dismissed EB-2 NIW Case: Business Management

U.S. Citizenship 
and Immigration 
Services 
In Re: 25759536 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAR. 15, 2023 
Form I-140, Immigrant Petition for Alien Worker (National Interest Waiver) 
The Petitioner, a general and operations manager, seeks classification as a member of the professions 
holding an advanced degree. 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 I&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. 8 84 (AAO 2016) . 1 Dhanasar states that, after a petitioner has established 
1 In announcing this new framework, we vacatedourpriorprecedent decision,MatteroJNew York State Dep 't oJTransp., 
22 I&NDec . 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
eligibility for EB-2 classification, USCIS may, as a matter of discretion, grant a national interest 
waiver if the petitioner demonstrates: (I) 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 off er and thus of a labor certification. 
The first prong, substantial merit and national impmiance, focuses on the specific endeavor that the 
non citizen 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 noncitizen. 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 
United States to waive the requirements of a job offer and thus of a labor certification. In performing 
this analysis, USCIS may evaluate factors such as: whether, in light of the nature of the noncitizen's 
qualifications or the proposed endeavor, it would be impractical either for the noncitizen to secure a 
job off er or for the petitioner to obtain a labor certification; whether,even assumingthatotherqualified 
U.S. workers are available, the United States would still benefit from the noncitizen's contributions; 
and whether the national interest in the noncitizen'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 to waive the requirements of a job 
offer and thus of a labor certification. 2 
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. 
Initially, the Petitioner described the endeavor as a plan "to continue using my skills, expertise, and 
knowledge to work as a [g]eneral [o ]perations [m]anager for U.S. institutions, as well as for foreign 
entities looking to expand their wealth and business portfolio in the United States." The Petitioner 
also generally asserted that his "efforts will ultimately result in increased business revenue, 
employment of U.S. workers, and contribution to the country's gross domestic product." 
2 SccDhanasar, 26l&NDec. at 888-91, for elaboration onthesethreeprongs. 
2 
In a statement dated June 2020, the Petitioner specifically discussed his "role as [b ]usiness [ c ]onsultant 
at _________ a business consulting company operating inl I Florida, with a 
plan "to launch a new consulting firm in another U.S. state." The Petitioner stated, "Should the present 
petition be approved, I will expand my roles at and I will be in charge of 
managing and setting up the firm's new U.S. location." He noted that, while working as a business 
consultant atl I his "clients have been able to commence operations and 
generate jobs across several U.S. regions, including Texas, Minnesota, Iowa, Delaware, Florida, [and] 
Massachusetts, among others." The Petitioner referenced a pending client project that is "due to 
generate up to one hundred (100) direct jobs for U.S. workers." The Petitioner further stated, "Apart 
from my roles at I I will also offer my skills on a consultancy basis, in which 
capacity I will support U.S. businesses seeking to expand their clientele and business into diverse 
economic regions, such Latin [sic] America, as well as foreign companies and/or investors wishing to 
introduce their products, services, wealth, and business to the U.S. market." He also asserted that, as 
a consultant, he will "off er external management services to small and medium-sized companies in 
the U.S. which require the services and management of an operations executive, but are unable to 
employ someone in that role on a full-time basis due to their internal structure or the current financial 
condition of their business." The Petitioner did not initially indicate that he planned to found a new 
business or hire workers for such a new business; instead, he appeared to plan to work as a freelance 
consultant in addition to setting up a new location. 
In response to the Director's request for evidence (RFE), the Petitioner asserted, for the first time, that 
he lans"tocontinuedevelo in ab usiness d evelo mentand i nvestment[c]onsulting[c]ompany, 
'------------------------------' in the state of Florida." The 
Petitioner also submitted a business plan for his new business dated August 2022, after the 2020 
petition filing date, indicating that it would employ various numbers of workers within the first five 
years of operations. We note, however, that the record also contains a copy of a certificate from the 
Florida Secretary of State, indicating that the Petitioner filed articles of organization for his business 
in July 2020, as of the petition filing date. The record does not clarify why the Petitioner initially 
omitted reference to the business he had already founded in his description of the endeavor submitted 
at the time of filing. 
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 )(1). 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 T&N 
Dec. 169, 176 (Assoc. Comm'r 1998). 
Whether the Petitioner planned to found a new company and hire new workers is material to the first 
Dhanasar prong because it contemplates endeavors that have broader implications, such as 
"significant potential to employ U.S. workers or ... other substantial positive economic effects, 
particularly in an economically depressed area." Dhanasar, 26 I&N Dec. at 889-90. Because the 
Petitioner asserted, for the first time, in response to the Director's RFE that hep lans to found a new 
company and hire new workers, rather than to work as a freelance consultant in addition to his position 
at I the plan to found a new business and hire new workers presents a new 
set of facts that cannot establish eligibility. See 8 C.F.R. § 103.2(b )(l); see also Matter of Katigbak, 
3 
14 I&N Dec. at 49; Matter of Izummi, 22 I&N Dec. at 176. Because the Petitioner's plan to found a 
new business and hire new workers cannot establish eligibility, we need not address it further. 
