dismissed EB-2 NIW Case: Film Director/Editor

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: OCT. 31, 2023 In Re: 28819107 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Worker (National Interest Waiver) 
The Petitioner, a film director/editor, seeks employment-based second preference (EB-2) immigrant 
classification as amember of the professions holding an advanced degree, as well as anational 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 qualified 
for classification as a member of the professions holding an advanced degree, but that they 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 apreponderance of the evidence. 
Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de nova. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de nova 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. Section 203(b)(2)(B)(i) of the Act. 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 l&N Dec. 884 (AAO 2016). Dhanasar states that U.S. Citizenship and Immigration 
Services (USCIS) may, as matter of discretion1, grant a national interest waiver of the job offer, and 
thus the labor certification, to a petitioner classified in the EB-2 category if the petitioner demonstrates 
that (1) the noncitizen's proposed endeavor has both substantial merit and national importance; (2) the 
1 See also Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS ' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
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. 
The second prong shifts the focus from the proposed endeavor to the noncitizen. To determine whether 
the noncitizen 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, progress towards achieving the proposed endeavor, and 
the interest of potential customers, users, investors, or other relevant entities or individuals are also 
key considerations. 
The third prong requires the petitioner to demonstrate that, on balance of applicable factors, it would 
be beneficial to the United States to waive the requirements of a job offer and thus of a labor 
certification. USCTS may evaluate factors such as whether, in light of the nature of the noncitizen's 
qualification or the proposed endeavor, it would be impractical either for the noncitizen to secure a 
job offer or for the petitioner to obtain a labor certification; whether, in light of the nature of the 
noncitizen's qualification or the proposed endeavor, it would be impractical either for the noncitizen 
to secure a job offer or for the petitioner to obtain a labor certification; whether, even assuming that 
other qualified 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. Each of the factors 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. 
II. ANALYSIS 
The Director concluded that the Petitioner qualifies as a member of the professions holding an 
advanced degree. Accordingly, the remaining issue to be determined on appeal 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. 
In the Form 1-140, the Petitioner listed their occupation as a Film Director/Editor. With respect to the 
Petitioner's proposed endeavor, the Petitioner stated that they intend to "seek employment at one of 
America's top universities [sic] such as the University I Ito teach cinematic arts." The 
Petitioner asserted that they are an "exceptionally talented filmmaker with outstanding skills in 
directing and editing films" with "the artistic and technical ability to make an indelible contribution to 
the global film industry." The Petitioner also submitted two letters of recommendation from 
University! Iprofessors attesting to the Petitioner's abilities as a screenwriter, filmmaker, and 
editor. The professors also mentioned the Petitioner's experience as a teaching assistant while taking 
graduate courses at the University I I and his qualifications to teach the cinematic arts 
professionally. 
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The Director considered the proposed endeavor's merit, but found conflicting information, and thus 
issued a request for additional evidence (RFE) to determine its substantial merit, national importance, 
and eligibility under the Dhanasar framework's remaining prongs. 
In response to the Director's RFE, the Petitioner submitted copies of the previous support letters, his 
official school transcript, and a business plan describing his proposal to open an establishment called 
the I I The Petitioner asserted that~ is "being established to give 
people the opportunity to excel at visual arts. Our goal is to improve the lives of every person with 
artistic abilities worldwide, by providing them with cinematic arts training so that they can effectively 
express themselves using audio and visuals and make a positive impact in their communities." The 
Petitioner also attempted to clarify the record's conflicting information and explained that they now 
wanted to "establish a business in the United States instead of seeking employment." The Petitioner 
further noted that they will "employ people as administrators and educators to work ate=]' 
In denying the petition, the Director determined that the Petitioner has not established eligibility for 
the benefit sought. In particular, the Director found that the Petitioner had "not established that his 
multi-faceted proposed endeavor has implications beyond his current employer (or prospective 
employer or self-owned company), their business partners, alliances, and/or clients/customers and his 
prospective co-workers/employees or workplace at a level sufficient to demonstrate the national 
importance of his endeavor." 
On appeal, the Petitioner resubmits the same documents and asserts that the Director's decision was 
erroneous. The Petitioner further asserts that the proposed endeavor is "to open a school and teach" 
and that the Petitioner "will be an entrepreneur and self-employed." 
The Petitioner's initial description of their proposed endeavor did not include plans to open a business. 
As indicated above, the Petitioner initially stated that they intend to seek employment at a university 
to teach cinematic arts. Additionally, the two letters of support submitted on the Petitioner's behalf 
heavily discussed the Petitioner's past experience related to screenwriting, filmmaking, and editing. 
They did not mention the Petitioner's plans to establish a business. In fact, one of the writers stated 
that they would recommend the Petitioner for "any creative position." It was only upon issuance of 
the RFE that the Petitioner, for the first time, presented their proposed endeavor of establishing a 
business to teach cinematic arts. The Petitioner affirms on appeal that they want to open a school and 
will be an entrepreneur. 
The Petitioner must establish eligibility at the time of filing. 8 C.F.R. § 103.2(b)(12); Matter of 
Katigbak, 14 I&N Dec. 45, 49 (Comm'r 1971). Further, 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)(1), 103.2(b)(8), 103.2(b)(12). 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 lzummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). Here, the Petitioner has made 
significant changes to their initial proposed endeavor of seeking employment at a university to teach 
cinematic arts to becoming an employer and entrepreneur. As the Dhanasar framework requires an 
analysis of the proposed endeavor's substantial merit and national importance, such a change is 
material to their eligibility for a national interest waiver. 
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The Petitioner's new plans in the RFE reply, and contended in this appeal, describe a new set of facts 
regarding the proposed endeavor. The Petitioner's proposed endeavor to open a business was 
presented after the filing date and cannot retroactively establish eligibility. Accordingly, we conclude 
that the Petitioner made an impermissible material change to their proposed endeavor. We will 
therefore adjudicate the petition under the fact pattern as originally presented: the Petitioner's plan to 
seek employment and teach cinematic arts. 
We have insufficient information concerning the Petitioner's initial proposed endeavor with which to 
determine whether it has substantial merit because the Petitioner's proposed endeavor has not been 
clearly defined. Again, the Petitioner abandoned the initially proposed endeavor after the RFE was 
issued and therefore never fully built out an 1-140 petition based on it. Because we have so little 
information regarding that initially proposed endeavor, we cannot even analyze it under the Dhanasar 
framework, let alone determine whether it has substantial merit and national importance under 
Dhanasar 's first prong. We, therefore, find that the Petitioner did not submit persuasive evidence to 
support a finding of substantial merit and national importance, and thus did not meet the first prong of 
the Dhanasar framework. The Petitioner bears the burden to both affirmatively establish eligibility 
under the Dhanasar framework, of which substantial merit is one piece, and establish their eligibility 
by a preponderance of the evidence. See Matter of Chawathe, 25 l&N Dec. at 376. 
Since the identified basis for denial is dis positive of the Petitioner's appeal, we decline to reach and 
hereby reserve the Petitioner's appellate arguments regarding their eligibility under the second and 
third prongs. 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 of L-A-C-, 26 l&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach alternative issues on 
appeal where an applicant is otherwise ineligible). 
Ill. CONCLUSION 
As the Petitioner has not met the Dhanasar analytical framework's requisite first prong, we conclude 
that they have not established that they are eligible for or otherwise merits a national interest waiver 
as a matter of discretion. The appeal will be dismissed for the above stated reasons, with each 
considered as an independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
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