dismissed EB-2 NIW Case: Law

U.S. Citizenship 
and Immigration 
Services 
In Re: 22022492 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 23, 2022 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a legal analyst, seeks second preference immigrant classification as either an advanced 
degree professional or an individual of exceptional ability in the sciences, arts or business, as well as 
a national interest waiver of the job offer requirement attached to this EB-2 classification. See 
Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2). After a petitioner 
has established eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) 
may, as matter of discretion, grant a national interest waiver if the petitioner demonstrates: (1) that the 
foreign national's proposed endeavor has both substantial merit and national importance; (2) that the 
foreign national 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. Matter of Dhanasar, 26 l&N Dec. 884 (AAO 2016). 
The Director of the Texas Service Center determined that the Petitioner qualifies for the underlying 
classification, but that the evidence did not establish he met the eligibility requirements under any of 
the three Dhanasar prongs. Therefore, the Director determined that the Petitioner had not established 
eligibility for a national interest waiver. 
The matter is now before us on appeal. The Petitioner reasserts his eligibility, arguing that the Director 
did not review each piece of evidence properly and erred in the decision. In these proceedings, it is 
the Petitioner's burden to establish eligibility for the requested benefit. Section 291 of the Act, 
8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
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. 
Section 203(b) of the Act sets out this sequential framework: 
(2) Aliens who are members of the professions holding advanced degrees or aliens of 
exceptional ability. -
(A) In general. - Visas shall be made available ... to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or 
who because of their exceptional ability in the sciences, arts, or business, will 
substantially benefit prospectively the national economy, cultural or 
educational interests, or welfare of the United States, and whose services in the 
sciences, arts, professions, or business are sought by an employer in the United 
States. 
(B) Waiver of job offer -
(i) National interest waiver .... [T]he Attorney General may, when the Attorney 
General deems it to be in the national interest, waive the requirements of 
subparagraph (A) that an alien's services in the sciences, arts, professions, or 
business be sought by an employer in the United States. 
Section 10l{a)(32) of the Act, 8 USC § 1101(a)(32), provides that "[t]he term 'profession' shall 
include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in 
elementary or secondary schools, colleges, academics, or seminaries." 
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definitions: 
Advanced degree means any United States academic or professional degree or a foreign 
equivalent degree above that of baccalaureate. A United States baccalaureate degree 
or a foreign equivalent degree followed by at least five years of progressive experience 
in the specialty shall be considered the equivalent of a master's degree. If a doctoral 
degree is customarily required by the specialty, the alien must have a United States 
doctorate or a foreign equivalent degree. 
Exceptional ability in the sciences, arts, or business means a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business. 
Profession means one of the occupations listed in section 101(a)(32) of the Act, as well 
as any occupation for which a United States baccalaureate degree or its foreign 
equivalent is the minimum requirement for entry in the occupation. 
In addition, the regulation at 8 C.F.R. § 204.5(k)(3)(ii) sets forth the specific evidentiary requirements 
for demonstrating eligibility as an individual of exceptional ability. A petitioner must submit 
documentation that satisfies at least three of the six categories of evidence listed at 8 C.F.R. 
§ 204.5(k)(3)(i i). 
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Furthermore, 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). In announcing this new framework, we vacated 
our prior precedent decision, Matter of New York State Department of Transportation, 22 l&N Dec. 
215 (Act. Assoc. Comm'r 1998). Dhanasar states that after a petitioner has established eligibility for 
EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) may grant a national interest 
waiver as matter of discretion. See also Poursina v. USCIS, 936 F.3d 868, 2019 WL 4051593 (9th 
Cir. 2019) (finding USCIS' decision to grant or deny a national interest waiver to be discretionary in 
nature). As a matter of discretion, the national interest waiver may be granted if the petitioner 
demonstrates: (1) that the foreign national's proposed endeavor has both substantial merit and national 
importance; (2) that the foreign national 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. See Dhanasar, 26 l&N Dec. at 888-91, for elaboration on these three 
prongs. 
