The Petitioner, a manufacturer of cleaning products, seeks to classify the Beneficiary, its president, as a member of the professions holding an advanced degree or an individual ofexceptional ability in the sciences, arts, or business. See Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. §1153(b)(2). ThePetitioneralsoseeksanationalinterestwaiverofthejobofferrequirementthatis attached to this employment-based, "EB-2" immigrant classification. See section 203(b)(2)(B)(i) of the Act. 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.
The Director of the Texas Service Center denied the petition, concluding that the Petitioner does not qualify for the underlying classification and had not established that a waiver of the required job offer, and thus of the labor certification, would be in the national interest. The Director dismissed the Petitioner's combined motion to reopen and reconsider, but then moved to reopen the proceeding. In a second decision, the Director concluded that the Beneficiary qualifies for classification as a member of the professions holding an advanced degree, but that the Petitioner had not established that a waiver of the job offer requirement would be in the national interest. The matter is now before us on appeal.
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit Section 291 of the Act, 8 U.S.C. § 1361. 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 of the job offer requirement is in the national interest.
Section 203(b) of the Act sets out this sequential framework:
(2) Aliens who are members of the professions holding advanced degrees or aliens of exceptional ability. - p. 2 (A) In general. - Visas shall be made available ... to qualified immigrants who are members of the professions holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare ofthe United States, and whose services in the sciences, arts, professions, or business are sought by an employer in the United States.
(B) Waiver ofjob offer-
(i) National interest waiver. [T]he Attorney General may, when the Attorney General deems it to be in the national interest, waive the requirements of subparagraph (A) that an alien's services in the sciences, arts, professions, or business be sought by an employer in the United States.
While 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 after a petitioner has established eligibility for EB-2 classification, users may, as a matter of discretion, 1 grant a national interest waiver if the petitioner demonstrates: (1) that the foreign national's proposed endeavor has both substantial merit and national importance; (2) that the foreign national 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, regarding substantial merit and national importance, focuses on the specific endeavor that the foreign national 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 foreign national. To determine whether he or she 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; any progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or individuals.
The third prong requires the petitioner to demonstrate that, on balance, it would be beneficial to the UnitedStatestowaivetherequirementsofajobofferandthusofalaborcertification. Inperforming this analysis, users may evaluate factors such as: whether, in light of the nature of the foreign national's qualifications or the proposed endeavor, it would be impractical either for the foreign national to secure a job offerorforthe petitioner to obtainalaborcertification; whether, even assuming See also Poursina v. USCIS, 936F.3d 868 (9th Cir.2019) (finding USCIS' decision to grant or deny a national interest waiver to be discretionary in nature). p. 3 that other qualified U.S. workers are available, the United States would still benefit from the foreign national' s contributions; and whether the national interest in the foreign national' s contributions is sufficiently urgent to warrant forgoing the labor certification process. In each case, the factor(s) considered must, taken together, indicate that on balance, it would be beneficial to the United States TheBeneficiaryearnedabachelor'sdegreeattheUniversityofCairoin1987. Herananofficesupply business in Egypt before relocating to Germany in 1991, where he worked in the travel industry, eventually starting his own company in that field in 1998. In 2006, the Beneficiary began trading chemicals. In2009,theBeneficiaryenteredtheUnitedStatesandincorporatedthepetitioningentity, although the company did not begin doing business until 2011. He is currently in the United States as an E-2 nonimmigrant treaty investor.
ThePetitionerfiledtheFormI-140petitioninAugust2018. TheDirectorissuedarequestforevidence (RFE) in January 2019. The Petitioner submitted a response to the RFE in April 2019.
The Director denied the petition in June 2019. The Petitioner filed a combined motion to reopen and reconsider in July 2019. While the motion was pending, the Petitioner submitted new evidence in September 2020, although the regulations make no provision for a petitioner to supplement a pending motioninthisway. TheDirectordismissedthatmotioninFebruary2021.
InJune2021,theDirectormovedtoreopentheproceeding,andissuedasecondRFE. ThePetitioner respondedtotheRFEinSeptember2021. TheDirectordeniedthepetitionasecondtimeinOctober 2021, and the Petitioner appealed the decision in December 2021.
Analysis
The issue before us is whether 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. As outlined below, we agree with the Director that the Petitioner has not sufficiently demonstrated eligibility for a national interest waiver under the Dhanasar analytical framework.
The proposed endeavor, in this petition, is the continued operation of the Petitioner's manufacturing facility, which manufactures cleaning products such as soap, detergent, and hand sanitizer. The Director determined that the Petitioner had established the substantial merit ofthe proposed endeavor, but not its prospective national importance.
