dismissed EB-2 NIW Case: Chemical Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re: 15869478 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JUL. 20, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a chemical engineer, seeks second preference immigrant classification as an individual 
of exceptional ability in the sciences, arts or business, 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). After a petitioner has established eligibility for EB-2 
classification, U.S. Citizenship and Immigration Services (USCIS) may, as matter of discretion, grant 
a national interest waiver 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 beneficia I to the 
United States to waive the requirements of a job offer and thus of a labor certification. Matter of 
Dhanasar, 26 l&N Dec. 884 (AAO 2016). 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish the national importance of the proposed endeavor or that the Petitioner is well positioned to 
advance the proposed endeavor. Additionally, the Director found that the evidence did not establish 
that a waiver of the required job offer, and thus of the labor certification, would be in the national 
interest. On appeal, the Petitioner asserts that the Director erred in denying the petition. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for a national interest waiver, a petitioner must first demonstrate qualification 
for the underlying EB-2 visa classification (emphasis added), 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. 
Section 203(b) of the Act sets out this sequential framework: 
(2) Aliens who are members of the professions holding advanced degrees or aliens of 
exceptional ability. -
{A) In general. - Visas shall be made available ... to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or 
who because of their exceptional ability in the sciences, arts, orb usiness, will 
substantially benefit prospectively the national economy, cultural or 
educational interests, or welfare of the United States, and whose services in the 
sciences, arts, professions, or business are sought by an employer in the United 
States. 
(B) Waiver of job offer -
(i) National interest waiver .... [T]he Attorney General may, when the Attorney 
General deems it to be in the national interest, waive the requirements of 
subparagraph (A) that an alien's services in the sciences, arts, professions, or 
business be sought by an employer in the United States. 
Section 101 (a)(32) of the Act provides that "[t]he term 'profession' shall include but not be limited to 
architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, 
colleges, academics, or seminaries." 
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definitions: 
Advanced degree means any United States academic or professional degree or a foreign 
equivalent degree above that of baccalaureate. A United States baccalaureate degree 
or a foreign equivalent degree followed by at least five years of progressive experience 
in the specialty shall be considered the equivalent of a master's degree. If a doctoral 
degree is customarily required by the specialty, the alien must have a United States 
doctorate or a foreign equivalent degree. 
Exceptional ability in the sciences, arts, or business means a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business. 
Profession means one of the occupations listed in section 101(a)(32) of the Act, as well 
as any occupation for which a United States baccalaureate degree or its foreign 
equivalent is the minimum requirement for entry in the occupation. 
In addition, the regulation at8 C.F.R. § 204.5(k)(3)(ii) sets forth the specific evidentiary requirements 
for demonstrating eligibility as an individual of exceptional ability. A petitioner must submit 
documentation that satisfies at least three of the six categories of evidence listed at 8 C.F.R. 
§ 204.5(k)(3)(ii). 
2 
Furthermore, 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 of Dhanasar, 26 l&N Dec. 884 (AAO 2016).1 Dhanasar states that after a petitioner has 
established eligibility for EB-2 classification, USCIS may, as matter of discretion ,2 grant a national 
interest waiver 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.3 
11. ANALYSIS 
A Member of the Professions Holding an Advanced Degree 
In order to show that a petitioner holds a qualifying advanced degree, the petition must be accompanied 
by "[a]n official academic record showing that the [individual] has a United States advanced degree 
or a foreign equivalent degree." 8 C.F.R. § 204.5(k)(3)(i)(A). Alternatively, a petitioner may present 
"[ a ]n official academic record showing that the [individual] has a United States baccalaureate degree 
or a foreign equivalent degree, and evidence in the form of letters from current or former employer(s) 
showing that the [individual] has at least five years of progressive post-baccalaureate experience in 
the specialty." 8 C.F.R. § 204.5(k)(3)(i)(B). 
In his initial filing, the Petitionersubmitted a copy of his bachelor of chemical engineering diploma issued 
by a Nigerian university in January 2000, along with five letters of recommendation from colleagues 
within the Petitioner's current employer! I The Director noted in a request for evidence 
(RFE) that in order to qualify as a member of the professions holding an advanced degree, the Petitioner 
needed to submit his transcript along with an academic evaluation to establish the U.S. equivalency of his 
foreign degree. The RFE further notified the Petitioner that the evidence did not establish five years of 
progressive, post-baccelaureate employment experience. Specifically, the Director requested evidence in 
accordance with 8 C.F.R. § 204.5(g)(1), which states that qualifying experience must be documented "in 
the form of letter(s) from current or former employer(s) ortrainer(s) and shall include the name, address, 
and title of the writer, and a specific description of the duties performed by the alien or of the training 
received." 
