dismissed EB-2 NIW Case: Aircraft Design Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re: 19654629 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : SEP. 27, 2022 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, an aircraft marketing company, seeks second preference immigrant classification for 
the Beneficiary, an aircraft design engineer, 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 EB-2 
classification. See Immigration and Nationality Act (the Act) section 203(b )(2), 8 U.S.C. § 
1153(b )(2). 
The Director of the Nebraska 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 be in the national interest. The Director affirmed the denial on a subsequent motion to 
reconsider and we dismissed a subsequent appeal. The matter is now before us on the Petitioner's 
combined motion to reopen and reconsider. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit by a 
preponderance of the evidence. Section 291 of the Act, 8 U.S.C. § 1361; MatterofChawathe, 25 l&N 
Dec . 369, 375 (AAO 2010). Upon review, we will dismiss the combined motions. 
I. LAW 
We set forth a framework for adjudicating national interest waiver petitions in the precedent decision 
Matter of Dhanasar, 26 I&N Dec . 884 (AAO 2016). In announcing this new framework, we vacated 
our prior precedent decision, Matter of New York State Department of Transportation, 22 l&N Dec. 
215 (Act. Assoc. Comm'r 1998). Dhanasar states that after a petitioner has established eligibility for 
EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) may grant a national interest 
waiver as matter of discretion . See also Poursina v. USCIS, 936 F.3d 868, 2019 WL 4051593 (9th 
Cir. 2019) (finding USCIS' decision to grant or deny a national interest waiver to be discretionary in 
nature). As a matter of discretion, the national interest waiver may be granted if the petitioner 
demonstrates: (1) that the foreign national 's proposed endeavor has both substantial merit and national 
importance; (2) that the foreign national 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. See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three 
prongs. 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). We do not require the evidence of a "new fact" to have been previously unavailable or 
undiscoverable. Instead, "new facts" are facts that are relevant to the issue(s) raised on motion and 
that have not been previously submitted in the proceeding, which includes the original petition. 
Reasserting previously stated facts or resubmitting previously provided evidence does not constitute 
"new facts." 
A motion to reconsider must establish that our decision was based on an incorrect application of law 
or policy and that the decision was incorrect based on the evidence in the record of proceedings at the 
time of the decision. 8 C.F.R. § 103.5(a)(3). 
II. ANALYSIS 
The Petitioner seeks to employ the Beneficiary as an aircraft design engineer converting passenger 
planes into air ambulances, as well as into freight planes. The Petitioner described its work on a project 
in retrofitting I passenger planes for conversion to air ambulances. It also 
stated that it 
is 
beginning to work on passenger-to-freight conversions of planes to be leased to 
companies in for humanitarian and commercial operations, "[a ]nd this is where the 
Beneficiary's services may be of great value." 
The Director found that the Beneficiary qualifies as a member of the professions holding an advanced 
degree. Although the Director found substantial merit in the proposed endeavor in the field of aviation, 
he concluded that the record does not establish that the Beneficiary's endeavor has national 
importance. The Director further concluded that the record did not establish that the Beneficiary is 
well positioned to advance the proposed endeavor. 
The Director granted the Petitioner's subsequent motion to reconsider and affirmed the denial on the 
same grounds. In dismissing the Petitioner's appeal, we concurred with the Director that the proposed 
endeavor has substantial merit. We also found that the Petitioner had not established that the proposed 
endeavor has national importance, as required by the first Dhanasar prong. Therefore, we concluded 
that the Beneficiary was not eligible for a national interest waiver. We reserved our opinion regarding 
whether the record satisfies the second or third Dhanasar prongs, as it was not necessary to reach 
these, based on not meeting the first prong. 
On its combined motions, the Petitioner does not assert that our decision was based on an incorrect 
application of law or policy or that the decision was incorrect based on the evidence in the record. 
Therefore, the Petitioner has not met the requirements for a motion to reconsider under 8 C.F.R. 
