dismissed EB-2 NIW Case: Hospitality Management

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEPT. 5, 2024 In Re: 32290495 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a lodging manager, 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. § l 153(b )(2). 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish 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 pursuant to 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 qualify for the underlying EB-2 visa classification
, a petitioner must establish they are an advanced 
degree professional or an individual of exceptional ability in the sciences, arts, or business. 
Section 203(b)(2)(A) of the Act. An advanced degree is any U.S. academic or professional degree or 
a foreign equivalent degree above that of a bachelor's degree. A U.S. bachelor's degree or foreign 
equivalent degree followed by five years of progressive experience in the specialty is the equivalent 
of a master's degree. 8 C.F.R. § 204.5(k)(2). Profession is defined as one of the occupations listed in 
section 101(a)(32) of the Act, as well as any occupation for which a U.S. baccalaureate degree or its 
foreign equivalent is the minimum requirement for entry into the occupation.1 8 C.F.R. § 204.5(k)(2). 
If a petitioner establishes eligibility for the underlying EB-2 classification, they must then demonstrate 
that they merit a discretionary waiver of the job offer requirement "in the national interest." 
Section 203(b )(2)(B)(i) of the Act. Our precedent decision in Matter ofDhanasar, 26 l&N Dec. 884, 
889 (AAO 2016), provides the framework for adjudicating national interest waiver petitions. 
1 Profession shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in 
elementary or secondary schools, colleges, academics, or seminaries. Section 10l(a)(32) of the Act. 
Dhanasar states that U.S. Citizenship and Immigration Services (USCIS) may, as matter of 
discretion, 2 grant a national interest waiver if the petitioner demonstrates that: 
• The proposed endeavor has both substantial merit and national importance; 
• The individual is well-positioned to advance their proposed endeavor; and 
• On balance, waiving the job offer requirement would benefit the United States. 
Id. 
II. ANALYSIS 
A. Advanced Degree Professional 
The Director concluded the Petitioner qualifies as an advanced degree professional because he holds 
the foreign equivalent of a U.S. master's degree. However, possession of an advanced degree alone 
does not make an individual qualified for the EB-2 immigrant classification. A petitioner must 
establish they are both a "member of the professions" and "hold[] an advanced degree." 
8 C.F.R. § 204.S(k)(l); see also Matter ofShin, 11 I&N Dec. 686, 688 (Dist. Dir. 1966) (noting that 
the mere acquisition of a degree alone does not qualify a person as a member of a profession). 
As stated above, a profession includes "any occupation for which a United States baccalaureate degree 
or its foreign equivalent is the minimum requirement for entry into the occupation." 
8 C.F.R. § 204.5(k)(2). On his Form 1-140, Immigrant Petition for Alien Workers, the Petitioner 
indicated his intention to work in the United States as a lodging manager under the Standard 
Occupational Code (SOC Code) 11-9081. In support of his endeavor, the Petitioner submitted copies 
of the Department of Labor's Occupational Outlook Handbook discussing the lodging managers 
occupation, which states that the typical entry-level education for positions in this occupation is a high 
school diploma, or the equivalent. 
Since the Petitioner's own evidence makes clear that these positions do not require a 
U.S. baccalaureate degree, or its foreign equivalent, as "the minimum requirement for entry into the 
occupation," we disagree with the Director's conclusion that the Petitioner is a member of the 
professions as defined at 8 C.F.R. § 204.S(k)(l)-(2) and hereby withdraw it. 
B. Proposed Endeavor 
In his Form 1-140, the Petitioner described his endeavor as working as a lodging manager, where he 
will "[c]oordinate the facility's front-desk activities and resolve problems, set budgets, approve 
expenditures, and allocate funds to various departments." In addition, he submitted an 
"Autobiographical Statement" where he indicated he will contribute his knowledge and expertise as a 
lodging manager "to a wide range of tourism development and other projects." He explained: 
2 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Third, Ninth, Eleventh, and D.C. Circuit Courts in 
concluding that USCIS' decision to grant or deny a national interest waiver is discretionary in nature). 
2 
I plan to establish several related businesses that coordinate work in the service 
sphere ... My business highlight will be the opportunity to get acquainted with my 
idea of the service culture, our traditions and peculiarities, brought up in me by our 
rules in the tourism fields, as well as in restaurant and hotel business. My market 
demand analysis for such services here allowed me to draw conclusions about what 
kind of business could bring the greatest development prospect, profit as a result, 
both for me and my future employees, and for the realization of my dreams. I intend 
to draw up and submit to you my business plan with one of the most promising 
scenarios that will help me to start successfully as a prosperous businessman here in 
the USA. 
