The Petitioner, a computer software engineer, seeks employment-based second preference (EB-2) immigrant classification as a member of the professions holding an advanced degree, 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).
SCOPS denied the petition. SCOPS determined that the Petitioner qualifies as a member of the professions holding an advanced degree. However, SCOPS concluded that the record does 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.
If a 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
SCOPS found that the Petitioner qualifies as a member of the professions holding an advanced degree. However, for the reasons discussed below, the Petitioner has not established that the proposed endeavor has national importance, as required by the first Dhanasar prong. See id.
At the time the Petitioner filed the Form 1-140, Immigrant Petition for Alien Workers, he provided generalized information regarding computer science, information regarding his qualifications, letters of recommendation, and a business plan.Support letters generic or unsupported However, he did not plainly state what the endeavor would be. Instead, the business plan describes a company "at the forefront of manufacturing innovation, offering cutting-edge software solutions tailored to optimize production floor processes," with "proprietary software [that] recommends actionable strategies to optimize workflows," although the plan does not elaborate on what the software company would do more specifically. Rather, the plan provides generalized information regarding manufacturing, logistics, and computer science. The plan also summarizes the Petitioner's qualifications and it states that he "emerges as the ideal leader for [the company]," although it does not clarify what job position the Petitioner would hold at the software company and what his job duties would entail-or even that he would manage the company as opposed to being an ideal candidate to do so. Similarly, the business plan states that, although it eventually "expect[s] our services to be managed in a physical office setting, we will keep our costs low in the first year by developing our platform from a 'home office' environment." The business plan does not elaborate on the location where the software company's physical office setting eventually would be. Even more problematic than those basic deficiencies, the business plan contains financial information that, when considered with other information in the record, casts doubt on its veracity and undermines its reliability and sufficiency. 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 the Basic Information About the Proposed Employment section of the Form 1-140 the Petitioner submitted, he stated that his job title would be "software engineer" and that his annual wages would be $132,930. In contrast, the business plan states that, in the first year of operations, the software company would employ three workers, with job titles of "control system engineer," "PLC programmer," and "SCADA developer," respectively, and that its total payroll expenses would be $135,000. The business plan further indicates that the company would employ 15 workers within the first five years of operations. Setting aside the issue that the Petitioner's job title as stated on the Form 1-140 does not match any of the job titles the business plan indicates the software company's employees would have in any of the first five years of operations, the business plan indicates that the company's two other first-year employees' combined annual wages would total $2,070, after the Petitioner would apparently earn $132,930 of the company's total payroll expenses of $135,000.
Beyond the business plan's improbable suggestion that two of the software company's three first-year workers would earn combined annual wages of only $2,070, as another example ofthe business plan's p. 3 questionable financial information, the business plan's revenue calculations are arbitrary and unsubstantiated. The business plan indicates that the company would begin with "a robust initial investment of$25,000" and that it also would earn annual sales in the amounts of$188,900, $302,240, $483,584, $725,376, and $1,088,064 during the first five years of operations, respectively. However, the business plan does not identify any particular good or service it would sell, the unit costs of those goods or services, the anticipated volume of sales for those units of goods or services, and other information that would support the business plan's revenue projections-both within a given year and as growth over the prior years. The business plan's financial information is particularly significant in this case, given that it calculates the software company would operate at a net loss during the first two years of operations, even with the doubtfully low payroll expense calculation.
