The Petitioner, an airplane pilot, seeks employment-based second preference (EB-2) immigrant classification as an individual of exceptional ability, 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).
SCOPS denied the petition. SCOPS determined the record does not establish that the Petitioner qualifies as an individual of exceptional ability. SCOPS also concluded that the record did not establish that a waiver of the job offer requirement, and thus of a 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 ofproof 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. Matter of Christa's, Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). Upon de novo review, we will dismiss the appeal.
Law
To qualify for the underlying EB-2 visa classification, a petitioner must establish they are an advanced degree professional or an individual of exceptional ability in the sciences, arts, or business. Section 203(b)(2)(A) of the Act.
Ifa petitioner establishes eligibility for the underlying EB-2 classification, they must then demonstrate that they merit a discretionary waiver of the job offer requirement "in the national interest." Section 203(b )(2)(B)(i) ofthe Act. Matter ofDhanasar, 26 I&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 the proposed endeavor; and
- On balance, waiving the job offer requirement would benefit the United States.
Id.
Analysis
As noted above, SCOPS determined the record does not establish that the Petitioner qualifies for second preference immigrant classification as an individual of exceptional ability. See section 203(b )(2) of the Act. SCOPS further concluded that the record does not satisfy either the first or the third Dhanasar prong. See Matter ofDhanasar, 26 I&N Dec. 889-90. SCOPS also summarily stated that "the proposed endeavor has substantial merit," as required in part by the first Dhanasar prong, and that the Petitioner is well-positioned to advance the proposed endeavor, as required by the second Dhanasar prong. See id.
For the reasons discussed below, the Petitioner has not established that the proposed endeavor has national importance, as required by the first Dhanasar prong, which is dispositive. See id. Therefore, we reserve our opinion regarding whether the Petitioner qualifies for second preference immigrant classification; whether the proposed endeavor has substantial merit, as required in part by the first Dhanasar prong; and whether the record satisfies the second and third Dhanasar prongs. 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 ofL-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).
The Petitioner submitted publications that provide generalized information regarding the aviation industry. At the time of filing, the Petitioner also submitted a business plan, which describes the endeavor as a plan to found an aviation consulting company generally "in a vibrant commercial area in Florida [with] plans to expand to other regions and, later, to other states in the United States." The business plan indicates the aviation consulting company's potential clients would include "airlines[,] flight schools[,] airports and regulatory authorities." However, the plan omits details such as the particular location in Florida where the company would be based and operate and estimates regarding the number of clients the company would serve, to address the scope of the endeavor and the extent to which-and the location(s) in which-it may cause economic effects. The plan summarizes the company's services as follows:
- Assessment and optimization of flight operations;
- Flight safety and protocol consultancy;
- Pilot training and development;
- Advice on aircraft acquisition and maintenance;
- Strategies for increasing efficiency at airports; [ and]
- Implementation of emerging technologies in the sector.
The business plan also states the Petitioner would work as his aviation consulting company's "CEO and [p]rincipal [ c ]onsultant," with one administrative assistant and five "consultant assistants" in the first year ofoperations. The plan further indicates that, at some unspecified point, the company would p. 3 hire unstated numbers of other employees with the following position titles: security consultants, training specialists, data analysts, and commercial managers. The plan provides limited information regarding the job duties of the respective workers. For example, the extent of the plan's summary of security consultants' duties is "specialist in security protocols," without further elaboration. The business plan provides unsubstantiated and internally inconsistent estimates to reach its financial forecasts. For example, the plan asserts, "There will be 26 working days per month [and] 8 working hours per day." However, the plan also states, "The company's opening hours will be Monday to Friday, from 8am to 6pm, and Saturday, from 8am to 3pm." We note that, in many months, operating six days per week would total fewer than 26 working days per month, particularly given weekday holidays, and that neither "8am to 6pm" or "8am to 3pm" total "8 working hours per day." As another example of internally inconsistent financial information, the plan anticipates generating $86,400 in monthly revenue based on an arbitrary number of "24 consultations [per] day" at a rate of "$80/h," apparently each month for each year of operations. The plan does not clarify why it anticipates a uniform number of consultations each day, regardless of the given day of the week and the variance in operating hours on certain days, nor does it substantiate why it anticipates performing such an arbitrary number of consultations on any given day. Even if the aviation consulting company would operate 24 consultations per day on 26 days, at an hourly rate of $80, that would generate $49,920 for one-hour consultations, not the anticipated $86,400 in monthly revenue. From the other perspective, an anticipated monthly revenue of $86,400 divided by 26 days and 24 consultations per day would result in $138.46 per consultation and, at a rate of $80 per hour, that would require consultations lasting 1.73 hours apiece. Neither the business plan nor the remainder of the record clarify why the Petitioner anticipates conducting consultations for such a precise amount of time, or how the business plan otherwise calculated that monthly income amount.
