dismissed EB-2 NIW Case: Business

U.S. Citizenship Non-Precedent Decision of the
and Immigration Administrative Appeals Office 
Services 
In Re: 26745077 Date : MAY 10, 2023 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a business analyst, seeks classification as a member of the professions holding an 
advanced degree. 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 of a 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 qualified 
for classification as a member of the professions holding an advanced degree but that the Petitioner 
had not established 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. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 I&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. 
I. 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. 
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, USCIS may, as a matter of discretion, grant a national interest 
waiver if the petitioner demonstrates: (1) that the noncitizen's proposed endeavor has both substantial 
merit and national importance; (2) that 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. 
See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
II. 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. 
For the reasons discussed below, the Petitioner has not established that a waiver of the requirement of 
a job offer is warranted. 
The record contains inconsistent regarding what the proposed endeavor would entail. Initially, the 
Petitioner stated that her "proposed endeavor in the United States will be to facilitate the development 
and execution ofU.S. companies' financial and accounting plans, including my own company's future 
entrepreneurial endeavors." The Petitioner asserted in a letter dated December 7, 2020, that she 
"intend[ s] to continue supporting the financial and operations area to optimize resources through 
database analysis of each machine and grow professionally" with her employer, _____
I I a subsidiary of "a worldwide quality supplier ofreplacement Caterpillar and Komatsu 
parts." The Petitioner stated that she "act[s] as the Assistant Manager/Estimated Manager Assistant" 
for her employer and that she is "responsible for collecting and analyzing data, in order to estimate the 
time, money, materials, and labor required to manufacture boxes and labels." 
The Petitioner also submitted a business plan, generally dated 2020, for "a new concept of catering 
service, and event planning, based on a high-quality service and one stop shop solutions for households 
and corporate clients." The business plan states that it "will focus on household private parties, the 
1st largest in the industry, starting with equipment rental, setup preparation and event planning in the 
I area." More specifically, the plan states that "[t]he equipment rental will be the main product, 
followed by event planning and management." The plan further asserts that the company "will hire 
several jobs and boost the local food supply chain. The company has plans to expand as a franchise 
with potential to expand to other states." The staff hiring plan section of the business plan indicates 
that the company will employ three workers-a waitress, a sound and light technician, and a "general 
staff'' position-in the first year; in the second year the company will hire a "CEO," an event planner, 
and an additional waitress in the second year; and in the third through fifth years the company will 
hire additional waitresses, sound and light technicians, and "general staff'' positions for a total of 29 
employees. 
In response to the Director's request for evidence (RFE), the Petitioner provided information that 
directly conflicts with statements submitted in support of the Form I-140, Immigrant Petition for Alien 
Workers, filed in January 2021. In the RFE response, the Petitioner stated that she "worked for 
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serving as an Assistant Manager Estimated Manager Assistant ... [f]rom 
February 2020 until December 2020," prior to the petition filing date in 2021, and that I I 
I I eventually rehired her as a financial and administrative consultant in July 2022. 
However, the Petitioner's resume submitted with the Form I-140 in January 2021 stated that she 
worked as an "Assistant Manager Estimated Manager Assitant [sic]" for I II f'2020-currently." Similarly, the Petitioner's letter dated December 2020, submitted in support 
of the petition in January 2021, indicated that she was currently employed by
I I where she "act[s] as the Assistant Manager/Estimated Manager Assistant." The 
Petitioner's unresolved inconsistent statements in the record regarding her employment history and 
current employer, especially because the initial description of the proposed endeavor specified 
working for that particular employer, casts doubt on the veracity of her statements in the record. See 
Matter ofHo, 19 I&N Dec. 582,591 (BIA 1988) (doubt cast on any aspect of a petitioner's proof may 
undermine the reliability and sufficiency of the remaining evidence offered in support of the visa 
petition). 
Relatedly, the Petitioner revised her description of the proposed endeavor in response to the Director's 
RFE, indicating that her "overall proposed endeavor in the United States is to offer my expertise and 
use my accounting, business management, business development, financial management, and financial 
administration skills and knowledge, gained through my professional experience to develop my 
business ... providing catering and event planning services," no longer stating that the proposed 
endeavor entails supporting the financial operations of I 
Despite narrowing the proposed endeavor to operating her own catering and event planning service 
company in response to the RFE, the Petitioner also submitted letters of intent from multiple 
companies that appear to be unrelated to the proposed catering and event planning endeavor. The RFE 
response includes a letter from the manager ofl dated June 2022, confirming 
his "intent to contract [her] as soon as possible because she has experience in IFRS International 
Financial Reporting Standards, accounting standards, and financial reports used in most Latin 
American countries such as Colombia, Mexico, Ecuador, among others." The letter further stated, 
"Our company expansion needs to hire her services to achieve alliances and bring new investments 
from Latin America to our company." Likewise, the RFE response contains a letter from the manager 
of dated August 2022, confirming his "intent to work with [the 
Petitioner] and contract [her] services as a financial advisor to develop a business plan to grow my 
business." We acknowledge that the record contains a similar, third letter of intent; however, the letter 
does not clearly indicate the signatory's intent. The record does not reconcile why the Petitioner's 
catering and event planning endeavor in which "equipment rental will be the main product" with a 
"focus on household private parties" would involve providing financial consulting services to 
businesses. Again, the unresolved inconsistent information in the record regarding the nature of the 
proposed endeavor casts doubt on the veracity of the information in the record. See Matter of Ho, 
