dismissed EB-2 NIW Case: Trucking

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAR. 18, 2024 In Re: 30242339 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner seeks classification as a member of the professions holding an advanced degree or of 
exceptional ability. See 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. See 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Circuit Courts (and Third in an unpublished decision) in concluding that USCIS' decision to grant or 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). 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish that 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 pursuant to 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 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter ofChristo'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. 
Whilst 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 
Dhanasar, 26 I&N Dec. 884 (AAO 2016). Dhanasar states that USCIS may as a matter of discretion 
grant a national interest waiver of the job offer, and thus of the labor certification, to a petitioner 
classified in the EB-2 category if they demonstrate that (1) the noncitizen' s proposed endeavor has 
both substantial merit and national importance, (2) 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 offer and thus of a labor certification. 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
noncitizen 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 
the noncitizen 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, progress towards achieving the proposed endeavor, and 
the interest of potential customers, users, investors, or other relevant entities or individuals are also 
key considerations. 
The third prong requires the petitioner to demonstrate that, on balance of applicable factors, it would 
be beneficial to the United States to waive the requirements of a job offer and thus of a labor 
certification. USCIS may evaluate factors such as whether, in light of the nature of the noncitizen' s 
qualification or the proposed endeavor, it would be impractical either for the noncitizen to secure a 
job offer or for the petition 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. Each of the factors considered must, taken together, indicate 
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. 
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. 
The Director concluded the Petitioner's proposed endeavor did not demonstrate eligibility for a 
favorable act of discretion to grant a national interest waiver of the requirement of a job offer, and thus 
the labor certification, under the first prong of the Dhanasar analytical framework. We reach the same 
decision as the Director, albeit on another basis. 
A. Substantial Merit and National Importance 
The Petitioner initially proposed to "offer affordable transportation solutions for. .. small businesses 
across the USA by hiring local professionals (truck drivers, freight brokers, and more)." In support, 
the Petitioner submitted a letter from their attorney, their personal affidavit, copies of their educational 
credentials with associated transcripts, and a copy of their resume. The evidence the Petitioner initially 
submitted did not sufficiently demonstrate the national or even global implications to their field or any 
broader implications rising to a level of national importance, did not adequately describe how well the 
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Petitioner was positioned to advance the proposed endeavor, and did not satisfactorily demonstrate 
that on balance of applicable factors it would be beneficial to the United States to waive the 
requirements of a job offer and thus of a labor certification. So the Director issued a request for 
additional evidence (RFE) to consider the merit of the proposed endeavor, its national importance, 
how well positioned the Petitioner was to advance the proposed endeavor, as well as the Petitioner's 
eligibility for a waiver of the job offer requirement and thus of a labor certification under the analytical 
framework we first discussed in Matter ofDhanasar. 
The Petitioner's response significantly departed from the proposed endeavor they indicated in their 
initial filing In response to the RFE, the Petitioner submitted an expert opinion letter froml II dean's research professor in management and global business at I a 
business plan, proof of establishment of the business entity intended to house the proposed endeavor, 
and recommendation letters. Contrary to their initial intention to "offer affordable transportation 
solutions for. .. small business across the USA by hiring local professionals (truck drivers, freight 
brokers, and more)," the Petitioner's proposed endeavor morphed into the Petitioner's ownership and 
operation of a "school that will offer high-level education lessons in trucking and the English language, 
as well as find the best employment opportunities for trucking professionals in their field." In essence, 
the Petitioner transformed their proposed endeavor from a trucker or trucking logistics professional 
into an English and trucking trade educator and job placement specialist for truckers. The Petitioner's 
response to the RFE constituted a wholesale change of their proposed endeavor. Contrary to the 
Petitioner's assertions, the passage of time whilst a petition is pending adjudication does not permit a 
Petitioner to wholly change their proposed endeavor. A petitioner must establish eligibility for the 
benefit they are seeking at the time the petition is filed. See Matter ofKatigbak, 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 Izwnmi, 22 I&N Dec. 169, 176 
(Assoc Comm'r 1998). And the change the Petitioner made is not the benign adjustment of tasks and 
focus within the trucking industry the Petitioner describes. The Petitioner's RFE response constituted 
a materially different endeavor wherein they would teach trucking as well as English and "find the 
best employment opportunities for trucking professionals in their field" instead of hiring "truck drivers 
and freight brokers" as they had initially planned. The Petitioner's materially significant 
transformation of their proposed endeavor rendered it ill-defined and amorphous. The Petitioner's 
reversal introduced ambiguity into their proposed endeavor which prevented analysis into its 
substantial merit or national importance. 
