dismissed EB-2 NIW Case: Market Research And Finance

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: FEB. 26, 2025 In Re: 36050201 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a market research analyst and financial analyst, 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 the EB-2 classification. See Immigration and Nationality Act (the Act) section 
203(b )(2), 8 U.S.C. § l 153(b )(2). 
The Director of the Texas Service Center denied the petition, concluding that although the Petitioner 
is a professional holding an advanced degree, he had not established that a waiver of the required job 
offer, and thus of the labor certification, would be in the national interest. Matter of Dhanasar, 26 
l&N Dec. 884, 889 (AAO 2016) (providing a framework for adjudicating national interest waiver 
petitions). 1 The Director determined that the Petitioner's proposed endeavor has substantial merit and 
that he is well-positioned to advance the proposed endeavor. However, the Director determined that 
the Petitioner did not establish that the proposed endeavor is of national importance, and that, on 
balance, it would benefit the United States to waive the job offer requirement. We dismissed a 
subsequent appeal concluding that the Petitioner had not demonstrated that his proposed endeavor was 
of national importance. 2 The matter is now before us on combined motions to reopen and reconsider. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). Upon review, we will dismiss the 
motions. 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). See Matter ofCoelho, 20 I&N Dec. 464, 473 (BIA 1992) (requiring that new evidence 
have the potential to change the outcome). A motion to reconsider must establish that our prior 
decision was based on an incorrect application of law or policy and that the decision was incorrect 
1 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) Goining the Third, Ninth, Eleventh, and D.C. Circuit Courts of 
Appeals in concluding that USCIS ' decision to grant or deny a national interest waiver is discretionary in nature). 
2 We reserved our decision on whether the Petitioner had established eligibility under Dhanasar 's third 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 the applicant did not otherwise meet their burden of proof). 
based on the evidence in the record of proceedings at the time of the decision. 8 C.F.R. § 103.5(a)(3). 
Our review on motion is limited to reviewing our latest decision. 8 C.F.R. § 103.5(a)(l)(ii). We may 
grant motions that satisfy these requirements and demonstrate eligibility for the requested benefit. 
As stated above, a motion to reopen must state new facts and be supported by documentary evidence. 
Here, the Petitioner provides no new facts or supporting documentation. In the Petitioner's brief, he 
contends that he already submitted sufficient evidence to demonstrate his eligibility for a national 
interest waiver of the job offer requirement. The brief, however, does not provide any new facts as to 
how the Petitioner is eligible for a national interest waiver. Additionally, the Petitioner has not 
provided documentary evidence in support of any new facts. 8 C.F.R. § 103.5(a)(2). The Petitioner's 
submission, therefore, does not meet the requirements of a motion to reopen. 
On motion to reconsider, the Petitioner contests the correctness of our prior appellate decision and 
suggests an incorrect application oflaw and policy. In support of the motion, the Petitioner relies on 
a misplaced understanding of the final merits determination in the EB-2 context. Further, the 
Petitioner contends that we did not provide a "thorough explanation of the specific reasons for the 
denial" on appeal. Next, the Petitioner asserts we erroneously applied Matter of Katigbak, 14 I&N 
Dec. 45 (Reg. Comm'r 1971) and Matter ofIzummi, 22 I&N Dec. 169, 175 (Assoc. Comm'r 1998). 
Finally, the Petitioner contends that we erroneously concluded that the Petitioner did not establish 
eligibility under Dhanasar 's third prong. 
Initially, the Petitioner's argument that we should have performed a final merits determination is 
unsupported by the record or case law. A final merits determination occurs as step two in the EB-2 
exceptional ability context. A petitioner must initially submit documentation that satisfies at least 
three of six categories of evidence. 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). 3 Meeting at least three criteria, 
however, does not, in and of itself, establish exceptional ability. See generally 6 USCIS Policy Manual 
F.5(B)(2), https://www.uscis.gov/policy-manual. If a petitioner meets three of six criterion, we will 
then, as step two, conduct a final merits determination to decide whether the evidence in its totality 
shows that the petitioner "has demonstrated that the beneficiary has a degree of expertise significantly 
above that ordinarily encountered in the sciences, arts, or business." Id., see also Section 203(b )(2)(A) 
of the Act. Here, because the Director determined that the Petitioner was an advanced degree 
professional, and we did not disturb that decision on appeal, there was no need to determine if the 
Petitioner met the exceptional ability standard and conduct a final merits determination before moving 
on to consider the three prongs under Dhanasar. Matter ofDhanasar, 26 I&N Dec. at 889. Thus, 
Petitioner's argument is without merit. 