In his RFE response, the Petitioner provided an academic equivalency evaluation, his transcript, and 
additional documentation concerning his work with his current employer. The unsigned, one-page 
evaluation does not contain any indication that the Petitioner's transcripts were considered in arriving at 
the conclusion that his foreign degree is the equivalent of a U.S. bachelor's degree in chemical 
engineering. The transcripts are not listed as one of the reference matierals used and we have little 
indication of how the evaluation company analyzed the Petitioner's specific school, or his credit hours, 
course content, and grades. Aside from the letterhead with the evaluation company's name, it is unclear 
who completed the evaluation and how the Petitioner's academic record was assessed. We may, in our 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 I&N Dec. 215 (Act. Assoc. Comm'r 1998). 
2 See also Poursinav. USCIS, 936 F.3d 868, 2019 WL 4051593 (9th Cir. 2019) (finding USCIS' decision to grant or deny 
a national interest wa iverto bed iscretionary in nature). 
3 See Dhanasar, 261 &N Dec. at 888-91, for elaboration on thesethreeprongs. 
3 
discretion, use an evaluation of a person's foreign education as an advisory opinion. Matter of Sea, 
Inc., 19 l&N Dec. 817,820 (Comm'r 1988). However, where an opinion is not in accord with other 
information or is in any way questionable, we may discount or give less weight to that evaluation. Id. 
Here, we question the integrity of the evaluation because it is not signed and because it does not 
provide any analysis of the Petitioner's academic record. The Petitioner's transcripts include an 
incorrect year of birth for the Petitioner, which has not been acknowledged or explained by the Petitioner 
or the evaluation company. The evidence also included employment offers, letters of recognition and 
appreciation, email chains among the supervisors and teams with whom the Petitioner has worked, and 
reports containing the Petitioner's title and role within various projects. Collectively and in conjunction 
with the Petitioner's resume, it can be understood that beginning in 2004, the Petitioner has held various 
positions within the company, including "associate engineer" and "loss prevention and risk engineer 
supervisor/facilitator." 
Although the Director determined that the Petitioner qualifies as a member of the professions holding an 
advanced degree, we herebywithdrawthis finding and concludethatthe Petitioner has not met his burden 
in this regard. In the RFE, the Director specifically requested employment evidence in the format 
delineated by 8 C.F.R. § 204.5(g)(1) and the Petitioner did not provide sufficient evidence in compliance 
with this format. We note that many of the supporting documents are not from the Petitioner's employer, 
but are from colleagues or are supplemental evidence, such as internal company reports. Much of the 
evidence does not contain the required details about the authors, a description of the Petitioner's 
experience and duties, or specific employment dates. From position titles alone, it is not apparent what 
the Petitioner was responsible for and how his work was progressive in nature. While we acknowledge 
that the evidence demonstrates continuous work, it is insufficient to simply submit documents without 
demonstrating how the work is actually progressive. 
Due to these evidentiary deficiencies, the record does not persuasively establish that the Petitioner is 
a member of the professions with an advanced degree. 
B. Exceptional Ability 
Although the Petitioner has not asserted his eligibility as an individual of exceptional ability, we 
nevertheless examine the evidence in accordance with this classification. As discussed below, a review 
of the record indicates that the Petitioner does not meet at least three of the relevant evidentiary criteria. 
An official academic record showing that the alien has a degree, diploma, certificate, 
or similar award from a college, university, school, or other institution of learning 
relating to the area of exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(A) 
The evidence of record shows that the Petitioner earned a bachelor of chemical engineering degree from 
a Nigerian university in 2000, which is further corroborated by his academic transcripts. Accordingly, 
the evidence establishes that the Petitioner satisfied this criterion. 
Evidence in the form of letter(s)from current or former employer(s) showing that the alien 
has at leastten years offull-timeexperience in the occupationforwhich he or she is being 
sought. 8 C.F.R. § 204.5(k)(3)(ii)(B) 
4 
While the progressive nature of the Petitioner's work has not been established, documentation in the 
record does establish that the Petitioner has been employed in the engineering field since 2004. We 
acknowledge an employment award letter issued in 2016 which recognized the Petitioner's ten years of 
service. While neither this letter nor the evidence of record explicitly states that the Petitioner's 
experience was full-time, we conclude that in the totality, the Petitioner has satisfied this criterion by a 
preponderance of the evidence. 
A license to practice the profession or certification for a particular profession or 
occupation. 8 C.F.R. § 204.5(k)(3)(ii)(C) 
The Petitioner has not submitted evidence that he possesses a license to practice the occupation. 