§ 103.5(a)(3), and we will dismiss the motion to reconsider. 
2 
With its motion to reopen, the Petitioner provides new evidence, including an updated expert opinion 
letter, letters from the Beneficiary's previous and current employers, and a supplemental statement 
from the Beneficiary. The new evidence describes the Beneficiary's previous work converting 
passenger planes using his unique design, which allows for lighter aircraft and more cargo space. The 
evidence asserts that the Beneficiary's design results in less fuel consumption, which further allows 
for lower fuel and transportation costs, as well as less carbon emissions. 
To evaluate whether the proposed endeavor satisfies the national importance requirement we look to 
evidence documenting the "potential prospective impact" of the Beneficiary's work. Here, the 
evidence documents that the Beneficiary's prior work in aircraft conversion design has the potential 
for positive economic and ecological impacts, both nationally and globally. However, the evidence 
does not address how the specific proposed endeavor, working with the Petitioner to convert passenger 
aircraft to air ambulances i and freight planes for lease inl I will have the same positive 
impacts rising to the level of national importance. Rather, the evidence provides general information 
about the aviation industry and the Beneficiary's past accomplishments in the field. In determining 
national importance, the relevant question is not the importance of the overall industry, field, or 
profession in which the individual will work; instead, we focus on the "the specific endeavor that the 
foreign national proposes to undertake." See Dhanasar, 26 I&N Dec. at 889. 
As we noted in our prior decision, the Petitioner has not demonstrated how the proposed endeavor has 
broader implications beyond the Petitioner's business. While the Beneficiary's previous work may 
have improved the passenger aircraft conversion process in a way that would result in national or 
global implications, these are the Beneficiary's past achievements in aircraft conversion design. As 
the Beneficiary notes in his personal statement, he currently leads the design team at a I I 
company where he developed his unique design. He states "the [design] prototype is currently being 
tested by the airline, and the results are extremely promising. If implemented, our design will result 
in millions of dollars in savings as each aircraft will be able to transport significantly more cargo, fully 
utilizing the additional cargo space created by the innovative design." It is unclear whether the 
Beneficiary or his current employer controls or owns the design technology. The Petitioner has also 
not established how, or even whether, the Beneficiary's design will be used in the proposed endeavor 
in a way significant enough to rise to the level of national importance. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit by a 
preponderance of the evidence. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Chawathe, 25 I&N 
Dec. at 375; Matter of Skirball Cultural Ctr., 25 I&N Dec. 799, 806 (AAO 2012). The burden is on 
the Petitioner to demonstrate the potential impact of the Beneficiary's proposed endeavor. Here, the 
record does not explain the specific positive effects of the proposed endeavor, including whether it 
will result in employment of U.S. workers, will generate positive economic effects that go beyond an 
increase in sales and profit for the Petitioner, or will have an overall ecological impact. Although the 
Beneficiary states in his personal statement that his "skills and expertise would contribute to the U.S. 
economy both financially and ecologically and in terms of increasing competitiveness of American air 
cargo carriers," the Petitioner has not established how the proposed endeavor of two potential projects 
will result in these effects. 
Because the documentation in the record does not establish the national importance of the proposed 
endeavor as required by the first prong of the Dhanasar precedent decision, the Petitioner has not 
3 
demonstrated eligibility for a national interest waiver. Further analysis of eligibility under the second 
and third prongs in Dhanasar, therefore, would serve no meaningful purpose. 
III. CONCLUSION 
The Petitioner's motion to reconsider is dismissed as it does not establish that our decision was based 
on an incorrect application of law or policy and that the decision was incorrect based on the evidence 
in the record of proceedings at the time of the decision. 8 C.F.R. § 103.5(a)(3). 
The Petitioner's motion to reopen is dismissed as the new evidence on motion does not demonstrate 
that it meets the requisite first prong of the Dhanasar analytical framework. Therefore, the Petitioner 
has not established that a waiver of the required job offer, and thus of the labor certification, would be 
in the national interest. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
4