dismissed EB-2 NIW Case: Social Entrepreneurship

U.S. Citizenship 
and Immigration 
Services 
In Re : 25690617 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: FEB. 23, 2023 
Form I-140, Immigrant Petition for Alien Worker (National Interest Waiver) 
The Petitioner, an entrepreneur, seeks classification as a member of the professions holding an 
advanced degree. 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 Nebraska Service Center denied the petition, concluding that the Petitioner 
qualified for classification as a member of the professions holding an advanced degree but that she 
had not established that a waiver of the required job offer, and thus of the labor certification, would 
be in the national interest. 1 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. Mattera/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. Because this classification requires that the 
individual's services be sought by a U.S. employer, a separate showing is required to establish that a 
waiver of the job offer requirement is in the national interest. 
While neither the statute nor the pertinent regulations define the term "national interest," we set forth 
a framework for adjudicating national interest waiver petitions in the precedent decision Matter of 
1 In the decision, the Director indicated that the Petitioner seeks classification as an individual of exceptional ability; 
however, in an earlier request for evidence (RFE), the Director found that the Petitioner"qualifies for the E2 l classification 
with an advance degree [sic] ... therefore, there is no need to also establish she is also [sic] an individual of exceptional 
ability." 
Dhanasar, 26 I&N Dec. 884 (AAO 2016). 2 Dhanasarstates that, after a petitioner has established 
eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) may, as a 
matter of discretion, grant a national interest waiver if the petitioner demonstrates: ( 1) that the 
noncitizen's proposed endeavor has both substantial merit and national importance; (2) that the 
noncitizen is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be 
beneficial to the United States to waive the requirements of a job off er and thus of a labor certification. 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
non citizen 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 
The second prong shifts the focus from the proposed endeavor to the noncitizen. To determine 
whether he or she is well positioned to advance the proposed endeavor, we consider factors including, 
but not limited to: the individual's education, skills, knowledge and record of success in related or 
similar efforts; a model or plan for future activities; any progress towards achieving the proposed 
endeavor; and the interest of potential customers, users, investors, or other relevant entities or 
individuals. 
The third prong requires the petitioner to demonstrate that, on balance, it would be beneficial to the 
United States to waive the requirements of a job offer and thus of a labor certification. In performing 
this analysis, USCIS may evaluate factors such as: whether, in light of the nature of the noncitizen's 
qualifications or the proposed endeavor, it would be impractical either for the noncitizen to secure a 
job off er or for the petitioner to obtain a labor certification; whether, even assuming that other qualified 
U.S. workers are available, the United States would still benefit from the noncitizen's contributions; 
and whether the national interest in the noncitizen's contributions is sufficiently urgent to warrant 
forgoing the labor certification process. In each case, the factor(s) considered must, taken together, 
indicate that on balance, it would be beneficial to the United States to waive the requirements of a job 
off er and thus of a labor certification. 3 
II. ANALYSIS 
The Director found that the Petitioner qualifies as a member of the professions holding an advanced 
degree. The remaining issue to be determined is whether the Petitioner has established that a waiver 
of the requirement of a job offer, and thus of a labor certification, would be in the national interest 
Specifically, the Director found that the Petitioner "has not established that the proposed endeavor is 
of national importance," as required by the first Dhanasar prong, and the Director further found that 
the record does not satisfy the second or third Dhanasar prongs. For the reasons discussed below, the 
Petitioner has not established that a waiver of the requirement of a job offer is warranted. 
Initially, the Petitioner described the endeavor as a project for participants to "develop culturally 
through a selection of educational courses, films, concerts, exhibitions, etc." The Petitioner asse1ied 
2 In announcing this new framework, we vacated our prior precedent decision,MatterofNew York State Dep't o[Transp., 
22 I&NDec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
3 SccDhanasar, 26l&NDec. at 888-91, for elaboration onthesethreeprongs. 
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that, through the proposed endeavor, she "will be able to develop efficient approaches to design, 
planning, organization, and control which will allow me to solve the national social problems 
regarding body-positive social movement via optimization of the processes of unification and cohesion 
of society." Specifically, the Petitioner asserted that her plan for the proposed endeavor would entail 
the following: 
• Building a community on Instagram; 
• Building a Twitter community; 
• Building a Face book community; 
• Y ouTube channel creation; 
• Creating a checklist; 
• Creating a list of daily rituals; 
• Create an inspirational collection of quotes for every day; 
• Creating a music playlists [sic] on Sound Cloud, Spotify to start the day and end 
the day; 
• Creating a selection of films, in particular- documentaries; 
• Creating routes for walks and meetings; 
• Development of an action plan (book club, sports, dancing); and 
• Zoom conferences with the Body Positive Social Movement representatives and 
many more. 
In a request for evidence (RFE), the Director informed the Petitioner that her prospective work "is not 
well-defined,"the record does not establish the location where she would be pursuing the proposed 
endeavor, and she "provided no documentation to demonstrate job creation in the U.S." The Director 
further informed the Petitioner that "it appears [her] proposed endeavor does not stand to sufficiently 
extend beyond her own business to impact [ s ]ocial and [ c ]ultural [ m ]anagement more broadly at a 
level commensurate with national importance." 
In response to the Director's RFE, the Petitioner submitted an undated business plan for 
which, in relevant part, indicates that the business "will be located in LJ I New York," and that she intends to employ 18 workers by the fifth year, including herself 
as the chief executive officer, seven "social media managers," five "project curators," and five "project 
managers." The Petitioner also submitted a copy of a filing receipt for the certificate of incorporation 
forl which the Petitioner filed with the New York State Department of 
State, Division of Corporations, indicating that she founded the company inl 12022, after the 
2021 petition filing date. 
