dismissed EB-2 NIW Case: Civil Engineering

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: AUG. 07, 2024 In Re: 33102586 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a civil engineer, seeks employment-based second preference (EB-2) immigrant 
classification as a member of the professions holding an advanced degree, 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 Petitioner did not 
establish that the Petitioner had established eligibility for a national interest waiver. We dismissed a 
subsequent appeal. The matter is now before us on combined motions to reopen and reconsider. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). Upon review, we will dismiss the 
motion. 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). Our review on motion is limited to reviewing our latest decision. 8 C.F.R. 
§ 103.5(a)(l)(ii). We may grant motions that satisfy these requirements and demonstrate eligibility 
for the requested benefit. See Matter of Coelho, 20 I&N Dec. 464, 473 (BIA 1992) (requiring that 
new evidence have the potential to change the outcome). 
A motion to reconsider must establish that our prior decision was based on an incorrect application of 
law or policy and that the decision was incorrect based on the evidence in the record of proceedings 
at the time of the decision. 8 C.F.R. § 103.5(a)(3). Our review on motion is limited to reviewing our 
latest decision. 8 C.F.R. § 103.5(a)(l)(ii) . We may grant motions that satisfy these requirements and 
demonstrate eligibility for the requested benefit. 
On motion, the Petitioner refers to a statement outlining the Petitioner's _______ 
methodology, which was included with a subsequently-filed EB-2 petition. The Petitioner asserts that 
this documentation establishes eligibility, as it demonstrates that he was eligible for a national interest 
waiver at the time of initial filing. The Petitioner also contests the correctness of our prior decision, 
arguing that we incorrectly determined that the Petitioner had made a material change to his petition; 
the Petitioner reiterates that the inclusion of a business plan and the focus on forming a construction 
company laid out in response to the Director's RFE were not a material change to his proposed 
endeavor. He argues that "changes in nationally important employment are possible and permissible 
within a same or similar field" and contends that our prior decision erred by analyzing the facts and 
law in a way that was incomplete. The Petitioner cites to an adjudication letter from 1995 and to 
regulatory language in support of these assertions. 
The Petitioner also contends that the "only 'change' can more appropriately be termed an 'expansion' 
upon his stated (and already nationally important) intentions" and that his registration of a business 
was merely a means by which to advance his proposed endeavor. He asserts that registration of a 
business is neither a required piece of evidence nor inconsistent with the originally formulated 
proposed endeavor. He further contends that, because registering a business is not a regulatory 
requirement, it cannot be considered an attempt to overcome a disqualifying deficiency in the original 
filing. 
After review of the motion, we affirm our prior decision finding the Petitioner ineligible for a national 
interest waiver. On appeal, we limited our analysis of the Petitioner's proposed endeavor to the 
information included with the original Petition. After assessing this evidence, we determined that the 
Petitioner had not demonstrated that his proposed endeavor had prospective national importance as 
required by prong one of our precedent decision in Matter ofDhanasar, 26 I&N Dec. 884 (2016). The 
arguments raised on motion are insufficient to overcome the conclusions reached on appeal. 
For clarity, we will address the Petitioner's contention that we unduly limited the analysis to the 
evidence originally submitted and by not considering the additional evidence submitted in response to 
the RFE. The Petitioner is correct that registering a business is not a filing requirement. However, 
our analysis of the change in endeavor was not based solely on the registration of a business. Rather, 
our decision noted that the "Petitioner's plans to establish and direct a new company formed after the 
filing date of his petition cannot retroactively establish eligibility." We noted that this changed the 
fundamental character of the endeavor - the Petitioner initially proposed to work as a civil engineer 
within a U.S. company and did not mention starting a company, acting a director, or performing duties 
tied to the direction of a company. 
The authorities offered by the Petitioner relating to changes of endeavor are inapposite. The first, an 
adjudication letter authored in 1995, indicates that a petition based on a national interest waiver for 
"the alien's contributions to an industry" may be valid if "another employer can utilize" it. See 72 
NO. 36 Interpreter Releases 1274. This adjudicatory opinion is not related to the Petitioner's case, 
and the Petitioner has not argued that this letter is binding on subsequent adjudications. As we noted 
on appeal, this petition is governed by our precedent decision in Matter of Dhanasar, 26 I&N Dec. 
884, 889 (AAO 2016). The Petitioner has not explained to what extent, if any, this correspondence 
should impact our previous analysis of the material changes to the Petitioner's endeavor. 
The Petitioner next argues that "an employer need not even be involved and a switch from one 
nationally important endeavor in a field to another nationally important endeavor in the same or similar 
field is permissible." The Petitioner contends that the EB-2 program only requires candidates to 
"intend to pursue work in the U.S. in the area of expertise." The Petitioner cites to a comment on a 
final rule clarifying whether individuals "granted EB-2 national interest waivers would be required to 
2 
file Supplement J." Retention of EB-I, EB-2, and EB-3 Immigrant Workers and Program 
Improvements Affecting High-Skilled Nonimmigrant Workers, 81 FR 82398-01. This comment 
clarifies the process for national interest waiver recipients seeking to adjust status: 
An individual classified as an alien of extraordinary ability or granted a national 
interest waiver is not required to demonstrate a job offer at the time of adjudication of 
the Form I-485 application and therefore would not need to submit Supplement J 
( although they are not precluded from doing so). However, USCIS may inquire whether 
such applicants are continuing to work in the area or field that forms the basis of their 
immigrant visa eligibility. 
Id. (emphasis added). 1 
The Petitioner has not been granted a national interest waiver; he is subject to an initial determination 
of eligibility. Dhanasar does not analyze whether an individual's area or field of work is nationally 
important. Rather, the decision focuses on "the specific endeavor that the foreign national proposes 
to undertake." Id. at 889. Dhanasar clarifies that meritorious endeavors may be "demonstrated in a 
range of areas," but nonetheless makes the final determination of eligibility by evaluating the specifics 
of the proposed endeavor, rather than evaluating the field or area. Id. The Petitioner has not 
established that our application of the Dhanasar framework, as applied to the original proposed 
endeavor, was in error. 
Although the Petitioner has submitted additional evidence in support of the motion to reopen, the 
Petitioner has not established eligibility; the evidence cited by the Petitioner was not included within 
the scope of the original proposed endeavor. On motion to reconsider, the Petitioner has not 
established that our previous decision was based on an incorrect application of law or policy at the 
time we issued our decision. Therefore, the motion will be dismissed. 8 C.F.R. § 103.5(a)(4). 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
1 We note that portions of the specific language proffered by the Petitioner could not be located in the final rule. However, 
we have included the language from the cited sections of the Federal Register. 
3