II. ANALYSIS 
The Director 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 
eligibility under the Dhanasar framework. While we do not discuss each piece of evidence 
individually, we have reviewed and considered each one.1 On the Form 1-140, Immigrant Petition for 
Alien Worker, which the Petitioner filed in May 2019, he provided the following information: 
Part 5 - Additional Information About the Petitioner 
Section 11. Occupation: Legal Analyst 
Part 6 - Basic Information About the Proposed Employment 
Section 1. Job Title: Legal Analyst 
Section 2. SOC Code: 23-20112 
The Petitioner also indicated on his Form 1-140 that his position as a legal analyst is full-time. In 
Section 3 of Part 6, which requests the "Nontechnical Job Description," the Petitioner stated, "assist 
lawyers by investigating facts, preparing legal documents, or researching legal precedent." In the 
supporting documents accompanying the petition, the Petitioner described his proposed endeavor as 
follows: 
1 We acknowledge the academic and experience evaluation from senior evaluator,! I of I I 
Evaluations, the opinion letter froml adjunct professor at !University, as 
well as numerous support letters from colleagues and professional acquaintances. However, none of these documents 
explain what the Petitioner's proposed endeavor is; instead, they focus on his eligibility for the underlying EB-2 
classification, his eligibility under the Dhanasar framework, and his personal and professional qualifications and 
accomplishments, respectively. 
2 The Department of Labor's (DOL) Occupational Information Network (O*NET) Summary Report for the standard 
occupational classification (SOC) code 23-2011.00 conesponds to the occupation of "Paralegals and Legal Assistants." 
See https://www.onetonline.org/link/summary/23-2011.00. 
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• "[W]ork as a Legal Professional working as a foreign legal consultant in cross border, 
multinational trade, business and labor negotiations in the areas of law, business and other 
complex regulations and requirements affecting commercial activities and business results for 
U.S. companies and U.S. individuals doing business or planning to do business in Brazil ... [; 
and]" 
• "[H]elp U.S. companies and individuals doing business or planning to do business in Brazil to 
better seize market opportunities in one of the largest economies in the world and the largest 
economy in Latin America; as well as optimize the financial management and compliance of 
their operations in Brazil, reducing substantially their liability exposure." 
In his professional plan and statement, the Petitioner described his proposed endeavor as, "advanc[ing] 
my career as a Legal Analyst in the United States - supporting cross-border business operations on 
behalf of the U.S. business industry," which involves "providing advice and concrete assistance to 
protect and support businesses operations and commercial activities in the country." He expects that 
"global corporations and government entities may seek my services, expertise and advice for 
expanding and improving their business and penetration in the foreign market .... " 
The Director issued a request for evidence (RFE), notifying the Petitioner that the evidence provided 
in the initial filing did not establish that any of the three Dhanasar elements had been satisfied. In his 
RFE response, the Petitioner changed his occupational title from "Legal Analyst" to "Legal Business 
Analyst and Entrepreneur." While the title of his occupation alone does not establish that his proposed 
endeavor has substantially changed, we note that the Petitioner did not mention entrepreneurship as a 
feature of his initially described proposed endeavor. The RFE response further stated that the 
Petitioner created a new business called I I in the United States 
with "specialized focus on foreign direct investments (FDI) with the Brazilian market and South 
America .... " 
He also stated that he "intends to operate as an Entrepreneur in the State of Florida. His company wi 11 
serve the Central Florida area, specializing in projects, installations, and maintenance of Heating, 
Ventilation, Air Conditioning and Refrigeration (HVACR) systems and focusing its efforts on 
complex commercial initiatives for American entities seeking to do business in Latin America, 
specifically in Brazil, and vice versa." While running his new company, the Petitioner stated that he 
can simultaneously keep supporting foreign companies and investors looking to expand their wealth 
and business services into the nation. The RFE response further indicated that he plans to pursue his 
new HVACR business while also assisting U.S. entities in conducting cross-border activities between 
the United States and Latin America, attracting foreign investors and helping them navigate the U.S. 
business environment, as well as advising U.S. companies and individuals on the best practices to 
follow within Brazil and Latin America. In addition, the Petitioner will offer business and legal 
solutions to U.S. companies and governmental entities interested in developing and improving foreign 
relations with Latin America. 
In a new statement, the Petitioner described his work installing air conditioning systems that involve 
and helping U.S. businesses expand theirl I while also 
serving Brazilian HVAC companies seeking to expand their business into the United States. In his 
business plan, he described his company's HV ACR work as installing and maintaining HV ACR 
systems in central Florida, offering system design, plans, and calculations; system installations for 
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new and repurposed spaces; performing routine and scheduled maintenance of equipment and systems; 
and servicing and repairing equipment and systems. 
