dismissed EB-2 NIW Case: Architecture

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAY 28, 2024 In Re: 31109191 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an architect, seeks classification under the employment-based , second-preference (EB-
2) immigrant visa category and a waiver of the category's job-offer requirement. See Immigration 
and Nationality Act (the Act) section 203(b)(2)(B)(i), 8 U.S.C. § 1153(b)(2)(B)(i). U.S. Citizenship 
and Immigration Services (USCIS) has discretion to excuse job offers in this category - and thus 
related requirements for certifications from the U.S. Department of Labor (DOL) - if petitioners 
demonstrate that waivers of these U.S.-worker protections would be "in the national interest." Id. 
The Director of the Texas Service Center denied the petition. The Director found the Petitioner 
eligible for EB-2 classification as a member of the professions holding an "advanced degree." See 
section 203(b )(2)(A) of the Act. But the Director concluded that the Petitioner did not demonstrate 
the merits of his national interest waiver request. On appeal, the Petitioner contends that the Director 
erred in finding insufficient evidence that: his proposed endeavor has "national importance;" he is 
"well positioned" to advance it; and a waiver would, overall, benefit the United States. 
The Petitioner bears the burden of demonstrating eligibility for the requested benefit by a 
preponderance of the evidence. Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). 
Exercising de novo appellate review, see Matter of Christa 's, Inc., 26 I&N Dec. 537,537 n.2 (AAO 
2015), we affirm the Director's finding that the Petitioner has not established the purported national 
importance of his proposed venture. We will therefore dismiss the appeal. 
I. LAW 
To establish eligibility for national interest waivers, pet1t10ners must first demonstrate their 
qualifications for the EB-2 category, either as advanced degree professionals or noncitizens of 
"exceptional ability" in the sciences, arts, or business. Section 203(b )(2)(A) of the Act. To protect 
the jobs of U.S. workers, this immigrant visa category usually requires prospective employers to offer 
noncitizens jobs and to obtain DOL certifications to permanently employ them in the country. See 
section 212(a)(5)(D) of the Act, 8 U.S.C. § 1182(a)(5)(D). Petitioners may avoid the job offer/labor 
certification requirements by demonstrating that waivers of the U.S.-worker protections would be in 
the national interest. Section 203(b )(2)(B)(i) of the Act. 
Neither the Act nor regulations define the term "national interest." So, to adjudicate these waiver 
requests, we have established a framework. If otherwise qualified as advanced degree professionals 
or noncitizens of exceptional ability, petitioners may warrant waivers of the job-offer/labor 
certification requirements by demonstrating that: 
• Their proposed U.S. work has "substantial merit" and "national importance;" 
• They are "well positioned" to advance their intended endeavors; and 
• On balance, waivers of the job-offer/labor certification requirements would benefit the United 
States. 
Matter ofDhanasar, 26 I&N Dec. 884, 889-91 (AAO 2016). 
TI. ANALYSIS 
A. The Proposed Endeavor 
The record shows that the Petitioner, a Colombian native and citizen, earned a bachelor's degree in 
architecture in his home country. He founded a building construction company in Colombia and 
served as its general manager for about 10 years. 
In the United States, the Petitioner proposes to help build affordable and disaster-resilient housing, 
initially in Florida. He stated that he will use "computer assisted design" and "building information 
modeling" to develop new housing and enhance existing structures. He stated: "My proposed 
endeavor is to take advantage ofmy extensive experience in construction, residential housing, disaster­
resilient infrastructure and design, and civil engineering in order to improve access to housing within 
the United States." 1 
B. EB-2 Eligibility 
The record supports the Director's finding that the Petitioner qualifies for EB-2 classification as an 
advanced degree professional. The Petitioner documented his possession of a foreign degree equating 
to a U.S. bachelor's degree in architecture followed by more than five years of progressive experience 
in the specialty. See 8 C.F.R. § 204.5(k)(2) (defining the term "advanced degree"). 
C. Substantial Merit 
We also 
agree with the Director that the Petitioner has demonstrated the substantial merit of his 
proposed endeavor. A proposed venture may have substantial merit if it "has the potential to create a 
significant economic impact" or relates to "research, pure science, and the furtherance of human 
knowledge." Matter ofDhanasar, 26 I&N Dec. at 889. 
