dismissed EB-2 NIW Case: Business Administration

U.S. Citizenship Non-Precedent Decision of the
and Immigration Administrative Appeals Office 
Services 
In Re: 26408267 Date: MAY 18, 2023 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a business administrator, seeks classification as an individual of exceptional ability in 
the sciences, arts, or business. 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). 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
demonstrate the Petitioner's eligibility for the requested national interest waiver. 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 afChawathe, 25 I&N Dec . 369, 375-76 (AAO 2010) . We review the questions in this matter 
de novo. Matter a/Christa's, Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
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 , under section 203(b )(2)(B)(i) of the Act. 
An advanced degree is any United States academic or professional degree or a foreign equivalent 
degree above that of a bachelor's degree. A United States bachelor's degree or foreign equivalent 
degree followed by five years of progressive experience in the specialty is the equivalent of a master's 
degree. 8 C.F.R. § 204.5(k)(2). 1 
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 
1 Although the Petitioner initially asserted that she is an individual of exceptional ability, as stated by the Director in the 
request for evidence, the record establishes that she is an advanced degree professional. 
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 
We will then conduct a final merits determination to determine whether the evidence in its totality 
shows that they are recognized as having a degree of expertise significantly above that ordinarily 
encountered in the field. 4 
Once a petitioner demonstrates eligibility as either a member of the professions holding an advanced 
degree or an individual of exceptional ability, they must then establish that they merit a discretionary 
waiver of the job offer requirement "in the national interest." Section 203(b )(2)(B)(i) of the Act. 
While neither the statute nor the pertinent regulations define the term "national interest," Matter of 
Dhanasar, 26 I&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 5, 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. 
As set forth in Dhanasar, a petitioner must identify the specific endeavor they propose to undertake. 
Id. at 889. In order to determine whether an individual qualifies for a national interest waiver, we 
must rely on the specific proposed endeavor to determine whether (1) it has both substantial merit and 
national importance and (2) they are well positioned to advance it. 
As explained by the Director, the Petitioner's proposed endeavor as a business administrator initially 
"focused on administrative services and facilities managers" and, in response to the request for 
evidence (RFE), "changed to financial manager." The decision informed the Petitioner that she (1) 
appeared to make material changes to her proposed endeavor in the RFE response and (2) must 
establish eligibility at the time of filing. 8 C.F.R. § 103.2(b)(l2); Matter ofKatigbak, 14 I&N Dec. 45, 
49 (Comm'r 1971). 
The purpose of an RFE is to elicit information that clarifies whether eligibility for the benefit sought has 
been established, as of the time the petition is filed. See 8 C.F.R. §§ 103.2(b)(l), 103.2(b)(8), 
103.2(b)(l2). 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). If significant, material changes are made to the initial request for approval, a petitioner 
must file a new petition rather than seek approval of a petition that is not supported by the facts in the 
record. A new set of facts regarding the proposed endeavor would be material to eligibility for a 
2 If these types of evidence do not readily apply to the individual's occupation, a petitioner may submit comparable 
evidence to establish their eligibility. 8 C.F.R. ~ 204.5(k)(3)(iii). 
3 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of aliens of 
exceptional ability. See generally, 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual. 
4 Contrary to counsel's implication on appeal, the Director did not conclude that the Petitioner is an individual of 
exceptional ability. 
5 See also Poursina v. USCJS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionmy in nature). 
2 
national interest waiver under Dhanasar's first and second prongs. See Michelin Tire Corp., 17 T&N 
Dec. at 248; see also Dhanasar, 26 I&N Dec. at 889-90. 
On appeal, the Petitioner does not dispute, or even address, the change in her proposed endeavor. 
Therefore, we deem this issue to be waived. See Matter ofR-A-M, 25 I&N Dec. 657, 658 n.2 (BIA 
2012) (stating that when a filing party fails to appeal an issue addressed in an adverse decision, that 
issue is waived); see also Sepulveda v. US. Att 'yGen., 401 F .3d 1226, 1228 n. 2 (11th Cir. 2005); 
Hristov v. Roark, No. 09-CV-27312011, 2011 WL 4711885 at *1, 9 (E.D.N.Y. Sept. 30, 2011) (finding 
the plaintiff's claims to be abandoned as he failed to raise them on appeal to the AAO). When an 
appellant fails to properly challenge one or more of the grounds upon which the Director based their 
conclusion, the filing party has abandoned any challenge of that ground or grounds, and it follows that 
the adverse determination will be affirmed. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 
680 (11th Cir. 2014); United States v. Cooper, No. 17-11548, 2019 WL 2414405, at *3 (11th Cir. June 
10, 2019). 
As we are unable to ascertain the Petitioner's specific proposed endeavor because she provided 
inconsistent information ( and did not address the issue on appeal), we cannot conclude that she has 
established its substantial merit and national importance or that she is well-positioned to advance it. 
Further, because the identified basis for denial is dispositive of the Petitioner's appeal, we decline to 
reach and hereby reserve the Petitioner's remaining appellate arguments. See INS v. Bagamasbad, 429 
U.S. 24, 25 (1976) (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 T&N Dec. 
516, 526 n. 7 (BIA 2015) ( declining to reach alternative issues on appeal where an applicant is 
otherwise ineligible). 
ORDER: The appeal is dismissed. 
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