dismissed EB-2 NIW Case: Private Equity And Finance

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: FEB. 09, 2024 In Re: 29137084 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a specialist in the area of international capital markets and private equity financing, 
seeks employment-based second preference (EB-2) 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 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 established 
his eligibility for the EB-2 classification as a member of the professions holding an advanced degree, 
but that the record did not establish that he merited a national interest waiver as a matter of discretion. 
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 of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 I&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. 
An advanced degree is any United States academic or professional degree or a foreign equivalent 
degree above that of a bachelor's degree. A United States bachelor's degree or foreign equivalent 
degree followed by five years of progressive experience in the specialty is the equivalent of a master's 
degree. 8 C.F.R. § 204.5(k)(2). 
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." 
Section 203(b )(2)(B)(i) of the Act. While neither the statute nor the pertinent regulations define the 
term "national interest," Matter of Dhanasar, 26 l&N Dec. 884, 889 (AAO 2016), provides the 
framework for adjudicating national interest waiver petitions. Dhanasar states that U.S. Citizenship 
and Immigration Services (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. 
II. ANALYSIS 
The Petitioner is a specialist in the field of private equity and foreign investments, and states that he 
proposes to continue these activities in the United States through companies he has co-founded. He 
initially stated that his specific endeavor involved his role as executive vice president, capital markets 
for two I lbased companies, one involved in oil and gas exploration and the other in real estate 
investment in the small and medium multi-family housing market. The Petitioner further explained 
that his role "will be focused on discussing and negotiating equity funding opportunities with major 
foreign investors." However, in responding to the Director's request for evidence (RFE), the Petitioner 
submitted evidence of a new company that he formed well after the filing of the petition, and did not 
indicate that his proposed endeavor continues to involve the two companies mentioned in his initial 
submission. 
In his decision, the Director determined that the Petitioner's focus on the new company represented 
an impermissible material change to the petition. 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 oflzummi, 22 I&N Dec. 169, 175 (Comm'r 1998). The Director also noted 
that eligibility for a petition must be established at the time of filing. 8 C.F.R. §§ 103.2(b)(l), (12); 
Matter ofKatigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). 
On appeal, the Petitioner argues that his creation of a new company (without clarifying the status of 
the companies initially mentioned as the focus of his proposed endeavor) was not a material change 
or a new set of facts that could not establish eligibility at the filing date, as the new company was just 
a new vehicle to pursue the oil and gas projects proposed through the initial company. A review of 
the three business proposals submitted with the RFE response shows that the first (Fund 1) does appear 
to involve the same oil and gas project described in the proposal submitted initially, while the other 
two proposals submitted with the RFE response involve oil and gas projects that are not mentioned in 
the initial proposal. 
Our review under the first prong of the Dhanasar analytical framework is focused on the specific 
endeavor that is proposed by a petitioner. While the Petitioner on appeal asserts that his endeavor is 
"promoting foreign investment," or "International Capital Markets and Private-Equity [sic] 
Financing," these broad fields lack the specificity required of a proposed endeavor under Dhanasar. 
Also, his arguments regarding the first prong of the framework (in his response to the Director's RFE 
and repeated verbatim on appeal) depend heavily on the economic impacts of these specific oil and 
1 See also Poursina v. USCJS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionmy in nature). 
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gas projects. Since the analysis of whether a proposed endeavor has substantial merit and national 
importance depends in large part upon the scope and impact of the endeavor, the details of the endeavor 
and how it is proposed to be executed are material to a petitioner's eligibility for a national interest 
waiver. The latter two projects were not part of the initial proposed endeavor and were formed well 
after filing, so because of this material change we agree with the Director that the evidence about these 
projects cannot be considered on appeal. 2 
A. Substantial Merit and National Importance 
As noted above, the first prong of the Dhanasar analytical framework, which considers 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. 
Our evaluation of the national importance of a petitioner's proposed endeavor also considers its 
broader implications. Id. Here, the Director concluded that the evidence did not establish that the 
benefits and impact of the Petitioner's proposed endeavor would extend beyond the contractors and 
clients served, and thus would not impact the private equity field, or the oil and gas field, more broadly. 
In addition, applying factors from our precedent decision, the Director determined that the proposed 
endeavor in this case had not been show to offer significant potential to employ U.S. workers or other 
substantial positive economic effects. 
On appeal, the Petitioner asserts that the United States would benefit from the development of 
untapped oil and gas resources, that the value of the projects for which he proposes to attain fonding 
would reach billions of dollars, and that industries across several states would be involved in the 
projects, creating "a large number ofjobs." In support of this statement, he refers to information from 
the website of the U.S. Department of Energy (DOE) that provides statistics on the economic impact 
of the oil and gas industry in the United States. But since our analysis is focused on the Petitioner's 
specific proposed endeavor, data and statistics about the broader oil and gas industry in the United 
States do not help to establish the national importance of that endeavor. 