The Dhanasar framework cannot be applied to two dueling proposed endeavors. A petitioner must 
identify the specific endeavor they propose to undertake. See Matter of Dhanasar, 26 I&N Dec. at 
889. So it is not possible to determine the substantial merit and national importance of an endeavor 
when a Petitioner cannot consistently articulate the nature of the endeavor. On that basis alone, we 
could dismiss the appeal without further discussion. 
And in light of the material change the Petitioner made to their proposed endeavor in response to the 
RFE, we share the Director's reasonable concerns with the accuracy and concomitant reliability of 
several of the Petitioner's assertions and supporting documentation. Doubt cast on any aspect of a 
petitioner's evidence may undermine the reliability and sufficiency of the remaining evidence offered 
in support of the visa petition. Matter ofHo, 19 I&N Dec. 582, 591 (BIA 1988). For example, per 
the Petitioner's resume we note the Petitioner has owned I I the corporate entity they 
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intend to house their proposed endeavor in, since shortly after it was incorporated in 2020. And 
the Petitioner represents on appeal that their proposed endeavor is nascent, proposed, and "FUTURE" 
in nature. But the broad and vague duties the Petitioner listed in their resume were written in the 
present tense and represented that the Petitioner had been performing them since 2020. The record 
does not contain evidence adequately clarifying this discrepancy. And this discrepancy looms large 
in the context of the material reconstitution of the Petitioner's proposed endeavor from the initial 
petition to the response to the RFE and impedes an evaluation of the proposed endeavor's substantial 
merit 1 and national importance. 
USCIS may, in its discretion, use as advisory opinion statements from universities, professional 
organizations, or other sources submitted in evidence as expert testimony. See Matter ofCaron Int 'l, 
19 I&N Dec. 791, 795 (Comm'r 1988). However, the submission ofletters or opinion statements from 
experts supporting the petition is not presumptive evidence of eligibility. Id. The Petitioner submitted 
an expert opinion statement authored by professor at But the 
Petitioner's reversal of the nature of their proposed endeavor renders the contents of the expert opinion 
irrelevant to an evaluation of the endeavor's substantial merit or national importance. For example, 
the expert opinion speaks in terms of a current operating business where the Petitioner educates truck 
drivers on the finer points of trucking, the English language, and assists with job placement. But the 
Petitioner contends that they are proposing a currently inoperative "FUTURE" endeavor. And the 
opinion's inaccuracies are patent upon identification that the materials the writer took into account in 
rendering their expert opinion were "primary documentary evidence, regarding [the Petitioner's] 
education, professional training, employment and future plans" provided by the Petitioner. As we 
have explained earlier, the Petitioner's resume contained broad and vague duties written in the present 
tense representing the Petitioner had been performing them since 2020. The deficiencies of the 
Petitioner's documentation may have prohibited the writer from convincingly articulating the potential 
prospective impact of the Petitioner's endeavor so that a meaningful evaluation can be made to 
determine if it rose to a level of national importance. 
The Petitioner submitted a business plan prepared after the issuance of the RFE by a company that, 
according to its public facing promotional website information, creates business plan documents from 
templates for its clients to obtain favorable immigration outcomes. The business plan also suffers 
from the same inconsistencies and discrepancies we note above, sourced from a combination of the 
Petitioner's confusing source documentation and the material change in the Petitioner's proposed 
endeavor. It is unclear in the business plan, for example, whether the Petitioner's proposed endeavor 
is truly proposed and for the "FUTURE" or is in fact ongoing as described in the Petitioner's resume. 
And this opacity renders any of the other representations made in the business plan, such as hiring 
growth and rising revenues, unsupported. The Petitioner's business plan is not sufficiently probative, 
material, or relevant evidence of whether the Petitioner's proposed endeavor rose to a level of national 
importance. 
III. CONCLUSION 
1 Whilst the Director is not incorrect that the inconsistencies and discrepancies the Petitioner introduced into the record, 
an evaluation of the need of the proposed endeavor's services is not germane or relevant to the demonstration of a proposed 
endeavor's substantial merit. 
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The record contains insufficient evidence to establish they met the first prong of the Dhanasar 
analytical framework. Because the Petitioner has not established that the proposed endeavor has 
substantial merit or national importance, as required by the first Dhanasar prong, they are not eligible 
for a national interest waiver. We reserve our opinion regarding whether the record satisfies the second 
or third Dhanasar prong. 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 ofL-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). So we conclude the Petitioner has not 
established that they are eligible for or otherwise merit a national interest waiver as a matter of 
discretion. The petition will remain denied and the appeal is hereby dismissed. 
ORDER: The appeal is dismissed. 
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