dismissed EB-2 NIW Case: Safety Engineering

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: APR. 24, 2024 In Re: 30908239 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a safety engineer, seeks 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. 
§ l l 53(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. 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 the national interest waiver. We dismissed a subsequent 
appeal. The matter is now before us on combined motions to reopen and reconsider. 
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). Upon review, we will dismiss the 
motion. 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). We may grant motions that satisfy these requirements and demonstrate eligibility for 
the requested benefit. See Matter of Coelho, 20 I&N Dec. 464,473 (BIA 1992) (requiring that new 
evidence have the potential to change the outcome). A motion that does not meet applicable 
requirements shall be dismissed. 8 C.F.R. § 103.5(a)(4). 
On motion, the Petitioner asserts no new facts and submits no new evidence. Therefore, the 
Petitioner's filing does not meet the requirements of a motion to reopen and must be dismissed. 
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. 
On motion, the Petitioner asserts that our prior decision "is contrary to law or policy," but the Petitioner 
does not identify any specific law or policy on motion, except to contend that our purported failure to 
fully consider the evidence "violat[ ed] the Fourth Amendment of the Constitution of the United States 
of America." The Fourth Amendment prohibits "unreasonable searches and seizures." U.S. Const. 
amend. IV. The Petitioner does not explain how the dismissal of his appeal violated that prohibition. 
The Petitioner may have meant to refer to the Fifth Amendment, which guarantees "due process of 
law." U.S. Const. amend. V. But the Petitioner does not identify any specific documents or other 
pieces of evidence that we overlooked in our appellate review of the record, and the Petitioner does 
not explain how discussion or consideration of those materials would have changed the outcome of 
our July 2023 decision. The general assertion that we did not sufficiently consider unspecified 
evidence is not sufficient to warrant reconsideration of our prior decision. 
The Petitioner's motion is more specific when referring to our conclusions regarding changes to the 
Petitioner's proposed endeavor. A detailed description of one's proposed endeavor is a key 
requirement in the national interest framework set forth in Matter ofDhanasar, 26 I&N Dec. 884. In 
our appellate decision, we referred to the Petitioner's arguments and quoted from a business plan in 
the record. We observed that the Petitioner appeared to have materially changed his proposed 
endeavor in response to a request for evidence (RFE), and again on appeal. We stated: 
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 seeking employment-based immigrant 
classification must possess the necessary qualifications as of the filing date of the visa 
petition. . . . The Petitioner must meet eligibility requirements at the time of filing the 
petition. 8 C.F.R. § 103.2(b)(l). 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. ... 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 lzummi, 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. 
On motion, the Petitioner states: 
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[T]he assertion in the appeal dismissal that the Petitioner presented three distinct 
proposed endeavors in his application is not accurate. A meticulous examination of the 
provided documents would undeniably confirm that all arguments raised by the 
Petitioner are complementary, rather than contradictory. 
Given the often-prolonged duration of immigration application processing, which can 
span years, it's typical for Petitioners to refine and complement their initial endeavors. 
This is reflective of their evolving circumstances and should not be misconstrued as a 
deviation from the original proposal. 
The record does not support the Petitioner's assertion that the record depicts a single, evolving 
endeavor with no material changes. Initially, the Petitioner stated that he intended to "continue [his] 
career by working as a Safety Engineer for an American company or department," where he would 
"[f]ill a position as a Safety Engineer that is vacant." Only in response to the RFE did he indicate that 
his proposed endeavor would involve "developing a business in the United States" in which he would 
"leverage his business development and marketing knowledge." In his initial statement, the Petitioner 
claimed no such expertise in business development and marketing. 
The Petitioner's appellate brief included substantial discussion of "[b]]usiness development and sales 
professionals, such as the Appellant," and indicated that the Petitioner would "provid[e] objective 
advice regarding the optimization of business processes using respected industry methodologies, as 
well as implementing effective business development, sales, and marketing techniques." This 
discussion is not a minor refinement of the Petitioner's initially stated plan to fill a company's vacant 
position as a safety engineer. Rather, it refers to a different occupation altogether. On motion, the 
Petitioner maintains that the different descriptions of the proposed endeavor "are complementary, 
rather than contradictory," but the Petitioner does not elaborate or explain how the different statements 
quoted above, and in our appellate decision, could reasonably be seen as mutually compatible and 
relating to the same proposed endeavor. 
The appellate brief also includes some discussion of safety engineering, but this does not establish that 
the Petitioner has consistently described the same proposed endeavor throughout the proceeding. The 
term "endeavor" is more specific than the general occupation; a petitioner should offer details not only 
as to what the occupation normally involves, but what types of work the person proposes to undertake 
specifically within that occupation. See, generally, 6 USCJS Policy Manual F.5(D)(l), 
https://www.uscis.gov/policy-manual. In this case, the Petitioner has discussed materially different 
endeavors within the broader occupational category of safety engineering. Working as an engineer 
for a single employer is not the same endeavor as starting and running a consulting business; the two 
endeavors overlap but involve different tasks and responsibilities. 
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. Therefore, the motion will 
be dismissed. 8 C.F.R. § 103.5(a)(4). 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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