dismissed EB-2 NIW Case: Artificial Intelligence

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: AUG. 28, 2024 In Re: 33060647 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner seeks employment-based second preference (EB-2) immigrant classification as an 
individual 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. § 1153(b)(2). 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish the Petitioner's eligibility for the requested national interest waiver. 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. 
I. 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. 
Exceptional ability means a degree of expertise significantly above that ordinarily encountered in the 
sciences, arts, or business. 8 C.F.R. § 204.5(k)(2). A petitioner must initially submit documentation 
that satisfies at least three of six categories of evidence. 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). 1 Meeting 
at least three criteria, however, does not, in and of itself, establish eligibility for this classification. 2 If 
a petitioner does so, we will then conduct a final merits determination to decide whether the evidence 
in its totality shows that they are recognized as having the requisite degree of expertise and will 
1 If these types of evidence do not readily apply to the individual's occupation, a petitioner may submit comparable 
evidence to establish their eligibility. 8 C.F.R. § 204.5(k)(3)(iii). 
2 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of individuals of 
exceptional ability. 6 USCIS Policy Manual F.5(8)(2), https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5. 
substantially benefit the national economy, cultural or educational interests, or welfare of the United 
States. 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) of the Act. While neither the statute nor the pertinent regulations define the 
term "national interest," Matter of Dhanasar, 26 T&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,3 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 their proposed endeavor; and 
• On balance, waiving the job offer requirement would benefit the United States. 
Id. 
II. ANALYSIS 
The Director determined that the Petitioner qualified for the requested EB-2 immigrant classification 
as an individual of exceptional ability, but further concluded he did not establish eligibility for a 
national interest waiver under the Dhanasar framework. For the reasons discussed below, we agree 
with the Director that the Petitioner has not sufficiently demonstrated the national importance of his 
proposed endeavor under the first prong of the Dhanasar analytical framework. 
A. National Interest Waiver 
The first Dhanasar prong, substantial merit and national importance, focuses on the specific 
endeavor 
that the individual proposes to undertake. The endeavor's merit may be demonstrated in a range of 
areas such as business, entrepreneurialism, science, technology, culture, health, or 
education. Dhanasar, 26 I&N Dec. at 889. In determining whether the proposed endeavor has 
national importance, we consider its potential prospective impact. Id. In Dhanasar we said that the 
relevant question is not the importance of the field, industry, or profession in which a petitioner may 
work; instead, we focus on "the specific endeavor that the foreign national proposes to undertake." 
Dhanasar at 889. We also stated that "[a]n 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. at 890 
The Petitioner is the cofounder and chief executive officer of a company specializing in developing 
search and find methodologies using artificial intelligence (AI) and machine learning (ML) 
technology. According to the Petitioner, he intends to "continue to work as a [b]usiness [ e ]xecutive 
and [r]esearcher focusing on creating, deploying, and managing [s]earch & [f]ind [m]ethodologies in 
3 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts (and Third 
in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver is discretionary 
in nature). 
2 
various subfields." Through his company, he currently uses his search and find methodologies in the 
minerals exploration sector to "detect concealed mineral deposits in underexplored covered terrains," 
and plans to adapt his company's search and find discovery platform to discover additional renewable 
energy sources. According to the Petitioner, his company's platform "demonstrated an improvement 
of two orders of magnitude in targeting critical minerals deposits, lowering exploration costs by 90% 
and shortening the time required from initial exploration to the start of a drilling campaign from years 
to just several months." The Petitioner's statements in the record indicate that his company does not 
plan to "provid[e] a service[,] sell[] its technology," or "offer[] its technology as a service to third 
parties." Rather the Petitioner intends to "generat[e] significant value by using [the] technology to 
[identify and] build a portfolio of mineral assets," and in tum, enter into agreements with mining 
partners to initiate the mining of theses targeted areas, granting the company a portion of ownership 
over the minerals discovered. In sum, he intends to continue to pinpoint targets to "deliver a portfolio 
of high-confidence prospect-scale targets with secured ground, ready to be drilled in a short period of 
time," and then outsource the drilling and retrieval of these minerals by partnering with mining 
companies to "subsequently earn purely through royalties and minority equity." 
In support of his endeavor, the record includes a personal statement, various articles containing 
interviews with the Petitioner regarding his current company, government publications relating to 
critical and emerging technologies, government publications detailing the federal government's 
interest in increasing the production of critical minerals to ensure energy security, and a copy of a 
patent application submitted by the Petitioner for his search and find methodologies. 
After issuing a request for evidence (RFE), the Director denied the petition, concluding that the 
Petitioner did not establish eligibility for the requested national interest waiver under the Dhanasar 
analytical framework. Specifically, regarding the national importance of the endeavor, the Director 
concluded that the Petitioner had not established his endeavor would result in broader implications to 
the field, or otherwise result in a significant potential to employ U.S. workers or other substantially 
positive economic effects. The Director also explained that broad assertions, without supporting 
evidence, do not satisfy a petitioner's burden of proof or otherwise establish eligibility for the national 
interest waiver. 
