dismissed EB-2 NIW Case: Occupational Health And Safety

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: WL. 17, 2023 In Re: 27441918 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a health and safety engineer in the field of occupational health and safety management, 
seeks employment-based second preference (EB-2) immigrant classification as a member of the 
professions holding an advanced degree. 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. § 1153(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. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner qualifies for a national interest waiver. The matter is now before us on 
appeal. 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 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. Section 203(b )(2)(B)(i) of the Act. 
If a petitioner demonstrates eligibility for the underlying EB-2 classification, they must then establish 
that they merit a discretionary waiver of the job offer requirement "in the national interest." Id. While 
neither the statute nor the pertinent regulations define the term "national interest," Matter ofDhanasar, 
26 l&N Dec. 884, 889 (AAO 2016), provides the framework for adjudicating national interest waiver 
pet1t10ns. Dhanasar states that USCIS may, as matter of discretion, 1 grant a national interest waiver 
if the petitioner demonstrates that: 
• 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. 2 
II. ANALYSIS 
The Director concluded that the Petitioner qualifies as a member of the professions holding an 
advanced degree. The remaining issue to be determined on appeal is whether the Petitioner has 
established that a waiver of the requirement of a job offer, and thus a labor certification, would be in 
the national interest. 
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. 
Dhanasar, 26 I&N Dec. at 889. 
The record initially included a statement in which the Petitioner described his endeavor as follows: 
My plan in the United States is to continue my career by working as a Safety Engineer 
for an American company or department in the area of occupational health and safety 
management. There, I can develop and enforce safety compliance standards and help 
companies comply with workplace health and safety regulations. In addition, I can 
provide indispensable guidance regarding large-scale projects involving construction 
processes, safety and accident prevention practices. I can review plans and 
specifications for new machinery and equipment for safety compliance. I can also 
conduct workplace inspections, identify and correct potential hazards as well as direct 
the installation of safety devices .... My specific endeavor will potentially impact the 
U.S in the following ways: 
• Fill a position as a Safety Engineer that is vacant due to the high demand for them 
in the field; 
• Develop and enhance workplace health and safety standards, policies and practices; 
• Recommend changes to workplace processes to enhance the safety of workers; 
• Advise management on latest trends and updates in workplace health and safety 
standards; 
• Enforce and ensure compliance with any occupational health and safety 
regulations; 
1 See also Poursina v. USC1S, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
2 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
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• Reduce workplace accidents that injure workers, put the environment at risk, and 
cause property damage; 
• Increase U.S. job creation, retention and tax revenue; 
• Contribute to the U.S. GDP. 
In response to a request for evidence (RFE), the Petitioner submitted a cover letter emphasizing his 
qualifications as an engineer. The letter also provides the following: 
[The Petitioner] has first-hand knowledge of the commercial markets in the U.S. and 
Brazil. This presents substantial merit to the U.S. because of the ripple effects it 
generates upon commercial activities, the business industry, foreign direct investments, 
and, ultimately, the U.S. economy.... [I]t is important to note that [the Petitioner] is 
developing a business in the United States, through which he will leverage his business 
development and marketing knowledge to spur significant economic benefits for the 
country. 
In determining national importance, the relevant question is not the importance of the industry or 
profession in which the individual will work; instead, we focus on the "the specific endeavor that the 
foreign national proposes to undertake." See Dhanasar, 26 I&N Dec. at 889. In Dhanasar, we further 
noted that "we look for broader implications" of the proposed endeavor and that "[a]n undertaking 
may have national importance for example, because it has national or even global implications within 
a particular field." Id. We also stated that "[a]n endeavor that has significant potential to employ U.S. 
workers or has other substantial positive economic effects, particularly in an economically depressed 
area, for instance, may well be understood to have national importance." Id. at 890. Further, 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. 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. 
