dismissed EB-2 NIW Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 22, 2024 In Re: 29464178 
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 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 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo '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 a member of the professions holding an advanced 
degree 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 Matter ofDhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
II. ANALYSIS 
The Director did not indicate in the decision whether the Petitioner qualifies for classification as a 
member of the professions holding an advanced degree. However, in a prior request for evidence 
(RFE), the Director specifically concluded 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. 
The Petitioner filed the Form I-140, Immigrant Petition for Alien Workers, in November 2021. An 
eight-page document identified as a personal statement, submitted at the time of filing, describes the 
endeavor as a plan "to lend [the Petitioner's] expertise in automation, cloud computing, and software 
development to the U.S. technology landscape, and especially to small businesses in the U.S. that do 
not have the resources to thrive in the new digital world." The document references "solar fueled data 
centers; the migration of the data into the cloud; as well as the use ofIOT [t]echnology," although the 
document does not clarify how the endeavor will implement those concepts. The Document indicates 
that the endeavor will be "based on, [sic] but not limited to, the state of Texas and throughout the 
United States." The document also summarizes the Petitioner's prior experience, and it provides 
generalized information regarding information technology. We specifically note that, at the time of 
filing, the record did not indicate the Petitioner would publish information regarding his endeavor for 
others to replicate. 
In response to the Director's RFE, the Petitioner submitted, in relevant part, a one-page document, 
dated April 2023, identified as a "Proposed Endeavor Statement," and an undated, seven-page 
document identified as an "Updated Personal Statement." The "Proposed Endeavor Statement," dated 
after the Form I-140 filing date, indicates that the endeavor is a plan: 
to [d]evelop and [i]mplement a server infrastructure using [f]ree [h]ardware and 
[s]oftware IOT technology, powered by solar energy, in order to give low cost access 
to cloud services to small business owners belonging to the Hispanic community, train 
them and work closely to be able to develop their businesses by providing them with 
services such as: email, commercial websites, online service platforms and home 
delivery, inventory control, video surveillance and process automation. 
The document adds that the Petitioner will "publish all the necessary information [ on a particular 
website] including technical specifications of the resources used, software, and functional designs of 
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the technology so that other professionals have access and can replicate it in other cities." The 
document asserts, "in this way the impact of the proposed endeavor will have a nationwide impact." 
In tum, the document titled "Updated Personal Statement" provides generalized information regarding 
the information technology industry, its customers, and its workforce. However, the document does 
not elaborate on what the Petitioner's proposed endeavor would entail and how the Petitioner proposes 
to accomplish the endeavor. 
We note that the documents identified as personal statements submitted both initially at the time of 
filing and in response to the Director's RFE, and the "Proposed Endeavor Statement," contain 
conspicuous elements that cast doubt on whether the Petitioner wrote them and, thus, that they reflect 
his thoughts and intentions regarding the proposed endeavor. Specifically, the signatures on the final 
pages of the respective documents are fuzzy and pixelated, indicating that they are low-resolution 
images of signatures that could have been attached to the document in a word processor by any 
individual, rather than indicating that the Petitioner signed the document himself See generally 
8 C.F.R. § 103.2(a)(2) (describing acceptable signatures on paper documents, in relevant part, as 
"handwritten"). The fuzzy and pixelated signatures cast doubt on whether the respective documents 
were written and signed by the Petitioner. This doubt undermines the reliability and sufficiency of 
those documents, and of the remainder of the documents in the record. 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). 
Moreover, the document titled "Updated Personal Statement" contains numerous spelling and 
typographical errors, such as sentences beginning "n [sic] the year 2021," "he [sic] national average 
of earnings for small business owners," and a section title "C Cost of access to technology in the U.S.," 
not preceded by sections A and B. These spelling and typographical errors also undermine the 
reliability and sufficiency of the document titled "Updated Personal Statement," and of the remaining 
evidence offered in support of the petition. See id. 
Additionally, even to the extent that the document titled "Proposed Endeavor Statement" may be 
reliable and sufficient, its statements regarding the publication of information for replication by others 
cannot establish eligibility. Specifically, the document indicates for the first time in the record that 
the Petitioner will "publish all the necessary information [ on a particular website] including technical 
specifications of the resources used, software, and functional designs of the technology so that other 
professionals have access and can replicate it in other cities." However, as noted above, at the time of 
filing, the record did not indicate the Petitioner would publish information regarding his endeavor for 
others to replicate. 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). Whether the Petitioner would publish 
information regarding his endeavor for others to replicate is material because it addresses the scope of 
the endeavor, which is a factor in whether the proposed endeavor may have national importance. See 
Matter of Dhanasar, 26 I&N Dec. at 888-90. Therefore, the document titled "Proposed Endeavor 
Statement" presents a new set of material facts that did not exist at the time of filing, which cannot 
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establish eligibility. See 8 C.F.R. § 103.2(b )(1 ); see also Matter ofMichelin Tire Corp., 17 I&N Dec. 
at 249; Matter ofIzummi, 22 I&N Dec. at 176. 
