dismissed EB-2 NIW Case: Law

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: APR. 18, 2024 In Re: 30187772 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an attorney, seeks classification as a member of the professions holding an advanced 
degree or of exceptional ability. 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. 
§ l 153(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. See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) Uoining the Ninth, Eleventh, and D.C. 
Circuit Courts (and Third in an unpublished decision) in concluding that USCIS' decision to grant or 
deny a national interest waiver to be discretionary in nature). 
The Director of the Texas Service Center denied the petition, concluding 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 l&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. 
Whilst 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 USCIS may as a matter of discretion 
grant a national interest waiver of the job offer, and thus of the labor certification, to a petitioner 
classified in the EB-2 category if they demonstrate that (1) the noncitizen' s proposed endeavor has 
both substantial merit and national importance, (2) 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. 
The second prong shifts the focus from the proposed endeavor to the noncitizen. To determine whether 
the noncitizen 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, progress towards achieving the proposed endeavor, and 
the interest of potential customers, users, investors, or other relevant entities or individuals are also 
key considerations. 
The third prong requires the petitioner to demonstrate that, on balance of applicable factors, it would 
be beneficial to the United States to waive the requirements of a job offer and thus of a labor 
certification. USCIS may evaluate factors such as whether, in light of the nature of the noncitizen' s 
qualification or the proposed endeavor, it would be impractical either for the noncitizen to secure a 
job offer or for the petition to obtain a labor certification; whether, even assuming that other qualified 
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. Each of the factors 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. 
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. 
The Director concluded the Petitioner's proposed endeavor did not demonstrate eligibility for a 
favorable act of discretion to grant a national interest waiver of the requirement of a job offer, and thus 
the labor certification, under the first prong of the Dhanasar analytical framework. We reach the same 
decision as the Director, albeit on another basis. 
The Petitioner initially proposed to "build [their] legal career in the US as a legal and tax expert in 
sustainable investment in the financial service sector and establish a private equity firm to attract US 
private investments in renewable energy infrastructure in emerging and developing countries." In 
support, the Petitioner submitted an article describing consumer and business interest in 
environmental, social, and governance issues from PwC, a copy of a 2021 Edelman Trust Barometer 
report on environmental, social, and governance issues relating to investing attitudes, a copy of U.S. 
Department of Commerce's Strategic Plan 2022-2026 entitled Innovation, Equity, and Resilience, a 
copy of International Energy Agency's report entitled Financing Clean Energy Transitions in 
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Emerging and Developing Economies, a copy of the Petitioner's resume, documentation and 
correspondence relating to the Petitioner's educational degrees, diplomas, and certificates, 
documentation describing the Petitioner's service as a student marshal at law school graduation and 
the Petitioner's invitation to speak at their law school banking class's graduation banquet, 
recommendation letters, several letters pertaining to employment the Petitioner has or had held, and 
copies of articles and op-ed pieces authored by the Petitioner. The evidence the Petitioner initially 
submitted did not sufficiently demonstrate the national or even global implications to their field or any 
broader implications rising to a level of national importance, did not adequately describe how well the 
Petitioner was positioned to advance the proposed endeavor, and did not satisfactorily demonstrate 
that on balance of applicable factors it would be beneficial to the United States to waive the 
requirements of a job offer and thus of a labor certification. So, the Director issued a request for 
additional evidence (RFE) to consider the merit of the proposed endeavor, its national importance, 
how well positioned the Petitioner was to advance the proposed endeavor, as well as the Petitioner's 
eligibility for a waiver of the job offer requirement and thus of a labor certification under the analytical 
framework we first discussed in Matter ofDhanasar. 1 
The Petitioner's response significantly departed from the proposed endeavor they indicated in their 
initial filing. In response to the RFE, the Petitioner submitted a business proposal for I 
Saving Bank, list of community development financial institutions (CDFI) n 
Massachusetts, schedule of the qualifications and job descriptions for each role atl !Saving Bank, 
report from Massachusetts Department of Environmental Protection on economically distresses 
communities, extract of U.S. strategic plans, business proposal ofl lUnited 
National Climate Panel report, International Energy Agency report, 2020 Sustainable Development 
Report, documentation of volunteer work, evidence of application for community leadership fund, 
correspondence with biogas digester manufacturers, copy of correspondence with bank 
representatives, draft of memorandum of understanding with suppliers training in renewable energy 
products, copy of fundraising flyer and correspondence with potential investors, copy of tele video 
conferencing with professional mentor, publication on proposed ESG disclosure requirements for 
investment advisors and companies, copy of Petitioner's article on the management of cashflows by 
small businesses post COVID 19, and copy of appointment tol !Banking and 
Finance Committee. Contrary to their initial intention to "build [their] legal career in the US as a legal 
and tax expert in sustainable investment in the financial service sector and establish a private equity 
firm to attract US private investments in renewable energy infrastructure in emerging and developing 
countries," the Petitioner's proposed endeavor morphed into the Petitioner's ownership and operation 
of a distributor of biogas digesters from Chinese manufacturers in East Africa and an executive 
operating a community savings bank. In essence, the Petitioner transformed their proposed endeavor 
from a lawyer, legal professional, or private equity entrepreneur to a financier and business owner. 