The business plan's arbitrary, unsubstantiated, and improbable financial information casts doubt on its veracity, undermining both its reliability and sufficiency, and that of the remaining evidence in the record.Claims not backed by documents See Matter of Ho, 19 I&N Dec. at 591. The financial information in the business plan is material to the first Dhanasar prong because it directly addresses the ways-and extent to whichthe proposed endeavor may have significant potential to employ U.S. workers, substantial positive economic effects, and other indicia of national importance. See Matter ofDhanasar, 26 I&N Dec. at 889-90. Moreover, given that the business plan anticipates the company would operate at a net loss for two of the first five years of operations-even with that arbitrary, unsubstantiated, and improbable financial information-the software company's ability to earn sufficient revenue to pay its expenses throughout the period described is particularly doubtful. See Matter ofHo, 19 I&N Dec. at 591. In response to SCOPS' request for evidence (RFE), the Petitioner generally described the proposed endeavor as a plan to "creat[e] a company that will provide innovative software that will enable my clients to improve the operational efficiency of their businesses," which will "improve their financial results, which historically results in more investment in business, boosting the American economy."Proposed endeavor too vague The Petitioner also submitted information regarding his qualifications; Vasttus Consulting' s assessment of the startup software company; a one-page excerpt from a U.S. Small Business Administration HUBZone Qualification report for I I, Florida; a 2024 report by the Fast Track Action Subcommittee on Critical and Emerging Technologies and the National Science and Technology Council; letters of support; and an opinion letter. 2 We note that the Vasttus Consulting assessment-and its supporting documentation-bears minimal probative value because it purports that the software company "expects to hire ... 61 workers ... in the first five years of operation in the United States," which directly conflicts with the software company's own business plan, addressed above, which states that the company would employ 15 workers within the first five years of operations. See Matter ofHo, 19 I&N Dec. at 591. Moreover, even if the assessment were probative, which it is not, it cannot establish eligibility because it presents a set of facts that did not exist at the time the Petitioner filed the Form I-140. 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)(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 2 Although we do not address each item of evidence in the record for brevity, we have considered the record in its entirety. Moreover, as noted, the nature and extent of the doubt cast by the business plan undermines the reliability and sufficiency of both it and of the remaining evidence in the record. See Matter ofHo, 19 l&N Dec. at 591. p. 4 (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). In turn, the opinion letter similarly bears minimal probative value because it is based on the author's review of the business plan, which, as noted above, consists of arbitrary, unsubstantiated, and improbable financial information. See Matter ofHo, 19 I&N Dec. at 591. SCOPS acknowledged information in the record and it concluded that the proposed endeavor has substantial merit, as required in part by the first Dhanasar prong. See Matter ofDhanasar, 26 I&N Dec. at 889-90. However, SCOPS also determined that the record does not establish that the proposed endeavor has national importance, also required in part by the first Dhanasar prong. See id. More specifically, SCOPS explained why the business plan lacks probative value and that neither it nor the remainder of the record credibly establishes the extent to which the proposed endeavor has the potential to employ U.S. workers or otherwise may have substantial positive economic effects.Job creation or economic claims unsupported See id. SCOPS also noted that the Petitioner did not credibly identify where his endeavor would be located. SCOPS also observed that the record does not credibly establish how the proposed endeavor may have national or even global implications within any particular field, beyond providing benefits to the company's customers or clients. See id. SCOPS farther concluded that the record does not satisfy the second and third Dhanasar prongs. See id.
Because we determine that the record does not establish whether the proposed endeavor may have national importance, which is dispositive, we reserve our opinion regarding 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 of L-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). On appeal, the Petitioner asserts that SCOPS erred by assessing "early-stage estimates from my original I-140 petition, before I had engaged external analysts or developed a detailed five-year plan," which he subsequently submitted in his RFE response. The Petitioner also characterizes SCOPS' decision as having "ignored" evidence in the record, including "third-party assessments, technical reports, testimonial letters, and expert opinions from credentialed professionals in academia and industry." He reasserts that the proposed endeavor has national importance because "it involves launching ... a company designed to advance the adoption of intelligent manufacturing solutions and connected factory systems in underserved regions of the United States." He also states that the proposed endeavor has national importance because it includes "fields explicitly listed in the 2024 White House publication" regarding critical and emerging technologies, and because the company will be headquartered in an economically depressed area.