In the same vein, the Petitioner also focuses on the national importance of the field of "International 
Capital Markets and Private-Equity Financing," which as noted above he describes as his proposed 
endeavor, and refers to several articles about private equity and cross-border investments in the record. 
Again, these do not demonstrate the national importance of his specific endeavor, but instead describe 
2 The Petitioner asserts on appeal, as he did in response to the RFE, that he "has been actively searching for multifamily 
real estate investment opportunities in the U.S.," and refers to a letter from a business acquaintance who states that he 
contacted her as part of that search. However, neither the Petitioner nor the letter writer mention the specific real estate 
investment entity named in the proposal submitted with his initial filing, nor did he submit additional evidence regarding 
that entity or its activities in responding to the RFE. An issue not raised on appeal is waived. See. e.g.. Matter of 
O-R-E-. 28 I&N Dec. 330,336 n.5 (BIA 2021) (citing Matter ofR-A-M-, 25 I&N Dec. 657,658 n.2 (BIA 2012)). We will 
therefore not consider this project as part of the Petitioner's proposed endeavor in our analysis under the Dhanasar 
framework. 
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the importance and effect of these overall fields and activities. As such, they do not aid in showing 
the Petitioner's eligibility under the first prong of the Dhanasar framework. 
Regarding the benefits and impact of the proposed endeavor to raise private equity for oil and gas 
projects, which the Petitioner asserts will lead to the extraction of oil and gas from the identified 
prospects, the Fund 1 proposal indicates that the potential reserves include 100 million barrels of oil 
and 4800 Bcf of gas. The Petitioner refers to the DOE information sheet, which states that oil and gas 
production "helps save American consumers an estimated $203 billion annually." However, the 
record lacks context to show that the scope of this particular project is such that it would impact the 
oil and gas industry, or the regional or national economy, at a broader level. 
Similarly, the Petitioner's assertions regarding job creation and revenue are insufficiently supported. 
The Fund 1 proposal names a number of "preferred" contractors and service providers that would be 
needed to retrieve and transport the oil and gas from the prospects, all of whom would be managed by 
the Petitioner and his partners after funding is secured. But it does not indicate the number of hours 
of labor that would be required from each of these contractors, or otherwise provide a means of 
assessing the Petitioner's claim that his endeavor would generate a "large number ofjobs." The DOE 
information sheet indicates that the oil and gas industry is responsible for 12.3 million American jobs, 
and the evidence does not show that the Petitioner's proposed endeavor would have a broader impact 
in such a large industry, or that it would have a significant potential to employ U.S. workers. Id. at 
890. 
In addition, the Petitioner's focus on a letter from an interested foreign investor as "independent, 
objective evidence of the national importance" of his proposed endeavor is misplaced. While this 
evidence may contribute to showing that he is well positioned to advance his endeavor under the 
second prong of the Dhanasar framework, which considers "the interest of potential customers, users, 
investors, or other relevant entities or individuals" as one of several potential factors, the Petitioner 
has not shown how it supports the national importance of his endeavor. Id. 
The record also includes reference letters from individuals who appear to be professional 
acquaintances of the Petitioner. In addition to discussing the Petitioner's career achievements, which 
like the investor information above is more relevant to our analysis under the second prong of the 
Dhanasar framework, some of these letters address the national importance of his proposed endeavor. 
For example, an executive manager for a telecommunications company in Brazil who states that he 
has closely followed the Petitioner's career opines that "the benefits offered by [the Petitioner's] skills 
and efforts are undoubtedly in the national interest of the United States." He further writes that because 
the COVTD pandemic created supply chain and consumer spending issues for the U.S. economy, there 
is a "great need of skilled financial professionals, such as [the Petitioner]." But the writer's focus on 
the Petitioner's finance skills is not relevant to our determination under the Dhanasar framework of 
whether his proposed endeavor is of national importance. 
Another letter, written by the owner and principal of a financial advisory business who states that she 
has known the Petitioner for over ten years, states that foreign investment such as that proposed by the 
Petitioner "should be seen as integral to the U.S. economy." While there is ample evidence in the 
record regarding the value of private equity in general, the writer does not explain how the Petitioner's 
specific endeavor is nationally important. 
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For all of the reasons discussed above, we agree with the Director and conclude that the Petitioner has 
not established the national importance of his proposed endeavor. 
III. CONCLUSION 
The Petitioner is eligible for the EB-2 classification as a member of the professions holding an 
advanced degree, but he has not established his eligibility under the first prong of the Dhansasar 
analytical framework. Since the identified basis for denial is dispositive of the Petitioner's appeal, we 
decline to reach and hereby reserve the Petitioner's appellate arguments regarding the second and third 
prongs of the Dhanasar analytical 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 T&N Dec. 516, 526 n.7 (BIA 
2015) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
ORDER: The appeal is dismissed. 
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