Date of Decision: November 30, 2023
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: Business Management
Petitioner Information
Profession: Business Management Specialist
Field: Business Management
Nationality: Not Specified
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Remanded
Evidentiary Criteria Analysis
Criteria Met:
- Advanced Degree: The petitioner’s qualification for an advanced degree as a business management specialist was acknowledged, but the final determination on this criterion was not made by the Director.
Criteria Not Met:
- National Importance: The Director initially found that the petitioner did not sufficiently demonstrate that his proposed endeavor in business management consultancy has national importance. However, this decision was based on incorrect assumptions about material changes to the proposed endeavor and lacked sufficient analysis of the evidence provided.
Key Points from the Decision
Proposed Endeavor:
The petitioner proposed to work as a business management specialist, offering consultancy services through his newly established firm in Florida. His focus was on improving the business prospects of U.S. companies in the commercial, financial, and energy sectors by providing high-level decision-making support and strategies for sustainable growth.
Substantial Merit and National Importance:
The Director’s decision initially concluded that the petitioner’s proposed endeavor did not have substantial merit or national importance. However, this conclusion was based on a factual error that misinterpreted the petitioner’s consistent focus on business consultancy. The Administrative Appeals Office (AAO) recognized this error and remanded the case for a proper analysis of the petitioner’s evidence in support of the first and second prongs of the Dhanasar framework.
Well Positioned to Advance the Proposed Endeavor:
The Director’s decision did not adequately address whether the petitioner was well-positioned to advance his proposed endeavor. The AAO instructed the Director to review the petitioner’s qualifications and business plan in the context of the second prong of the Dhanasar framework, which assesses whether the petitioner is likely to succeed in advancing his proposed endeavor.
On Balance, It Would Be Beneficial to Waive the Requirements of the Labor Certification Process:
The Director’s decision did not properly analyze this aspect. The AAO emphasized the need for a comprehensive review of the petitioner’s evidence and arguments to determine if waiving the job offer requirement would benefit the United States.
Supporting Evidence:
The petitioner provided a business plan, articles of organization, and a statement of his professional experience and proposed endeavor. The AAO noted that the Director’s rejection of these documents based on an incorrect assumption of material changes was unfounded.
Inconsistencies in Proposed Endeavor:
The AAO found that the Director’s decision contained errors, such as referencing incorrect facts about the petitioner’s proposed endeavor. This necessitated a remand for a thorough review and accurate analysis of the petitioner’s eligibility.
Supporting Documentation
Letters of Intent: Not discussed
Business Plan: Provided, but incorrectly dismissed by the Director based on an erroneous assumption
Advisory Letter: Not discussed
Other Supporting Documentation: Included articles of organization and statements regarding the petitioner’s professional experience and proposed endeavor, which were insufficiently analyzed by the Director.
Conclusion
Final Determination: The Director’s decision was withdrawn, and the case was remanded for further review.
Reasoning: The Director’s decision was based on incorrect factual assumptions and lacked sufficient analysis of the petitioner’s evidence. The case was remanded to ensure a proper evaluation of the petitioner’s eligibility under the Dhanasar framework.
Download the Full Petition Review Here
