dismissed EB-2 NIW Case: Civil Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re: 23376544 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : NOV . 23, 2022 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a civil engineer, seeks second preference 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 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 Texas Service Center denied the petition, concluding that the Petitioner qualified 
for classification as a member of the professions holding an advanced degree, but that he had not 
established that a waiver of the required job offer, and thus of the labor certification, would be in the 
national interest. On appeal, the Petitioner submits additional documentation and a brief asserting that 
he is eligible for a national interest waiver. 1 
In these proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit 
sought. Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal. 
I. LAW 
To establish eligibility for a national interest waiver, a petitioner must first demonstrate qualification 
for the underlying EB-2 visa classification, 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 
1 We decline the Petitioner 's request for oral argument. 8 C.F.R . § 103.3(b) 
who because of their exceptional ability in the sciences, arts, or business, 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 ofjob 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. 
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 I&N Dec. 884 (AAO 2016). Dhanasar states that after a petitioner has established 
eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (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. 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
foreign national 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. In 
determining whether the proposed endeavor has national importance, we consider its potential 
prospective impact. 
The second prong shifts the focus from the proposed endeavor to the foreign national. To determine 
whether he or she is well positioned to advance the proposed endeavor, we consider factors including, 
but not limited to: the individual's education, skills, knowledge and record of success in related or 
similar efforts; a model or plan for future activities; any progress towards achieving the proposed 
endeavor; and the interest of potential customers, users, investors, or other relevant entities or 
individuals. 
The third prong requires the petitioner to demonstrate 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. In performing 
this analysis, USCIS may evaluate factors such as: whether, in light of the nature of the foreign 
national's qualifications or the proposed endeavor, it would be impractical either for the foreign 
national to secure a job offer or for the petitioner to obtain a labor certification; whether, even assuming 
that other qualified U.S. workers are available, the United States would still benefit from the foreign 
national's contributions; and whether the national interest in the foreign national's contributions is 
sufficiently urgent to warrant forgoing the labor certification process. In each case, the factor(s) 
2 See also Poursina v. USCIS, No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or 
deny a national interest waiver to be discretionary in nature). 
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considered must, taken together, indicate 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 
II. ANALYSIS 
The Director found that the Petitioner qualifies as a member of the professions holding an advanced 
degree. The remaining issue to be determined is whether the Petitioner has established that a waiver of 
the requirement of a job offer, and thus a labor certification, would be in the national interest. For the 
reasons discussed below, we conclude that the Petitioner has not sufficiently demonstrated the national 
importance of his proposed endeavor under the first prong of the Dhanasar analytical framework. 
With respect to his proposed endeavor, the Petitioner initially indicated that he intended to continue 
"working with an American engineering firm where I will develop strategic partnerships involving new 
business in the U.S. in order to help grow a company's engineering portfolio. I will provide indispensable 
guidance regarding large scale projects, involving construction and engineering."4 
The Director issued a request for evidence (RFE) asking the Petitioner to provide further information 
and evidence regarding his proposed endeavor. For example, the Petitioner was informed he may 
submit "a plan describing how [he] intends to continue his ... work in the United States"; "a detailed 
business model"; "correspondence from prospective/potential employers, clients or customers"; and 
"documentation reflecting feasible plans for financial support." 5 
In response, the Petitioner asserted that he plans "to serve in a civil engineering field through my 
company I I is a real estate development company that will be 
registered as a limited liability company in the state of Texas. The company will offer consulting and 
remodeling services while building cash reserves for its building projects." He further stated: "The 
company will then begin remodelinf distressed homes for resale and sourcing properties in and around 
the ___________ area for building affordable, single-family homes and townhouse 
units with eco-conscious materials that offer modem, fresh designs." The Petitioner also indicated 
that he intended "to serve the public sector and small businesses and aid them in expanding their 
operations across the U.S. I will ... help companies as a cost supplier and contractor, providing cost 
effective products that can result in a significant cost reduction in infrastructure investments, 
especially as solar energy is a substantial part of the government infrastructure plan." 
The Petitioner submitted the business plan for his proposed real estate development 
company, which states that his business "will capitalize on the growing demand for housing and bring 
much-needed affordable options to homebuyers in need." This business plan includes industry and 
3 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
4 Petitioner provided work agreements for his services as an assistant p roject manager withl 
(May 2018), as a project manager with (June 2018), and as a construction manager with 
(July 2018). In addition, his appellate submission includes an April 2021 "Independent Contractor 
Agreement" with I I As the Petitioner is applying for a waiver of the job offer requirement, it is 
not necessary for him to have a job offer from a specific employer. However, we will consider information about these 
positions to illustrate the capacity in which he intends to work in order to determine whether his proposed endeavor meets 
the requirements of the Dhanasar framework. 
5 Such documentation is helpful in identifying the Petitioner's proposed endeavor and therefore it has relevance under both 
prongs one and two of the Dhanasar framework. 
3 
market analyses, information about his proposed company and its services, financial forecasts and 
projections, marketing strategies, a discussion of the Petitioner's work experience, and a description 
of company personnel. Regarding future staffing, the Petitioner's business plan anticipates that 
I lwill employ six personnel in year one, eight in year two, and eleven in years three through 
five, but he did not elaborate on these projections or provide evidence supporting the need for these 
additional employees. In addition, while his plan offers sales projections of $838,000 in year one, 
$1,665,600 in year two, $2,648,720 in year three, $3,238,464 in year four, and $3,866,157 in year five, 
he did not adequately explain how these sales forecasts were calculated. 
The Petitioner also presented recommendation letters from colleagues who discuss his project 
management skills and construction projects. 6 For example, I I director of operations 
with I I stated that the Petitioner's "civil engineering background and extensive 
experience managing architects and engineering teams, while navigating municipality and fire 
de artment re uirements on complex projects have been fundamental to the expansion ofc=] 
and office buildin at grounds inl I TX." Additionally,L_J 
regional manager wit asserted that the Petitioner "oversaw and led field 
construction activities in a large worksite, a multifamily apartment complex with 338 apartments, 
divided into 5 different buildings inl I Texas. Without [the Petitioner's] professionalism or 
responsible attitude, this project would not have been as successful." 
Furthermore, I I vice president of construction at _________ indicated 
that the Petitioner "worked as an Assistant Superintendent and Assistant Project Manager. ... Within 
a short amount of time, [the Petitioner] proved to be a high level-thinker and expert in the field .... 
Specifically, [the Petitioner is a very responsible and diligent person, which translates well into both 
ositions he held for Likewise, I I vice president of project management with 
stated that the Petitioner "was responsible for accurately estimating new 
and ongoing construction projects. In addition, he assisted project managers assessing the blueprints 
to interpret and calculate all the project components, comparing contractors/vendors' quotes and 
project specifications to determine the costs to achieve the project goals." I I further asserted 
that the Petitioner "used his analytical skills and on-site experience to help solve problems, reach the 
common goal, and collaborate with the company's success." 
The aforementioned letters from I II I andl I discuss the 
Petitioner's skills, knowledge, and prior work in his field, but these factors relate to the second prong 
of the Dhanasar framework, which "shifts the focus from the proposed endeavor to the foreign 
national." Id. at 890. The issue here is whether the specific endeavor that he proposes to undertake 
has national importance under Dhanasar's first prong. 
The record includes information about the occupational outlook for civil engineers, the projected 
increase in civil engineering jobs, construction industry growth trends, the projected shortfall in 
Americans trained in science and engineering, foreign-born scientists and engineers in the U.S. 
economy, and the severity of the U.S. STEM worker shortage. In addition, the Petitioner provided 
articles discussing the role of construction in national development, the value of construction to state 
economies, the skills gap in manufacturing, transformation efforts aimed at engineering functions, the 
6 While we discuss a sampling of these letters, we have reviewed and considered each one. 
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talent shortage in the integrated circuit industry, engineering's contribution to economic growth, the 
U.S. science and engineering workforce, the U.S. engineering talent shortage, foreign-born STEM 
workers in the United States, immigration as a solution for addressing the U.S. STEM worker shortage, 
immigrants' positive impact on the business community and U.S. economy, highly skilled immigrants 
as contributors to economic growth, real estate's impact on the U.S. economy, and the benefits ofreal 
estate investment. He also submits information on appeal about the framework for the Build Back 
Better Act, the Biden Administration's plan to ease the burden of housing costs and boost affordable 
housing, the housing market's role in the U.S. economy, housing insecurity and the shortage of 
affordable homes, housing affordability in Texas, the shortage of affordable rental homes in Texas, 
the increase in U.S. home prices, and construction backlogs and affordability as contributors to the 
U.S. housing shortage. The record therefore shows that the Petitioner's proposed endeavor has 
substantial merit. 
In the decision denying the petition, the Director determined that the Petitioner had not demonstrated 
the national importance of his proposed endeavor. The Director stated that the Petitioner had not shown 
that his undertaking offers "wider implications" beyond his employer and its clientele, or otherwise 
provides "substantial positive economic effects for the nation." The Director also indicated that the 
Petitioner had not demonstrated that his proposed work stands to "affect the regional or national economy 
more broadly." 