ThesubstantialmeritofthePetitioner'sproposedendeavorisnotindispute. Forthereasonsdiscussed below, we agree with the Director that the Petitioner has not sufficiently demonstrated the national to waive the requirements of a job offer and thus of a labor certification.
Chronology
importance of his proposed endeavor under the first prong ofthe Dhanasar analytical framework. SccDhanasar, 26l&NDec. at 888-91, for elaboration onthesethreeprongs.
While wemaynotdiscusseverydocumentsubmitted,wehavereviewedandconsideredeachone.
In Dhanasar, we explained the "national importance" element ofthe first prong ofthe framework: In determining whether the proposed endeavor has national importance, we consider its potential prospective impact. An undertaking may have national importance for example, because it has national or even global implications within a particular field, such as those resulting from certain improved manufacturing processes or medical advances. But we do not evaluate prospective impact solely in geographic tem1s. Instead, we look for broader implications. Even ventures and undertakings that have as their focus one geographic area of the United States may properly be considered to have national importance. . . . An 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 889-90. in total economic activity."
The Petitioner asserted that "business exploded in 2017 and 2018 doubling gross revenues as the In a statement submitted with the initial filing of the petition in 2018, the Petitioner stated that its "products are blended andpackaged in the U.S. by American workers from raw chemicals and supplies produced in the U.S. by American workers and sold nationwide to be used by American workers in cruise ships, hotels and dry cleaners." The Petitioner asserted that the Beneficiary's "outstanding contributions ... supports [sic] dozens of businesses, hundreds ofjobs and generates several million company expanded into ports amount to a doubling of gross Year 2014 nationwide," but the growth shown on tax returns in the record does not revenues in 2017-2018: Gross receipts Gross profit Taxable incomeJob creation or economic claims unsupported
$172,966 109,454 1658
2015 2016 2017 $199,148 $203,560 $230,504 134,534 133,529 144,628 6445 4590 4859 2018 $283,650 189,030 25,937
The Petitioner states that the Beneficiary's "endeavors . . . aim to advance U.S. economic activity and job creation." Because the Beneficiary's endeavor comprises the petitioning company, which has already been doing business for several years, it is appropriate to consider the company's performance at the time of filing. The record does not show significant employment creation. Information submitted with the petition indicates that, seven years after the company began operations, the Petitioner's workforce in 2018 consisted of six part-time contractors who earned, on average, $214 per week.
In the 2019 RFE, the Director stated: "The petitioner has not established that the beneficiary's proposed work has implications beyond his prospective employer, their business partners, alliances, The record contains two versions ofthe2018 tax return, with different depreciation claims.No broader implications shown The earlier, unsigned version, datedMarch6, 2019, shows $2180 in depreciation and taxable income of$86,362. The later, signed version, dated May 20, 2019, shows $62,605 in depreciation and taxable incomeof$25,937. p. 5 and/or unidentified clients/customers at a level sufficient to demonstrate the national importance of his endeavor." The Director noted that the Petitioner did not report paying any salaries on its recent income tax returns, and that the Petitioner had not otherwise established that the Beneficiaty's endeavor has created a significant number of U.S. jobs. The Director likewise determined that the Petitioner had not established the company's economic significance or corroborated its claims regarding the scope of its economic impact.
In response, the Petitioner stated that it "has conclusively demonstrated that it currently employs U.S. workers (both directly and indirectly) and has had substantial positive economic effects." The Petitioner asserted that its references to "hundreds of jobs" and "several million [dollars] in total economic activity" "were made in reference to the indirect impact that [the Petitioner] has on its suppliers,clients,anddistributors." ThePetitionercitedpreviouslysubmittedlettersfromcustomers and distributors, but those letters do not corroborate the Petitioner's claims regarding the scope of its economic impact. The two quoted letters are similar in their overall structure, and contain some identical passages, such as the following two sentences, which the Petitioner quoted in his response to the 2019 RFE: "Our relationship with [the Beneficiary] and [the Petitioner] has proved extremely beneficialastheyoffersuperiorproductsatanaffordableprice. Thishasallowedustoincreaseour profits without sacrificing quality and grow our business." The identical language in the submitted The Petitioner submitted additional letters, several ofwhich also include similar or identical passages such as the one quoted above, seeking to itemize the impact of the Petitioner, and thus of the Beneficiary,onothercompanies. Forinstance,ashippingsupplycompanyassertedthatitsprofits from reselling the Petitioner's products enabled the hiring of three employees. Dhanasar contemplated "significant potential to employ U.S. workers" on a level commensurate with "substantial positive economic effects." Id. at 890. The Petitioner did not establish the significance of this level of employment. Congress did not broadly exempt every noncitizen employer from the job offer requirement, and the Petitioner's creation of a small number of jobs does not create a presumption ofeligibility.