The business plan also generally indicates that the company would spend $40,459 per month on generalized "salaries and charges." However, it does not elaborate on the wages the company would pay any particular worker, nor does it address how the monthly "salaries and charges" may change upon hiring the additional workers, noted above. We further note that the business plan anticipates spending only $700 per month on rent for its office in some unspecified location. The record does not substantiate that a monthly rental cost of $700 per month "in a vibrant commercial area in Florida" is realistic.
The unsubstantiated, internally inconsistent, and generally vague issues addressed above cast doubt on the reliability and sufficiency of the business plan, particularly its financial estimations. In tum, this doubt undermines the reliability and sufficiency ofthe remainder ofthe record. See Matter ofHo, 19 I&N Dec. 582, 591 (BIA 1988) (providing that doubt cast on any aspect of a petitioner's proof may undermine the reliability and sufficiency of the remaining evidence offered in support of the visa petition).
In response to SCOPS' request for evidence (RFE), the Petitioner submitted an updated business plan. The updated plan materially changes details of the proposed endeavor. For example, as noted above, the business plan submitted at the time of filing indicates the company would employ seven workers in the first year of operations, including the Petitioner as the company's "CEO and [p]rincipal [c]onsultant," one administrative assistant, and five "consultant assistants." However, the updated p. 4 plan states that, in the first year of operations, the company would employ at least nine workers, most of which with position titles not identified in the initial business plan. More specifically, in addition to the Petitioner working as his company's CEO, the updated business plan states the company would employ a chief technology officer, a chief of human resources officer, a regulatory compliance specialist, a project manager, and unspecified numbers of "flight safety specialists, aeronautical engineers, data analysts, [and] aircraft maintenance consultants." As another example of material changes, the updated plan states that the company now anticipates spending $2,500 per month on rent for its office, compared to the initial estimate of $700 per month, more than tripling that financial estimate.
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)(l). A visa petition may not be approved based on speculation offoture eligibility or after a petitioner becomes eligible under a new set of facts. See Matter of Katigbak, 14 T&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 ofIzummi, 22 I&N Dec.169, 176(Assoc.Comm'r 1998).
The number of workers the proposed endeavor would employ, the nature of their job duties, and the company's expenses are material to the first Dhanasar prong because they address the scope of the proposed endeavor, its potential to employ U.S. workers and have other economic effects, and its potential to have global or even national implications within a particular field. See Matter of Dhanasar, 26 I&N Dec. at 889-90. Because the updated business plan submitted in response to the RFE changes material details of the proposed endeavor, it presents a set of facts that did not exist at the time the Petitioner filed the Form I-140, Immigrant Petition for Alien Workers; therefore, it cannot-and it does not-establish eligibility. See 8 C.F.R. § 103.2(b)(l); Matter of Katigbak, 14 I&N Dec. at 49; Matter ofIzummi, 22 I&N Dec. at 176.
Even ifthe updated business plan could establish eligibility, which it cannot, we note that it still asserts the company would pay $40,459 per month on generalized "salaries and charges," despite materially changing the number ofworkers the company would employ and the duties they would perform during the first year of operations, Similar to the initial business plan, the updated plan does not elaborate on the wages the company would pay any particular worker, nor does it address how the monthly "salaries and charges" may change upon hiring additional workers after the first year of operations.Tried to change the endeavor after filing Neither the updated business plan nor the remainder of the record reconcile why the company would pay at least nine workers apparently the same total wages it would have paid seven workers, with different position titles and job duties. Therefore, even if the updated business plan could establish eligibility, the doubt it otherwise casts on its reliability and sufficiency would minimize its probative value. See Matter ofHo, 19 I&N Dec. at 591, supra.
