dismissed EB-2 NIW Case: Education

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: DEC. 21, 2023 In Re: 29381594 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner seeks employment-based second preference (EB-2) immigrant classification as a 
member of the professions holding an advanced degree or as an individual of exceptional ability, as 
well as a national interest waiver of the job offer requirement attached to this EB-2 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 qualified 
for classification as a member of the professions holding an advanced degree, but that he had not 
established that a waiver of the required job offer, and thus of the labor certification, would be in the 
national interest. We dismissed the Petitioner's appeal. The matter is now before us on motion to 
reconsider. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). Upon review, we will dismiss the 
motion. 
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). Because the scope of a motion is limited to the 
prior decision, we will only review the latest decision in these proceedings. 8 C.F.R. § 103.5(a)(l)(i), 
(ii). We may grant motions that satisfy these requirements and demonstrate eligibility for the requested 
benefit. 
In our decision dismissing the appeal, we agreed with the Director that the Petitioner did not meet the 
fust prong of the analytical framework set forth in Matter ofDhanasar, 26 I&N Dec. 884, 889 (AAO 
2016). We explained that the Petitioner had not demonstrated the national importance of his proposed 
endeavor. 
On motion, the Petitioner asserts that we "erred in not considering information about the Petitioner's 
current position to illustrate the capacity in which he intends to work." Our appellate decision, 
however, specifically considered the Petitioner's initial statement, the information in the cover letter 
offered in response to the Director's request for evidence (RFE), the September 2022 "Supplemental 
Professional Declaration," and the July 20221 !business plan. We explained that 
the Petitioner's proposed operation of I I constituted a materially changed 
proposed endeavor. 1 Additionally, the July 2022 business plan for his company was developed after he 
filed the petition. 2 See 8 C.F.R. § 103.2(b)(l), (12). 
In addition, the Petitioner contends that we "applied a stricter standard of proof than permissible when 
evaluating the evidence ofrecord." Except where a different standard is specified by law, a petitioner 
must prove eligibility for the requested immigration benefit by a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. at 375-76. Under the preponderance of the evidence standard, the 
evidence must demonstrate that a petitioner's claim is "probably true." Id. at 376. Here, the Petitioner 
does not point to specific examples in our decision where we applied a stricter standard of proof. 
The Petitioner further argues that we "erred in not considering precedent decisions," but he mentions 
only Dhanasar. 3 He states: "As in Matter ofDhanasar, the Petitioner submitted a probative opinion 
letter from an expert holding a senior position in academia describing the importance of his proposed 
endeavor, and more broadly, the benefits of his work for the United States." In Dhanasar, "[t]he 
petitioner submitted probative expert letters from individuals holding senior positions in academia, 
government, and industry that describe the importance of hypersonic propulsion research as it relates 
to U.S. strategic interests." Id. at 892. In addition, the petitioner "provided media articles and other 
evidence documenting the interest of the House Committee on Armed Services in the development of 
1 With regard to his proposed endeavor, we noted that the Petitioner initially planned "to expand [his] programs to improve 
the American classroom and raise awareness of this teaching style through live performances for the whole family" and 
"to disseminMf this uew teaching stv]e ta i1fprove the lives of as many people as possible" without any mention of owning 
and operating.___________ _._ We also indicated that the Petitioner developed the business plan for his 
company after the Director issued the RFE. Although the record shows the Petitioner filed the articles of organization 
with the Florida S r f r xim tely three weeks prior to the filing of the petition, the Petitioner did not make 
a claim to operat_.______ ~------1 as part of his initial proposed endeavor. Instead, the Petitioner discussed the 
teaching and promoting ofhis _____ program rather than operating hisl !company , a 
materially changed proposed endeavor. The Petitioner must establish that all eligibility requirements for the immigration 
benefit have been satisfied at the time of filing. See 8 C.F.R. § 103.2(b)(l), (12). Further, a petition cannot be approved at 
a future date after the petitioner becomes eligible under a new set of facts. Matter of Izummi, 22 I&N Dec. 169, 175 
(Comrn'r 1988). That decision further provides, citing Matter ofBardouille, 18 I&N Dec. 114 (BIA 1981), that USCIS 
cannot "consider facts that come into being only subsequent to the filing of a petition." Id. at 176. Accordingly, we did 
not consider the Petitioner's materially changed proposed endJayor of operatjng! I. 
