dismissed EB-2 NIW Case: Civil Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re: 21982996 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 22, 2022 
Form I-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 the Petitioner 
had not established that a waiver of the required job offer , and thus of the labor certification, would 
be in the national interest. 
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. 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 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 of job offer-
(i) National interest waiver. ... the 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 1he 
United States. 
While neither the statute nor the pertinent regulations define the te1m "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). 1 Dhanasarstates that, after a petitioner has established 
eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) may, as a 
matter of discretion, grant a national interest waiver if the petitioner demonstrates: (1) that the 
noncitizen's proposed endeavor has both substantial merit and national importance; (2) that the 
noncitizen 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 ofa labor certification. 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
non citizen 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 dete1mining 
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 noncitizen. 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 non citizen's 
qualifications or the proposed endeavor, it would be impractical either for the noncitizen 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 noncitizen's contributions; 
and whether the national interest in the noncitizen's contributions is sufficiently urgent to warrant 
forgoing the labor certification process. In each case, the factor(s) considered must, taken together, 
1 In announcing this new framework, we vacatedourp1iorprecedent decision,MattcrofNew York State Dep't of Transp., 
22 I&NDec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
2 
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. 2 
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 of a labor certification, would be in the national interest 
For the reasons discussed below, the Petitioner has not established that a waiver of the requirement of 
a job off er is warranted. 
Initially, the Petitioner described the proposed endeavor as a plan "to offer consulting services to U.S. 
government striving to improve the overall state of infrastructure." The Petitioner elaborated: 
The goal is to open the branch of I in the U.S. in partnership 
with American companies to help develop the methodology and build on his business 
network to grow business in the U.S. He will offer his services to clients (residential 
business, and government) and also train other professionals to use his proprietary 
technology and assist clients in achieving maximum efficiency in their projects on 
roads and highways repair. 
The Petitioner also described his recent business activities, including "a real estate investment 
company together with my brothers ... that led us to acquire some properties in the USA"; founding 
another U.S.-based "company to start off my business plan," including "operat[ing] in other areas of 
civil engineering with commercial projects, new construction, and remodeling work in general," and 
a "partnership with l[that] is in final stages of elaboration of a business plan 
to release a start-up." 
In response to the Director's request for evidence (RFE), the Petitioner specifically reiterated that his 
"endeavor is to open a branch of I in the U.S., with a focus on providing specialized 
diagnostic software and consulting services to private residential and business companies and 
government agencies in the [ r ]oads and [h ]ighways [i]ndustry ." The Petitioner also asserted that his 
"endeavor seeks to develop and result in the productionofU. S. jobs, as construction,road maintenance 
and design drive important work and employment functions, as well as generate workforce 
dependability." 
The Director acknowledged that the record established that "the improvement of U.S. roads and 
highways is of substantial merit and is the subject of national initiatives." However, the Director 
concluded that "the totality of the record does not address how the [P]etitioner' s company would 
specifically affect the conditions of U.S. roads and highways broadly across the U.S., or the field of 
civil engineering as it concerned roads and highways." The Director further concluded, "The record 
establishes only that the [P]etitioner's company would have substantial merit to the improvement of 
roads and highways specific to the individual customers or clients that would choose to hire its 
2 SccDhanasar, 26l&NDec. at 888-91, for elaboration onthesethreeprongs. 
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services. Therefore, the record does not demonstrate that the [P]etitioner's endeavor has national 
importance." 
On appeal, the Petitioner asserts that the general "[r]oads and [h]ighway [c]onstruction [i]ndustry is 
incredibly important to the country, especially as the economy and interstate travel depend on the 
serviceability and safety of the roads and highways." The Petitioner also asserts that the "Biden 
Administration has made infrastructure a priority, with a $2 trillion infrastructure plan that involves 
partnerships with states and localities on clean-energy and transit projects." The Petitioner further 
asserts that the director "overlooked thatthe proposed endeavor would result in a process improvement 
that would have national or even global implications in the [r]oad and [h]ighway [c]onstruction 
industry." Additionally, the Petitioner asserts that the Director "overlooked that the proposed 
endeavor will have a significant potential to employ U.S. workers and other substantial economic 
effects." The Petitioner also asse1is that the proposed endeavor "has national importance since it 
provides services to small to medium-sized businesses[,] helping them grow and succeed." 
In determining national importance, the relevant question is not the importance of the industry, field, 
or profession in which an individual will work; instead, to assess national importance, we focus on the 
"specific endeavor that the [ noncitizen] proposes to unde1iake." See Dhanasar, 26 I&N Dec. at 889. 
Dhanasar provided examples of endeavors that may have national importance, as required by the first 
prong, having "national or even global implications within a particular field, such as those resulting 
from certain improvedmanufacturingprocesses or medical advances" and endeavors that have broader 
implications, such as "significant potential to employ U.S. workers or has other substantial positive 
economic effects, particularly in an economically depressed area." Id. at 889-90. 