Accordingly, the Petitioner has not satisfied th is criterion. 
Evidence that the alien has commanded a salary, or other remuneration for services, 
which demonstrates exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(D) 
We acknowledge the tax documents evidencing the Petitioner's incomein2018 and 2019, a June 2019 
employer letter that references his salary, and payroll documents from pay periods in 2020. While 
some of the documentation was issued after the filing of the petition and does not serve as evidence 
of eligibility at the time of filing, the Petitioner has submitted sufficient evidence of his salary. 
However, to satisfy this criterion, the evidence mustshowthatthe Petitioner "has commanded a salary 
or remuneration for services that is indicative of his or her claimed exceptional ability relative to others 
working in the field." 6 USCIS Policy Manual F.5(B)(2). Although, the Petitioner's evidence is 
credible, he has not provided evidence to establish how his compensation compares to other chemical 
engineers working in thel I industry in the same geographical area. As such, the evidence 
does not establish that his income demonstrates exceptional ability. Therefore, the Petitioner has not 
satisfied this criterion. 
Evidence of membership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E) 
The Petitioner has not submitted evidence that he is a member of a professional association. 
Accordingly, the evidence does not establish that the Petitioner satisfied this criterion. 
Evidence of recognition for achievements and significant contributions to the industry 
or field by peers, governmental entities, or professional or business organizations. 
8 C.F.R. § 204.5(k)(3)(ii)(F) 
As the Director stated, the evidence does not demonstrate the Petitioner has a record of success that 
distinguishes him from other engineers. The Petitioner submitted copies of numerous reports he authored 
or reviewed, and which show detailed analysis and site testing as part of risk assessments conducted for 
the Petitioner's employer. The Petitioner has not submitted evidence that these reports were published 
outside of his company or that they have been available or utilized either in the broader chemical 
engineering field or in thel I industry. Although the Petitioner has earned internal company 
awards and service recognition, the evidence does not suggest that peers, governmental entities, or 
5 
professional or business organizations have recognized him for any achievements or significant 
contributions to the industry. 
The letters of recommendation do not describe specific achievements or contributions which the 
Petitioner made to thefieldoverall. Instead, they largely praise his ability, reference hisunique experience 
and positive qualities, and mention achievements he has had within his particular company. Generalized 
conclusory statements that do not identify specific contributions or their impact in the field have little 
probative value. See 1756, Inc. v. U.S. Atty Gen., 745 F. Supp. 9, 15 (D.D.C. 1990) (holding that an 
agency need not credit conclusory assertions in immigration benefits adjudications). The submission 
of reference letters supporting the petition is not presumptive evidence of eligibility. USCIS may 
evaluate the content of those letters so as to determine whether they support the petitioner's 
eligibility. Id. See also Matter of V-K-, 24 l&N Dec. 500, n.2 (BIA 2008) (noting that expert opinion 
testimony does not purport to be evidence as to "fact"). 4 Accordingly, the evidence does not establish 
that the Petitioner satisfied th is criterion. 
Summary 
The record does not support a finding that the Petitioner meets at least three of the six regulatory criteria 
for exceptional ability at 8 C.F.R. § 204.5(k)(3)(ii). The Petitioner has not established his eligibility as 
an individual of exceptional ability under section 203(b)(2)(A) of the Act. As previously outlined, the 
Petitioner must show that he either possesses exceptional ability or is an advanced degree professional 
before we reach the question of the national interest waiver. We conclude that the evidence does not 
establish that the Petitioner meets the regulatory criteria for classification as an individual of 
exceptional ability or that he is a member of the professions holding an advanced degree. 
C. National Importance 
As the Petitioner has not established eligibility for the underlying immigrant classification, the issue of 
the national interest waiver is moot. The waiver is available only to foreign workers who otherwise 
qualify for classification under section 203(b)(2)(A) of the Act. However, because the Director made 
additional eligibilityfindings and the Petitioner alleges error in the Director's decision, we will provide 
further analysis using the Dhanasarframework.5 
As a preliminary matter, the Petitioner argues thatthe Director did not properly analyze the Petitioner's 
case in comparison to the standard set by Dhanasar. Regarding the national importance standard 
specifically, the Petitioner argues that the Director must analyze the impact and national importance 
of his proposed endeavor in comparison to the impact and national importance of Dr. Dhanasar's 
proposed endeavor. The Petitioner asserts that the Director is legally required to compare the impact 
of the Petitioner with that of Dr. Dhanasar and cites to the concept of precedent decisions in support. 