2 Even ifwe were to address the information in the Petitioner 's Ibusiness plan, he has not shown 
that the specific endeavor he proposes to undertake has significant potential to employ U.S. workers or otherwise offers 
substantial positive economic effects for our nation. Regarding future staffing, the business plan anticipates that his 
company would employ 5 personnel in year one, 8 in year two, 13 in year three, 19 in year four, and 25 in year five, but he did 
not elaborate on these projections or provide evidence supp011ing the need for these additional employees. In addition, his 
plan offers revenue projections of $292,000 in year one, $438,000 in year two, $670,140 in year three, $897,988 in year 
four, and $1 ,158,404 in year five, but he did not adequately explain how these sales forecasts were calculated. The 
Petitioner has not demonstrated that his company's future staffing levels and business activity stand to provide substantial 
economic benefits in Florida or any other region in the United States. While the Petitioner claims that his company has 
growth potential, he has not presented evidence indicating that the benefits to the regional or national economy resulting from 
his undertaking would reach the level of "substantial positive economic effects" contemplated by Dhanasar. Id. at 890. In 
addition, although the Petitioner asserts that his endeavor has "considerable potential to employ U.S. workers," he has not 
offered sufficient evidence that his endeavor offers Florida or any other U.S. region a substantial economic benefit through 
employment levels, tax revenue, or business activity. 
3 Our appellate decision specifically considered the Petitioner's eligibility under the first prong of the Dhanasar analytical 
framework. 
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hypersonic technologies and discussing the potential significance of U.S. advances in this area of 
research and development." Id. 
Here, the Petitioner submitted a "Written Advisory" from Dr. T-Z-, Professor of Education atl
I l in support of his national interest waiver. Dr. T-Z- asserted that the Petiti.....on_e_r_'s_, 
proposed work is of national importance based on a nationwide decline in foreign language instruction, 
a shortage of U.S. foreign language teachers, a demand for multilingual employees, the value of dual­
language and multicultural education, and the benefits of studying foreign languages. The issue here, 
however, is not the national importance of the field, industry, or profession in which the individual 
will work; instead we focus on the "the specific endeavor that the foreign national proposes to 
undertake." Id. at 889. While the advisory opinion cites to online material and news reports to 
establish the overall importance of foreign language instruction, it does not demonstrate how the 
Petitioner's specific endeavor as a Portuguese language educator and promoter of Brazilian culture 
rises to a level of national importance. The letter from Dr. T-Z- does not contain sufficient information 
and explanation, nor does the record include adequate corroborating evidence, to show that the 
Petitioner's specific proposed work offers broader implications in his field, enhancements to societal 
welfare, or substantial positive economic effects for our nation that rise to the level of national 
importance. 
To evaluate whether the Petitioner 's proposed endeavor satisfies the national importance requirement, 
we look to evidence documenting the "potential prospective impact" of his work. While the 
Petitioner's statements reflect his intention to provide valuable language instruction through music 
and storytelling, he has not offered sufficient information and evidence to demonstrate that the 
prospective impact of his proposed endeavor rises to the level of national importance. In Dhanasar, 
we determined that the petitioner's teaching activities did not rise to the level of having national 
importance because they would not impact his field more broadly. Id. at 893 . Here, the Petitioner has 
not shown that his proposed endeavor stands to sufficiently extend beyond the participants in his 
education programs to impact his field, societal welfare, or the U.S. economy more broadly at a level 
commensurate with national importance. 
The Petitioner has not demonstrated that our appellate decision was based on an incorrect application 
of law or USCIS policy and that our decision was incorrect based on the evidence in the record at the 
time of the decision. Because the Petitioner has not established that we erred as a matter of law or 
USCIS policy in our decision, the motion will be dismissed. 8 C.F.R. § 103.5(a)(4). The Petitioner's 
appeal therefore remains dismissed, and his underlying petition remains denied. 
ORDER: The motion to reconsider is dismissed. 
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