On appeal, the Petitioner dedicates significant discussion to the claimed deficiencies in the Director's 
RFE, including the Director's request for additional evidence relating to the Petitioner's eligibility for 
EB-2 immigrant classification as an advanced degree professional, even though the Petitioner claimed 
eligibility for the classification as an individual of exceptional ability. While we recognize this, the 
Director did nonetheless inform the Petitioner that the record did not establish eligibility for the 
requested national interest waiver under the Dhanasar analytical framework and granted the Petitioner 
an opportunity to supplement the record. Additionally, although the regulation at 
8 C.F .R. § 103 .2(b )(8)(iii) gives USCIS the discretion to issue an RFE, the regulation permits the 
Director to deny a petition for failure to establish eligibility without first having to request evidence 
regarding the ground or grounds of ineligibility identified by the Director. As such, even if the 
Director had erred as a procedural matter in the issuance of the RFE, it is not clear what remedy would 
be appropriate beyond the appeal process itself, which provided the Petitioner another opportunity to 
supplement the record and establish that he is eligible for a national interest waiver. While the 
Petitioner submitted a brief, he did not supplement the record with new evidence on appeal. 
3 
Additionally, although we agree with the Petitioner that the Director did not directly discuss every 
piece of evidence in the record in their decision, he has not shown how the evidence in the record 
establishes the national importance of his endeavor. It is not enough to demonstrate errors in an 
agency's decision; the Petitioner must also establish that they were prejudiced by the mistakes. 
Shinseki v. Sanders, 556 U.S. 396, 409 (2009); Molina-Martinez v. United States, 578 U.S. 189, 203 
(2016); see also Amin v. Mayorkas, 24 F.4th 383,394 (5th Cir. 2022). The Petitioner does not establish 
that these materials are sufficient to demonstrate his proposed endeavor has national importance. 
Because, as discussed herein, we conclude that the Petitioner has not demonstrated he was prejudiced 
by these alleged errors, even if we agreed, such a lapse appears harmless and is insufficient grounds 
upon which to base this appeal. The party that "seeks to have a judgment set aside because of an 
erroneous ruling carries the burden of showing that prejudice resulted." Id. 
The Petitioner also asserts that the Director erred in citing to the Kazarian two-step review standard, 
asserting that this analysis is only applicable to EB-1 petitions, not his EB-2 national interest waiver 
request. However, as stated previously, USCTS has confirmed that the Kazarian two-step process 
should be applied to evaluate whether a petitioner has established themselves as a noncitizen of 
exceptional ability. 4 And, the Petitioner claims that because the Director immediately followed their 
discussion of the Kazarian standard by describing the Dhanasar standard, "it is unclear whether the 
officer applied both standards to the case," and therefore "illustrates the poor quality of the decision." 
We disagree. In their decision, the Director correctly explained that, if an individual establishes 
eligibility under the Kazarian two step analysis for EB-2 immigrant classification as an individual of 
exceptional ability, then the Petitioner would also need to satisfy the Dhanasar standard to establish 
eligibility for the requested national interest waiver. As such, we do not agree with the Petitioner's 
assertion that the Director's discussion of both standards "constitutes a major legal error." 
Turning to our de novo review of the record, we agree that while the evidence in the record, including 
multiple government reports discussing the U.S. government's interest in critical minerals, 
demonstrates the substantial merit of the Petitioner's endeavor, it does not establish its national 
importance. 
The Petitioner asserts that the Director's decision did not address any of the evidence submitted 
regarding "the national importance of AI research or current ( or potential) effects of [ s ]earch and [ fJind 
methodologies in the thorough exploration and identification of critical minerals in the U[ nited] 
S[tates]." However, this evidence establishes the importance of the Petitioner's field rather than his 
specific endeavor. When evaluating the national importance of a proposed endeavor, the relevant 
question is not the importance of the industry or profession in which the individual will work; instead, 
we focus on the broader implications of "the specific endeavor that the foreign national proposes to 
undertake." See Dhanasar, 26 I&N Dec. at 889. And the Petitioner did not explain and support with 
relevant and probative evidence how his proposed endeavor will broadly impact the field. 