A petitioner must establish eligibility for the benefit it is seeking at the time the petition is filed. See 
8 C.F.R. § 103 .2(b )(1). A visa petition may not be approved based on speculation of future eligibility 
or after a petitioner becomes eligible under a new set of facts. See Matter of Katigbak, 14 I&N 
Dec. 45, 49 (Reg'l Comm'r 1971 ). A petitioner may not make material changes to a petition in an 
effort to make a deficient petition conform to USCIS requirements. See Matter of lzummi, 22 I&N 
Dec. 169, 176 (Assoc. Comm'r 1998). 
The Petitioner's initial description of the proposed endeavor, with the list of tasks quoted in full above, 
omits reference to founding a business and hiring employees. The location of the proposed endeavor's 
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operations and whether the proposed endeavor would employ U.S. workers are material to whether 
the proposed endeavor may have national importance. Because the Petitioner asserted for the first 
time in response to the Director's RFE that she would found a new company and hire employees, and 
because the certificate of incorporation is dated after the petition filing date, the Petitioner's I I 
_______ its business plan, and any other information relating to it in the record-such 
as a letter from a professor of psychology at University regarding the Petitioner's company also 
submitted in response to the RFE-present a new set of facts that cannot establish eligibility. See 
8 C.F.R. § 103.2(b )(1 ); see also Matter of Katigbak, 14 I&N Dec. at 49; Matter of Izummi, 22 I&N 
Dec. at 176. Because the Petitioner'sl I cannot establish eligibility, we 
need not address it further. 
In the decision, the Director noted that the record does not establish how the proposed endeavor 
"would be financially supp01ied or how [the Petitioner] would be able to hire and pay the 18 employees 
[ referenced in the business plan submitted in response to the RFE]." The Director also noted that the 
record does not contain "supporting substantive evidence to support [the Petitioner's] assertions" 
regarding her proposed endeavor. The Director then concluded that the record does not establish that 
the proposed endeavor will have the type of broader implications, such as substantial positive 
economic effects, contemplated by the first Dhanasar prong. 
On appeal, the Petitioner reasserts that her proposed endeavor will entail the list of tasks quoted in full 
above. The Petitioner also reasserts information in the business plan for her company submitted in 
response to the Director's RFE, which cannot establish eligibility for the reasons discussed above. 
The Petitioner also submits on appeal general information about mental health that she attributes to 
IBISWorld, Centers for Disease Control (CDC), the National Institute for Mental Health (NIMH), and 
the National Alliance on Mental Illness (NAMI); however, the Petitioner does not include a copy of 
the referenced reports or publications, titles of the reports or publications or dates of publication, or 
other information about the reports or publications that may assist in corroborating the Petitioner's 
assertions. 
In determining national importance, the relevant question is not the importance of the industry, field, 
or profession in which an individual will work; instead, to assess national importance, we focus on the 
"specific endeavor that the [ non citizen] proposes to undertake." See Dhanasar, 26 I&N Dec. at 8 89. 
Dhanasar provided examples of endeavors that may have national importance, as required by the first 
prong, having "national or even global implications within a particular field, such as those resulting 
from certain improved manufacturing processes or medical advances" and endeavors that have broader 
implications, such as "significant potential to employ U.S. workers or has other substantial positive 
economic effects, particularly in an economically depressed area." Id. at 889-90. 
As discussed above, information relating to the business the Petitioner founded after the petition filing 
date may not establish eligibility because it presents a new set of facts material to eligibility for the 
requested benefit that the Petitioner did not present at the time of filing. See 8 C.F.R. § 103 .2(b )(1 ); 
see also Matter of Katigbak, 14 I&N Dec. at49;Matterof Izummi, 22 I&N Dec. at 176. In tum, the 
information the Petitioner attributes on appeal to IBISWorld, the CDC, NIMH, and NAMI is not 
supported by documentary evidence or a means of corroborating the Petitioner's assertions. Even to 
the extent that the unidentified reports or publications from IBISWorld, the CDC, NIMH, and NAMI 
could establish eligibility, the Petitioner's own summations of the rep01is or publications do not 
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indicate that they specifically identify her or the proposed endeavor, nor do they appear to discuss how 
the specific proposed endeavor may have national importance. As noted above, the relevant question 
is not the importance of the industry, field, or profession in which an individual will work; instead, to 
assess national importance, we focus on the "specific endeavor that the [ noncitizen] proposes to 
undertake." See Dhanasar, 26 I&N Dec. at 889. Finally, as the Director explained in both the RFE 
and the decision, the information in the record-that may establish eligibility-is not well defined, it 
does not establish the location where the proposed endeavor will operate and how it will generate 
income, and it does not indicate that the proposed endeavor will have national or global implications 
within a particular field or otherwise have broader implications, such as significant potential to employ 
U.S. workers or other substantial positive economic effects, particularly in an economically depressed 
area, as contemplated by the firstDhanasarprong. See id. at 889-90. 
In summation, the Petitioner has not established that the proposed endeavor has national importance, 
as required by the firstDhanasarprong; therefore, she is not eligible for a national interest waiver. 
We reserve our opinion regarding whether the record satisfies the second or third Dhanasarprong 
See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("courts and agencies are not required to make 
findings on issues the decision of which is unnecessary to the results they reach"); 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 
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, we 
conclude that the Petitioner has not established eligibility for, or otherwise merits, a national interest 
waiver as a matter of discretion. 
ORDER: The appeal is dismissed. 
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