dismissed EB-2 NIW Case: Information Technology Project Management

U.S. Citizenship 
and Immigration 
Services 
In Re: 24768970 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: FEB. 8, 2023 
Form I-140, Immigrant Petition for Alien Worker (National Interest Waiver) 
The Petitioner, an information technology project manager, seeks classification as a member of the 
professions holding an advanced degree. Immigration and Nationality Act(the Act) section 203(b )(2), 
8 U.S.C. § 1153(b)(2). ThePetitioneralsoseeksanationalinterestwaiverofthejobofferrequirement 
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 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 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. 8 84 (AAO 2016) . 1 Dhanasar states that, after a petitioner has established 
1 In announcing this new framework, we vacatedourpriorprecedent decision,MatteroJNew York State Dep 't oJTransp., 
22 I&NDec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
eligibility for EB-2 classification, USCIS may, as a matter of discretion, grant a national interest 
waiver if the petitioner demonstrates: (I) 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 off er and thus of a labor certification. 
The first prong, substantial merit and national impmiance, focuses on the specific endeavor that the 
non citizen 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 he or she 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; any progress towards achieving the proposed 
endeavor; and the interest of potential customers, users, investors, or other relevant entities or 
individuals. 
The third prong requires the petitioner to demonstrate 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. In performing 
this analysis, USCIS may evaluate factors such as: whether, in light of the nature of the noncitizen's 
qualifications or the proposed endeavor, it would be impractical either for the noncitizen to secure a 
job off er or for the petitioner to obtain a labor certification; whether,even assumingthatotherqualified 
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. In each case, the factor(s) 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. 2 
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 provide best practices in project 
management based on my knowledge and experience." She further stated that her "priority in working 
in the United States is to help companies that need support for their projects, companies that are 
unaware of management needs on projects, companies that failed on their projects, and even 
companies that have not yet identified opportunities for projects." Although the Petitioner provided 
examples of prior employers and projects she managed, she did not elaborate on any particular 
employer for whom she intended to work or project she intended to manage. The Director informed 
2 SccDhanasar, 26l&NDec. at 888-91, for elaboration onthesethreeprongs. 
2 
the Petitioner in a notice of intent to deny (NOID) that her "proposed endeavor lacks sufficient 
specificity. The [P]etitioner went into great detail to describe her past experiences; however, she did 
not describe her proposed endeavor in detail. It is not clear what the [P]etitioner will be doing as a[ n] 
IT Project Manager." 
In response to the Director's NOID, the Petitioner submitted an updated professional plan, stating that 
she currently works as a consultant and project manager for "a Virginia-based company with over 10 
years of experience in data center construction, and its main client is Amazon," and that she "was hired 
in 2020" for that position. The Petitioner further stated that, at the end of 2021, she "opened my own 
consulting company ... because the job offers, and consulting requests are constant." She asserted 
that she "contribut[es] to the country directly, through my own company, by providing consulting 
services for IT projects, promoting business development, and paying taxes to the state of Florida and 
to the country." 
In the decision, the Director noted that "the [P]etitioner did not reveal to users in her initial filing of 
her intentions to start her own consulting business." The Director found that "the [P]etitioner has 
made a change to her proposed endeavor" and noted, "The Petitioner, however, must establish 
eligibility at the time of filing," citing 8 e.F.R. § 103 .2(b )(12); Matter of Katigbak, 14 I&N Dec. 45, 
49 (Reg'l eomm'r 1971). See also 8 e.F.R. § 103.2(b)(l). The Director fmiher noted that the 
Petitioner discussed client solicitations in her NOID response but that she did not provide 
conoborating evidence of her potential clients' interest in response to the NOID. The Director also 
found that, even if the record established that potential clients are interested in contracting her for 
project management, "The [P]etitioner has not demonstrated how client solicitations or offers for her 
services are of national importance." The Director acknowledged that the Petitioner stated that she 
intended "to build a team of professionals to help me" but found that she did not establish the numbers 
of workers she intended to employ and the wages she intended to pay her employees "to show that her 
proposed endeavor will have a significant economic impact." Setting aside the Petitioner's consulting 
company, the Director discussed information in the record regarding the Petitioner's project 
management work for the Virginia-based company, but found that it did not establish that her proposed 
endeavor of project management has national importance. 