We note, however, that the business plan presents inconsistent or implausible information about the 
number of employees to be hired, the work location, and the company's financial viability, which 
would reduce its credibility even if it could establish eligibility, which it cannot. See Matter of Ho, 
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.). For 
example, in section 1.6 of the business plan, the table of jobs created planned for the first five years 
of operation (beginning in 2023) indicates that the company would create 24 new positions during that 
period. However, the table of "Positions Creation" in section 3.8 provides a total of 26 paid 
"professionals who will be working at The Company in the next 5 years of operation." The business 
plan's inconsistent infonnation regarding the number of positions to be created raises questions 
regarding the accuracy of the plan in general. See id. The business plan also indicates thatthe business 
"is currently operating in I I but it will expand and open its headquarters inl I 
Florida." Publicly available information provided by the Florida Secretary of State indicates that, in 
2023, the business's principal address remains a private residence inl l Florida. The 
record does not reconcile whether the Petitioner intends for up to 26 workers to work at the same 
private residence, nor does it reconcile how doing so would be feasible. See id. Additionally, the 
information provided in the business plan undermines the company's financial viability. Section 1.3 
specifically identifies the Petitioner as the company's owner and general manager. The tab le in section 
3.8 indicates that the full-time general manager's annual wage is $100,000, which is consistent with 
the position wage provided in the Form 1-140, Immigrant Petition for Alien Worker. Section 3.3 of 
the business plan states, "The next investment, made by the founding shareholders, will be in the order 
of US$100,000.00, more than sufficient to develop its activities and operations." However, the 
Petitioner, a "90% participant in capital," would essentially be forfeiting his annual wage reported in 
the business plan in order to make the stated investment "to develop its activities and operations." The 
ratio of the Petitioner's annual wage from the company to his capital reinvestment in that company 
raises questions regarding the company's financial viability. See id. Therefore, even if the business 
plan could establish eligibility, which again it cannot, it would undermine its own reliability and 
sufficiency, and that of other evidence in the record. See id. 
The Petitioner's RFE response also presents information that directly conflicts with the description of 
the proposed endeavor submitted at the time of filing. The RFE response business plan indicates that 
the Petitioner worked as a business consultant forl I from "July 2018- June 
2020," ending his employment at that company before the petition filing date. Therefore, the record 
does not support the Petitioner's assertion at the time of filing that he "will expand [his] roles at 
I I and [he] will be in charge of managing and setting up the firm's new U.S. 
location." Additionally, the Petitioner's discussion of his work at I. and its 
consequences for his clients is inapposite to the instant petition because the RFE response indicates 
that, before filing the petition, the Petitioner ceased working for and 
providing such consequences to its clients. A petitioner must establish eligibility for a requested 
benefit at the time of filing the benefit request, and a petitioner must continue to be eligible through 
adjudication. See 8 C.F.R. § 103 .2(b )(1 ). Because the RFE response indicates that the Petitioner 
ceased working forl I prior to filing the petition, information regarding his 
4 
work for that company and the consequences for its clients cannot establish eligibility under the first 
Dhanasar prong. See id; see also Dhanasar, 26 I&N Dec. at 889-90. 
In the decision, the Director noted that, although the Petitioner founded his company before the 
petition filing date, he "made no mention of this entrepreneurial venture" before the RFE response. 
As discussed above, the Director fmihernoted that the RFE response "shows that [the Petitioner's] 
employment withl ended in June 2020, which make[s] his initially stated 
intentions to continue working with that company at the time of filing false." The Director noted that 
the material changes to his planned endeavor-cessation of stated employment and a previously 
undisclosed plan to found a company and hire workers-cannot establish eligibility and found 
"sufficient reason to conclude that the prong relating to national importance has not been met." The 
Director further noted inconsistent or unsupported information submitted in the RFE response. 
On appeal, the Petitioner asserts that his proposed endeavor has not changed since the time of filing. 
Specifically, he asserts that he "intends to work in the United States as a [g]eneral and [o]perational 
[ m ]anager while also continuing to expand his business, I I He adds that 
"wanting to further expand his business does not deviate from this plan" and that he "will be employing 
the same skills to fmiher the same proposed endeavor while simultaneously adding an extra layer of 
value by continuing to provide these same benefits to the US economy through his business." The 
Petitioner further references general information about operations management published by Inc. 
Magazine, Harvard Business Review, and Entrepreneur Magazine. However, none of the publications 
reference the Petitioner, nor do they address how his specific endeavor may have national importance. 
