The Petitioner, a general and operations manager, seeks classification as a member ofthe 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 Texas Service Center denied the petition, concluding that the Petitioner qualified for classification as a member of the professions holding an advanced degree but that the Petitioner had not established that a waiver of the required job offer, and thus of the labor certification, would beinthenationalinterest. Thematterisnowbeforeusonappeal. 8C.F.R.§103.3.
The Petitionerbears the burden ofproofto demonstrate eligibility by a preponderance ofthe evidence. Matter ofChawathe, 25 I&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.
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 o f Dhanasar, 26 I&N Dec. 884 (AAO 2016).
Dhanasar states that, after a petitioner has established In announcing this new framework, we vacatedourpriorprecedent decision,MatteroJNew York State Dep 't oJTransp., 22 I&NDec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). p. 2 eligibility for EB-2 classification, USCIS may, as a matter of discretion, grant a national interest waiverifthepetitionerdemonstrates: (I)thatthenoncitizen'sproposedendeavorhasbothsubstantial 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 offer and thus of a labor certification.
The first prong, substantial merit and national impmiance, focuses on the specific endeavor that the noncitizen proposes to undertake. The endeavor's merit may be demonstrated in a range ofareas 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 UnitedStatestowaivetherequirementsofajobofferandthusofalaborcertification. Inperforming thisanalysis,USCISmayevaluatefactorssuchas: whether,inlightofthenatureofthenoncitizen's qualifications or the proposed endeavor, it would be impractical either for the noncitizen to secure a job offer or for the petitioner to obtain a labor certification; whether,even assumingthatotherqualified 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
Analysis
The Director found that the Petitioner qualifies as a member of the professions holding an advanced degree. TheremainingissuetobedeterminediswhetherthePetitionerhasestablishedthatawaiver of the requirement of a job offer, and thus of a labor certification, would be in the national interest 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 plan "to continue using my skills, expertise, and knowledge to work as a [g]eneral [o]perations [m]anager for U.S. institutions, as well as for foreign entities looking to expand their wealth and business portfolio in the United States." The Petitioner also generally asserted that his "efforts will ultimately result in increased business revenue, employment of U.S. workers, and contribution to the country's gross domestic product." offer and thus of a labor certification.
SccDhanasar, 26l&NDec. at 888-91, for elaboration onthesethreeprongs.
In a statement dated June 2020, the Petitioner specifically discussed his "role as [b ]usiness [c]onsultant at _ _ _ _ _ _ _ _ _ a business consulting company operating inl IFlorida, with a plan "to launch a new consulting firm in another U.S. state." The Petitioner stated, "Should the present petition be approved, I will expand my roles at and I will be in charge of managing and setting up the firm's new U.S. location." He noted that, while working as a business consultant atl Ihis "clients have been able to commence operations and generate jobs across several U.S. regions, including Texas, Minnesota, Iowa, Delaware, Florida, [and] Massachusetts, among others." The Petitioner referenced a pending client project that is "due to generate up to one hundred (100) direct jobs for U.S. workers." The Petitioner further stated, "Apart from my roles at I I will also offer my skills on a consultancy basis, in which capacity I will support U.S. businesses seeking to expand their clientele and business into diverse economic regions, such Latin [sic] America, as well as foreign companies and/or investors wishing to introduce their products, services, wealth, and business to the U.S. market." He also asserted that, as a consultant, he will "offer external management services to small and medium-sized companies in the U.S. which require the services and management of an operations executive, but are unable to employ someone in that role on a full-time basis due to their internal structure or the current financial condition of their business." The Petitioner did not initially indicate that he planned to found a new business or hire workers for such a new business; instead, he appeared to plan to work as a freelance consultant in addition to setting up a new location.
In response to the Director's request for evidence (RFE), the Petitioner asserted, for the first time, that he lans"tocontinuedevelo in ab usiness d evelo mentand i nvestment[c]onsulting[c]ompany, '------------------------------'inthestateofFlorida." The Petitioner also submitted a business plan for his new business dated August 2022, after the 2020 petition filing date, indicating that it would employ various numbers of workers within the first five yearsofoperations. Wenote,however,thattherecordalsocontainsacopyofacertificatefromthe Florida Secretary of State, indicating that the Petitioner filed articles of organization for his business in July 2020, as of the petition filing date. The record does not clarify why the Petitioner initially omitted reference to the business he had already founded in his description ofthe endeavor submitted at the time of filing.
Apetitionermustestablisheligibilityforthebenefititisseekingatthetimethepetitionisfiled. 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 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 ofIzummi, 22 T&N Dec. 169, 176 (Assoc. Comm'r 1998).
Whether the Petitioner planned to found a new company and hire new workers is material to the first Dhanasar prong because it contemplates endeavors that have broader implications, such as "significant potential to employ U.S. workers or ... other substantial positive economic effects, particularly in an economically depressed area." Dhanasar, 26 I&N Dec. at 889-90. Because the Petitioner asserted, for the first time, in response to the Director's RFE that heplans to found a new company and hire new workers, rather than to work as a freelance consultant in addition to his position at I the plan to found a new business and hire new workers presents a new set of facts that cannot establish eligibility. See 8 C.F.R. § 103.2(b)(l); see also Matter ofKatigbak, p. 4 14 I&N Dec. at 49; Matter ofIzummi, 22 I&N Dec. at 176. Because the Petitioner's plan to found a new business and hire new workers cannot establish eligibility, we need not address it further.