In Dhanasar, we said that in evaluating national importance we "look for broader implications" of the 
proposed endeavor, noting that"[ a ]n 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." Here, the record does not contain sufficient 
4 See generally, 6 USCJS Policy Manual. supra, F.5(B)(2). 
4 
information and evidence to explain how his proposed activities to rely on AI and ML methodologies 
to improve the accuracy of locating critical minerals, and then contracting the drilling to other mining 
companies, will have broader implications within his industry. And although the Petitioner has 
claimed that he intends to continue his research and development of new methodologies and "further[] 
knowledge about how AI and [ML] can be used" in the field, beyond his own assertions, the record 
does not show how any proposed research or new methodologies, even if realized, will be disseminated 
and otherwise result in a broader impact to the field. In fact, as previously stated, the record establishes 
that the company does not provide their platform to the wider industry, but rather limits the benefits 
to their direct partners. In other words, the Petitioner has not provided documentary evidence to 
establish that his operations will impact the field more broadly, rather than provide direct benefit to 
his company and his partners. 
And we acknowledge the Petitioner's reference to USCIS policy recognizing the importance of 
"STEM fields and the essential role of persons with advanced STEM degrees in fostering this 
progress," 5 but the Petitioner has not shown that he has an advanced STEM degree as discussed in this 
policy. Nor has he shown that his endeavor will foster progress in STEM technologies or result in 
broader implications to his field. For example, he asserts that his discovery platform and his company 
have been "widely impacting the mineral discovery field," but the record does not contain objective, 
credible, and probative evidence to support these assertions. 6 The Petitioner has not explained, for 
instance, whether other mining companies are similarly relying on AI and ML technologies that are 
already widely available in the market to identify potential drilling locations, or if his company's 
platform is indeed analogous to the "improved manufacturing processes or medical advances" 
contemplated in Dhanasar. As such, the record does not show that the benefits resulting from the 
Petitioner's proposed business endeavor would have implications beyond the limited benefits to the 
Petitioner and his partners. This is akin to how the benefit of someone's teaching is generally only 
directly beneficial to the students being taught and not wider population. In Dhanasar, we discussed 
how teaching would not impact the field of education broadly in a manner which rises to national 
importance. Dhanasar at 893. By extension, activities which only benefit a small subset, like the 
Petitioner's proposed endeavor, would not rise to a level of national importance. 
We also agree with the Director's conclusion that the Petitioner did not establish that his endeavor will 
result in a significant potential to employ U.S. workers or lead to other substantially positive economic 
benefits contemplated in Dhanasar. See id. Although any basic economic activity has the potential 
to positively impact a local economy, the Petitioner has not demonstrated how the economic activity 
directly resulting from his proposed endeavor would rise to the level of national importance. On 
appeal, the Petitioner asserts that his company is valued at $56,000,000 and employs U.S. workers, 
but the evidence indicates that the company currently has five employees, and relies on multiple 
contractors, yet it is not clear if these are foll-time or part-time positions. And the Petitioner has not 
explained how the company's employment of U.S. workers and any anticipated revenue will impact 
the area of intended operations, nor has the Petitioner provided evidence to substantiate his assertions 
regarding the valuation of his company. A petitioner must support assertions with relevant, probative, 
and credible evidence. See Matter ofChawathe, 25 I&N Dec. at 376. 
5 6 USCIS Policy Manual, supra, F.5(D)(2). 
6 The Petitioner is not required to show that his endeavor will be successful to establish its national importance under the 
first prong of the Dhanasar framework, but the record should contain objective evidence and information corroborating 
his assertions of its prospective improvement to the processes used in the field. 
5 
For all the reasons discussed, the evidence does not establish the national importance of the proposed 
endeavor as required by the first prong of the Dhanasar precedent decision. 
B. EB-2 Classification as an Individual of Exceptional Ability 
While the appeal must be dismissed as the Petitioner has not satisfied prong one of the Dhanasar 
framework, upon a de novo review of the record, we also withdraw the Director's determination that 
the Petitioner qualifies for the requested EB-2 immigrant classification as an individual of exceptional 
ability because the record does not support such a conclusion. 
The Petitioner asserted eligibility for the requested EB-2 immigrant classification as an individual with 
exceptional ability by claiming he met three of the six categories of evidence at 
8 C.F.R. § 204.5(k)(3)(ii): ten years of full-time expenence m the occupation at 
8 C.F.R. § 204.5(k)(3)(ii)(B), commanding a salary demonstrating exceptional ability at 
8 C.F.R. § 204.5(k)(3)(ii)(D), and providing evidence ofrecognition for achievements and significant 
contributions to the industry at 8 C.F.R. § 204.5(k)(3)(ii)(F). In their decision, the Director determined 
the Petitioner satisfied at least three of the six evidentiary criteria, and therefore concluded that the 
Petitioner established himself as an individual of exceptional ability. But the Director did not clarify 
which criteria the Petitioner met, nor did they discuss how the evidence established he met each 
criterion. And, because the Director did not conduct a final merits determination, the decision does not 
explain how the totality ofthe evidence demonstrates the Petitioner has a degree of expertise significantly 
above that ordinarily encountered in the field. 7 As such, for the reasons discussed below, we conclude 
that the record does not establish that the Petitioner qualifies for EB-2 classification as an individual 
of exceptional ability, and we withdraw the Director's determination to the contrary. 