19 I&N Dec. at 591. 
The Petitioner also revised her business plan; however, the record contains information that 
undermines the plausibility of the business plan in the record. The RFE response contains copies of 
several documents from the State of Florida, Division of Corporations, indicating that the principal 
address of the Petitioner's catering and event planning company matches the address of the Petitioner's 
private residence as reported on the Form I-140. The revised business plan indicates that the 
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Petitioner's company will employ 17-not three-employees in the first year, growing to 98 
employees in the fifth year. The record, including both the original and revised business plans and 
bank statements corresponding to the Petitioner's business, does not provide any address other than 
the Petitioner's private residence for the Petitioner's business; however, the record does not reconcile 
how the Petitioner will employ 98 or even 17 workers at her private residence. The original and 
revised business plans also provide substantially differing wages for positions. In the original plan, 
sound and light technicians' wages are $37,678; however, in the revised business plan their wages are 
$72,459. In contrast, waitresses' wages dropped from $64,590 in the original plan to $50,164 in the 
revised plan. We further note that, although the revised business plan specifically states that the 
Petitioner "will work as the company's Chief Finance Officer (CFO)," the list of positions provided 
in the schedule of employees for the company's first five years excludes a CFO position for any of the 
company's 98 employees, or any of the 29 employees in the initial business plan. The unresolved 
inconsistent information in the record regarding the number of workers the Petitioner's company will 
employ-and the implausibility of that number of employees working at the Petitioner's private 
residence-in addition to the substantially differing wages for positions, and the internally inconsistent 
statements regarding the Petitioner's own role in her company, cast doubt on the veracity of the 
business plans specifically, and generally on the information in the record. See Matter ofHo, 19 I&N 
Dec. at 591. 
The Director concluded that "the [P]etitioner did not demonstrate that her business will impact the 
nation at a level commensurate with national importance." The Director noted that the Petitioner's 
business plan "fails to provide adequate information concerning how they made their projections 
regarding potential employees, revenue, and costs." The Director observed that "the [P]etitioner has 
not offered evidence to demonstrate that her undertaking would offer the Florida region or its 
population a substantial economic benefit through employment levels or foreign direct investment." 
The Director also concluded that the record "does not demonstrate how the [Petitioner's] specific 
endeavor stands to affect or advance the broader industry, or that it otherwise has wider implications 
in the field." The Director noted that, "[a]lthough [the Petitioner] may intend to expand the business, 
the record does not show that the prospective impact of the specific proposed endeavor has 
implications beyond the company's clients and employees, rising to the level of national importance." 
The Director further concluded that, in addition to not satisfying the first Dhanasar prong, the record 
does not satisfy the second and third prongs. See Dhanasar, 26 I&N Dec. at 888-91. 
On appeal, the Petitioner materially changes her description of her company, referring to it as "a 
financial and investment consulting and advisory company ... providing financial advisory, financial 
planning, strategic business planning, financial product development, catering and events planning 
services for U.S. businesses and individuals." The Petitioner also repeats information on appeal 
contained in her revised business plan regarding her company's hiring plan and revenue total 
expectation for a five-year period, and she asserts that she "will establish her company in Florida, an 
SBA HUBZone area that will help to fuel small business growth in historically underutilized business 
zones ... improving the wages and the working conditions for the U.S. workers, and helping the local 
community bring investments to the region." The Petitioner further discusses her prior work 
experience and generalized "submitted [i]ndustry [r ]eports and [ a ]rticles" in the record and she asserts 
that they establish the proposed endeavor's national importance. 
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In determining national importance, the relevant question is not the importance of the industry, field, 
or profession in which an individual will work; instead, to assess national importance, we focus on the 
"specific endeavor that the [noncitizen] proposes to undertake." See Dhanasar, 26 I&N Dec. at 889. 
Dhanasar provided examples of endeavors that may have national importance, as required by the first 
prong, having "national or even global implications within a particular field, such as those resulting 
from certain improved manufacturing processes or medical advances" and endeavors that have broader 
implications, such as "significant potential to employ U.S. workers or has other substantial positive 
economic effects, particularly in an economically depressed area." Id. at 889-90. 
We first note that the Petitioner's reference to her company on appeal as a "financial and investment 
consulting and advisory company," providing financial and investment consulting services in addition 
to catering and events planning services, presents a new set of facts that cannot establish eligibility. 
