dismissed EB-2 NIW Case: Operations Management

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: APR. 18, 2024 In Re: 30647821 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner seeks second preference immigrant classification as a member of the professions 
holding an advanced degree or as an individual of exceptional ability, as well as a national interest 
waiver of the job offer requirement attached to this EB-2 classification. 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 the Petitioner had not 
established eligibility for 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. 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 Christa's , Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
To establish eligibility for a national interest waiver, petitioners must 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. In addition, 
petitioners must show the merit of a discretionary waiver of the job offer requirement "in the national 
interest." Section 203(b )(2)(B)(i) of the Act. Matter ofDhanasar, 26 l&N Dec. 884, 889 (AAO 2016) 
provides that U.S. Citizenship and Immigration Services (USCIS) may, as matter of discretion, 1 grant 
a national interest waiver if: 
• The proposed endeavor has both substantial merit and national importance, 
• The individual is well-positioned to advance the proposed endeavor, and 
• On balance, waiving the job offer requirement would benefit the United States. 
1 See also 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Third in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver to be 
discretionary in nature). 
Regarding the national interest waiver, the first prong relates to substantial merit and national 
importance of the specific proposed endeavor. Dhanasar, 26 I&N Dec. at 889. In Part 6 (Basic 
Information About the Proposed Employment) of Form I-140, Immigrant Petition for Alien Workers, 
the Petitioner listed the job title as "GENERAL OPERATIONS MANAGER" and provided the 
nontechnical job description as "PLAN SECTOR ORGANIZATIONS, OVERSEEING MULTIPLE 
DEPARTMENTS OR LOCATIONS. DUTIES AND RESPONSIBILITIES INCLUDE 
FORMULATING POLICIES, MANAGING DAILY OPERATIONS." In the request for evidence 
(RFE), the Director indicated that the Petitioner's initial cover letter claimed the proposed endeavor is 
"to continue using my expertise and knowledge in mechanical engineering to advance my proposed 
endeavor as a general and operations manager/entrepreneur in the United States." 
In response to the Director's RFE, the Petitioner provided a business plan for E-E-, LLC, a 
"heavy equipment rental services firm that provides scaffolding and shoring rental services, power 
generators and water pumps rental services, concrete equipment rental services, electrical tools rental 
services and landscaping and cleaning tools rental services planned to be headquartered in Florida with 
two business units in Texas and Georgia." On appeal, the Petitioner maintains that he "intends to 
establish [E-E-, LLC] a heavy equipment rental services firm offering a range of essential services, 
including scaffolding and shoring rental, power generators and water pumps rental, CGI concrete 
equipment rental, electrical tools rental, and landscaping and cleaning tools rental." 
The Petitioner did not initially indicate any intention to own and operate a business. In fact, the 
Petitioner's business plan and supporting tax and business evidence are dated after the Director's 
issuance of the RFE. Furthermore, the Petitioner initially submitted an "Analysis and Advisory 
Evaluation" from A-A- who opined on the Petitioner's eligibility for a national interest waiver; 
however, the letter makes no mention of the Petitioner's owning and operating a business. The 
Petitioner must establish all eligibility requirements for the immigration benefit have been satisfied from 
the time filing and continuing through adjudication. See 8 C.F.R. § 103.2(b )(1). Further, a petition cannot 
be approved at a future date after the petitioner becomes eligible under a new set of facts. Matter of 
Izummi, 22 I&N Dec. 169, 175 (Comm'r 1988). That decision further provides, citing Matter of 
Bardouille, 18 I&N Dec. 114 (BIA 1981), that USCIS cannot "consider facts that come into being only 
subsequent to the filing of a petition." Id. at 176. Accordingly, we will not consider the Petitioner's 
materially changed proposed endeavor of opening, owning, and operating his own business. 
As it relates to substantial merit, the endeavor's merit may be demonstrated in a range of areas such 
as business, entrepreneurialism, science, technology, culture, health, or education. Dhanasar, 26 I&N 
Dec. at 889. The record contains sufficient evidence of the substantial merit of his initial proposed 
endeavor. 
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 specific endeavor that the 
foreign national proposes to undertake." See Dhanasar, 26 I&N Dec. at 889. Although the Petitioner 
provided "Industry Reports and Articles" on a wide range of topics, such as occupational information 
for general and operations managers and economic contributions of immigrant entrepreneurs, the 
Petitioner must demonstrate the national importance of his specific, proposed endeavor of providing 
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his particular general and operations manager services.2 In Dhanasar, we noted that "we look for 
broader implications" of the proposed endeavor and that "[aa ]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, as indicated above, the Petitioner presented a letter from A-A- who found the Petitioner's 
initial proposed endeavor has national importance. However, the letter discusses the importance of 
general and operations managers rather than focusing on the national importance of the Petitioner's 
specific, proposed endeavor. In addition, the letter does not explain how the Petitioner's particular 
services would have broader implications for our country. 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. Dhanasar, 26 I&N Dec. at 889. Here, the Petitioner 
did not demonstrate how his services largely influences the field and rises to the level of national 
importance. In Dhanasar, we determined 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. The 
record does not show through supporting documentation how his endeavor sufficiently extends beyond 
his prospective employer or clients, to impact the field or the U.S. economy more broadly at a level 
commensurate with national importance. 
Finally, the Petitioner did not show how his general and operations manager services have significant 
potential to employ U.S. workers or otherwise offer substantial positive economic effects for our 
nation. Without evidence regarding any projected U.S. economic impact or job creation attributable 
to his particular future work, the record does not show any benefits to the U.S. regional or national 
economy resulting from his services would reach the level of "substantial positive economic effects" 
contemplated by Dhanasar. Id. at 890. 
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. 3 
As the Petitioner has not met the requisite first prong ofthe Dhanasar analytical framework, we conclude 
that he has not demonstrated eligibility 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. 
2 The Petitioner's arguments and evidence relate to the substantial merit aspect of the proposed endeavor rather than the 
national importance part. 
3 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 l&N Dec. 516,526 n.7 (BIA 2015) 
( declining to reach alternate issues on appeal where applicants do not otherwise meet their burden of proof). 
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