Two similarly-worded letters from dry cleaning companies indicate that supplies from the Petitioner "are about40% less expensive than products from other companies." The two companies extrapolated the 40% savings to "40% of our monthly gross profit," resulting in several thousand dollars of savings per month, sufficient to fund the salaries ofabout halftheir employees. But the math does not support this conclusion. One company states that it spends "about $400.00" per month on the Petitioner's products; the other claims to spend "about $600.00"per month. A 40% cost savings on such expenses would increase monthly profits by a few hundred dollars, not thousands as claimed.
The Petitioner submitted an economic impact report prepared b y a project manager at the I I International Business Accelerator of the University of atI describing the Identical language in letters "suggests that the letters were all prepared by the same person and calls into question the persuasivevalueoftheletters'content." Hamalv.US.Dep'ta/HomelandSecurity,No.19-2534,slipop.at8,n.3(D.D.C. June 8, 2021 ).
Similarities aside, the letters do not provide sufficient details to support the Petitioner's claims regarding hundreds ofjobs and millions of dollars of economic activity. letters partially undermines their probative value.
Petitioner's business and providing background information about the industry in which the Petitioner operates. The report indicates that "the company provides employment to four workers" and "will also impact indirect U.S. jobs," but the report does not project the extent of indirect job creation. Instead, the report provides national statistics regarding the manufacture ofraw materials used in the Petitioner'sindustry. ThePetitionerhasnotshownthatitsoperationsconsumeasignificantproportion ofthosematerials. Thereportstates"employmentisexpectedtoincrease...to37,637workersin 2018," but this figure relates to the entire "Chemical Manufacturing industry," rather than the Petitioner and the companies it affects.
The Director denied the petition in June 2019, based on part on the conclusion that the Petitioner had not established the national importance ofthe proposed endeavor. On motion from that decision, the Petitioner asserted that the Director had not given sufficient weight to the Petitioner's projections of future growth, as presented in the economic impact report described above. According to those projections, the Petitioner planned to increase its gross profit to $610,550 by 2023. The Petitioner did not establish that sales at this level would result in "significant potential to employ U.S. workers or The Petitioner submitted an economic impact assessment from t h e The Petitionerclaimed: "Theassessmentstatesthatthebeneficiaryhascontributedto32directjobs,103 indirectjobs, and $72.9 million annual economic activity." But this is not an accurate description of the assessment.
The assessment used statistical "multipliers" to calculate the "Annual Economic Impact of 32 New Jobs." This"impactwascalculatedusing...aninput-outputmodel...usingfederaldatasources." The "inputs" consisted of NAICS code 325611, which refers to "Soap and Other Detergent Manufacturing,"andastartingfigureof"32newjobs,"which"areassumedtobefull-time." Based on those inputs, the model calculated 103 "Indirect and Induced Jobs" and"Annual Economic Impact'' of $72.9 million. The one-page document does not cite any source for the "32 new jobs figure" other than the Petitioner itself. Furthermore, the discussion on the assessment, including five disclaimers, makes it clear that the assessment is not an analysis of the Petitioner's real-world, existing impact Rather than a finding that the Petitioner has created 32 new jobs, the assessment is a mathematical model, based on the initial assumption that a soap or detergent manufacturing company created 32 new full-time jobs in theI _area via "new money flowing into the region." The Petitioner, however, has not shown that the company has created any full-time jobs since it opened in 2011. As noted above, the company has never reported salaries or wages on its income tax returns, and its staff consists of a small number of contractors whose remuneration is too low to realistically reflect full- timeemployment. ThebusinessplanintherecordprojectedthatthePetitionerwouldpay$218,400 in salaries in 2023, an amount far too small to cover 32 full-time jobs. Absent some evidentiary justification for the "32 new jobs" figure, the Petitioner has not established the relevance ofthe [have] other substantial positive economic effects," as contemplated by Dhanasar. projection relied on assumptions about growth and expansion which had not yet taken place, and the Petitioner did not establish the reliability of those assumptions, or the feasibility of the Petitioner's plans to "[r]each out to ... over 11,000 dry cleaning businesses" in Texas.
Sec Matter ojDhanasar, 26 I&N Dec. at 890. assessment.
Furthermore, this
The regulation at 8 C.F.R. § 103.3(a)(2)(vii) states that we may, for good cause shown, allow a petitioner additional time to submit a brief on appeal. There is no comparable provision to allow a petitioner to supplement a motion after it has been filed. Nevertheless, in September 2020, the Petitioner sought to supplement its then-pending motion with evidence regarding its production of hand sanitizer during the early months of the COVID-19 pandemic in 2020.
A petitioner must meet eligibility requirements at the time of filing the pet1t10n. 8 C.F.R. § 103 .2(b)(1 ). The Petitioner's activities during 2020 cannot retroactively establish eligibility as of the petition's August 2018 filing date.
