposed endeavor had substantial merit, they also concluded that the Petitioner did not demonstrate that their proposed endeavor was of national importance because the Petitioner did not demonstrate the broader implications of the proposed endeavor or its potential positive economic effects. For the below reasons, we agree.
The evidentiary standard in immigration proceedings is the lowest preponderance of the evidence standard, the burden is on the Petitioner alone to provide material, relevant, and probative evidence to meet that standard. Section 291 ofthe Act, 8 U.S.C. § 1361. 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 I&N Dec. 1136, 1142 n.3 (BIA 1998); also see the definition of burden of proof from Black's Law Dictionary (11th ed. 2019) (reflecting the burden of proof includes both the burden of production and the burden of persuasion). First, a petitioner must satisfy the burden of production. As the term suggests, this burden requires a filing party to produce evidence in the form of documents, testimony, 1 While we may not discuss every document submitted, we have reviewed and considered each one. 2 A petitioner must establish eligibility for the benefit they are seeking at the time the petition is filed. See Matter of Katigbak, 14 T&N Dec. 45, 49 (Reg' I Comm 'r 1971 ). A petitioner may not make material changes to a petition in an effo1t to make a deficient petition conform to USCTS requirements. See Matter oflzummi, 22 T&N Dec. 169, 176 (Assoc Comm'r 1998). Revisions submitted in response to an RFE constituting a materially different endeavor introduce ambiguity which prevents analysis into a proposed endeavor's substantial merit or national importance. The Petitioner's revisions here provided additional details with more information about how, when, and where the Petitioner will engage in their proposed endeavor. So. the Petitioner's extensive revisions, whilst concerning, retained the character and nature of the proposed endeavor initially described by the Petitioner. p. 4 etc. that adheres to the governing statutory, regulatory, and policy provisions sufficient to have the issue decided on the merits. The Petitioner's evidence and argument does not help them carry their burden of production and persuasion because it is not persuasive relevant, material, or probative evidence relating to the national importance ofthe Petitioner's proposed endeavor under the first prong of the Dhanasar framework.
The relevant inquiry for evaluation of an endeavor's national importance is whether the prospective positive impact judged by the endeavor's broader implications or positive economic effects apply beyond just narrowly conferring the proposed endeavor's benefit. The Petitioner here has not demonstrated how conferring the benefit to the small and medium sized businesses they intend to solicit have any implication or benefit rising to a level beyond them and touching matters of national importance. The Petitioner cited to White House fact sheets encouraging the promotion and support of small and medium business enterprises. And whilst the Petitioner's endeavor does intend to engage with small and medium sized business for financial management needs, it is not clear in the record how the Petitioner's contemplated service relates to the studies the Petitioner cited as government initiatives supporting their work. And, even if they did relate, we would still conclude they did not implicate matters rising to a level of national importance because any benefit or influence, such that it is, would apply mainly only to those small businesses that work directly with the Petitioner. This is akin to how the benefit of someone's teaching is generally only directly beneficial to the students being taught and not wider population. In Dhanasar we discussed how teaching would not impact the field of education broadly in a manner which rises to national importance. Dhanasar at 893. By extension activities which only benefit a small subset of individuals and companies, like the Petitioner's proposed financial management endeavor, would not rise to a level ofnational importance. The record does not contain any meaningful analysis of the Petitioner's proposed services' broader implications or potential prospective economic impact rising to the level of national importance. And the letters of recommendation do not describe how the benefits they have received connect to broader implications rising to national importance or any nationally important economic impact. In sum the record supports the conclusion that the potential impact of the endeavor of providing financial management to small and medium sized businesses would benefit only the individuals and entities engaging the service.
Additionally, the record does not demonstrate with material, relevant, and probative evidence how the proposed endeavor's benefits broadly implicate matters of national importance. In Dhanasar, we noted that "we look for broader implications" of the proposed endeavor and that "[a ]n undertaking may have a national importance for example, because it has national or even global implications within a particular field." Id. The broader implications of the proposed endeavor, national and/or international, can inform us of the proposed endeavor's national importance. That is not to say that the implications are viewed solely through a geographical lens. Broader implications can reach beyond a particular proposed endeavor's geographical locus and focus. The relevant inquiry is whether the broader implications apply beyond just narrowly conferring the proposed endeavor's benefit. The Petitioner's business plan identified the proposed endeavor would "empower [ small and medium size businesses] to achieve financial efficiency and drive growth through strategic planning and financial management." The Director considered these potential benefits when they determined the Petitioner's proposed endeavor was of substantial merit. However, as we stated previously, there is insufficient evidence in the record to support the impact of the Petitioner's endeavor would permeate beyond the immediate sphere of those small and medium size businesses and manufacturing companies engaging p. 5 the Petitioner for their services. In other words, the record does not adequately establish the broader implications of the Petitioner's proposed endeavor rising to a level of national importance. It is not clear from the record how "empower[ing] [small and medium size businesses] to achieve financial efficiency and drive growth through strategic planning and financial management" would implicate matters at a level of national importance. And to the extent that the Petitioner asserts that the national importance of their proposed endeavor is apparent upon aggregation of the benefits realized by their clients engaging their services, the record as it is presently composed does not convincingly reflect the level at which this aggregation would implicate an issue rising to a level of national importance. In the same vein, it is unclear from the evidence in the record that the work of a single financial manager in a financial management endeavor, irrespective of that proposed endeavor's success or failure, would have a significant impact on the field beyond its immediate sphere of influence. The evidence in the record does not highlight how the work of one professional could have broader implications that address the shortage of professionals the Petitioner asserts would be addressed by their function in their proposed endeavor. And if in fact these shortages can be addressed by adding additional able, willing, qualified, and available international workers like the Petitioner, they would be better addressed through the U.S. Department of Labor's (DOL) labor certification process. The labor certification process permits U.S. employers to test the labor market to document the lack of able, available, qualified, and willing U.S. workers for positions with U.S. employers.