First, as it pertains to documentation of ten years of full-time experience in the specialty, the regulation 
at 8 C.F.R. § 204.5(k)(3)(ii)(B) requires "[e]vidence in the form of letter(s) from current or former 
employer(s) showing that the alien has at least ten years of full-time experience in the occupation for 
which he or she is being sought." Additionally, such letters "shall include a specific description of the 
duties performed." 8 C.F.R. § 204.5(g)(l). Here, the letter from Q-D- is sufficient to establish his 
employment from February 2012 to April 2020. However, while the Petitioner also relies on a self­
authored letter confirming his employment with V-D-, as well as letters from former colleagues with the 
______ he has not established that they meet the regulatory requirements. Specifically, he 
did not show that these letters are from "current or former employer(s)." And because they lack 
specificity regarding the duties performed and the dates of employment, they are insufficient to account 
for the remaining required full-time employment in the occupation sought. Without more, we cannot 
conclude that the record shows the Petitioner satisfies this criterion. 
Additionally, to satisfy the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F) relating to recogmt10n for 
significant contributions to his field, the Petitioner submitted additional letters of recommendation 
describing his involvement in the development of AI solutions relevant to the search and find 
methodologies in the mining industry. However, while the letters commend the Petitioner for his 
work, and assert that due to his work his former employer was "positioned as a forerunner in the 
7 See generally, 6 USCJS Policy Manual. supra, F.5(B)(2). 
6 
mining exploration industry," the record does not contain documentary evidence to corroborate this 
assertion. Similarly, the letter from Prof. J-W- who "collaborated" with the Petitioner, serving as a 
senior technical consultant for his mineral discovery platform and who worked on a steering 
committee with him for a postdoctoral research project, does not detail how his work resulted in 
recognition for achievements and significant contributions to the industry or field. And the letter from 
al I representative confirmed that "threel I 
I I students participated in an action learning class on a project" with the Petititioner's 
former company, but the letter does not explain the Petitioner's contributions to the field. 
The Petitioner also provided evidence of his claimed commendations from the _______ 
for his work in the field in the form of two photographs 
of commendation medals. However, the medals do not name the Petitioner, and as such, it is not clear 
to whom these medals were issued. Moreover, even if corroborated, the Petitioner has not explained 
the significance or the contribution which led to these commendations or how they establish his 
significant contributions to the field. Additionally, while the Petitioner provided evidence that he 
received the and provided articles explaining the importance of this prize in 
general, the Petitioner did not explain why he received this prize to ascertain whether it was due to 
significant contributions to his field. 
To establish his recognition of expertise in his field, the Petitioner also submitted letters from former 
andand other military personal commending him for developing and implementing successful 
strategies during his time with the but they do not identify specific contributions he made to the 
field, rather than implementing successful strategies for the And the articles relating to the 
technological advances used by the including search and find methodologies, do not mention the 
Petitioner, and were published years after the Petitioner left the 
The Petitioner also submitted evidence that he was invited by one of his company's investors to speak 
at the _________________ Investor Advisory Board quarterly forum, 
but he did not explain how participating in this forum establishes his contributions to the field. And 
while the record contains a copy of a patent application to indicate that the Petitioner is 
the patent application was submitted in 2018, and according to publicly available 
data from the United States Patent Office, the application was abandoned in 2020, prior to the filing 
of this petition. As such, the abandoned patent application does not establish the Petitioner's 
contributions to his field, nor does it establish he introduced new methodologies to the field as claimed. 
Accordingly, the record does not establish the Petitioner qualifies for EB-2 immigrant classification 
as an individual of exceptional ability, and we therefore withdraw the Director's determination. As 
the Petitioner has not shown that the proposed endeavor is of national importance under prong one of 
the Dhanasar analytical framework, it would serve no legal purpose to issue a request for evidence 
for further investigation and analysis of the Petitioner's categorical eligibility for EB-2 classification. 
III. CONCLUSION 
The Petitioner has not established that he satisfies the regulatory requirements for classification as a 
an individual of exceptional ability. Furthermore, the Petitioner has not met the requisite first prong 
7 
of the Dhanasar analytical framework, and therefore we conclude that he has not established he is 
eligible for or otherwise merits a national interest waiver as a matter of discretion. Since the identified 
basis for denial is dispositive of the Petitioner's appeal, we decline to reach and hereby reserve the 
Petitioner's eligibility under Dhanasar's second and third prongs. See INS v Bagamasbad, 429 U.S. 
24, 25 ("courts and agencies are not required to make findings on issues the decision of which is 
unnecessary to the results they reached"); 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). 
ORDER: The appeal is dismissed. 
8