A petitioner must establish eligibility for the benefit it is seeking at the time the petition is filed. See 
8 C.F.R. § 103.2(b)(l). A visa petition may not be approved based on speculation of future eligibility 
or after a petitioner becomes eligible under a new set of facts. See Matter of Katigbak, 14 I&N 
Dec. 45, 49 (Reg'l Comm'r 1971). A petitioner may not make material changes to a petition in an 
effort to make a deficient petition conform to USCIS requirements. See Matter of Izummi, 22 I&N 
Dec. 169, 176 (Assoc. Comm'r 1998). The nature of the Petitioner's startup company is material to 
the first Dhanasar prong because it addresses the substance of her proposed endeavor, which in tum 
addresses whether the proposed endeavor may have national importance. See Dhanasar, 26 I&N Dec. 
at 888-89. Because neither the initial nor the revised business plans-or moreover the Petitioner's 
prior statements in the record-referred to her startup company as a "financial and investment 
consulting and advisory company," which she described instead as a "catering service, and event 
planning" company, her description of her company as such presents a new set of material facts that 
cannot establish eligibility. See 8 C.F.R. § 103.2(b)(l); Matter ofKatigbak, 14 I&N Dec. at 49; Matter 
ofIzummi, 22 I&N Dec. at 176. Because the Petitioner's reference to her company as a "financial and 
investment consulting and advisory company" cannot establish eligibility, we need not address the 
Petitioner's statements regarding her company as such further. 
We next note that the Petitioner's reference on appeal to the information in her revised business plan 
regarding her company's hiring plan and revenue total expectation for a five-year period bears minimal 
probative value. As discussed above, the Petitioner's initial and revised business plans present 
unresovled conflicting information regarding the number of workers the company would hire each 
year, the positions for which the workers would be hired, the wages the company would pay given 
positions, which in tum provides inconsistent information regarding the company's operating costs 
and its financial viability. The Petitioner neither addresses nor reconciles these inconsistencies on 
appeal; therefore, the business plans specifically, and the evidence in the record in general, bear 
reduced probative value. See Matter ofHo, 19 I&N Dec. at 591. Additionally, the Petitioner does not 
address on appeal the Director's observation that the Petitioner's business plan "fails to provide 
adequate information concerning how they made their projections regarding potential employees, 
revenue, and costs." Given these unresolved inconsistencies and unaddressed evidentiary flaws, the 
business plans the Petitioner references on appeal do not establish that the proposed endeavor has 
"national or even global implications within a particular field, such as those resulting from certain 
improved manufacturing processes or medical advances" and endeavors that have broader 
implications, such as "significant potential to employ U.S. workers or has other substantial positive 
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economic effects, particularly in an economically depressed area." See Dhanasar, 26 I&N Dec. at 
889-90. 
Although the Petitioner asserts on appeal that she "will establish her company in Florida, an SBA 
HUBZone area that will help to fuel small business growth in historically underutilized business zones 
... improving the wages and the working conditions for the U.S. workers, and helping the local 
community bring investments to the region," we note again that the business plans provide implausible 
information. Specifically, the revised business plan indicates that the Petitioner would employ 17 
workers in the first year, increasing employees each year thereafter; however, as discussed above, the 
principal address of the Petitioner's catering and event planning company matches the address of the 
Petitioner's private residence as reported on the Form I-140. The record does not reconcile how the 
Petitioner would employ 1 7 workers in her private residence, nor does it support her assertions on 
appeal that employing at least 1 7 workers in her residence would improve those individuals' working 
conditions. Additionally, although the Petitioner references her company fueling small business 
growth, as discussed above, the Petitioner's assertions on appeal that her catering and event planning 
service company would also provide financial and investment consulting services cannot establish 
eligibility. See 8 C.F.R. § 103.2(b)(l); Matter of Katigbak, 14 I&N Dec. at 49; Matter of Izummi, 
22 I&N Dec. at 176. 
Next, the Petitioner's reference on appeal to her prior work experience in the context of the first 
Dhanasar prong is misplaced. Although an individual's prior work experience is material to the 
second Dhanasar prong-whether an individual is well positioned to advance a proposed endeavor­
it is immaterial to the first Dhanasar prong-whether the specific proposed endeavor has both 
substantial merit and national importance. See Dhanasar, 26 I&N Dec. at 888-90. In tum, the 
Petitioner's reference on appeal to generalized industry reports and articles in the context of the first 
Dhanasar prong also is misplaced. The record does not contain-nor does the Petitioner identify on 
appeal-any particular industry report or article that identifies the Petitioner and her proposed 
endeavor, and that discusses how her endeavor may have national importance. See id. at 889-90. 
Considering the record in its entirety, the proposed endeavor appears to benefit the Petitioner, her 
company, and its clients. However, the record does not provide consistent, probative information that 
supports the conclusion that the proposed endeavor will have "national or even global implications 
within a particular field, such as those resulting from certain improved manufacturing processes or 
medical advances" and endeavors that have broader implications, such as "significant potential to 
employ U.S. workers or has other substantial positive economic effects, particularly in an 
economically depressed area." Id. at 889-90. 
In summation, the Petitioner has not established that the proposed endeavor has national importance, 
as required by the first Dhanasar prong; therefore, she is not eligible for a national interest waiver. 
We reserve our opinion regarding whether the record satisfies the second or third Dhanasar prong. 
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 of 
L-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). 
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III. CONCLUSION 
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, we 
conclude that the Petitioner has not established eligibility for, or otherwise merits, a national interest 
waiver as a matter of discretion. 
ORDER: The appeal is dismissed. 
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