Although the Director determined that the Petitioner's proposed endeavor has substantial merit, the 
Director concluded that the record did not establish that the endeavor is of national importance. While 
the record contained letters of support discussing the Petitioner's qualifications and issues related to 
the Petitioner's field, they did not provide insight or otherwise clarify the Petitioner's endeavor or 
contain objective evidence to demonstrate the endeavor's national importance. Similarly, while the 
record contained industry reports and articles discussing globalization, employee retention, business 
operational innovations, immigrant entrepreneurship, and the benefits of international investment, 
these informational documents did not speak specifically to the Petitioner's endeavor or establish how 
the Petitioner's individual business would influence the field more broadly at a level commensurate 
with national importance. 
The Director also noted the apparent change in the Petitioner's endeavor from that of an engineer 
seeking employment with an organization to an entrepreneur operating his own company; the RFE 
response showed that the Petitioner intended to start his own business in I I Florida, as a 
consultant in the field of occupational health and safety. The Director determined that the record did 
not establish that any economic benefits from the Petitioner's endeavor would extend beyond his 
business's immediate clientele to have a substantial positive impact on the U.S. economy, nor did the 
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record establish that the Petitioner's work would have broader implications in the industry. The 
Director concluded and that the Petitioner had not demonstrated the national importance of his 
endeavor. 
On appeal, the Petitioner asserts that USCIS "erroneously denied" the petition and "imposed novel 
substantive and evidentiary requirements beyond those set forth in the regulations." The Petitioner, 
however, does not specify how the Director erred or what factors in the decision were erroneous. 3 The 
Petitioner also contends, without farther explanation, that the Director applied a stricter standard of 
proof than that of preponderance of the evidence 4 and disregarded the evidence submitted. The 
Petitioner provides a brief which states the following concerning his business: 
[The] company ... will specialize in providing high-quality professional occupational 
health and safety consulting, services, and training. These essential health and safety 
services and consulting will allow U.S. businesses to meet the procedures established 
by the Occupational Safety and Health Administration (OSHA) in the U.S. market. 
The Appellant's company is set to impact the Occupational Health and Safety 
Management industry ... [ and] is ready to boost local economies, specifically in the 
underserved business zones, of several states across the United States. This has the 
potential to attract investments and expand throughout the United States in the 
following years.... [The company] will make a stand and impact, generating jobs for 
the U.S. workers, and helping the local community bring investments to the region. 
For the reasons provided below, we agree with the Director that the Petitioner has not demonstrated 
the national importance of the proposed endeavor under the first prong of the Dhanasar analytical 
framework. 
The Petitioner's initial description of his proposed endeavor did not indicate plans to form a company; 
the Petitioner initially intended to provide services as the direct employee of a "company or department." 
In response to the RFE, the Petitioner submitted a business plan that describes his proposed endeavor 
through his company's intended services: 
[The company] will provide a set of comprehensive services designed to save lives, 
foster job generation, and reduce time lost with work-related injuries. This package 
will ultimately benefit the US' most precious asset: the people and their families .... 
[The company] will offer a portfolio of services contemplating safety consultancy, 
implementation, and training. The firm will focus on the construction industry first and 
then will expand to the railroad businesses. [The Petitioner] plans to bring a clear 
approach to address themes such as the use of Personal Protective Equipment (PPE), 
noise control, ergonomics, and other procedures, including the ones approved and 
requested by ... OSHA. 
On appeal, the Petitioner's brief includes the following description of his proposed endeavor: 
3 An appeal must specifically identity any erroneous conclusion of law or statement of fact in the unfavorable decision. 
See 8 C.F.R. § 103.3(a)(l)(v). 
4 See INS v. Cardoza-Foncesca. 480 U.S. 421,431 (1987) (discussing "more likely than not" as a greater than 50% chance 
of an occurrence taking place). 
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Business development and sales professionals, such as the Appellant, are key to 
companies' financial stability-they are responsible for ensuring companies stay afloat, 
and they primarily do this by aligning the business strategy with sales, pricing, and 
marketing tactics that resonate with consumers, including the overall market economy .... 