The Director dismissed the Petitioner's motion to reopen in February 2021, without disturbing the underlyingdenialdecisionfrom2019. TheDirectorsubsequentlyreopenedtheproceedingandissued an RFE in June 2021, stating that the financial documentation from 2011 to 2018 did not support optimistic projections regarding the Petitioner's potential for substantial positive economic effects.Plan or projections not corroborated
In response, the Petitioner focused on arguments relating to the COVID-19 pandemic. As explained above, circumstances that arose in 2020 cannot show that the Petitioner met all eligibility requirements at the time it filed the petition in 2018.
The Director denied the petition for a second time in October 2021, stating that the Petitioner had not adequatelysubstantiateditsclaimsregardingjobcreationandothereconomicbenefits. TheDirector also noted that circumstances surrounding the COVID-19 pandemic cannot establish eligibility as of the petition's filing date in 2018.
On appeal, the Petitioner asse1is that, although the petition was filed before the COVID-19 pandemic, "the prevention of disease and illness [were] relevant before March 2020." General assertions about sanitation and hygiene speak to the intrinsic merit of the Beneficiary's endeavor, which the Director hasconsistentlyacknowledgedthroughoutthisproceeding.Proposed endeavor too vague Substantialmeritandnationalimportance, however,aretwoseparateelementswithinthefirstprongoftheDhanasarframework. Employment in an industry with substantial merit does not inherently give national importance to that employment The Petitioner must instead submit sufficient evidence to meet its burden to demonstrate national importance. Furthermore, at the time of filing, the Petitioner did not assert that sanitation and hygiene lent national importance to his endeavor. The arguments the Petitioner made in 2021 hinged, to a large extent, on changes that the company made in 2020 in order to address the pandemic. Many of the Petitioner's products in 2018, such as rust removers and dry cleaning agents, concerned areas with no direct relationship to public health.
The Petitioner maintains that it "clearly did not abandon its economic claims, but rather, bolstered the overall national importance argument with a second, alternative analysis" regarding public health. As discussed below, the Petitioner does not establish that the Director erred with regard to those initial economic arguments.
Regardingthe economic benefit from the Beneficiary's endeavor, the Director noted that the Petitioner had employed a small number of part-time contractors, while reporting "consistently... meager profits" on its tax returns. The Director acknowledged that the report from the International Business Accelerator "paints a very optimistic future" for the Petitioner, but concluded that the p. 8 submitted evidence "was insufficient to establish that the beneficiary ... has the potential to create a significant number ofjobs or other substantial positive economic effects."
The Petitioner asserts that the Director focused on the modest growth and small profits shown on the tax returns up to 2018, but disregarded "the 2019 to 2021 financial data," submitted in response to the 2021 RFE, which "clearly established that the projections from the Report were in fact credible." The Petitionerbasesthisassumptiononfiguresfromtwoyears. For2019,thePetitionerforecast$377,565 in gross sales; the actual figure was $341,018. For 2020, the Petitioner forecast $429,815 in gross sales, and realized the substantially higher amount of $653,668. 2020, however, coincided with a steep increase in demand for soap and hand sanitizer, documented in the Petitioner's post-filing submissions.
The Petitioner has not shown that the upward trend continued past 2020. The Petitioner notes gross income of $259,491 during the first halfof2021, "putting [the company] on pace to exceed $500,000 in gross revenue for 2021." But the Petitioner's projection for 2021 was $656,575 in gross sales. If the figures for the first six months held for the rest of the year, the Petitioner's gross income would havebeen$518,982,about21%belowtheforecast. Theaggregatedfiguresfrom2019,2020,andpart of 2021 do not establish the accuracy ofthe forecast. Even then, the Petitioner has not met its burden of proof to establish that the above figures amount to substantial positive economic effects as contemplated in Dhanasar, and they do not show that the petition was approvable at the time of filing.
For the reasons discussed, we conclude that the Petitioner has not established the national importance of his proposed endeavor. Because this issue, by itself, determines the outcome of the appeal, we decline to reach, and hereby reserve, the appellate arguments regarding the remaining prongs of the
Conclusion
Because the Petitioner has not met the required first prong of the Dhanasar analytical framew01k, we conclude that he has not established eligibility for a national interest waiver as a matter of discretion. Fmihennore, the Petitioner has not met its burden of proofto establish that the Beneficiary qualifies fortheunderlyingimmigrantclassification. Theappealwillbedismissedfortheabovestatedreasons.
ORDER: The appeal is dismissed.
Dhanasar framework.
See INS v. Bagamasbad, 429 U.S. 24, 25 (197 6) ("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-, 26 I&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible).