The Petitioner seeks employment-based second preference (EB-2) immigrant classification as a member of the professions holding an advanced degree or an alien 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. § l 153(b)(2).
Service Center Operations (SCOPS) denied the petition, concluding the Petitioner 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 I&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 dismiss the appeal.
Law
To establish eligibility for a national interest waiver, petitioners must demonstrate that they merit a discretionary waiver of the job offer requirement "in the national interest." Section 203(b )(2)(B)(i) of the Act. Matter of Dhanasar, 26 l&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 petitioners demonstrate:
- 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
Regarding the national interest waiver, the first prong relates to substantial merit and national importance of the specific proposed endeavor. Dhanasar, 26 I&N Dec. at 889. At initial filing, the Petitioner did not provide a specific proposed endeavor but instead submitted a statement broadly claiming:
. I plan to continue my studies in the USA and become a brilliant professional pertinent to my area ....
. . . Through my knowledge, experience, and hard work, I want to make unique and significant contributions to the American society and the well-being and happiness of American citizens ....
I would love nothing more than to contribute my talent and ability as a Lawyer, to the benefit of the United States of America has become my true home - and I would be honored and privileged to give back to the community that made me feel safe, powerful and free .
. . . I have been actively networking, and I have great interest from U.S. companies who want to contract me as a Lawyer ....
The Petitioner did not provide any particulars and did not demonstrate that continuing his studies and broadly seeking employment to be contracted as a lawyer for U.S. companies were sufficient to satisfy Dhanasar 's requirement of a specific proposed endeavor. Id. at 889. In response to SCOPS' request for evidence (RFE), the Petitioner pivoted and the cover letter asserted:
... According to his statement, [the Petitioner] plans to establish a business dedicated to legal consulting and educational services. This business model inherently requires a team of professionals, including paralegals, administrative staff: and legal researchers, thereby directly creating employment opportunities .
. . . By setting up his business in an economically depressed area, he will address the legal service gap in these communities, ensuring that individuals and small businesses have access to essential legal assistance ....
In addition to his legal practice, [ the Petitioner] is committed to continuing his research in the field ofjurisprudence....
Furthermore, [ the Petitioner's] business will offer educational services, likely including training programs and workshops on various legal topics ....
On appeal, the Petitioner's brief maintains that he "proposes to operate a legal-consulting and legaleducation enterprise focused on (a) anti-corruption governance and compliance; (b) access-to-justice gaps in underserved regions ("legal deserts"); and (c) law-and-technology integration for lawful investigative/analytic methods."
The Petitioner did not initially indicate any intention to own and operate a business. While the RFE cover letter asserted that "[a]ccording to his statement, [the Petitioner] plans to establish a business dedicated to legal consulting and educational services," the record does not support this assertion.2 The Petitioner's initial statement made no references to establishing and operating a legal consulting and educational services business. In fact, as referenced above, the Petitioner's original statement indicated that he wanted to continue his studies and practice as a lawyer, claiming that businesses had interest in contracting him as a lawyer without any mention of a legal consulting or educational services business, including conducting research in the field of jurisprudence. 3 The Petitioner must establish all eligibility requirements for the immigration benefit have been satisfied from the time filing and continuing through adjudication. See 8 C.F.R. § 103.2(b)(l). Further, a petition cannot be approved at a future date after the petitioner becomes eligible under a new set of facts. Matter oflzummi, 22 I&N Dec. 169, 175 (Comm'r 1988). That decision farther provides, citing Matter ofBardouille, 18 I&N Dec. 114 (BIA 1981), that USCIS cannot "consider facts that come into being only subsequent to the filing of a petition." Id. at 176. Accordingly, we will not consider the Petitioner's materially changed proposed endeavor of opening, owning, and operating his own business to provide consulting, education, and research.Tried to change the endeavor after filing
Moreover, as he materially changed his proposed endeavor from initial filing to the RFE and continuing on appeal, the Petitioner abandoned his initial proposed endeavor. The Petitioner did not establish that he offered a specific proposed endeavor as required under Dhanasar, 26 I&N Dec. at 889. Without a specific proposed endeavor, a determination cannot be made whether the endeavor has substantial merit4 and national importance (prong one), that the Petitioner is well-positioned to advance the endeavor (prong two), and on balance, waiving the job offer requirement would benefit the United States ( prong three). 5
Conclusion
As the Petitioner has not offered a specific proposed endeavor as required under Dhanasar, we conclude the Petitioner has not demonstrated eligibility for or otherwise merits a national interest waiver as a matter of discretion. 6 The appeal will be dismissed for the above-stated reasons, with each considered as an independent and alternate basis for the decision.
ORDER: The appeal is dismissed.
NOTICE: This constitutes the final decision in this matter. The filing of a motion will not postpone the effect of the decision. 8 C.F.R. § 103.5(a)(l)(iv). Aliens who are not lawfully present, or who are otherwise inadmissible or deportable, may be subject to the commencement of removal proceedings under section 240 ofthe Act through the issuance of a Form 1-862, Notice to Appear. Those proceedings may result in their removal from the United States and possible ineligibility for future visas or other immigration benefits.