Due to their direct interaction with customers, business developers, and salespeople are 
also uniquely positioned to feed market-based intelligence back into the business, which 
can then be used to help improve services, products, or relevant business processes. 
The brief goes on to further explain the Petitioner's intended work: 
As outlined in the evidence provided, the Appellant will create value for U.S. 
organizations. He will do this through improved performance, achieved by providing 
objective advice regarding the optimization ofbusiness processes using respected industry 
methodologies, as well as implementing effective business development, sales, and 
marketing techniques. This, in tum, will allow U.S. companies to maintain successful 
business methodologies, which adequately address industry changes, all while making 
U.S. companies more resilient to economic downturns-which they will be better 
equipped to deal with. All the more, the Appellant's proposed endeavor of optimizing 
business functions for U.S. companies will also directly impact the domestic job market, 
as improved industry patterns culminate in higher business demands and an increase in 
the creation of new jobs and workforce dependability. 
In addition to the fact that the RFE response includes a description of the Petitioner's proposed endeavor 
that differs significantly from the endeavor outlined in the initial filing materials, the endeavor described 
in the appeal brief appears to differ from the endeavor described in the response to the RFE. Though the 
brief initially references the Petitioner's experience as an engineer, it goes on to identify the Petitioner as 
one of a multitude of "business developers and sales professionals" that drive the success of U.S. 
companies. The brief portrays the Petitioner's intended endeavor with terms like "sales expansion," 
"market strategies," and "profitable markets." The brief characterizes the Petitioner's role as follows: 
The role of a business development professional is to serve as a conduit between the 
business and its various markets. Effective sales teams will not only communicate and 
sell the value of a firm's products to targeted customers, but they will also continuously 
collect, synthesize, and disseminate the critical market intelligence that will help the firm 
innovate, define, and redefine the business strategy. Business development professionals 
are inherently best equipped to help prevent the failure of a startup or new small business. 
The record appears to currently contain three proposed endeavors in various stages of development. 
The evidence of record initially depicted the Petitioner's endeavor as providing his health and safety 
expertise to a single employer. The RFE response pivoted the endeavor to one involving an 
entrepreneurial venture to operate a consultancy. Presently, the appeal brief presents in vague and 
general terms the Petitioner's endeavor to provide business growth and marketing strategies to 
unknown entities. We conclude that both the RFE response and the appeal brief presented a new set 
of facts regarding the proposed endeavor, which is material to eligibility for a national interest waiver. 
See Matter ofKatigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971), which requires that beneficiaries 
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seeking employment-based immigrant classification must possess the necessary qualifications as of 
the filing date of the visa petition. See also Dhanasar, 26 I&N Dec. at 889-90. The Petitioner must 
meet eligibility requirements at the time of filing the petition. 8 C.F .R. § 103.2(b)(1 ). The Petitioner's 
plans to establish a company were presented after the filing date; as such, the amended endeavor 
cannot retroactively establish eligibility. Further, the appeal brief provides a confusing overview of 
the Petitioner's intended work role and, as such, yet another deviation from the Petitioner's initial 
proposed endeavor. 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). 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). The Petitioner has not provided a 
definitive and consistent description of the Petitioner's proposed endeavor that would allow for a 
meaningful analysis of whether that endeavor is one of substantial merit and/or national importance. 
For these reasons, the petition may not be approved. 
The record does not establish the national importance of the proposed endeavor as required by the first 
prong of the Dhanasar precedent decision. Therefore, the Petitioner has not demonstrated eligibility 
for a national interest waiver. Because the identified reasons for dismissal are dispositive of the 
Petitioner's appeal, we decline to reach and hereby reserve remaining arguments concerning eligibility 
under the Dhanasar framework. 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 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 
The Petitioner has not demonstrated that he has proposed an endeavor of substantial merit or national 
importance. As the Petitioner has not met the requisite first prong of the Dhanasar analytical 
framework, he has not established he is eligible for or otherwise merits a national interest waiver as a 
matter of discretion. The petition will remain denied. 
ORDER: The appeal is dismissed. 
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