On appeal, the Petitioner first asserts that she "never changed her Proposed Endeavor of working as 
an I. T. Project Manager. On the contrary, Petitioner only mentioned the intention to continueherwmk 
as an I.T. Project Manager through her company because users required that she 'describes her 
proposed endeavor in detail."' The Petitioner also states on appeal that she "mentioned her company 
in Florida because this is how Petitioner has worked as an I. T. Project Manager since she was given 
temporary work authorization." 
A petitioner must establish eligibility for the benefit it is seeking at the time the petition is filed. See 
8 e.F.R. § 103 .2(b )(1 ). A visa petition may not be approved based on speculation of future eligibility 
or aftera petitioner becomes eligible undera new set of facts. See Matter of Katigbak, 14 I&N Dec. at 
49. A petitioner may not make material changes to a petition in an effort to make a deficient petition 
conform to users requirements. See Matter of lzummi, 22 I&N Dec. 169, 176 (Assoc. eomm'r 
1998). 
3 
As the Director discussed, the Petitioner materially changed her proposed endeavor in response to the 
NOID. As noted above, the Petitioner's initial professional plan "did not describe her proposed 
endeavor in detail." However, the Petitioner's updated professional plan submitted in response to the 
NOID asserted both that the Petitioner founded her consulting "[a]t the end of 2021," after the petition 
filing date in January 2020 and that she did so "because the job offers and consulting requests are 
constant," not because founding her own project management consulting company was part of her 
initial proposed endeavor. Whether the proposed endeavor would entail providing project 
management services as an employee or freelance worker for one or more companies, or whether the 
proposed endeavor would entail founding a company and employing workers is material to the first 
Dhanasar prong, which includes factors 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. Because the Petitioner founded her project management consulting 
company after the petition filing date, without stating in her initial professional plan that she intended 
to found a project management consulting company; because she stated in her updated professional 
plan that she did so because of job offers and consulting requests at that time, not because she had 
already intended to do so; and because whether the proposed endeavor would entail working as an 
employee or founding and employing workers is material to the first Dhanasar prong, the Petitioner 
materially changed her proposed endeavor. We need not address the merits of the Petitioner's project 
management consulting company or any inf ormation provided by former, current, or prospective 
clients of that company further because it cannot establish eligibility. See 8 C.F.R. § 103.2(b )(l); see 
also Matter ofKatigbak, 14 I&N Dec. at 49; Matter oflzummi, 22 I&N Dec. at 176. 
Additionally, the record does not support the Petitioner's assertions on appeal that her project 
management consulting company, founded in 2021, is how she has worked as an infmmation 
technology project manager. In the same updated professional plan in which the Petitioner first stated 
that she founded her project management consulting company, she also stated that she was hired in 
2020 for her position at the Virginia-based data center construction company. Therefore, the record 
establishes that the Petitioner was already working as an information technology project manager in 
the United States before she founded her project management consulting company. The Petitioner's 
inconsistent statements on appeal about the auspices under which she has worked as a project manager 
cast doubt on the credibility of her statements on appeal, which in tum undermines the reliability and 
sufficiency of the remaining evidence offered in supportofthe visa petition. SeeMatterojHo, 19 I&N 
Dec. 582,591 (BIA 1988). 
Setting aside the Petitioner's consulting company, the Petitioner asserts on appeal that her proposed 
endeavor "has national importance because she intends to continue working in a STEM field, which 
has been recognized as of national importance by the federal government." The Petitioner also notes 
that her degree in computer science and field in information technology management "are on the list 
published by the Department of Homeland Security (DHS) as the 'DHS STEM Designated Degree 
Program List.'" The Petitioner references a White House press statement, which in tum references a 
USCIS Policy Alert, both dated January 21, 2022, regarding a USCIS Policy Manual update. 
