remanded EB-2 NIW Case: Management Consulting

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAY 31, 2024 InRe: 31110228 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an entrepreneur and management consultant, 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. § 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. 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. The matter is now before us on 
appeal under 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 withdraw the Director's decision and remand the matter for entry of a new decision consistent 
with the following analysis. 
To qualify for a national interest waiver, a petitioner must first show eligibility 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. 
Once a petitioner demonstrates EB-2 eligibility, 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 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; 
1 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 is discretionary) . 
• The individual is well positioned to advance their proposed endeavor; and 
• On balance, waiving the job offer requirement would benefit the United States. 
The Director concluded that the Petitioner qualifies as a member of the professions holding the 
equivalent of an advanced degree as defined at 8 C.F.R. § 204.5(k)(2) an advanced degree. The issue 
on appeal is whether the Petitioner has established that a waiver of the requirement of a job offer, and 
thus a labor certification, would be in the national interest. The Director determined that the Petitioner 
had established the substantial merit of his proposed endeavor, but otherwise had not satisfied the three 
prongs of the Dhanasar national interest test. 
As explained below, the Director's decision rests on an incorrect information about the Petitioner's 
proposed endeavor, and we will remand the matter for a new decision based on the record. 
The Petitioner earned a bachelor's degree in business management in Brazil in 2012. He ran several 
businesses in Brazil, including a tax consultancy, a provider of digital marketing services, and a 
swimming pool business. The Petitioner entered the United States in December 2019 as an F-2 spouse 
of a nonimmigrant student. In the United States, the Petitioner ran a swimming pool business from 
2020 to 2022, and he established a business development company in 2022. 
The Petitioner had previously filed a petition on his own behalf in October 2020, with receipt number 
______ In that petition, the Petitioner sought a national interest waiver based in part on 
his swimming pool business. The 2020 petition included a statement from the Petitioner that reads, in 
part: "I believe that my professional experience in Brazil, over the last 10 years, has enabled me to 
act strongly in the segment of civil construction, but specifically in the segment of fiber pools by 
commercializing and installing them." The Petitioner later withdrew the petition. 
In October 2022, the Petitioner filed a second petition, which is now before us. The Petitioner's 
"Definitive Statement" submitted with the 2022 petition mentioned his pool business, but only in the 
context of his past employment history. The record shows that the Petitioner sold his interest in the 
pool business. In a statement submitted with the 2022 petition, the Petitioner stated that his proposed 
endeavor is to provide "consulting services" as an "international business developer," through a 
consulting company that he established in January 2022. The 2022 petition also included a business 
plan for the new consulting company. 
After issuing a request for evidence (RFE) in in June 2023 and considering the Petitioner's response, 
the Director denied the petition in September 2023. In the denial notice, the Director quoted the 
Petitioner's 2020 statement about "construction ... of fiber pools" and stated: "Prior to the issuance 
of the RFE, the petitioner's proposed endeavor was to construct fiber pools and install them for 
consumers. Subsequent to the issuance of the RFE, the petitioner's updated endeavor's intention is to 
'serve differentiate services' and 'impact the Management Consulting Services industry."' The 
Director determined that the Petitioner had made an impermissible material change to the petition, and 
therefore the evidence concerning the Petitioner's management consulting business is "not 
probative in determining that the petitioner's proposed endeavor has national importance." 
On appeal, the Petitioner states: 
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Firstly, it is crucial to emphasize that [the Petitioner's] initial filing [in 2020] was 
indeed related to pool construction. However, a significant development occurred 
when [the Petitioner] decided to sell the pool company during the adjudication process, 
leading to the withdrawal of the initial petition. Subsequently, we refiled the petition 
with an entirely different focus, which omitted any mention of the pool business. 
Secondly, USCTS' s analysis of the first prong appears to rely on information pertaining 
to the original pool construction business, which is no longer relevant due to the 
withdrawal and refiling of the petition. 
We agree with the Petitioner that the Director should have considered the present petition on its own 
merits, based on its own record of proceedings, and that the Director erred by relying on the 
Petitioner's statements in support of the earlier, withdrawn petition. 
Director correctly observed that Matter ofIzummi, 22 T&N Dec. 169 ( Assoc. Comm 'r 1998) does not 
permit a petitioner to make material changes after a petition has been filed. In Izummi, however, we 
stated that if a petitioner wished to introduce a new plan "which [was] materially different from the 
original plan, he should have withdrawn the instant petition and ... file[d] a new" petition. Id. at 176. 
This is what the Petitioner has done in the present case, withdrawing the first petition and filing a new 
one based on a different proposed endeavor. The September 2022 business plan for the Petitioner's 
consulting business was part of the petition when the Petitioner filed it in October 2022, and therefore 
it was not a material change that the Petitioner introduced after the new petition's filing date. 
The denial of the petition rested in large part on the Director's conclusion that the Petitioner had 
materially changed the proposed endeavor after filing the petition. Because the record does not support 
that conclusion, we will withdraw the Director's decision and remand the matter for a new decision in 
which the Director will consider the merits of the proposed endeavor described in October 2022. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
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