The Petitioner, a driving school owner, seeks employment-based second preference (EB-2) immigrant classification as an individual of exceptional ability, 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 record did not establish that the Petitioner is an individual of exceptional ability, that the proposed endeavor was of national importance, that the Petitioner is well positioned to advance the endeavor, or that it would be beneficial to waive the requirements of a job offer.1 The matter is now before us on appeal pursuant to 8 C.F.R. § 103.3.
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter de nova. Matter of Christa's, Inc., 26 l&N Dec. 537,537 n.2 (AAO 2015). Upon de nova review, we will dismiss the appeal.
Law
Exceptional ability means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business. 8 C.F.R. § 204.5(k)(2). A petitioner must initially submit documentation that satisfies at least three of six categories of evidence. 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F).2 Meeting at least three criteria, however, does not, in and of itself, establish eligibility for this classification.3 If a petitioner does so, we will then conduct a final merits determination to decide whether the evidence in its totality shows that they are recognized as having the requisite degree of expertise and will 1 In the appeal brief, the Petitioner contends that on page two of the decision, the Director found the Petitioner qualified for the visa classification and the national interest waiver. While we acknowledge the error in the paragraph in question, the following analysis in the decision makes clear that the Director found that the Petitioner did not establish eligibility for the visa classification or a national interest waiver.
substantially benefit the national economy, cultural or educational interests, or welfare of the United States. Section 203(b)(2)(A) of the Act.
If a 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) of the Act. Matter of Dhanasar, 26 l&N Dec. 884, 889 (AAO 2016), provides the framework for adjudicating national interest waiver petitions. Dhanasar states that U.S. Citizenship and Immigration Services (USCIS) may, as matter of discretion,4 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
- On balance, waiving the job offer requirement would benefit the United States.
Id.
Analysis
The Petitioner claimed eligibility for the EB-2 immigrant classification as an individual of exceptional ability. However, because we conclude that he is not eligible for, and does not merit as a matter of discretion, a national interest waiver, and this determination is dispositive of the Petitioner's appeal, we decline to reach and hereby reserve the issue of eligibility as an individual of exceptional ability. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (stating that agencies are not required to make "purely advisory findings" on issues that are unnecessary to the ultimate decision); see also Matter of L-A-C' 26 l&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible).
A. Substantial Merit and National Importance
The first prong, substantial merit and national importance, focuses on the specific endeavor that the individual proposes to undertake. The endeavor's merit may be demonstrated in arange 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. Matter of Dhanasar, 26 l&N Dec. at 889.
The appeal brief states that the Petitioner's business will contribute "to a safer future on the roads, greater economic stability and a more skilled workforce in the United States." Although the evidence provided demonstrates that the endeavor has substantial merit, it does not show that the endeavor is of national importance.
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 4 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) Uoining 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 is discretionary in nature). p. 3 foreign national proposes to undertake." See Dhanasar, 26 l&N Dec. at 889. In Dhanasar, we further noted 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. To evaluate whether the Petitioner's proposed endeavor satisfies the national impmiance requirement we look to evidence documenting the potential prospective impact of his work. In Dhanasar we determined that the petitioner's teaching activities did not rise to the level ofhaving national importance because they would not impact his field more broadly. 26 l&N Dec. at 893.
Here, the Petitioner argues on appeal that his proposed work is nationally important because it will contribute "to the US economy by reducing accidents, improving fleet management[,] promoting safe driving practices" and strengthening the economy. The brief avers that the venture wi 11 reduce accidents by training drivers, analyzing the main causes of accidents, and consulting with owners of commercial fleets. Though the Petitioner claims the endeavor is "destined to transcend border and bring invaluable benefits," he neglects to explain how this individual business will have an impact on the driving safety field on the level of national importance. Contentions require support to underpin them, as assertions themselves do not constitute evidence. See, e.g., Matter of S-M-, 22 l&N Dec. 49, 51 {BIA 1998) ("statements in a brief, motion, or Notice of Appeal are not evidence and thus are not entitled to any evidentiary weight").
The record does not sufficiently demonstrate national importance either.5 In support of prong one, the Petitioner provided income documents, letters of recommendation, and evidence of his past work product.6 Although the letters all applaud the Petitioner's skills and his past business success, they do not specify how the Petitioner's business will contribute to the driving safety industry or the economy on a nationally important level. Furthermore, the Petitioner does not explain how the remaining evidence is relevant to national importance as it points to the Petitioner's past accomplishments and experiences, not the specific endeavor's potential impact in the driving safety field. Generally, this type of evidence is more appropriate for the second prong when determining if the petitioner is wellpositioned to advance the proposed endeavor. Dhanasar, 26 l&N Dec. at 890.
