dismissed EB-2 NIW Case: Military And Security Operations

U.S. Citizenship 
and Immigration 
Services 
In Re: 22121257 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : SEP. 6, 2022 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a military officer in special and tactical operations, seeks second preference 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 EB-2 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. On appeal, the Petitioner submits a brief asserting that he is eligible for a 
national interest waiver. 
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. 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. 
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 ofjob offer-
(i) National interest waiver. ... the 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. 
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 I&N Dec. 884 (AAO 2016). 1 Dhanasar states that after a petitioner has 
established eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) 
may, as matter of discretion, 2 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. 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
foreign national 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 foreign national. To determine 
whether he or she 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; any progress towards achieving the proposed 
endeavor; and the interest of potential customers, users, investors, or other relevant entities or 
individuals. 
The third prong requires the petitioner to demonstrate 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. In performing 
this analysis, USCIS may evaluate factors such as: whether, in light of the nature of the foreign 
national's qualifications or the proposed endeavor, it would be impractical either for the foreign 
national to secure a job offer or for the petitioner to obtain a labor certification; whether, even assuming 
that other qualified U.S. workers are available, the United States would still benefit from the foreign 
1 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) (NYSDOT). 
2 See also Poursina v. USCIS. No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or 
deny a national interest waiver to be discretionary in nature). 
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national's contributions; and whether the national interest in the foreign national's contributions is 
sufficiently urgent to warrant forgoing the labor certification process. In each case, the factor(s) 
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. 3 
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 Petitioner alleges on appeal that the Director "did not apply the proper standard of proof in this 
case, instead imposing a stricter standard, and erroneously applied the law, to [his] detriment." Except 
where a different standard is specified by law, the "preponderance of the evidence" is the standard of 
proof governing immigration benefit requests. 4 Accordingly, the "preponderance of the evidence" is 
the standard of proof governing national interest waiver petitions. 5 While the Petitioner asserts on 
appeal that he has provided evidence sufficient to demonstrate his eligibility for a national interest 
waiver, he does not further explain or identify any specific instance in which the Director applied a 
standard of proof other than the preponderance of evidence in denying the petition. 
For the reasons discussed below, we agree with the Director that the Petitioner has not sufficiently 
demonstrated the national importance of his endeavor under the first prong of the Dhanasar analytical 
framework. 6 The Petitioner provided initial information about his proposed endeavor indicating that he 
"intends to provide U.S. companies, agencies and organizations with expert advice and managerial 
services in intelligence, tactical security operations, logistics tactics, self-defense, and weapons training." 
The Petitioner stated that he would seek employment with companies located in the United States, 
asserting, among other things: 
My experience acquired over a 23-year career will be of great importance for the 
companies where I will work in America, as I will certainly implement new logistics 
improvements to facilitate and maximize existing procedures which will bring cost 
savings. At the same time, I will develop proposals to improve the security measures for 
the personnel, material and facilities of these companies, providing greater protection for 
the employees and customers of these institutions .... 
The Director issued a request for evidence (RFE), asking for more information and evidence to establish 
the national importance of the proposed endeavor. In response, the Petitioner submits a revised statement 
indicating that he will alternatively focus his endeavor on the creation and operation of his own company 
______ [N-] in Florida, which "will provide services such as security person[nel] training, 
3 See Dhanasar, 26 T&N Dec. at 888-91, for elaboration on these three prongs. 
4 See Matter of Chawathe, 25 T&N Dec. at 375 (AAO 201 0); see also Matter of Martinez, 21 T&N Dec. 1035, 1036 (BIA 
1997); Matter ofSoo Hoo, 11 T&N Dec. 151, 152 (BIA 1965). 
5 See 1 USCIS Policy Manual, E.4(B), https://www.uscis.gov/policy-manual. 
6 The Petitioner submitted evidence to establish his eligibility for the benefit sought. While we may not discuss every 
document submitted, we have reviewed and considered each one. 
3 
cyber security training, third-party companies consultation for security and stress training for the military 
or security person[nel]." 
The Petitioner's initial description of the proposed endeavor did not include plans to form such a 
company; instead, the Petitioner initially indicated that he would seek employment with existing U.S. 
companies as the means to perform his military and security related services. Accordingly, we 
conclude that the focus of his endeavor has materially changed after the filing of the petition. If 
significant material changes are made to the initial request for approval, a petitioner must file a new 
petition rather than seek approval of a petition that is not supported by the facts in the record. 8 C.F.R. 
§ 103.2(b)(l). It appears the Petitioner sought to address the Director's concerns regarding what 
organization would utilize his military and security related skills and how his services would rise to 
the level of national importance, but in so doing, he has significantly changed his proposed endeavor. 
A petitioner may not make material changes to a petition that has already been filed to make an 
apparently deficient petition conform to USCIS requirements. See Matter of Izummi, 22 I&N Dec . 
169, 175 (Comm'r 1998); see also Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg') Comm'r 1971), 
which requires that beneficiaries seeking employment-based immigrant classification must possess 
the necessary qualifications as of the filing date of the visa petition. 
