dismissed EB-2 NIW Case: Logistics And Transportation

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JUL. 25, 2024 In Re: 31481632 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner seeks employment-based second preference (EB-2) immigrant classification as either a 
member of the professions holding an advanced degree or an individual of exceptional ability, 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 Nebraska Service Center denied the petition, concluding that the record did not 
establish the Petitioner's eligibility for the requested national interest waiver. The Director dismissed 
a subsequently filed motion to reopen and motion to reconsider. The Petitioner now appeals the 
Director's dismissal of the combined motions pursuant to 8 C.F.R. §§ 103.3 and 103.5(a)(6). 
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 of Dhanasar, 26 l&N Dec. 884, 889 (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in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver is discretionary 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. 
II. ANALYSIS 
As a preliminary matter, we emphasize that the appeal before us relates to the Director's November 
14, 2023, dismissal of the Petitioner's combined motions to reopen and reconsider. 2 Therefore, the 
question before us on appeal is whether the Director erred in dismissing the motions. In that decision, the 
Director considered both the evidence submitted prior to the denial, as well as the evidence submitted on 
motion, and determined that the motions did not meet the applicable requirements. 
The record reflects the Petitioner intended to own and operate a multimodal transportation company. 
According to the Petitioner's first business plan, he intended to base his company in New York to 
provide comprehensive logistics solutions by "leveraging various transportation modes such as air, 
road, rail, sea, and potentially pipelines to offer a comprehensive and seamless logistics solution," 
which would allow his company to "optimize[] routes, minimize transit times, and enhance overall 
supply chain efficiency." The Petitioner also planned to offer freight management, logistics and 
supply chain services, customs and documentation support, last-mile delivery, as well as additional 
value-added services. 
In the most recent decision, the Director determined that the Petitioner's new business plan submitted 
on motion, and in particular his decision to now establish his company in Pennsylvania rather than 
New York, amounted to a material change to the petition. As such, the Director, citing to Matter of 
Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998), concluded that he was attempting "to make an 
apparently deficient petition conform to Service requirements" and explained that per Matter of 
Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971)," [a] petitioner must establish eligibility at the time 
of filing" and that "a petition cannot be approved at a future date after the petitioner becomes eligible 
under a new set of facts." Nevertheless, in dismissing the combined motions, the Director analyzed the 
new business plan and determined that it too did not establish the national importance of the 
Petitioner's endeavor. The Director also concluded that the new evidence and claims submitted on 
motion did not establish the Petitioner was well-positioned to advance his proposed endeavor or that, 
on balance, waiving the job offer requirement would benefit the United States. 
A motion to reopen must state new facts and be supported by affidavits or other documentary evidence. 3 
8 C.F.R. § 103.5(a)(2). A motion to reconsider must establish that the prior decision was based on an 
incorrect application of law or policy and that the decision was incorrect based on the evidence in the 
record of proceedings at the time of the decision. 8 C.F.R. § 103.5(a)(3). A motion that does not meet 
applicable requirements shall be dismissed. 8 C.F.R. § 103.5(a)(4). 
2 8 CFR §103.5(a)(6). 
3 See Matter of Coelho, 20 I&N Dec. 464,473 (BIA 1992) (requiring that new evidence have the potential to change the 
outcome). 
2 
On appeal, the Petitioner asserts that the Director's reliance on Matter ofKatigbak is "misunderstood 
and misapplied," and contends that it does not apply to the national interest waiver category. But, on 
motion, a petitioner must still establish eligibility at the time of filing. See 8 C.F.R. § 103.2(b)(l2). We 
generally do not "consider facts that come into being only subsequent to the filing of a petition." Matter 
ofIzummi, 22 T&N Dec. at 176 ( citing Matter ofBardouille, 18 T&N Dec. 114 (BIA 1981 )). Ultimately, 
in order to be meritorious in fact, a petition must meet the statutory and regulatory requirements for 
approval as of the date it was filed. Ogundipe v. Mukasey, 541 F.3d 257,261 (4th Cir. 2008). Moreover, 
this principle is also codified in the regulation at 8 C.F.R. § 103.2(b)(l), which states in pertinent part 
that a "petitioner must establish that he or she is eligible for the requested benefit at the time offiling 
the benefit request and must continue to be eligible through adjudication." [emphasis added]. 