The Petitioner summarizes his prior work experience and asserts that his endeavor has national 
importance because it "aligns with the national interests of the U.S. in improving marketing in the 
business sector." 
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 improvedmanufacturingprocesses 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. 
The record does not support the Petitioner's characterization on appeal that the proposed endeavor 
remained unchanged since the time of filing through adjudication. As discussed above, the Petitioner 
submitted a statement in support of the petition that specifically asserted, "Should the present petition 
be approved, I will expand my roles at and I I will be in charge of managing 
and setting up the firm's new U.S. location." However, the RFE response indicated that the 
Petitioner's employment at ceasedbeforethe petition filing date. Therefore, 
the record does not support the conclusion that the specific employment plans that the Petitioner 
provided at the time of filing were factually possible as of the petition filing date. The revelation, 
provided in response to the RFE, that the Petitioner's plans to expand his roles at I 
Inc., and manage and set up a new U.S. location for that company were not factually possible presents 
a new set of facts material to the first Dhanasar prong, because managing and setting up a new office 
5 
relate to whether a proposed endeavor may have national importance. See 8 C.F.R. § 103.2(b )(1 ); see 
alsoMatterofKatigbak, 14 I&NDec. at49;Matteroflzummi,22 I&NDec. at l 76;Dhanasar,26 I&N 
Dec. at 889-90. Similarly, the Petitioner's cessation of work at presents a 
new set of facts regarding the consequences of his consulting work for his clients at that company 
because the record does not establish that those clients would follow him to his own company. See id. 
We acknowledge that the initial description of the proposed endeavor also indicated, "Apart from my 
roles atl I, I will also off er my skills on a consultancy basis, in which capacity 
I will support U.S. businesses seeking to expand their clientele and business into diverse economic 
regions, such Latin [sic] America, as well as foreign companies and/or investors wishing to introduce 
their products, services, wealth, and business to the U.S. market." The Petitioner also asserted that, as 
a consultant, he will "offeer external management services to small and medium-sized companies in 
the U.S. which require the services and management of an operations executive, but are unable to 
employ someone in that role on a full-time basis due to their internal structure or the current financial 
condition of their business." However, the Petitioner did not initially indicate that he planned to found 
a new business or hire workers for such a new business; instead, he appeared to plan to work as a 
freelance consultant. A plan to work as a freelance consultant is materially different from founding a 
new consulting company and hiring workers because of the potential broader implications of the latter. 
Whether the Petitioner would utilize the same set of business consul tin and mana erial skills at either 
does not fully address the consequences of founding a new business and hiring employees for that 
business under the Petitioner's sole direction, rather than working under the direction ofl I 
ownership and management structure. The Petitioner stated for the first time in 
response to the RFE that he planned to found his own company and hire workers, again presenting a 
new set of facts material to the first Dhanasar prong not addressed at the time of filing the petition. 
See id. For the reasons discussed above, the record supports the Director's conclusion that the 
Petitioner materiall chan ed the ro osed endeavor and that the information re ardin 
~-----------------------------------__.-annot 
establish eligibility. See id. 
The Petitioner's reference on appeal to his prior work experience as a factor in the proposed endeavor's 
national importance is misplaced. A petitioner's work experience relates to the second Dhanasar 
prong-whether an individual is well positioned to advance a proposed endeavor-but it does not 
relate to the first Dhanasar prong-whether the specific endeavor an individual proposes to undertake 
will have broader implications or other substantial positive economic effects. Dhanasar, 26 I&N Dec. 
at 888-91. In tum, the Petitioner's reference on appeal to "the national interests of the U.S. in 
improvingmarketingin the business sector" is misplaced. Again, 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 id. at 889. General assertions regarding an industry that do 
not address how a specific endeavor will have broader implications or other substantial positive 
economic effects do not establish how a proposed endeavor may have national importance. See id. 
The record does not establish that the proposed endeavor will have national importance. For the 
reasons discussed above, the Petitioner's RFE response presented a new set of material facts-and 
established that significant aspects of his initial proposed endeavor were not factually possible-that 
6 
cannot establish eligibility. See 8 C.F.R. § 103.2(b )(1); see also Matter ofKatigbak, 14 I&N Dec. at 
49; Matter of Izummi, 22 I&N Dec. at 176. Instead, the Petitioner's initial proposed endeavor 
description asserted that he will "continue using my skills, expertise, and knowledge to work as a 
[g]eneral [ o ]perations [ m ]anager for U.S. institutions, as well as for foreign entities looking to expand 
their wealth and business portfolio in the United States." The proposed endeavor appears to benefit 
the Petitioner's potential employer(s) and the clients, customers, etc., of the Petitioner's potential 
employer(s ); however, the record does not establish how the Petitioner's work as a general operations 
manager will have "national or even global implications within a particular field, such as those 
resulting from certain improved manufacturing processes or medical advances" or 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, he 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 (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 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). 
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. 
7