1 The record does not specify whether the Petitioner would work for a U.S. employer or establish his own company in the 
United States like he did in Colombia. 
2 
The Petitioner submitted evidence indicating that his proposed endeavor could create more affordable 
and disaster-resilient housing in the United States. We therefore agree that his venture has substantial 
merit. 
D. National Importance 
When determining whether a proposed endeavor has national importance, USCIS must focus on the 
particular venture, specifically on its "potential prospective impact." Matter of Dhanasar, 26 I&N 
Dec. at 889. "An undertaking may have national importance, for example, because it has national or 
even global implications within a particular field, such as those resulting from certain improved 
manufacturing processes or medical advances." Id. A nationally important venture may even focus 
on only one geographic area of the United States. Id. at 889-90. "An endeavor that has significant 
potential to employ U.S. workers or has other substantial positive economic effects, particularly in an 
economically depressed area, for instance, may well be understood to have national importance." Id. 
The Director concluded that the Petitioner did not demonstrate that his proposed endeavor has national 
importance. The Director found insufficient evidence that the venture would "extend beyond an 
organization and its clients to impact the industry or field more broadly." The Director also found that 
the Petitioner did not sufficiently explain how his specific work would trigger substantial positive 
economic benefits on a national level. 
The record supports the Director's conclusion. The Petitioner's statements and supporting evidence 
do not demonstrate the proposed endeavor's purported national importance. Neither his statements 
nor the housing-related news articles and reports he provided explain how his particular endeavor 
would substantially boost the national economy or advance the U.S. architecture or construction field. 
Also, the Petitioner has not established that his work would benefit an economically depressed area. 
On appeal, the Petitioner maintains that his evidence supports the proposed endeavor's national 
importance. He states that the materials demonstrate a shortage of affordable U.S. housing and-with 
increasing numbers of floods, wildfires, droughts, hurricanes, and other extreme weather incidents -
an urgent need to make U.S. homes disaster-resilient. 
The Petitioner, however, appears to misunderstand the "national importance" requirement. Under the 
Dhanasar framework, the term involves a specific venture's "potential prospective impact." Matter 
of Dhanasar, 26 I&N Dec. at 889. Thus, the fact that affordable and disaster-resilient housing are 
nationally important issues demonstrates that the Petitioner's proposed endeavor has substantial merit, 
not national importance. To establish national importance, he must demonstrate that, in those areas, 
his proposed venture would have a nationally important impact. 
The Petitioner argues that, when determining the proposed endeavor's national importance, the 
Director improperly considered recommendation letters for the Petitioner. He states that the letters 
show that he is well positioned to advance the endeavor, not that the venture is nationally important. 
He asserts that the Director wrongly required the recommendation letters as evidence of national 
importance. See Love Korean Church v. Chertoff, 549 F.3d 749, 758 (9th Cir. 2008) (in petition 
proceedings for a "special immigrant" religious worker under section 10l(a)(27)(C) of the Act, 
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8 U.S.C. § 110 l (a)(27)(C), finding that USCIS may not impose additional threshold requirements that 
are plainly erroneous or inconsistent with regulations). 
Contrary to the Petitioner's argument, however, the record does not indicate that the Director required 
the recommendation letters to demonstrate national importance. Rather, the Director simply found -
on her own - that the letters did not demonstrate national importance. In general, the Director found 
insufficient evidence - including the Petitioner's statements and the housing-related articles and 
reports - to establish the venture's purported national importance. The Director's consideration of the 
recommendation letters as evidence of national importance was therefore at most "harmless error." 
See Salmeron-Salmeron v. Spivey, 926 F.3d 1283, 1286 ( I Ith Cir. 2019) (stating that "a mistake of an 
administrative body ... that clearly had no bearing on the procedure used or the substance of the 
decision reached" is harmless error) ( citation omitted); see also Matter of O-R-E-, 28 I&N Dec. 330, 
336 n.5 (BIA 2021 ). 