4 In addition, the initial cover letter submitted by the Petitioner's counsel contains many identical sentences and phrases 
found within several of the letters of recommendation. As counsel did not quote these sentences and phrases or 
acknowledge them as the writing of others, it calls into question whether the recommending authors provided their OM 
authentic opinions and reflections of the Petitioner. We cannot ascertainwhetherthecounsel recycled language from the 
letters to write the cover letter or if the recommendation letters themselves were not independently written by the stated 
authors. At minimum, the use of identical sentences by different people dim inishesthe credibility of not only the letters 
but also of counsel's cover letter. 
5 While we do not discuss each piece of evidence individually, we have reviewed and considered each one. 
6 
We acknowledge that Dhanasar is a precedent decision and further acknowledge the concept of 
precedent decisions and their controlling nature; however, the Petitioner has cited to no legal authority 
for a one-to-one comparison of two petitioners operating in vastly different fields of endeavor. 
Dhanasar establishes an analytical framework with which to examine national interest waiver cases, 
but it does mandate or even suggest that a side-by-side comparison of individual petitioners and 
endeavors is required. We acknowledge the Petitioner's argument that precedential decisions provide 
petitioners with advance notice of the standards of approval, however the Petitioner misunderstands 
the nature of precedential decisions when he concludes that approvals are required for any petitioner 
with more impact than Dr. Dhanasar. While we utilize the analytical frameworksetforth in Dhanasar, 
the record contains only the Petitioner's evidence, facts, field of endeavor, and explanations of the 
proposed scope of work, not Dr. Dhanasar's. Despite Counsel's insistence that a different standard be 
applied, the Petitioner always bears the burden to establish his own eligibility by a preponderance of 
the evidence. See Matter of Chawathe, 25 l&N Dec. 369,376 (AAO 2010). 
Initially, the Petitioner provided significant information concerning his past work, but little information 
concerning the proposed endeavor. Accordingly, the Director requested evidence concerning the 
Petitioner's proposed future work and in response, the Petitioner stated that he will continue his work as 
a chemical engineer in thel I industry. Specifically, he will provide technical expertise on 
process safety engineering and risk management. He identified a current and ongoing project involving 
the tesij of the world's larges~ I plant located inl I He explained 
tha is al I and that project "will not just protect the environment but significantly 
improve local air quality and public health through reduction in carbon dioxide (CO2) emissions." His 
role will be to develop designs and conduct analysis of the plant to assess the safety risks and impact to 
workers, the environment, and surrounding local communities. In so doing, he will identify corrective 
and mitigating measures to enhance the safety of the facility. Although the Director did not make a 
specific substantial merit finding, we conclude that enhancing the safety ofl !facilities by 
assessing risk and identifying corrective measures is of substantial merit. 
To evaluate whether the Petitioner's proposed endeavor satisfies the national importance requirement, 
we look to evidence documenting the "potential prospective impact" of his work. The Director 
determined that that the evidence was insufficient to establish that the Petitioner's proposed endeavor has 
national importance. As noted in the decision, the record does notdemonstratethattheproposedendeavor 
will extend beyond the Petitioner's employer or that the Petitioner's operations broadly impact the field 
of chemical engineering or the U.S.I fat a level commensurate with national importance. 
Similarly, in Dhanasar, we determined that the petitioner's teaching activities did not rise to the level 
of having national importance because they would not impact his field more broadly. See Dhanasar, 
26 l&N Dec. at 893. The Petitioner stated that due to the degree in which th~ I industry impacts 
the U.S. economy, advances in this field are of paramount importance. However, as explained in the 
Director's decision, in detennining national importance, the relevant question is not the impmiance of the 
industry or profession in which the individual will work; instead we focus on the "the specific endeavor 
that the foreign national proposes to undertake." Id. at 889. In Dhanasar, we further noted that"we look 
for broader implications" of the proposed endeavor and that "[a]n undertaking may have national 
importance for example, because it has national or even global implications within a particular field." Id. 