But the Petitioner had reimagined his endeavor by the time the Director issued the request for 
additional evidence (RFE). In response to the RFE, the Petitioner submitted a new business plan 
stating how he now intended to launch a hotel management company "offering services to independent 
hotels and resorts, focusing on environmentally-friendly practices and initiatives." This new endeavor 
would consist of a company providing sustainable hospitality services including sustainability 
assessments, customized sustainable hotel solutions, marketing of eco-focused hotels, promoting 
sustainable features and amenities, as well as other support and guidance. 
The Director determined this new information constituted an impermissible material change of the 
Petitioner's proposed endeavor. Upon de novo review, we agree. 
We are not persuaded by the Petitioner's claims on appeal that the Director's decision was based on 
an incorrect application oflaw or policy, and that it was incorrect based on the evidence in the record 
at the time of the decision. We also are not convinced by the Petitioner's argument that his business 
plan simply provided additional evidence in response to the RFE and that it does not contradict the 
assertions made in the initial petition for the reasons discussed below. 
A 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)(l), (8), and (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 
Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). 
Here, the Petitioner's description of the activities constituting his endeavor varied considerably 
between his initial filing and RFE response. At the time of filing, the Petitioner described his endeavor 
as coordinating front-desk activities at a facility, resolving problems, and performing other 
administrative tasks. In his "Autobiographical Statement," the Petitioner similarly described his plan 
to "establish several related businesses," which he did not identify, in the service sphere after 
performing a market demand analysis. His stated intention was to create and submit a business plan 
"with one of the most promising scenarios that will help me to start successfully as a prosperous 
businessman here in the USA." The record developed initially at the time of filing indicates that the 
Petitioner's proposed endeavor was, in large part, essentially a job search. 
3 
The endeavor's nature had changed considerably by the time the Petitioner responded to the RFE and 
demonstrated significant alterations going beyond mere clarification of the activities described in the 
Petitioner's initial filing. By this point, the Petitioner was indicating a new intention to launch a hotel 
management company focused on providing sustainable and environmentally-friendly hospitality 
services. While we agree that a petitioner may provide additional explanation regarding the specifics 
of a proposed endeavor in an RFE response, the Petitioner's plans, beginning with the RFE reply, 
describe a new, markedly different set of facts describing his proposed endeavor. Put simply, the 
Petitioner's initial endeavor was a combination of work as a lodging manager performing 
administrative and front-desk activities, while exploring the most promising prospects in the service 
industry. The Petitioner's new plans in the RFE reply, and contended in this appeal, are to launch a 
hotel management company focused on environmental sustainability. The record reflects that the 
essence of his initial endeavor was exploration, while the essence of his current endeavor is 
implementation. The Petitioner did not merely "fill in the gaps" or "flesh out" the endeavor's original 
description; he changed it materially. 
The Petitioner's initial endeavor has concluded because, as fleshed out in the RFE response, he has 
completed his original exploration of potential business opportunities and is now implementing his 
new, chosen venture of launching a hotel management company. This new endeavor was presented 
after the filing date and cannot retroactively establish eligibility. Accordingly, we conclude that the 
Petitioner made an impermissible material change to his proposed endeavor. We will, therefore, 
adjudicate the petition under the fact pattern as originally presented: the Petitioner's plan to explore 
career options and work as a lodging manager. 
We have insufficient information concerning the Petitioner's initial proposed endeavor with which to 
determine whether it has substantial merit or national importance. Again, the Petitioner had concluded 
the initially proposed endeavor by the time he replied to the RFE and, therefore, never fully built out 
his petition based on that endeavor. The Petitioner has not adequately explained, and the sparse 
evidence in the record does not show, why working as a lodging manager and performing exploratory 
market research to determine the best business opportunity has substantial merit or national 
importance. Because we have so little information regarding the initial proposed endeavor, we are 
unable to even conduct a full analysis 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 his burden to show he satisfies Dhanasar 's first prong. See 
Matter of Chawathe, 25 I&N Dec. at 375 (providing that a petitioner bears the burden to prove by a 
preponderance of the evidence that they are eligible for the benefit sought). 
Because the identified bases for denial are dispositive of the Petitioner's appeal, we decline to reach 
and hereby reserve the remaining issues and arguments regarding his eligibility under the remaining 
two Dhanasar prongs. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("As a general rule 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 ofD-L-S-, 28 I&N Dec. 568, 577 n.10 (BIA 2022) ( declining to reach 
alternative issues on appeal where an applicant is otherwise ineligible). 
4 
III. CONCLUSION 
As the Petitioner has not established his qualification for the underlying EB-2 visa classification or 
met the requisite first prong of the Dhanasar analytical framework, we conclude he has not established 
he is eligible for or otherwise merits a national interest waiver as a matter of discretion. 
ORDER: The appeal is dismissed. 
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