The Director acknowledged that "the [Petitioner's] proposed endeavor in the U.S. has substantial 
merit." The Director also noted 
information in the record; however, the Director observed that the 
Petitioner "has not demonstrated 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," referencing the first Dhanasar prong. Matter of Dhanasar, 26 I&N Dec. at 888-90. The 
Director also observed that the Petitioner "has not established that his proposed endeavor has 
implications beyond his current employer ( or prospective employer), 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." Ultimately, the Director concluded that "[the 
Petitioner] has not established that the proposed endeavor is of national importance." The Director 
also concluded that the record did not satisfy the second and third Dhanasar prongs. See id. at 888-
91. 
On appeal, the Petitioner reasserts that the documents identified as personal statements and the 
"Proposed Endeavor Statement," discussed above, establish the proposed endeavor has national 
importance, as required by the first Dhanasar prong. The Petitioner also reasserts that "no less than 9 
pieces of objective, documentary evidence with the initial filing speaking to the national importance 
of the Petitioner's specific proposed endeavor of providing sustainable software development services 
to small businesses" and "17 pieces of objective evidence from reputable US government and private 
sectors speaking to the inherent benefits of furthering the digital transformation of minority owned 
small businesses in the U.S.," submitted in response to the Director's RFE, satisfy the first Dhanasar 
prong. 
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 Matter of 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 ... other 
substantial positive economic effects, particularly in an economically depressed area." Id. at 889-90. 
We first note, again, that the documents identified as personal statements and the "Proposed Endeavor 
Statement" bear fuzzy, pixelated images of signatures and numerous spelling and typographical errors 
that cast doubt on whether they were written and signed by the Petitioner. This doubt undermines the 
reliability and sufficiency of the personal statements, and of the remainder of the documents in the 
record, as discussed above. See Matter ofHo, 19 I&N Dec. at 591. 
Additionally, even to the extent that the documents identified as personal statements and the "Proposed 
Endeavor Statement" may be reliable and sufficient in general, they do not provide sufficient 
information regarding the proposed endeavor to determine whether it may have national importance. 
The record does not establish details about the proposed endeavor, such as how many U.S. workers 
the Petitioner's proposed endeavor may employ, if any; the location(s) in which those unspecified 
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workers may work; the duties those workers would perform; the wages those workers would receive; 
and other information that may assist in determining whether the proposed endeavor has "significant 
potential to employ U.S. workers or has other substantial positive economic effects, particularly in an 
economically depressed area." Matter of Dhanasar, 26 I&N Dec. at 889-90. We note that the 
document identified as a "Proposed Endeavor Statement," submitted in response to the Director's 
RFE, described the Petitioner's potential clients as "small business owners belonging to the Hispanic 
community." However, it does not elaborate on those clients and how their use of the Petitioner's 
services may have "national or even global implications within a particular field, such as those 
resulting from certain improved manufacturing processes or medical advances." Id. We also 
acknowledge that the documents identified as personal statements and the "Proposed Endeavor 
Statement" provide generalized information regarding the information technology industry, its 
customers, and its workforce. However, 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. at 889. 
Relatedly, the Petitioner's own discussion on appeal of the "9 pieces of objective, documentary 
evidence with the initial filing" emphasizes how that evidence does not satisfy the first Dhanasar 
prong. The Petitioner enumerates various publications submitted at the time of filing, including a "US 
Chamber article [sic] of how technology enables small businesses, a Deloitte article explaining 
technology trends and how it contributes to small businesses, a Forbes article detailing how SMEs 
implement technology to level the playing field and recover for the effects of the pandemic," and 
similar documents. The publications submitted at the time of filing and the "17 pieces of objective 
evidence from reputable US government and private sectors speaking to the inherent benefits of 
furthering the digital transformation of minority owned small businesses in the U.S.," submitted in 
response to the Director's RFE and addressed by the Petitioner on appeal, do not discuss the Petitioner. 
They also do not discuss the specific endeavor the Petitioner proposes to undertake and how the 
proposed 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. As addressed 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 assess national importance, we focus on the 
"specific endeavor that the [noncitizen] proposes to undertake." See id. at 889. 
We further note that the Petitioner submitted other documents in response to the Director's RFE that 
cannot establish eligibility, such as a project document identifying the Petitioner as its author, dated 
April 2023, and letters of interest from potential clients dated March and April 2023. The project 
document and letters of interest, each dated after the Form I-140 filing date, present a new set of facts 
that did not exist at the time of filing and, therefore, cannot establish eligibility. See 8 C.F.R. 
§ 103.2(b)(l); see also Matter o_fMichelin Tire Corp., 17 I&N Dec. at 249; Matter ofizummi, 22 I&N 
Dec. at 176. Moreover, even if the project document and letters of interest could establish eligibility­
which they cannot-they do not establish how the proposed 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 
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to employ U.S. workers or ... other substantial pos1t1ve economic effects, particularly m an 
economically depressed area." Matter ofDhanasar, 26 I&N Dec. at 889-90. 
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) (stating that agencies are not required to make "purely 
advisory findings" on issues that are unnecessary to the ultimate decision); 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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