Counsel argues that advances in this field will positively impact the national economy and that the 
dissemination of the Petitioner's work will impact all parts of the nation. On appeal, Counsel further 
7 
states that the Petitioner's "advances specifically in bis field blive already been used, duplicated, applied, 
and forwarded throughout numerous large-scald._ ___ __,projects-including projects that involve 
numerous other companies and hundreds of engineers," and that these advances are shared nationally and 
internationally. We have thoroughly examined the entire record but cannot find corroborating support 
for these statements. The unsupported assertions of counsel do not constitute evidence. Matter of 
Obaigbena, 19 l&N Dec. 533, 534 n.2 (BIA 1988). The Petitioner has not explained what specific 
benefits his proposed endeavor will add, nor has he explained what "crucial advances" his proposed 
endeavorwil I make in the industry. The Petitioner submitted evidence of reports he authored or reviewed, 
but we have little indication that these reports were disseminated to anyone outside! lor 
beyond its own projects. Even if evidence of dissemination was provided, we would still find this 
evidence insufficient because dissemination alone would not establish the impact of the Petitioner's w01k 
in the field or on the nation. We do not know, for example, if other chemical engineers conducting loss 
prevention and risk assessments in thd I industry are aware of the Petitioner's work or whether 
his work has influenced the safety practices at other companies. Accordingly, it cannot be concluded that 
the Petitioner's work in the proposed endeavor would have impact that extends beyond his current 
employer. 
Likewise, the claims of positive economic impact have not been substantiated. For instance, the record 
contains no studies, analysis, articles, or statistics linking the Petitioner's work to any national economic 
benefits. On appeal, counsel asserts that the Petitioner's specific work within his employer has 
contributed to the employer's ability to generate millions in economic benefits to the United States and 
that this also leads to job creation. While we acknowledge these claims, we have little information 
concerning how the Petitioner's contributions within his employer formed the primary basis for his 
employer's earnings or served as the impetus for job creation that rises to a nationally important level. 
The Petitioner submitted recommendation letterswhich contain information on the Petitioner's past work, 
but little on his future proposed endeavor. Although the letters contain information on how the 
Petitioner's work has positively impacted his employer, the authors do not address the work's economic 
or job creation impact, as opposed to a safety and risk reduction impact for the employer. As such, we 
have little basis to conclude that it was the Petitioner's work that contributed to his company's earning 
success and any claimed job creation. Furthermore, the Petitioner has not provided evidence of his 
company's earnings or how these earnings have substantially impacted the economy as a whole. We 
have little information on how the Petitioner's proposed endeavor has led or will lead to job creation. For 
example, the Petitioner has not provided evidence that his work has led to jobs in the past, nor has he 
submitted estimates of how many jobs, including the type and location, that his endeavor will lead to or 
create. 
The Petitioner argues that the benefits of private-sector capitalism accrue to the entire society and 
therefore, the employer's earnings provide substantial economic benefit to the nation. However, the 
Petitioner has not submitted sufficient evidence tying his employer's earnings to substantial economic 
benefit across society. By th is logic, any private-sector capitalist act would benefit the nation's economy 
such that it would rise to the level of national importance and therefore meet this standard. Wed isagree. 
To establish the national importance of the proposed endeavor, the Petitioner mustoffermorethan general 
claims that a private company's earnings benefit an entire nation on a scale so substantial as to rise to a 
level of national importance. 
8 
The Petitioner argues on appeal that the Director improperly emphasized the geographic scope of the 
proposed endeavor rather than focusing on its national importance. While the Petitioner emphasizes 
that his work is in the United States and not inl I as the Director had mentioned, the 
decision provided several reasons unrelated to geographic scope for why the record did not sufficiently 
show that the proposed endeavor has national importance. The Director's statements concerning the 
Petitioner's work inl !even if inaccurate, do not detract from the remaining findings 
concerning the proposed endeavor. 
Because the documentation in the record does not establish thatthe Petitioner meets the requirements of 
the underlying classification nor does it establish that the Petitioner's proposed endeavor is of national 
importance as required by the first prong of the Dhanasar precedent decision, the Petitioner has not 
demonstrated eligibility fora national interest waiver. Further analysis of his eligibility under the second 
and third prongs outlined in Dhanasar, therefore, would serve no meaningful purpose.6 
Ill. CONCLUSION 
The Petitioner has not demonstrated that he qualifies for classification as a member of the professions 
holding an advanced degree or as an individual of exceptional ability under section 203(b)(2)(A) of the 
Act. In addition, the evidence has not shown that the proposed endeavor is of national importance. As 
such, he has not established that a waiver of the job offer and labor certification would be in the 
national interest of the United States. Accordingly, the Petitioner has not established eligibility for 
the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 l&N 
Dec. 127, 128 (BIA 2013). 
ORDER: The appeal is dismissed. 
6 Because the identified reasons for dismissal are dispositive of the Petitioner's appeal, we decline to reach and hereby 
reserve the arguments regarding prongs two andthreeof the Dhanasar framework. 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 of L-A-C-, 26 I &N Dec. 516,526 n.7 {BIA2015) (declining to reach alternative issues 
on appeal where an applicant is otherwise ineligible). 
9