dismissed EB-2 NIW Case: Pharmacy

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: APR. 19, 2024 In Re: 30413765 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a pharmacist, seeks employment-based second preference (EB-2) 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 that is attached to 
this EB-2 immigrant classification. See Immigration and Nationality Act (the Act) section 203(b)(2), 
8 U.S.C. § 1153(b)(2). 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 the Petitioner did not 
establish that a waiver of the required job offer and thus of the labor certification, would be in the 
national interest. We dismissed the subsequent appeal agreeing with the Director that the Petitioner 
did not demonstrate her eligibility for the requested national interest waiver. The matter is now before 
us again on motion to reconsider. 
The Petitioner bears the burden of proof to demonstrate eligibility by apreponderance of the evidence. 
Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). Upon review, we will dismiss the 
motion. 
I. LAW 
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 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. 
II. ANALYSIS 
As noted above, the Director denied the approval of this petition. In our decision dismissing the 
appeal, we determined that the Petitioner did not demonstrate the national importance of her proposed 
endeavor under the first prong of the analytical framework set forth in Matter of Dhanasar, 26 l&N 
Dec. 884 (AAO 2016). We incorporate our prior decision by reference and will repeat only certain 
facts and evidence as necessary to address the Petitioner's claims on motion . 
In our appeal decision, we considered the Petitioner's initially claimed proposed endeavor to work as 
a pharmacist in community clinics. We did not consider her later claimed proposed endeavor to 
establish a new medication management business for the elderly through a software application and 
bracelet device. Our decision explained that this new proposed endeavor was not raised in the initial 
petition but was raised for the first time in the Petitioner's response to a request for evidence notice. 
Therefore, we did not consider the Petitioner's materially changed proposed endeavor of opening and 
operating her own business, instead we considered her initially proposed endeavor to work as a 
pharmacist in community clinics. 
Because the record did not demonstrate that her work as a pharmacist in community clinics would 
have broader implications, we determined that she did not establish its national importance. As stated 
in our prior decision, 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 id. at 889. Therefore, the importance 
of pharmacists and the pharmaceutical industry does not render the Petitioner's proposed endeavor 
nationally important. We also explained that a shortage of workers in her occupation does not establish 
the national importance of her proposed endeavor, instead "such shortages of qualified workers are 
directly addressed by the U.S. Department of Labor through the labor certification process." 
On motion, the Petitioner contests the correctness of our prior decision relying on sections of the 
USCIS Policy Manual related to the national interest waiver of the job offer requirement. 
See generally 6 USCIS Policy Manual, F.5(D)(l) https://www.uscis.gov/policymanual. Because the 
USCIS Policy Manual was updated after filing the petition, the Petitioner contends our decision did 
not take into consideration the updated guidance specifically related to entrepreneurs and to persons 
with advanced degrees in the science, technology, engineering, or mathematics (STEM) fields. See 
generally 6 USCIS Policy Manual, supra, at F.5(D)(2) and (4). We acknowledge that the USCIS 
Policy Manual was updated providing evidentiary considerations for STEM graduates and 
entrepreneurs seeking national interest waivers. However, our prior decision did not consider her 
being an entrepreneur for her medication management business, instead we considered her initial 
intent to work as a pharmacist at a community clinic. Therefore, such guidance in the USCIS Policy 
Manual relating to entrepreneurs is not relevant to this motion. 
To the extent the Petitioner contends that we erred by not considering the new policy guidance 
concerning the importance of STEM graduates and fields, the policy guidance relating to STEM 
professionals does not overcome our finding that the Petitioner did not establish that her proposed 
endeavor to work as a pharmacist for a community clinic has national importance. The guidance does 
not indicate that STEM professionals qualify for the waiver in all cases. Rather, it states "the analysis 
is the same regardless of endeavor" and a petitioner "must demonstrate that a STEM endeavor has 
both substantial merit and national importance .... " See generally 6 USCIS Policy Manual, supra, at 
F.5(D)(2). When considering national importance, the guidance states "[m]any proposed endeavors 
that aim to advance STEM technologies and research ... have sufficiently broad potential implications 
to demonstrate national importance." See generally 6 USCIS Policy Manual, supra, at F.5(D)(2). 
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Here, the Petitioner has not established that her initial proposed endeavor to work as a pharmacist in 
community clinics aims to advance STEM technologies or research as set out in the guidance. 
In her motion brief, the Petitioner also explains her reasons for submitting evidence about her new 
medication management business after her initial petition, noting that "[d]uring the time while awaiting 
the review and judgment of my application, I developed an application template and bracelet that would 
be geared towards medication management for the elderly population and presented in [the request for 
evidence's] response, this application will be administered by" the new business. The remainder of the 
Petitioner's motion brief reasserts contentions for the national importance of her proposed endeavor to 
establish and operate her new medication management business. In addition, she submits evidence 
supporting her arguments that her proposed endeavor has national importance, including a summary of 
the information technology and bracelet device for the business, a printout about JAPHA membership 
account information, a report relating to Florida's opioid overdose crisis, and a U.S. government report 
of strategies to address the synthetic drug overdose epidemic. 
While the Petitioner explains that she developed the application technology and bracelet device after 
submitting her initial petition, she does not overcome the issue that the evidence of her medication 
management business materially changed her proposed endeavor after filing her petition. The 
Petitioner's materially changed proposed endeavor could not be considered when determining national 
importance. As explained in our earlier decision, a petitioner is required to establish eligibility for the 
immigration benefit from the time the petition is filed continuing through adjudication. See 8 C.F.R. § 
103.2(b)(l). The Petitioner cannot materially change the proposed endeavor after submitting her 
petition. When responding to a request for evidence notice, a petitioner may not make material 
changes to the petition in an effort to make a deficient petition conform to USCIS requirements. See 
Matter of lzummi, 22 l&N Dec. 169, 176 (Assoc. Comm'r 1998). 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 as at the time of filing. 
On motion, the Petitioner does not contest the correctness of our prior decision or point to any error 
of law or policy in our analysis of finding she materially changed her proposed endeavor after filing 
the petition. Instead, she provides us with her reasons for submitting the new proposed endeavor with 
the reply to the request for evidence and asks us to reconsider our decision using the updated guidance 
in the USCIS Policy Manual for her materially changed proposed endeavor. As discussed above, the 
Petitioner has not established any error in our prior determination. As such, she has not met the 
requirements for a motion to reconsider. 
11. CONCLUSION 
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. Thus, we affirm our previous 
determination that the Petitioner has not established eligibility under the first prong of the Dhanasar 
analytical framework and is thus not eligible for and does not merit a national interest waiver. While 
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she also asserts on motion that she meets the second and third Dhanasar prongs, we will continue to 
reserve those issues. 1 The motion will be dismissed. 8 C.F.R. § 103.5(a)(4). 
ORDER: The motion to reconsider is dismissed. 
1 INS v. Bagamasbad, 429 U.S. 24, 25-26 (1976) (stating that, like courts, federal agencies are not generally required 
to make "purely advisory findings" and decisions unnecessary to the ultimate decision). 
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