We also stated in Dhanasar 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. The Petitioner roots the potential positive effects oftheir unrealized quality management firm in their potential for job creation and revenue generation. The Petitioner anticipates a hiring spree increasing their head count eightfold over five years and increasing their expenditures on salary, but it is not clear from the record how this job creation for the proposed endeavor itself would have a substantial prospective positive economic effect commensurate with national importance. Specifically, the business plan anticipated that the endeavor would employ eight employees generating over $38,740 in tax revenue in five years of operation based on salary. So, even though the Petitioner anticipates increasing gross income, a hiring spree increasing their head count, and increasing their expenditures on salary, it is not clear from the record as described above how this job creation for the proposed endeavor itself would have a substantial prospective positive economic effect commensurate with national importance. The Petitioner's aspirations do not demonstrate the national importance of the endeavor because they, whether realized or not, would not extend beyond the endeavor itself to have an impact on a level of national importance. The record also does not contain sufficient probative, material, or relevant evidence showing how the endeavor's hiring plan would influence the area's unemployment rate or how the endeavor's operations and revenue rose to a level of national importance.
USCIS may, in its discretion, use as advisory opinion statements from universities, professional organization, or other sources submitted in evidence as expert testimony. See Matter ofCaron Int'!, 19 I&N Dec. 791, 795 (Comm'r 1988). However, the submission ofletters from experts supporting the petition is not presumptive evidence of eligibility. Id. Moreover, letters from relevant third-party reviewers such as prospective investors, retailers, or other industry experts will generally be more persuasive to support the merits of an entrepreneur's business, business plan, product, or technology.Support letters generic or unsupported The Petitioner commissioned a letter from Dr.I I associate professor of practice, finance p. 6 department and director of the commercial banking program at At the outset, Dr. I Ioffered their opinion "to comment on the extraordinary ability" of the Petitioner. Moreover, we observe that the letter's content lacks relevance when it comes to the evaluation of whether the Petitioner's business and services rise to the level of national importance. For example, in addressing the national importance of the Petitioner's endeavor, Dr.I !discussed the general benefit to the United States of having financially sound and responsible business operating in the economy. The letter listed the metrics that corporations would evaluate to maintain financially sound and responsible business practices. However, aside from an overarching statement that the Petitioner's endeavor would operate in this field, Dr.I ldoes not specifically identify how the provision of services from the Petitioner's proposed endeavor would impact the financial health and responsible business practices of United States companies in a manner implicating matters of national importance or what broader implications emanate therefrom. Instead, the letter overwhelmingly discusses the importance ofthe Petitioner's industry and occupation as well as the Petitioner's previous experiences. But this does not relate or correspond to the national importance ofthe Petitioner's proposed endeavor. So, the letter does not provide any meaningful analysis of the endeavor's broader implications or potential prospective economic impact rising to the level of national importance.
So, we conclude that the Petitioner has not established that their proposed endeavor is of national importance.
C. Well Positioned to Advance the Proposed Endeavor
We disagree with the Director and hereby withdraw the Director's conclusion that the record established the Petitioner was well-positioned to advance the proposed endeavor under the second prong of the Dhanasar framework. In evaluating whether a petitioner is well positioned to advance their proposed endeavor, we review the following and any other relevant factors:
- A petitioner's education, skill, knowledge, and record of success in related or similar efforts;
- A petitioner's model or plan for future activities related to the proposed endeavor that the individual developed, or played a significant role in developing;
- Any progress towards achieving the proposed endeavor; and
- The interest or support garnered by the individual from potential customers, users, investor, or other relevant entities or persons.
It is not clear how an individualized consideration of the multifactorial analysis under Dhanasar 's second prong would demonstrate how well positioned the Petitioner is to advance their proposed endeavor. The record as currently constituted would still not reflect how the Petitioner's prior performance of the duties described in the experience letters is either a similar effort as that of their proposed endeavor or how it constitutes a record ofsuccess. Whilst the Petitioner submitted a business plan and an updated business plan describing a plan or model for future activities, the record does not reflect any progress to achieving the proposed endeavor other than registering their company. The establishment of their company alone is not strong evidence ofprogress. Finally, the recommendation letters the Petitioner submitted are not material, relevant, or probative evidence in the record ofinterest or support in the endeavor the Petitioner proposed in their petition. As stated above, 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 I&N Dec. at 1142 n.3 (BIA 1998); also see the definition of burden of p. 7 proof from Black's Law Dictionary (11th ed. 2019) (reflecting the burden of proof includes both the burden of production and the burden of persuasion). So, the evidence in the record does not sufficiently describe how well situated the Petitioner would be to advance their petition's proposed endeavor.
Conclusion
The Petitioner has not met the requisite first and second prong of the Dhanasar analytical framework. Because these issues separately and together are dispositive of the Petitioner's appeal, we decline to reach and hereby reserve the remaining arguments concerning eligibility under the remaining third prong of Dhanasar. See INS v. Bagamasbad, 429 U.S. 24, 25 1976) ('courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach"); see also Matter ofL-A-C-1, 26 I&N Dec. 216, 526n. 7 (BIA 2015) ( declining to reach alternate issues on appeal where an applicant is otherwise eligible). We conclude the Petitioner has not established that they are eligible for or otherwise merit a national interest waiver of the job offer requirement, and thus of a labor certification. Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.