In determining national importance under the first Dhanasar prong, 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 of Dhanasar, 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 p. 5 economic effects, particularly in an economically depressed area." Matter ofDhanasar, 26 l&N Dec. at 889-90.
The Petitioner's assertion on appeal that SCOPS erred by assessing "early-stage estimates from my original 1-140 petition," rather than new, inconsistent information submitted in response to SCOPS' RFE, is unpersuasive.Inconsistencies in the record As explained above, 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 of future eligibility or after a petitioner becomes eligible under a new set of facts. See Matter ofKatigbak, 14 l&N Dec. at 49. 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 Izummi, 22 l&N Dec. at 176. Therefore, evidence the Petitioner submitted in response to the RFE that presents a set of facts other than that presented at the time the Petitioner filed the Form 1-140 cannot establish eligibility. Thus, SCOPS correctly assessed whether the Petitioner established eligibility for the benefit he requested based on the set of facts he provided at the time he filed the Form 1-140. See 8 C.F.R. § 103.2(b)(l); Matter of Katigbak, 14 l&N Dec. at 49; Matter ofIzummi, 22 l&N Dec. at 176.
Next, the record does not support the Petitioner's assertion on appeal that SCOPS "ignored ... thirdparty assessments, technical reports, testimonial letters, and expert opinions" he submitted in response to the RFE. On the contrary, SCOPS' decision specifically addresses, among other things, "business assessments," "articles and reports," "multiple letters of support," and "advisory opinion statements submitted as expert testimony" in the record. SCOPS' decision furthermore explains why those documents do not demonstrate whether the proposed endeavor may have national importance.
Next, we recognize the importance of progress in science, technology, engineering, and mathematics (STEM) fields and the essential role of persons with advanced STEM degrees in fostering this progress, especially in focused critical and emerging technologies or other STEM areas important to U.S. competitiveness or national security. See generally 6 USCIS Policy Manual F.5(D)(4), https://www.uscis.gov/policy-manual. However, as in all cases, a proposed endeavor implicating a STEM field must demonstrate not only substantial merit but also national importance, such as by having national or even global implications within a particular field, beyond merely being in a STEM field. See generally id.; see also Matter of Dhanasar, 26 l&N Dec. at 889-90. Thus, the relevant question here is not whether the Petitioner's proposed endeavor involves "fields explicitly listed" among critical and emerging technologies. Rather, the relevant question remains whether the specific endeavor the Petitioner proposes to undertake may have national or even global implications within the field of computer science, logistics, manufacturing, or any other particular field, such as those resulting from certain improved manufacturing processes; significant potential to employ U.S. workers; substantial positive economic effects; or other indicia of national importance. See Matter of Dhanasar, 26 l&N Dec. at 889-90.
To the extent that the record, based on the set of facts established at the time the Petitioner filed the Form 1-140, credibly establishes what the proposed endeavor would be, the software company may provide some goods or services that benefit its customers, clients, and business partners.Benefits limited to an employer or its clients However, the record does not establish, through credible, probative information consistent with the set of facts established at the time of filing, how the proposed endeavor may have the type ofbroader implications indicative of national importance contemplated by the first Dhanasar prong. See id. For example, for p. 6 the reasons explained above, neither the business plan nor the remainder of the record credibly establishes how the proposed endeavor may have national or even global implications within the field of manufacturing, logistics, computer science, or any other field, such as those resulting from certain improved manufacturing processes. See id. As another example, for the reasons explained above, neither the business plan nor the remainder of the record credibly establish the wages the software company would pay its workers, increasing in groups of three in each of the first five years of operations, nor does it credibly establish-based on the set of facts at the time the Petitioner filed the Form I-140-the location where those employees would work, and the significance of employing that number of workers in those job positions in the location(s). Therefore, the record does not establish whether the proposed endeavor has significant potential to employ U.S. workers, or other substantial positive economic effects. See id.
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.
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 of the Act through the issuance of a Form I-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.