In denying the petition, the Director concluded that the Petitioner had not demonstrated the national 
importance of his particular proposed endeavor. The Director explained that the Petitioner's evidence 
did not show that his proposed work through the operation and management of his security consulting 
services firm would have broader implications at a level indicative of national importance. We agree. 
On appeal, the Petitioner points to the business plan that he submitted in his response to the Director's 
request for evidence (RFE) asserting: 
Although [he] may work for his own organization, his proposed endeavor is linked to 
national actions, particularly due to the prevalence, and influence, of criminal activity 
such as mass shootings in the United States, or in any other nation for that matter. In 
fact, [the Petitioner's] proposed endeavor prioritizes a topic of national concern. His 
work directly addresses urgent matters regarding significant U.S. entities, such as the 
law enforcement sector and the criminal justice system - both of which are intertwined 
with national security tendencies. As a military officer in special and tactical 
operations, he can also train, evaluate and manage security personnel in strategic 
security measures, weapons, and marksmanship . 
While the Petitioner asserts on appeal that he "will continue his career in the United States as a Military 
Officer in Special and Tactical Operations," the evidence in the record does not suggest that the 
Petitioner is currently a military officer, or that he has been offered employment in such a role in the 
United States. 
Moreover, to evaluate whether the Petitioner's proposed endeavor satisfies the national importance 
requirement we look to evidence documenting the "potential prospective impact" of his work. 
Although the Petitioner's statements reflect his intention to provide valuable security-related services 
4 
to his clients through his yet-to-be established business, 7 he has not offered sufficient information and 
evidence to demonstrate that the prospective impact of his proposed endeavor rises to the level of 
national importance. In Dhanasar we determined that the petitioner's teaching activities did not rise 
to the level of having national importance because they would not impact his field more broadly . Id. 
at 893. Here, we conclude the record does not show that the Petitioner's proposed endeavor stands to 
sufficiently extend beyond his business and future clientele to impact the security industry or U.S. 
economy more broadly at a level commensurate with national importance . 
The Petitioner has also not demonstrated that the specific endeavor he proposes to undertake has 
significant potential to employ U.S. workers or otherwise offers substantial positive economic effects 
for our nation. For example, the business plan asserts that the Petitioner will make an initial investment 
of $100,000 into N-. However, the Petitioner did not provide evidence of his $100,000 investment, 
nor has he provided an accounting of how this money will be allocated to cover N-'s start-up costs so 
that he may commence his firm's business operations. 
Notably, the business plan largely discusses generic aspects of the security services industry, not the 
Petitioner's specific plans to establish and operate his business. While the Petitioner asserts therein 
that he "has extensively studied the market segments that [he] intends to pursue," the business plan 
does not sufficiently identify the specific market segments (customers) that he intends to market his 
company's services to. For instance, the business plan discusses a variety of potential services through 
which N- might generate revenues, e.g., "contracts for security guards and patrol services," "fees for 
bodyguard services," "contracts for cybersecurity penetration testing" and revenues generated "per 
individual for stress training for forces." However, the plan does not identify the categories of clients 
or the actual clients that will be the focus ofN-'s marketing efforts. 
Further, the business plan does not indicate when N- will commence operations, but forecasts that N­
will generate revenues exceeding $5,446,000 by the end of its fifth year of operation. The Petitioner 
estimates his business will create at least 47 direct jobs within this five-year timeframe. However, the 
plan does not adequately identify the nature of the positions to be created or detail the basis for his 
revenue and staffing projections ; nor does the business plan adequately explain how the revenue and 
staffing projections will be realized. He has not shown that his company 's future staffing levels would 
provide substantial economic benefits in California - where he resides, in Florida - the location where 
he alleges his business will be created, or the United States. Here, the record does not contain 
sufficient evidence that the area where the company will operate is economically depressed, that he 
would employ a significant population of workers in that area, or that his endeavor would offer the 
region or its population a substantial economic benefit through employment levels or business activity. 
Without sufficient information or evidence regarding any projected U.S. economic impact or job creation 
attributable to his future work, the record does not show that benefits to the regional or national economy 
resulting from the Petitioner's services would reach the level of "substantial positive economic effects" 
contemplated by Dhanasar. Id. at 890. Accordingly, the Petitioner's proposed work does not meet the 
first prong of the Dhanasar framework. 
7 We observe that the Petitioner states in his October 2021 RFE response that he intends to establish N-, a limited liability 
corporation in Florida, but he has not provid ed evidenc e on appeal to show that he has done so, and that his business legally 
exists. 
5 
Because the documentation in the record does not establish the national importance of his proposed 
endeavor as required by the first prong of the Dhanasar precedent decision, the Petitioner has not 
demonstrated eligibility for a national interest waiver. Further analysis of his eligibility under the second 
and third prongs outlined in Dhanasar, therefore, would serve no meaningful purpose . It is unnecessary 
to analyze additional grounds when another independent issue is dispositive of the appeal. See INS v. 
Bagamasbad, 429 U.S. 24, 25 (1976); 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) . 
III. CONCLUSION 
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, we conclude 
that he has not established he is eligible for or otherwise merits a national interest waiver as a matter 
of discretion . The appeal will be dismissed for the above stated reasons, with each considered as an 
independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
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