We note, however, that the business plan presents inconsistent or implausible information about the number of employees to be hired, the work location, and the company's financial viability, which would reduce its credibility even if it could establish eligibility, which it cannot. See Matter ofHo, 19 I&N Dec. 582,591 (BIA 1988) (doubt cast on any aspect of a petitioner's proof may undermine thereliabilityandsufficiencyoftheremainingevidenceofferedinsupportofthevisapetition.). For example, in section 1.6 ofthe business plan, the table ofjobs created planned for the first five years of operation (beginning in 2023) indicates that the company would create 24 new positions during that period. However, the table of "Positions Creation" in section 3.8 provides a total of 26 paid "professionals who will be working at The Company in the next 5 years of operation." The business plan's inconsistent infonnation regarding the number of positions to be created raises questions regardingtheaccuracyoftheplaningeneral. Seeid. Thebusinessplanalsoindicatesthatthebusiness "is currently operating in I Ibut it will expand and open its headquarters inl I Florida." Publicly available information provided by the Florida Secretary of State indicates that, in 2023, the business's principal address remains a private residence inl lFlorida. The record does not reconcile whether the Petitioner intends for up to 26 workers to work at the same private residence, nor does it reconcile how doing so would be feasible. See id. Additionally, the informationprovidedinthebusinessplanunderminesthecompany'sfinancialviability. Section1.3 specificallyidentifiesthePetitionerasthecompany'sownerandgeneralmanager. Thetableinsection 3.8 indicates that the full-time general manager's annual wage is $100,000, which is consistent with the position wage provided in the Form 1-140, Immigrant Petition for Alien Worker. Section 3.3 of the business plan states, "The next investment, made by the founding shareholders, will be in the order of US$100,000.00, more than sufficient to develop its activities and operations." However, the Petitioner, a "90% participant in capital," would essentially be forfeiting his annual wage reported in the business plan in order to make the stated investment "to develop its activities and operations." The ratio of the Petitioner's annual wage from the company to his capital reinvestment in that company raisesquestionsregardingthecompany'sfinancialviability. Seeid. Therefore,evenifthebusiness plan could establish eligibility, which again it cannot, it would undermine its own reliability and sufficiency,andthatofotherevidenceintherecord. Seeid.
The Petitioner's RFE response also presents information that directly conflicts with the description of the proposed endeavor submitted at the time of filing. The RFE response business plan indicates that the Petitioner worked as a business consultant forl Ifrom "July 2018- June 2020,"endinghisemploymentatthatcompanybeforethepetitionfilingdate. Therefore,therecord does not support the Petitioner's assertion at the time of filing that he "will expand [his] roles a t I Iand [he] will be in charge of managing and setting up the firm's new U.S. location." Additionally,thePetitioner'sdiscussionofhisworkat I.andits consequences for his clients is inapposite to the instant petition because the RFE response indicates that, before filing the petition, the Petitioner ceased working f o r and providing such consequences to its clients. A petitioner must establish eligibility for a requested benefit at the time of filing the benefit request, and a petitioner must continue to be eligible through adjudication. See 8 C.F.R. § 103 .2(b)(1 ). Because the RFE response indicates that the Petitioner ceased working forl Iprior to filing the petition, information regarding his p. 5 work for that company and the consequences for its clients cannot establish eligibility under the first Dhanasarprong. Seeid;seealsoDhanasar,26I&NDec.at889-90.
In the decision, the Director noted that, although the Petitioner founded his company before the petition filing date, he "made no mention of this entrepreneurial venture" before the RFE response. As discussed above, the Director fmihernoted that the RFE response "shows that [the Petitioner's] employment withl ended in June 2020, which make[s] his initially stated intentionstocontinueworkingwiththatcompanyatthetimeoffilingfalse." TheDirectornotedthat the material changes to his planned endeavor-cessation of stated employment and a previously undisclosed plan to found a company and hire workers-cannot establish eligibility and found "sufficientreasontoconcludethattheprongrelatingtonationalimportancehasnotbeenmet." The Director further noted inconsistent or unsupported information submitted in the RFE response.Claims not backed by documents
On appeal, the Petitioner asserts that his proposed endeavor has not changed since the time of filing. Specifically, he asserts that he "intends to work in the United States as a [g]eneral and [o]perational [m]anager while also continuing to expand his business, I IHe adds that "wanting to further expand his business does not deviate from this plan" and that he "will be employing the same skills to fmiher the same proposed endeavor while simultaneously adding an extra layer of value by continuing to provide these same benefits to the US economy through his business." The Petitioner further references general information about operations management published by Inc. Magazine,HarvardBusinessReview,andEntrepreneurMagazine. However,noneofthepublications reference the Petitioner, nor do they address how his specific endeavor may have national importance. The Petitioner summarizes his prior work experience and asserts that his endeavor has national importance because it "aligns with the national interests of the U.S. in improving marketing in the business sector."