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 
4 
prong, having "national or even global implications within a particular field, such as those resulting 
from certain improved manufacturingprocesses 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 assertion that her proposed endeavor "has national impmiance because she intends to 
continue working in a STEM field" is misplaced. "With respect to the first [Dhanasar] prong, as in 
all cases, the evidence must demonstrate that a STEM endeavor has both substantial merit and national 
importance." See 6 USCIS Policy Manual F.5(D)(2), https://www.uscis.gov/policymanual. A STEM 
endeavor that is not indicative of an impact in the particular field of STEM more broadly would not 
establish its national importance. See id. Specifically, an information technology project management 
endeavor that is not indicative of an impact in the field of information technology project management 
more broadly would not establish its national importance. See id. Therefore, whether the proposed 
endeavor is in a STEM field or is listed on the DHS STEM Designated Degree Program List are not 
dispositive-the Petitioner must still establish that the proposed endeavor would have an impact in the 
field of STEM more broadly or 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." See id.; see also Dhanasar, 26 I&N Dec. at 889-90. 
The Petitioner also states on appeal that her proposed endeavor "has national and even global 
implications within a particular field" because "I.T. Project Management is essential for American 
companies and the U.S. economy overall" and it "will continue to help American companies to deal 
with the consequences of the downturn caused by the Covid-19 Pandemic." The Petitioner further 
asserts that her proposed endeavor "has national importance because it is not limited to a particular 
state in the U.S." and that her endeavor" can benefit more than one American company simultaneously 
rather than benefitting a single employer." The Petitioner also references a recommendation letter 
from a client of her consulting service. However, the Petitioner does not elaborate on appeal how the 
Director may have erred in concluding that the record does not establish how the Petitioner's 
employment at the Virginia-based data center construction company has national importance. 
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. The statement that information technology project management is essential for American 
companies does not address how the specific endeavor the Petitioner proposes to undertake has 
"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. In turn, the Petitioner's reference to "the consequences 
of the downturn caused by the Covid-19 Pandemic" is misplaced. The Petitioner filed the petition in 
January 2020, before the World Health Organization declared COVID-19 a pandemic, and before 
economic downturn resulting from the pandemic. See, e.g., U.S. Centers for Disease Control and 
Prevention, CDC Museum COVID-19 Timeline, https://www.cdc.gov/museum/time1ine/covidl9.h1ml. 
Because the Petitioner filed the petition before the declaration of COVID-19 as a pandemic and the 
economic downturn resulting from the pandemic, this presents a new set of facts that cannot establish 
eligibility, as discussed above. See 8 C.F.R. § 103.2(b)(l); see also Matter of Katigbak, 14 I&N 
5 
Dec. at 49; Matter of Izummi, 22 I&N Dec. at 176. Similarly, the Petitioner's reference on appeal to 
her project management consulting company's ability to contract with companies in multiple states 
and benefit multiple clients simultaneously also cannot establish eligibility for the reasons discussed 
above. See id. Likewise, the recommendation letter from a client of the Petitioner's consulting 
company, founded after the petition filing date and constituting a material change in her proposed 
endeavor, cannot establish eligibility for the reasons discussed above. See id. 
Finally, the record indicates that the Petitioner's work as a consultant and project manager for the 
Virginia-based data center construction company will benefit her employer and its clients and 
customers. However, the record does not establish how that employment will have "national or even 
global implications within a particular field, such as those resulting from certain improved 
manufacturing processes or medical advances" or otherwise 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." Dhanasar, 26 I&N Dec. at. at 889-90. 
In summation, the Petitioner has not established that the proposed endeavor has national importance, 
as required by the firstDhanasarprong; therefore, she 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 of 
L-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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