The Petitioner also provided a letter from Dr. As a matter of discretion, we may use opinion statements submitted by a petitioner as advisory. Matter ofCaron Int 'l, Inc., 19 l&N Dec. 791, 795 (Comm'r 1988). Nonetheless, we will reject an opinion or give it less weight ifit is not in accord with other information in the record or if it is in any way questionable. Id. We are ultimately responsible for making the final determination regarding an individual's eligibility for the benefit sought; the submission of expert opinion letters is not presumptive evidence of eligibility. Id. Here the advisory opinion is of little probative value as Dr. I evaluation repeatedly makes conclusory statements on national importance without sufficient basis. First, he generally discusses the aims of the business and its financial projections. He summarily concludes that the financial 5 While we may not discuss every document submitted, we have reviewed and considered each one. 6 We note that in response to the request for evidence (RFE), the Petitioner submitted investor intent letters that originated after the filing of the petition.Not eligible at the time of filing A petitioner must meet all of the eligibility requirements of the petition at the time of filing. 8 C.F.R. §§ 103.2(b)(I), (12). p. 4 projections mean the business is nationally important. However, he fails to illustrate how the financial projections as provided would have an impact on a nationally important level. Next, he examines the various ways the venture will operate in important fields. He further avers that the business will contribute to the success of small and medium businesses, enhance societal welfare, and is the subject of national initiatives as the company will teach safe driving tactics thereby reducing accidents. He concludes that as the business will involve important fields, it too is nationally important. These sections make presumptive conclusions without analysis and evidence to support them. Additionally, the arguments ignore the requirements we set forth in Dhanasar. It is not the importance of the field that determines an endeavor's national importance, but rather how the specific endeavor will impact the field on a level commensurate with national importance. See Dhanasar, 26 l&N Dec. at 889. In this lengthy discussion, Dr.I !alleges that the company will have a far-reaching influence, but never explains how the Petitioner's proposed endeavor impacts the driving safety field on a nationally important level or how his endeavor would have an economic impact on par with national importance. From the evidence provided, the Petitioner has not established that his proposed endeavor will have a national impact on the driving training industry.
Moreover, he has not demonstrated that the specific endeavor he proposes to undertake has significant potential to employ U.S. workers or otherwise offers substantial positive economic effects for our nation.Job creation or economic claims unsupported An endeavor that has significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area, may have national importance. Dhanasar, 26 l&N Dec. at 890. Here, however, the business plan does not adequately support these projections of job and revenue creation.Plan or projections not corroborated
The Petitioner's business plan anticipates that the Petitioner's company will reach a total of 13 employees in year five. He also projected generating $633,600 in revenue in year one, increasing to $1,858,560 in year five. Nonetheless, 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. The preponderance of the evidence standard requires that the evidence demonstrate that the petitioner's claim is probably true, where the determination of truth is made based on the factual circumstances of each individual case. Matter of Chawathe, 25 l&N Dec. at 376. In evaluating the evidence, truth is to be determined not by the quantity of evidence alone but by its quality. See id. Here, the lack of supporting details detracts from the credibility and probative value of the business plan.
Even if we assumed all the projections in the business plan were accurate, the record lacks evidence demonstrating that its impact would be nationally important. The Petitioner's business plan in support of the petition contends that his business is nationally important "due to the contribution it will make to the local market, empowering companies, and American society to prosper the national economy." Yet the Petitioner did not provide documentation to support these statements that the company will result in substantial economic growth on the level of national importance. The record does not illustrate how creating 13 jobs and generating revenue as projected in the business plan, would have substantial positive economic effects on the level of national importance. The Petitioner must support assertions with relevant, probative, and credible evidence. See Matter of Chawathe, 25 l&N Dec. at 376. The Petitioner has therefore not provided sufficient information and evidence to demonstrate the prospective impact of his proposed endeavor rises to the level of national importance. Accordingly, p. 5 the record does not sufficiently demonstrate that the Petitioner's proposed endeavor is of national importance.
In the same way that Dhanasar finds that a classroom teacher's proposed endeavor is not nationally important because it will not impact the field more broadly, we find that the record does not establish that the Petitioner's proposed endeavor will sufficiently extend beyond his clients to affect the region or nation more broadly. 26 l&N Dec. at 893.Proposed endeavor too vague He has not shown that benefits to the regional or national economy resulting from the Petitioner's undertaking would reach the level of "substantial positive economic effects" contemplated by Dhanasar. Id. at 890.
Accordingly, we find that the record does not demonstrate national importance of the Petitioner's proposed endeavor as required by the first prong of the Dhanasar precedent decision and the Petitioner has not demonstrated eligibility for a national interest waiver. As the identified reasons for dismissal are dispositive ofthe Petitioner's appeal, we decline to reach and hereby reserve remaining arguments concerning eligibility under the Dhanasar framework. See Bagamasbad, 429 U.S. at 25 (stating that "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 of L-A-C-, 26 l&N Dec. at 526 n.7 (declining to reach alternative issues on appeal where an applicant is otherwise ineligible).
Conclusion
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, we find that he has not established he is eligible for or otherwise merits a national interest waiver as a matter of discretion.
ORDER: The appeal is dismissed.