In determining national importance, the relevant question is not the importance ofthe 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. Dhanasar provided examples ofendeavors 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 improvedmanufacturingprocesses 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.
The record does not support the Petitioner's characterization on appeal that the proposed endeavor remainedunchangedsincethetimeoffilingthroughadjudication. Asdiscussedabove,thePetitioner submitted a statement in support of the petition that specifically asserted, "Should the present petition be approved, I will expand my roles a t a n d I I will be in charge of managing and setting up the firm's new U.S. location." However, the RFE response indicated that the Petitioner'semploymentat ceasedbeforethepetitionfilingdate. Therefore, the record does not support the conclusion that the specific employment plans that the Petitioner provided at the time of filing were factually possible as of the petition filing date. The revelation, provided in response to the RFE, that the Petitioner's plans to expand his roles at I Inc., and manage and set up a new U.S. location for that company were not factually possible presents a new set of facts material to the first Dhanasar prong, because managing and setting up a new office p. 6 relate to whether a proposed endeavor may have national importance. See 8 C.F.R. § 103.2(b)(1 ); see alsoMatterofKatigbak, 14 I&NDec. at49;Matteroflzummi,22 I&NDec. at l 76;Dhanasar,26 I&N Dec.at889-90. Similarly,thePetitioner'scessationofworkat presentsa new set of facts regarding the consequences of his consulting work for his clients at that company because the record does not establish that those clients would follow him to his own company. See id.
We acknowledge that the initial description ofthe proposed endeavor also indicated, "Apart from my roles atl I, I will also offer my skills on a consultancy basis, in which capacity I will support U.S. businesses seeking to expand their clientele and business into diverse economic regions, such Latin [sic] America, as well as foreign companies and/or investors wishing to introduce their products, services, wealth, and business to the U.S. market." The Petitioner also asserted that, as a consultant, he will "offer external management services to small and medium-sized companies in the U.S. which require the services and management of an operations executive, but are unable to employ someone in that role on a full-time basis due to their internal structure or the current financial conditionoftheirbusiness." However,thePetitionerdidnotinitiallyindicatethatheplannedtofound a new business or hire workers for such a new business; instead, he appeared to plan to work as a freelanceconsultant. Aplantoworkasafreelanceconsultantismateriallydifferentfromfoundinga new consulting company and hiring workers because o f the potential broader implications o f the latter. Whether the Petitioner would utilize the same set of business consultin and mana erial skills at either does not fully address the consequences of founding a new business and hiring employees for that business under the Petitioner's sole direction, rather than working under the direction ofl I o w n e r s h i p and management structure. The Petitioner stated for the first time in response to the RFE that he planned to found his own company and hire workers, again presenting a new set of facts material to the first Dhanasar prong not addressed at the time of filing the petition. See id. For the reasons discussed above, the record supports the Director's conclusion that the Petitioner materiall chan ed the ro osed endeavor and that the information re ardin ~-----------------------------------__.-annot establish eligibility. See id.
The Petitioner's reference on appeal to his prior work experience as a factor in the proposed endeavor's national importance is misplaced. A petitioner's work experience relates to the second Dhanasar prong-whether an individual is well positioned to advance a proposed endeavor-but it does not relate to the first Dhanasar prong-whether the specific endeavor an individual proposes to undertake will have broader implications or other substantial positive economic effects.No broader implications shown Dhanasar, 26 I&N Dec. at 888-91. In tum, the Petitioner's reference on appeal to "the national interests of the U.S. in improvingmarketinginthebusinesssector"ismisplaced. Again,indeterminingnationalimportance, 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 id. at 889. General assertions regarding an industry that do not address how a specific endeavor will have broader implications or other substantial positive economiceffectsdonotestablishhowaproposedendeavormayhavenationalimportance.Proposed endeavor too vague Seeid.
The record does not establish that the proposed endeavor will have national importance. For the reasons discussed above, the Petitioner's RFE response presented a new set of material facts-and established that significant aspects of his initial proposed endeavor were not factually possible-that p. 7 cannot establish eligibility. See 8 C.F.R. § 103.2(b)(1); see also Matter ofKatigbak, 14 I&N Dec. at 49; Matter o f Izummi, 22 I&N Dec. at 176. Instead, the Petitioner's initial proposed endeavor description asserted that he will "continue using my skills, expertise, and knowledge to work as a [g]eneral [o]perations [m]anager for U.S. institutions, as well as for foreign entities looking to expand their wealth and business portfolio in the United States." The proposed endeavor appears to benefit the Petitioner's potential employer(s) and the clients, customers, etc., of the Petitioner's potential employer(s); however, the record does not establish how the Petitioner's work as a general operations manager will have "national or even global implications within a particular field, such as those resulting from certain improved manufacturing processes or medical advances" or 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.
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. 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).
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.