dismissed EB-2 NIW Case: Finance

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: WLY 13, 2023 In Re: 26961293 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner 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. § 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 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 l&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 described the endeavor as a plan "to work as a [f]inancial [s]pecialist for U.S. 
institutions, assisting companies from various sectors within this broad area." The Petitioner also 
asserted that he "will continue to train managers and other financial employees below me to pass onto 
them the skills I have developed, and the experience I have gained." The Petitioner farther stated, 
"Since 2018, I am a [s]elf-[e]mployed [f]inancial [s]pecialist, subcontracted by~------~" 
The Petitioner did not initially state that the proposed endeavor would entail founding his own 
financial services consulting company or hiring employees to work for him. 
In response to the Director's request for evidence (RFE), the Petitioner stated, for the first time, that 
the proposed endeavor would entail "developing his [f]inancial, [a]ccounting, and [t]ax services 
company.I Iin the state of Florida." The Petitioner farther stated in response to the 
RFE that he "will serve as the company's [c]hief [e]xecutive [ o ]fficer and [s]ales [m]anager" and that 
he "will hire several qualified U.S. professionals ... in various departments." The Petitioner also 
submitted a business plan for his startup financial services company in response to the RFE. The 
business plan is dated October 2022, after the petition filing date. We note, however, that publicly 
available information indicates that the Petitioner's startup financial services company first 
incorporated in Florida in] I2020, before the petition filing date. See generally State of Florida, 
Division of Corporations, Search for Corporations, Limited Liability Companies, Limited 
Partnerships, and Trademarks by Name, https://search.sunbiz.org/Inquiry/CorporationSearch/ 
ByName. The record does not reconcile why the Petitioner omitted any reference at the time of filing 
to the proposed endeavor entailing "developing his [f]inancial, [a]ccunting, and [t]ax services 
company" that he had already incorporated at that time. 
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 offature 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 oflzummi, 22 I&N 
Dec. 169, 176 (Assoc. Comm'r 1998). 
2 
Whether the Petitioner would continue working as a subcontracted, self-employed financial specialist 
or found a new financial services company and both work as a chief executive officer and hire other 
employees to work at that new financial services company is material because it addresses the scope 
of the proposed endeavor and whether it may have substantial positive economic effects. See 
Dhanasar, 26 I&N Dec. at 889-90. Because, at the time of filing, the Petitioner omitted any reference 
to founding his own financial services company, working as his own company's chief executive 
officer, and hiring other employees to work at that new financial services company, his assertions in 
response to the RFE regarding his new startup company present a new set of facts that purport to 
materially change the petition and, thus, cannot establish eligibility. See 8 C.F.R. § 103.2(b)(l); 
Matter ofKatigbak, 15 I&N Dec. at 49; Matter ofIzwnmi, 22 I&N Dec. at 176. Because the business 
plan submitted in response to the RFE and the Petitioner's related assertions regarding founding that 
company and working as its chief executive officer cannot establish eligibility, we need not address 
that information further. 
The Director noted that the Petitioner's RFE response improperly "switch[ ed] his proposed endeavor," 
constituting a "material change to the [P]etitioner's intent," citing Matter oflzummi, 22 I&N Dec. 169. 
The Director concluded that the record does not establish that the proposed endeavor has national 
importance. The Director further concluded that the record does not satisfy the second and third 
Dhanasar prongs, as required. See Dhanasar, 26 I&N Dec. at 888-91. 
On appeal, the Petitioner summarizes his academic and prior employment history and he asserts that 
his proposed endeavor has national importance because "his professional activities relate to a matter 
of national importance and impact, particularly because they generate substantial ripple effects upon 
key commercial and business activities on behalf of the United States-namely, serving the business 
functions and finances of U.S. companies." The Petitioner also references generalized publications 
regarding financial management. Additionally, the Petitioner discusses the business plan he submitted 
in response to the Director's RFE. 
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., 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. 
The Petitioner's reliance on appeal on his academic and prior employment history is misplaced. 
Although an individual's academic and prior employment history are material to the second Dhanasar 
prong-whether an individual is well positioned to advance a proposed endeavor-they are immaterial 
to the first Dhanasar prong-whether the prospective endeavor has both substantial merit and national 
importance. See id. at 888-91. 
In tum, the Petitioner's focus on appeal on generalized publications regarding the field of financial 
management is misplaced. As noted above, 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 
3 
assess national importance, we focus on the "specific endeavor that the [ noncitizen] proposes to 
undertake." See id. at 889. None of the articles referenced on appeal specifically identify the Petitioner 
and his proposed endeavor, nor do they articulate how the specific endeavor may 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 ... other substantial positive economic effects, particularly in an 
economically depressed area." Id. at 889-90. 
We note again that the Petitioner's emphasis on appeal on the business plan he submitted for the first 
time in response to the Director's RFE is misplaced because it presents a new set of facts that cannot 
establish eligibility; thus, we need not address the substance of those assertions further. See 8 C.F.R. 
§ 103.2(b)(l); Matter ofKatigbak, 15 I&N Dec. at 49; Matter ofIzummi, 22 I&N Dec. at 176. 
Turning to the Petitioner's endeavor as established at the time of filing, the proposal to continue 
working as a self-employed financial specialist subcontractor appears to benefit the companies that 
contracted and subcontracted with him, respectively, and other potential clients to whom he may have 
provided his services. However, the record does not establish how working as a self-employed 
financial specialist subcontractor may 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 ... other substantial 
positive economic effects, particularly in an economically depressed area." Dhanasar, 26 I&N Dec. 
at 889-90. Relatedly, the record does not establish how the proposed endeavor of"train[ing] managers 
and other financial employees" at an unspecified company or companies may have national or even 
global implications within a particular field, broader implications, or other substantial positive 
economic effects. See id. Because the record does not establish how the Petitioner's endeavor, as 
established at the time of filing, may have national or even global implications within a particular 
field, broader implications, or other substantial positive economic effects, it does not establish the 
proposed endeavor has national importance. See id. 
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 (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. 
4