Next, the Petitioner argues that we did not provide a thorough explanation for our dismissal of his 
appeal. The record does not support the Petitioner's assertion. We dismissed the Petitioner's appeal 
because we concluded that the evidence did not demonstrate the national importance of the proposed 
endeavor. The first prong of the Dhanasar framework, substantial merit and national importance, 
focuses on the specific endeavor that the individual proposes to undertake. Id. The endeavor's merit 
may be demonstrated in a range of areas such as business, entrepreneurialism, science, technology, 
3 If these types of evidence do not readily apply to the individual's occupation, a petitioner may submit comparable 
evidence to establish their eligibility. 8 C.F.R. § 204.5(k)(3)(iii). 
2 
culture, health, or education. Id. In determining whether the proposed endeavor has national 
importance, we consider its potential prospective impact. Id. 
In our decision, we determined that the Petitioner's new business plan submitted on appeal presented 
a new set of facts regarding his proposed endeavor. We concluded that the new business plan 
materially changed the Petitioner's proposed endeavor. For instance, we determined that the Petitioner 
provided evidence with his initial filing that showed he would work as a financial development director 
for a company. Yet, the Petitioner's new plan submitted on appeal indicated he would open his own 
business which was not part of his initial endeavor. As a result, we concluded that the Petitioner had 
materially changed aspects of his proposed endeavor and that endeavor's activities. We cited to 8 
C.F.R. § 103.2(b)(l), Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg. Comm'r 1971) and Matter of 
Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998) for the proposition that a petitioner may not 
make material changes to a petition that has already been filed in an effort to make a deficient petition 
conform to USCIS requirements. 
Because we determined the new business plan was a material change, we reviewed the Petitioner's 
initial materials to determine whether his proposed endeavor demonstrated the requisite level of 
national importance. In determining national importance, the relevant question is not the importance 
of the field, industry, or profession in which the individual will work; instead we focus on the "specific 
endeavor that the foreign national proposes to undertake." See Matter ofDhanasar, 26 I&N Dec. at 
889. Further, "we look for broader implications" of the proposed endeavor beyond those that would 
directly impact the petitioner, his clients, and suppliers. 
On review of the Petitioner's evidence, we concluded that it did not sufficiently demonstrate that his 
endeavor would have a broader impact beyond the organizations and clients he would serve. Further, 
we determined that the Petitioner's proposed work would not have sufficiently broad implications in 
market research or financial industries. Likewise, we concluded that the evidence did not show that 
the Petitioner planned to introduce novel methodologies or techniques that might be disseminated to 
others operating in the field or otherwise articulate how he would contribute to research and 
development in the market research and financial industries as a whole. We will not disturb our 
previous decision. We considered and analyzed the evidence before us under the preponderance of 
the evidence standard and found it insufficient to demonstrate eligibility for the requested benefit. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76. 
Next, the Petitioner argues that we erroneously applied Matter of Katigbak, 14 I&N Dec. 45 (Reg. 
Comm'r 1971) and Matter oflzummi, 22 I&N Dec. 169, 175 (Assoc. Comm'r 1998). The Petitioner 
contends that these cases "address issues related to employment-based immigrant petitioners where 
visa priority dates and qualifications at the time of filing are of primary concern." Further, the 
Petitioner argues that "the EB-2 NIW framework" under Dhanasar "focuses on the future proposed 
endeavor." 
We disagree. We concluded that the Petitioner had materially changed his proposed endeavor in 
submitting a new business plan on appeal. Because the Petitioner must meet eligibility requirements 
at the time of filing, we cited to Matter ofKatigbak and Matter ofIzummi. Both cases stand for the 
proposition that a petitioner must show eligibility for the benefit sought at the time of filing. The 
Petitioner points to no caselaw or other authority for the proposition that Matter of Katigbak and 
3 
Matter of Izummi are inapplicable in the national waiver context. Further, the regulation at 8 C.F.R. 
§ 103 .2(b )( 1) states that a petitioner "must establish" eligibility for a benefit "at the time of filing and 
must continue to be eligible through adjudication." The Petitioner does not address this regulation 
and points to no authority that would disturb our determination on appeal. 8 C.F.R. § 103.5(a)(3) 
(stating that a motion to reconsider must be supported by any pertinent precedent decisions to establish 
that the decision was based on an incorrect application oflaw or policy). 
Last, the Petitioner contends that we erred in not concluding that the Petitioner had demonstrated 
eligibility under Dhanasar 's third prong. However, we reserved our decision on his eligibility under 
the third prong. Therefore, this argument is without merit. 
The Petitioner has not submitted additional evidence in support of the motion to reopen. Therefore, 
the Petitioner has not established eligibility. On motion to reconsider, the Petitioner has not 
established that our previous decision was based on an incorrect application of law or policy at the 
time we issued our decision. Therefore, the motion will be dismissed. 8 C.F.R. § 103.5(a)(4). 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
4