dismissed EB-2 NIW Case: Law

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: AUG. 7, 2024 In Re: 32769067 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a legal analyst, 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. § 1153(b )(2). 
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 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 Christo 's, Inc., 26 l&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. 
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. While neither the statute nor the pertinent regulations define the 
term "national interest," Matter ofDhanasar, 26 l&N Dec. 884 (AAO 2016), provides the framework 
for adjudicating national interest waiver petitions. Dhanasar states that U.S. Citizenship and 
Immigration Services (USCIS) may, as matter of discretion, 1 grant a national interest waiver if the 
petitioner demonstrates that: 
1 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining 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in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver is discretionary 
in nature). 
• 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. 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
individual 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 id. at 888-91, for elaboration on these three prongs. 
TI. 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 work as a [l]egal [a]nalyst to benefit U.S. 
companies and individuals in need legal [sic] assistant in matters of corporate law, labor law, and 
international transactions and negotiations between countries holding different legal systems." The 
Petitioner summarized his qualifications and prior work experience, and he provided generalized 
information regarding the legal profession and business. Rather than asserting that he would found 
his own law firm, the Petitioner asserted that "U.S. law firms and legal departments, operating or 
planning to operate in Brazil, would benefit from [his] expertise and skills." We also note that the 
Petitioner did not initially assert that the proposed endeavor would entail providing services to any 
governmental agencies or organizations. 
In response for the Director's request for evidence (RFE), the Petitioner asserted for the first time that 
he "plan[ s] to start a legal tech company specialized in developing [ a ]rtificial [i]ntelligence tools for 
law firms to handle repetitive tasks related to the creation of wide variety oflegal documents, contracts 
and policies, among others." The Petitioner also asserted for the first time in response to the RFE that 
he "plan[s] to offer services to the US Government in cybersecurity." The Petitioner also reiterated 
his qualifications and prior work experience, and he provided generalized information regarding the 
legal profession and business. The Petitioner asserted that he intends to take a state bar examination 
in connection with his endeavor to work as a legal analyst. The Petitioner also summarized his duties 
for positions held concurrently at where he began working in 2022 and 2023, 
respectively, which we note is after the 2021 filing date for the Form I-140, Immigrant Petition for 
Alien Workers. 
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)(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 Katigbak, 14 I&N 
Dec. 45, 49 (Reg'! Comm'r 1971). A petitioner may not make material changes to a petition in an 
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effort to make a deficient petition conform to USCIS requirements. See Matter of Izummi, 22 I&N 
Dec. 169, 176 (Assoc. Comm'r 1998). 
The Petitioner's references to founding a legal technology company and to providing cybersecurity 
services to governmental agencies or organizations cannot-and do not-establish eligibility. 
Whether the Petitioner would found a company or provide services to governmental agencies or 
organizations are material to the issue of whether the proposed endeavor may have national importance 
because they address the scope of the endeavor. See Matter of Dhanasar, 26 I&N Dec. at 889-90. 
Because the Petitioner did not assert at the time of filing that he planned to found a legal technology 
company or to provide cybersecurity services to governmental agencies or organizations, his assertions 
in response to the Director's RFE regarding those plans present a new set of facts. Because the 
Petitioner's assertions in response to the RFE regarding founding a legal technology company and 
providing cybersecurity services to governmental agencies and organizations present a new set of facts 
that did not exist at the time of filing, they cannot-and do not-establish eligibility for the requested 
benefit. See 8 C.F.R. § 103.2(b)(l); Matter ofKatigbak, 14 I&N Dec. at49; Matter oflzummi, 22 I&N 
Dec. at 176. 
The Director concluded, "The [P]etitioner has not met the first, second, and third prongs" provided in 
Matter ofDhanasar. In relevant part, although the Director asserted that the "proposed endeavor as a 
[l]egal [ a ]nalyst has substantial merit," the Director observed that the record does not establish how 
the "proposed endeavor in this case stands to sufficiently extend beyond an organization and its clients 
or the individuals the [P]etitioner would serve to impact the industry or field more broadly" and, thus, 
how the endeavor may have national importance, referencing Dhanasar, 26 I&N Dec. at 889-90. The 
Director acknowledged the Petitioner described his qualifications and prior work experience, and that 
he submitted generalized information regarding the legal profession and business. However, the 
Director noted that the record "should focus on the impact of what the [P]etitioner intends to do rather 
than the [general] occupational classification." Ultimately, the Director concluded that "the 
[P]etitioner has not established that the proposed endeavor is of national importance." 
On appeal, in relevant part, the Petitioner reiterates his qualifications and prior work experience, and 
he again references generalized information regarding the legal profession and business. The 
Petitioner also references his work atl I 
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" and "we consider its potential 
prospective impact," looking for "broader implications." 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" or those with "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 that the Petitioner's discussion of his qualifications and prior work experience is material 
to the second Dhanasar prong-whether an individual is well-positioned to advance a proposed 
endeavor-but it is not material to the issue of whether the prospective impact of the specific endeavor 
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he proposes to undertake may have broader implications indicative of national importance, as required 
by the first Dhanasar prong. See id. at 888-91. In tum, although generalized information regarding 
the legal profession and business informs how the proposed endeavor may have substantial merit, as 
required by the first Dhanasar prong, the generalized information in the record referenced by the 
Petitioner on appeal does not address the Petitioner, the specific endeavor he proposes to undertake, 
and how the proposed endeavor may have national or even global implications within any particular 
field, such as those resulting from certain improved manufacturing processes or medical advances; 
significant potential to employ U.S. workers or other substantial positive economic effects; or any 
other indicia of national importance. See id. at 889-90. Therefore, the generalized information 
regarding the legal profession and business is immaterial to whether the proposed endeavor may have 
national importance, as contemplated by Dhanasar. See id. 
The proposed endeavor, as described in the record, to the extent that it may establish eligibility, 
appears "to benefit U.S. companies and individuals in need" of a legal analyst, and potential clients, 
customers, or business partners of those companies and individuals. However, the record does not 
establish how the potential prospective impact of the specific endeavor the Petitioner proposes to 
undertake may have the type of broader implications contemplated by Dhanasar. For example, as 
noted above, the record does not establish how the Petitioner's work as a legal analyst may have 
national or even global implications in business, the practice of law, or any other particular field, such 
as those resulting from certain improved manufacturing processes or medical advances, rather than 
simply providing services to potential clients, customers, or business partners. See id. As another 
example, the record does not establish how the Petitioner's work as a single legal analyst for "U.S. 
companies and individuals in need" may have significant potential to employ U.S. workers or other 
substantial positive economic effects, particularly in an economically depressed area. See id. 
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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