The Petitioner also contends that the Director improperly disregarded evidence of the proposed 
endeavor's national importance that the Director herself had requested. The Director's RFE states that 
evidence of an endeavor's national importance can include proof that a venture "[i]mpacts a matter 
that a government entity has described as having national importance or is the subject of national 
initiatives." The Petitioner argues that it submitted such evidence, including documentary evidence 
that President Biden's administration has delegated funds to help U.S. communities prepare for 
extreme weather and climate-related disasters and to enhance the country's aging infrastructure to 
withstand increasing numbers of climate-related disasters. 2 
The RFE, however, lists such materials only as an example of possible national importance evidence. 
The RFE does not state that such evidence is determinative. See generally 6 USCJS Policy Manual 
F.(5)(D)(4), www.uscis.gov/policy-manual ("As in all cases, officers must consider the totality of 
circumstances to determine whether each of the three [Dhanasar] prongs is established by a 
preponderance of the evidence.") Here, the Petitioner's evidence did not sufficiently establish the 
proposed endeavor's national importance because it did not explain how his specific venture would 
substantially boost the national economy or advance the U.S. architecture or construction field. 
Finally, the Petitioner asserts that, by finding that the impact of the Petitioner's proposed endeavor 
would not extend beyond his employer and clients, the Director's decision contradicts Dhanasar. The 
Petitioner notes that, when considering national importance, the Dhanasar framework does not focus 
on a venture's potential geographical reach. See Matter of Dhanasar, 26 I&N Dec. at 889-90 ("In 
modifying this prong to assess 'national importance' rather than 'national in scope,' as used in [Matter 
of NY State Dep 't of Transp., 22 I&N Dec. 215 (Acting Assoc. Comm'r 1998], we seek to avoid 
overemphasis on the geographic breadth of the endeavor.") 
2 See "FACT SHEET: Biden Administration Announces Nearly $5 Billion in Resilience Funding to Help Communities 
Prepare for Extreme Weather and Climate-Related Disasters," Aug. 9, 2021, www.whitehouse.gov/briefing­
room/ statements-releases/20 21/08/09 /fact-sheet-biden-administration-announces-near ly-5-billion-in-resilience- funding­
to-help-communities-prepare- for-extreme-weather-and-climate-related-disasters/; see also Fed. Emergency Mgmt. 
Agency, "Building Resilient Infrastructure and Communities," www.fema.gov/grants/mitigation/building-resilient­
infrastructure-communities. 
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The Petitioner, however, appears to misconstrue the Director's decision. The decision finds that the 
Petitioner "has not established that his proposed endeavor has implications beyond his current 
employer ( or prospective employer), their business partners, alliances, and/or clients/customers and 
his prospective co-workers/employees or workplace at a level sufficient to demonstrate the national 
importance of his endeavor." The finding does not specifically refer to potential geographical 
implications of the endeavor. The remainder of the decision also does not expressly mention 
geographical implications. We therefore find that, consistent with Dhanasar, the record does not 
demonstrate the decision's improper focus on the endeavor's geographical breadth. 
For the foregoing reasons, the Petitioner has not demonstrated that his proposed endeavor has national 
importance or that the Director improperly adjudicated the issue. We will therefore affirm the 
petition's denial. 
E. The Remaining Issues 
Our decision regarding the national importance of the Petitioner's proposed venture resolves this 
appeal. Thus, we decline to reach and hereby reserve consideration of his appellate arguments about 
his positioning to advance his venture and a waiver's purported benefits to the United States. See INS 
v. Bagamasbad, 429 U.S. 24, 25 (1976) (stating that agencies need not make "purely advisory 
findings" on issues unnecessary to their ultimate decisions); see also Matter ofL-A-C-, 26 I&N Dec. 
516, 526 n. 7 (BIA 2015) ( declining to reach alternate appellate issues where a noncitizen did not 
otherwise qualify for relief). 
III. CONCLUSION 
The Petitioner has not demonstrated that his proposed endeavor has national importance. Thus, under 
our framework, he does not qualify for a national interest waiver. We will therefore affirm the 
petition's denial for lack of a job offer and labor certification. 
ORDER: The appeal is dismissed. 
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