Upon review, we agree that the change in the area of intended operations reflects a material change to 
the Petitioner's eligibility under the first prong of Dhanasar, as the location is relevant to the 
substantial positive economic effects (particularly to an economically depressed area) analysis. As 
such, the Director was correct in concluding that the Petitioner could not rely on these new facts to 
establish eligibility under Dhanasar. Nevertheless, we again note that the Director did review the 
revised business plan and concluded that it did not establish the national importance of the Petitioner's 
endeavor. 
On appeal, the Petitioner attempts to refute this conclusion by claiming that a business plan is a 
dynamic document that is subject to change based on various factors. He asserts that his decision to 
change his intended area of operations "was made after a comprehensive market study . . and in 
response to the [Director'sJ feedback on the economically depressed area." [ emphasis added]. 
Notably, however, the Petitioner has not provided any additional information or evidence 
corroborating this market study, and the industry and market analysis contained within his new 
business plan concludes that most logistics and shipping industry activities occur in the southeast, 
west, and southwest regions of the United States, which contradicts his assertion. In fact, the only 
information in his business plan pertaining to the selection ofI I Pennsylvania as the new 
area of intended operations relates to his claims of national importance. As such, the record appears 
to indicate this change was made primarily for the purposes of strengthening the Petitioner's national 
importance claim, and not in response to outside factors. 
The Petitioner also asserts that the decision shows "a complete disregard for the substantial content of 
the [b]usiness [p]lan." Yet, as discussed, the Director's decision did address the claimed staffing 
projections and the revenue projections, which were directly applicable to the proposed endeavor. And 
the Petitioner has not identified what information in the business plan established the national 
importance of his endeavor or substantiates his claims. It is not enough to generally assert errors in a 
decision. The Petitioner must also establish that they were prejudiced by any claimed errors. Errors 
can be overlooked when they had no bearing on the substance of an agency's decision. See e.g., 
Aguilar v. Garland, 60 F.4th 401, 407 (8th Cir. 2023) (citing Prohibition Juice Co. v. United States 
Food & Drug Admin., 45 F.4th 8, 24 (D.C. Cir. 2022)). 
Regarding Dhanasar' s second prong, he contends that in dismissing the combined motions, the 
Director disregarded letters establishing both his relevant experience in the industry, as well as interest 
from prospective customers and investors which showed he was well-positioned to advance his 
endeavor. However, upon review, we agree that the evidence and claims submitted did not overcome 
3 
the Director's denial. On appeal, the Petitioner does not address the Director's conclusion that the 
recommendation letters do not establish how his past successes working in various business 
development positions directly relate to his entrepreneurial endeavor of owning and operating his own 
logistics company. Moreover, the letter of intent to invest submitted on motion was executed more 
than three weeks after the petition was denied4 and is a non-binding agreement contingent on the 
investor's ability to secure financing. Additionally, the agreement indicates the investor will receive 
l 00% ownership interest in the Petitioner's business, but the Petitioner did not explain how he would 
continue to direct the operations of his business after transferring ownership to his investor. As such, 
the Director did not err in concluding that the evidence and claims on made on motion did not 
overcome the Petitioner's initial denial. 
The Director also determined the Petitioner did not establish that, on balance, it would be beneficial 
to the United States to waive the requirements of a job as the endeavor did not lead to job creation 
sufficient to waive the interest inherent in the labor certification process, and the endeavor primarily 
benefited the Petitioner and his customers rather than the United States. On appeal, other than 
providing general claims of eligibility, the Petitioner has not overcome the Director's conclusions 
regarding the limited benefits of his business nor has he shown how the Director erred in dismissing 
his motions. And we agree with the Director that the claims and evidence submitted on motion did 
not establish the Petitioner's eligibility under the third prong of the Dhanasar framework. While it 
may be impractical for the Petitioner to obtain a labor certification, that is only one consideration under 
Dhanasar's third prong, and on balance the Petitioner has not shown it would be beneficial to the 
United States to waive the requirements of a job offer. 
III. CONCLUSION 
For the reasons above, the Petitioner has not shown that the Director erred in dismissing either the 
motion to reopen or to reconsider. 
ORDER: The appeal is dismissed. 
4 As previously stated, a petitioner must establish eligibility for a requested benefit at the time of filing. See 8 C.F.R. § 
103.2(b)(l2); Matter of Izummi, 22 I&N Dec. at 176. 
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