The Director noted that the initially proposed endeavor was very different from the Petitioner's 
proposed endeavor in response to the RFE. Specifically, the decision stated that the Petitioner 
deemphasized his role as a legal analyst, "instead choosing to emphasize the entrepreneurial and job 
creation elements of his occupation, which would also entail some unspecified degree of business 
consulting." The Director further remarked that according to the RFE response, the proposed endeavor 
is to serve as the head of an HVACR maintenance and installation company with business consulting 
and advising on the side. Although the decision acknowledged that the Petitioner's proposed 
endeavors shared some overlap, the decision notified the Petitioner that the endeavors were 
substantially different. Accordingly, the Director informed the Petitioner that he 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). We agree. 
In Dhanasar, we held that a petitioner must identify "the specific endeavor that the foreign national 
proposes to undertake." Dhanasar, 26 l&N Dec. at 889. Here, the proposed endeavor involves a wide 
variety of services and no apparent intention to narrow the Petitioner's focus to a specific proposed 
endeavor. The Petitioner initially proposed to work full-time as a legal analyst, whereas in response 
to the RFE, he proposed to run his own HVACR company, while offering some business and legal 
analyst services to U.S. and Latin American companies. As the Director indicated, the Petitioner has 
not articulated how much time he will spend starting and operating his HVACR business, as opposed 
to providing business and legal consulting services. In the initial filing, the Petitioner stated that his 
proposed endeavor as a legal analyst would be full-time, while in response to the RFE, it appears that 
the legal analyst occupation is secondary to activities concerning HVACR. In his RFE response, the 
Petitioner described little, if any, proposed endeavor activities relating to what he initially described 
on the Form 1-140, which involved assisting lawyers by investigating facts, preparing legal documents, 
or researching legal precedent. 
The purpose of the RFE is to elicit further information that clarifies whether eligibility for the benefit 
sought has been established. 8 C.F.R. § 103.2(b)(8). When responding to an RFE, the Petitioner 
cannot materially change the proposed endeavor. USCIS regulations affirmatively require a petitioner 
to establish eligibility for the benefit it is seeking at the time the petition is filed. See 8 C.F.R. 
§ 103.2(b)(1). 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 Michelin Tire Corp., 17 l&N 
Dec. 248,249 (Reg'l Comm'r 1978). Furthermore, as previously explained, 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). If significant changes are made 
to the initial request for approval, the Petitioner must file a new petition rather than seek approval of 
a petition that is not supported by the facts in the record. Here, the Petitioner presented a new set of 
facts in his RFE response that were not articulated at the time of filing the petition. Furthermore, even 
if the Petitioner proposed to provide some legal analyst services while operating his HVACR 
company, these services would not be considered full-time as originally stated. Because the Petitioner 
materially changed his proposed endeavor, we cannot conclude that he has established eligibility at 
the time of filing. 
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On appeal, the Petitioner offers little clarification to address the Director's concern that he described 
two very different proposed endeavors. Instead, the Petitioner states that through his company he will 
serve any company or individual in need of his services. However, based upon the record, the 
Petitioner's services may include HVACR, legal, business, cross border business operations, market 
and investment, foreign relations, trade and commerce, financial management, and regulatory 
compliance, among others. Therefore, we conclude the Petitioner has not identified a specific or 
consistent proposed endeavor. 
In determining whether an individual qualifies for a national interest waiver, we must rely on the 
specific proposed endeavor to determine whether (1) it has both substantial merit and national 
importance and (2) the foreign national is well positioned to advance it under the Dhanasar analysis. 
Because the Petitioner has not provided consistent information regarding his proposed endeavor, we 
cannot conclude that he meets either the first or second prong or that he has established eligibility for 
a national interest waiver. 
111. CONCLUSION 
The documentation in the record does not establish a consistent proposed endeavor. Therefore, the 
Petitioner has not demonstrated eligibility for a national interest waiver. Further analysis of his 
eligibility under the Dhanasar framework would serve no meaningful purpose. 
Because the identified reasons for dismissal are dispositive of the Petitioner's appeal, we decline to 
reach and hereby reserve remaining arguments concerning eligibility under the Dhanasar framework. 
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). 
The appeal will be dismissed for the above stated reason. 
ORDER: The appeal is dismissed. 
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