The Petitioner's response to the RFE constituted a wholesale change of their proposed endeavor. In 
essence, over the course of these proceedings, the Petitioner has advanced four separate endeavors 
revolving around an apparent interest or experience in banking or finance. Whilst we recognize the 
laudable goals and ideals the Petitioner expressed, none of the four endeavors the Petitioner proposed 
1 We have reviewed several pieces of correspondence the Petitioner submitted drawing attention to an update on USCIS' 
Case Status Online portal indicating the Director issued a second RFE after the decision. USCIS records reflect the 
Director issued only one RFE in connection with this petition. We acknowledge the Petitioner's confusion but conclude 
considering the Petitioner's timely filing of this appeal and correspondence that the mistaken update indicating issuance 
of a second RFE did not impact this appeal. 
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is uniformly described or coherently presented in a sufficient manner such that the substantial merit 
or national importance of the endeavor or endeavors could be evaluated. Moreover, the endeavors 
have transformed over the course of these proceedings, from initial filing through to response to the 
RFE. A petitioner must establish eligibility for the benefit they are seeking at the time the petition is 
filed. See Matter ofKatigbak, 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). And the change the Petitioner 
made are not benign adjustments of tasks and focus within the banking, finance, legal industry with a 
focus on equity, society, and governance. The Petitioner's RFE response constituted materially 
different endeavors as described above. The Petitioner's materially significant transformation of their 
proposed endeavors rendered their proposals ill-defined and amorphous. The Petitioner's reversals 
introduced ambiguity into their proposed endeavor which prevented analysis into substantial merit or 
national importance. 
The Dhanasar framework cannot be applied to multiple proposed endeavors that have developed 
divergently over the course of the proceedings. A petitioner must identify the specific endeavor they 
propose to undertake. See Matter ofDhanasar, 26 I&N Dec. at 889. So, it is not possible to determine 
the substantial merit and national importance of an endeavor when a Petitioner cannot consistently 
articulate the nature of the endeavor. 
III. CONCLUSION 
The record contains insufficient evidence to establish the Petitioner's proposed endeavor met the first 
prong of the Dhanasar analytical framework. Because the Petitioner has not established that the 
proposed endeavor has substantial merit or national importance, as required by the first Dhanasar 
prong, they are 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). So, 
we conclude the Petitioner has not established that they are eligible for or otherwise merit a national 
interest waiver as a matter of discretion. The petition will remain denied and the appeal is hereby 
dismissed. 2 
ORDER: The appeal is dismissed. 
2 The Petitioner's address changed during the pendency of their petition but the Petitioner "omitted [submission of] the 
change of address form to USCIS" prior to the adjudication in the manner required at that time. USCIS consequently 
mailed the decision to the Petitioner addressed to the mailing address they provided in the forms accompanying their 
petition. The Petitioner states they received the Director's decision on August 22, 2023, via email and the Petitioner timely 
filed this appeal on August 28, 2023. The Petitioner formally submitted their change of address on September 8. 2023. 
We recognize the sequence of events left the Petitioner with less than the 30 days (plus three days for mailing) afforded 
by the regulations to prepare and file an appeal after an adverse decision. Whilst this is regrettable it is ultimately harmless 
given, as described herein, the Petitioner did not establish eligibility at the time of filing and materially changed the 
proposed endeavor between the time the Petitioner filed the petition and submitted the response to the RFE. 
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