dismissed EB-2 NIW Case: Environmental Compliance

U.S. Citizenship Non-Precedent Decision of the
and Immigration Administrative Appeals Office 
Services 
In Re: 26926483 Date: MAY 18, 2023 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an environmental compliance inspector, 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. § l l 53(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. § l l 53(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 Christa'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. 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. 
Initially, the Petitioner summarized his academic and prior employment experience, and he stated that 
he "realized that my academic background and professional experience could be of interest to the 
United States of America, according to the requirements by USCIS." However, the Petitioner did not 
initially describe what his proposed, prospective endeavor would entail. 
The Director sent the Petitioner a request for evidence (RFE) to inform the Petitioner, in relevant part, 
that the documents he sent in support of his petition "describe [his] experience rather than state what 
[his] proposed endeavor is" and that "letters of recommendation provided appear to indicate that [his] 
proposed endeavor is a job-hunt." Accordingly, the Director requested evidence of what the 
Petitioner's proposed endeavor is, and further evidence that he satisfies the Dhanasar criteria. 
In response to the Director's RFE, the Petitioner submitted, in relevant part, a business plan dated 
August 2022, which indicates that the proposed endeavor is a plan "to establish and develop a new 
U.S.-based [c]ompany that will primarily specialize in environmental consulting, environmental 
inspections and waste disposal advisory services ... based inl IFlorida." The majority of the 
business plan reiterates the Petitioner's academic and prior employment experience, and it provides 
generalized information about the environmental consulting industry. However, the business plan 
states that the Petitioner will "provide precise advice and help his clients identify and implement 
effective waste storage, disposal, recovery, collection and sanitary landfill treatment and management 
methodologies and practices." The business plan further states that the Petitioner "will prepare and 
provide related reviews, updates and reports on conducted environmental inspections and 
investigations in reference to aforementioned practices and landfills to the American institutions and 
companies interested in hiring [his company's] professional services." The business plan asserts that 
the Petitioner will work as the company's chief executive officer and that he intends to hire a total of 
11 other workers within the company's first five years of operations, including environmental 
management consultants, environmental engineers, and environmental planning specialists. The 
business plan anticipates $460,000 in revenue with $31,745 in net profit in the first year, increasing to 
$1,413,400 in revenue with $146,989 in net profit in the fifth year. 
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The Director acknowledged that the record contains the Petitioner's work history, letters of 
recommendation, and the business plan; however, the Director concluded that the record "is 
insufficient to establish that his proposed endeavor would have national importance or sufficiently 
extend beyond his employer and the corporate clients his work will serve." The Director also 
acknowledged the business plan's anticipation of 12 total employees, including the Petitioner, and an 
expected revenue of $1,413,400 in revenue by the company's fifth year of operation; however, the 
Director noted that the record "did not detail the potential market or client interests in the proposed 
consulting services" to substantiate the business plan's growth expectations. Ultimately, the Director 
concluded that the record "does not demonstrate that the proposed endeavor offers benefits which 
extend beyond potential clients to impact [the Petitioner's] field" and thus did not establish that the 
proposed endeavor will have national importance, as required by the first Dhanasar prong. See 
Dhanasar, 26 I&N Dec. at 889-90. The Director further concluded that the record did not establish 
the proposed endeavor has substantial merit, also required by the first Dhanasar prong, and that it did 
not satisfy the second and third Dhanasar prongs. See id. at 888-91. 
On appeal, the Petitioner submits a three-page letter that reiterates his academic and prior employment 
experience, and it references an opinion letter in the record from an adjunct professor of mathematics 
at the I I College of New York. The Petitioner also provides an article with general 
information about waste management. 
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 although the Petitioner's academic and prior employment 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 id. at 888-91. Therefore, we need not address the 
Petitioner's academic and prior employment experience further with regard to the Director's 
conclusion that the record does not establish the proposed endeavor has national importance. 
Relatedly, the Petitioner's reliance on the referenced opinion letter on appeal is misplaced. The 
opinion letter, dated September 28, 2020, also reiterates the Petitioner's academic and prior 
employment experience, which as discussed above is material to the second Dhanasar prong but not 
to the first prong; however, the extent of the letter's acknowledgement of the proposed endeavor is a 
generalized assertion that the Petitioner will be "providing his services in the environmental 
engineering field." The opinion letter does not address the Petitioner's proposal to establish and 
develop a new company that will primarily specialize in environmental consulting, environmental 
inspections and waste disposal advisory services, as first described in the record in the Petitioner's 
business plan dated August 2022, nor does the record reconcile how the adjunct professor could have 
opined in 2020 on an endeavor the Petitioner had yet to propose. 
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The Petitioner's reliance on appeal on the submitted article is misplaced for similar reasons to those 
already address. As noted above, the article, titled 'The Human and Financial Cost of Pollution," 
published by the Columbia Climate School, and dated October 23, 2017, provides generalized 
information about waste management. However, the article does not address either the Petitioner or 
his specific, proposed endeavor to establish an environmental consulting company first described in 
the 2022 business plan, nor does the record reconcile how the author of the 201 7 article could have 
addressed the Petitioner's specific, proposed endeavor at that time. In summation, neither the opinion 
letter nor the article referenced on appeal establish how the proposed endeavor may have national 
importance. 
Although the Petitioner does not address how the Director may have erred in concluding that the 
business plan in the record does not establish the proposed endeavor has national importance, we note 
that it cannot establish eligibility and, even if it could, it raises questions regarding its veracity. 
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). 
As noted above, the business plan is dated August 2022, after the October 2020 petition filing date. 
Because the Petitioner did not initially indicate that his proposed endeavor would entail founding an 
environmental consulting company, the business plan dated August 2022 for the founding of such a 
company presents a new set of facts that the record does not establish existed at the time of filing. 
Moreover, the environmental consulting company that the business plan proposed to found is material 
to the first Dhanasar prong because it addresses whether the proposed endeavor may have broader 
implications, such as its potential to employ U.S. workers. See Dhanasar, 26 I&N Dec. at 889-90. 
Because the 2022 business plan presents a new set of material facts that did not exist at the time of 
filing, it may not establish eligibility. See 8 C.F.R. § 103.2(b)(l); Matter ofKatigbak, 14 I&N Dec. at 
49; Matter ofIzwnmi, 22 I&N Dec. at 176. 
Furthermore, even if the Petitioner's 2022 business plan to found an environmental consulting 
company could establish eligibility, which it cannot, it raises questions regarding its veracity. The 
only address in the business plan for the Petitioner's consulting company is the private residential 
address the Petitioner provided in response to the Director's RFE and again on appeal. The record 
does not reconcile how the Petitioner would operate an environmental consulting company with 11 
other employees working in his private residence. The implausibility of the Petitioner operating the 
proposed company with 11 employees working in his private residence casts doubt on the veracity of 
the business plan specifically, and on the veracity of the proposed endeavor in general. See Matter of 
Ho, 19 I&N Dec. 582, 591 (BIA 1988) (providing that 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). 
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 
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reserve our opm10n regarding whether the record establishes that the proposed endeavor has 
substantial merit, also required by the first Dhanasar prong, and 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 ofL-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. 
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