SCOPS observed that the evidence the Petitioner submitted "express[ es] the national importance of the aviation industry, but fail[s] to establish that the activities proposed in this case would prospectively have a significant impact on the field of aviation, that would rise to the level of national importance." For example, SCOPS noted that the Petitioner "has not provided information or independent objective documentary evidence showing how one pilot will improve a national shortage; or will trigger substantial positive economic impacts" as he claimed. Based on those issues, SCOPS p. 5 concluded that the record does not satisfy the first Dhanasar prong. See Matter ofDhanasar, 26 I&N Dec. at 889-90.
On appeal, the Petitioner again provides generalized information regarding the aviation industry, including references to events that occurred in 2024 and 2025, after he filed the Form I-140 in 2023. He also reiterates descriptions of his proposed endeavor, which he generally states "will improve the qualification of the local workforce" and "generate[] significant economic and social value for the entire U.S. aviation market by modernizing operational safety practices, flight efficiency, and specialized training."
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 [individual] proposes to undertake" and "we consider its potential prospective impact," looking for "broader implications." Matter ofDhanasar, 26 I&N Dec. at 889. 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" or those with "significant potential to employ U.S. workers or ... other substantial positive economic effects, particularly in an economically depressed area." Matter ofDhanasar, 26 J&N Dec. at 889-90.
We first note that the Petitioner's references to events that occurred in 2024 and 2025, after he filed the Form I-140 in 2023, cannot establish eligibility. See 8 C.F.R. § 103.2(b)(l); Matter ofKatigbak, 14 I&N Dec. at 49, supra; Matter ofIzummi, 22 I&N Dec. at 176, supra. Because the references on appeal to events that occurred after the Form I-140 filing date cannot establish eligibility, we need not address them further.
In tum, the Petitioner's references to publications that provide generalized information regarding the aviation industry do not address the Petitioner, the specific endeavor he proposes to undertake, and how it may have national importance.Proposed endeavor too vague For example, although the publications address the broader industry, they do not discuss how the specific endeavor the Petitioner proposes to undertake may have national or even global implications within the field of aviation, such as those resulting from certain improved manufacturing processes. See Matter ofDhanasar, 26 I&N Dec. at 889-90. As another example, the publications do not address whether the specific endeavor the Petitioner proposes to undertake may have significant potential to employ U.S. workers or have other substantial positive economic effects.Job creation or economic claims unsupported See id. As explained above, the importance of an industry, field, or profession is not the relevant question in determining whether the specific endeavor an individual proposes to undertake may have national importance. See id. Because the generalized publications do not address the broader implications of the specific endeavor the Petitioner proposes to undertake, they do not inform how the proposed endeavor may have national importance, and we need not address them further.No broader implications shown
As SCOPS observed, the totality of the record supports the conclusion the proposed endeavor may benefit the Petitioner, as the CEO of his own company, and its particular clients and business partners. However, the record does not establish how the specific endeavor the Petitioner proposes to undertake may have the type ofbroader implications indicative of national importance. For example, neither the business plan nor the remainder of the record clarifies how the aviation consulting services the p. 6 Petitioner's startup company would provide may have national or even global implications within the field of aviation, such as those resulting from certain improved manufacturing processes. See id. Rather, the record indicates that the company would provide the same type of aviation consulting services already provided by similar, existing companies. As another example, neither the business plan nor the remainder of the record establish the wages the company would pay its workers-or the total number of workers the company would employ within the first five years of operations-nor does the record provide reliable and sufficient information regarding the company's potential economic effects, or even the particular location in which such effects may be realized beyond an abstract "vibrant commercial area in Florida." See id. Although the Petitioner generally reasserts on appeal that the proposed endeavor "will improve the qualification of the local workforce," without even clarifying the location(s) in Florida in which his proposed endeavor would be based and operate the record provides little support for that and similar conclusory statements.
In summation, the Petitioner has not established that the proposed endeavor has national importance, as required by the first Dhanasar prong; therefore, he is not eligible for a national interest waiver.
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.