In his appeal brief, the Petitioner asserts that the Director's RFE was flawed because it did not ask for 
"information related to the first prong" of the Dhanasar framework. Nonetheless, the Petitioner's 
response to the RFE included detailed information and evidence regarding his proposed endeavor. We 
note that the Director may, as a matter of discretion, request additional evidence if the record does not 
establish eligibility, but he is not required to do so. See 8 C.F.R. § 103.2(b)(8). Regardless, the 
Petitioner has had an opportunity to address the Director's first prong analysis on appeal, and we 
review the record on a de nova basis. 
The Petitioner argues that his "company will contract with other companies, such as 
I I and I I ... to provide a diversified construction 
business with a focus on affordable housing." He states that his company's "business plan contains 
detailed information on how the Petitioner plans to impact the I I area 
by providing affordable housing solutions." The Petitioner also points to the information he provided 
relating to Biden Administration initiatives (such as the Build Back Better framework) and to the 
necessity for affordable housing investment. In addition, he cites findings from the National Low 
Income Housing Coalition indicating a systematic shortage of affordable housing for extremely low­
income renters. The Petitioner further asserts that his proposed endeavor stands to significantly benefit 
the U.S. construction industry "in terms of improving the U.S. housing market and the national 
economy. These impacts will in tum result in the increase in consumers' willingness to spend and 
invest into property and real estate." 
With the appeal, the Petitioner offers a letter of support froml I president atl I 
______ pointing to the affordable housing gap in the United States. 7 He contends that 
"the U.S. Government has prioritized creating more affordable housing as an important national goal 
7 The appellate submission includes information about and its housing projects. 
5 
worthy of pursuit" and that the Petitioner's proposed endeavor assists _________ in 
increasing its "ability to undertake new ro · ects ... that will benefit the low- and middle-income 
segments of the U.S. housing market." further states: " W e continue to wish to hire 
[the Petitioner] to be a project manager with _________ ... I can guarantee that 
from our business alone he would have sufficient work to meet his year one targets of gross revenues 
of $800,000 and employing 6 workers." The letter froml however, does not contain 
sufficient information and explanation, nor does the record include adequate corroborating evidence, 
to show that the Petitioner 's proposed work offers broader implications in the civil engineering field, 
the U.S. construction industry, or the U.S. housing market that rise to the level of national importance. 
In determining national importance , the relevant question is not the importance of the field, industry, 
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. 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. 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. 
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. While the 
Petitioner 's statements reflect his intention to provide valuable construction , engineering, consulting, 
remodeling, and project management services for his company and U.S. employers (such as 
I II , andl , he has not offered 
sufficient information and evidence to demonstrate that the prospective impact of his proposed 
endeavor rises to the level of national importance. 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. Id. at 893. Here, we conclude the Petitioner has not shown that his 
proposed endeavor stands to sufficiently extend beyond his company a nd U.S. employers or their 
clientele to impact the civil engineering field, the construction industry, the housing market, or the 
U.S. economy more broadly at a level commensurate with national importance. 
Furthermore , the Petitioner has not demonstrated that the specific endeavor he proposes to undertake 
has significant potential to employ U.S. workers or otherwise offers substantial positive economic 
effects for our nation. Specifically, he has not shown that his company's future staffing levels and 
business activity stand to provide substantial economic benefits in Texas or the United States. While 
the sales forecast for I indicates that the Petitioner's company has growth potential, it 
does not demonstrate that the benefits to the regional or national economy resulting from his undertaking 
would reach the level of "substantial positive economic effects" contemplated by Dhanasar. Id. at 890. 
In addition, although the Petitioner asserts that his company will hire U.S. employees and that his 
endeavor will contribute "to the local economy through the creation of at least six jobs," he has not offered 
sufficient evidence that the area where his company operates is economically depressed, that he would 
employ a significant population of workers in that area, or that his endeavor would offer the region or 
its population a substantial economic benefit through employment levels or real estate development. 
Accordingly , the Petitioner 's proposed work does not meet the first prong of the Dhanasar framework. 
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Because the documentation in the record does not establish the national importance of his proposed 
endeavor as required by the first prong of the Dhanasar precedent decision, the Petitioner has not 
demonstrated eligibility for a national interest waiver. Further analysis of his eligibility under the second 
and third prongs outlined in Dhanasar, therefore, would serve no meaningful purpose. 
III. CONCLUSION 
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, we conclude 
that he has not established he is eligible for or otherwise merits a national interest waiver as a matter 
of discretion. The appeal will be dismissed for the above stated reasons , with each considered as an 
independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
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