We first note that the Petitioner conflates the separate elements of the firstDhanasar prong: "that the 
[noncitizen's] proposed endeavor has both substantial merit and national importance." Id. at 889. We 
elaborated in Dhanasar that "an endeavor's merit may be established without immediate or 
quantifiable economic impact. For example, endeavors related to pure science and the furtherance of 
human knowledge may qualify, whether or notthe potential accomplishments in those fields are likely 
to translate into economic benefits for the United States." Id. In contrast to an endeavor's merit­
which may be determined without immediate or quantifiable economic impact-"[i]n determining 
whether the proposed endeavor has national importance, we cons Mer its potential prospective impact." 
Id. (emphasis added). Therefore, the Petitioner's observation that "the economy and interstate travel 
depend on the serviceability and safety of roads and highways," and that the "Biden Administration 
has made infrastructure a priority" are material to the proposed endeavor's merit, which the Director 
acknowledged exists in this case; however, without addressing the endeavor's prospective impact, 
they are not material to its national importance. 
Next, the Petitioner asserts that an undated letter from a fellow civil engineer, submitted on appeal, 
establishes that "the proposed endeavor would result in process improvementthatwould have national 
or even global implications in the [r]oad and [h]ighway [c]onstruction industry." The Petitioner's 
reliance on the letter is misplaced. Although the letter's date cannot be determined, it references a 
project the Petitioner would undertake with the University! I Department of Civil and 
Environmental Engineering. In response to the Director's RFE, the Petitioner submitted a letter from 
I la professor of civil and environmental engineering at the University I 
dated October 2021, in which the professor accepts the Petitioner's request to conduct a field test of 
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his technology "between February and March, 2022." The undated civil engineer's letter quotes the 
professor's letter, wherein the latter stated that the Petitioner's "technology is unique, the data 
collection and processing is very efficient and such can play a major part on maintenance on demand, 
hence saving funds and resources." 
A petitioner must establish eligibility at the time of filing the petition. See 8 C.F.R. § 103 .2(b )(1). A 
petition may not be approved at a future date after a petitioner becomes eligible under a new set of 
facts. MatterofKatigbak, 14 I&NDec. 45 (Reg. Comm'r 1971). 
Contrary to the Petitioner's assertions on appeal, the Director did not "overlook" the letter from 
I I Instead, the Director acknowledged the letter and described its contents in multiple 
paragraphs in the decision; however, the Director correctly explained that, because the letter is dated 
October 2021, after the petition filing date in April 2021, and because it addresses a project in 2022 
which had yet to occur, it presents a new set of facts that did not exist at the time of filing and thus, it 
cannot establish eligibility. See 8 C.F.R. § 103.2(b)(1); see also Matter ofKatigbak, 14 I&N Dec. 45. 
Moreover, even if the undated letter and I letter could establish eligibility, which 
they cannot, they do not establish how "the proposed endeavor would result in process improvement 
that would have national or even global implications in the [r]oad and [h ]ighway [ c ]onstruction 
industry," as the Petitioner asserts on appeal. I I observation that the Petitioner's 
technology is "unique" does not establish how its uniqueness may have national or global implications. 
His observation that the data collection and processing is very efficient is made without context, such 
as comparing it to the efficiency of data collection and processing of any other commonly used 
methodologies, if any. Additionally, his observation that the Petitioner's technology could save "funds 
and resources" is a generalized statement that does not elaborate on the type of resources that could 
be saved, the volume of resources that could be saved, the amount of funds that could be saved, how 
the savings may vary depending on the size of a given project employing the technology, and other 
material details. 
We also note that the Director addressed other information in the record that was determined to be 
insufficient in establishing the national importance of the proposed endeavor, including a Power Point 
presentation that "does not explain the technology but appears to be a visual guide to a more detailed 
in-person presentation." The Petitioner does not address this information on appeal. 
Next, the record does not support the Petitioner's assertion on appeal that the Director "overlooked 
that the proposed endeavor will have a significant potential to employ U.S. workers and other 
substantial economic effects." The Director acknowledged that the Petitioner stated that his 
construction company "had 2 employees and 2 companies on its payroll and utilized 20 
subcontractors" but she observed that the record did not establish whether "the [P]etitioner's business 
would have a significant potential to employ U.S. workers." 
The Petitioner's business plan, dated March 2021, indicated that he projected that, in addition to 
employing himself, his endeavor would employ six civil engineers with distinct specialties, two 
"laboratory worker[s]," four "assistant worker[s]," two "senior technician[s]," four "assistant 
technician[s]," one driver, and one operator. Although the business plan indicated five "areas" in 
which the driver and operator would work, such as "defectrometric survey" and "irregularity survey," 
the plan did not establish whether the same pair of driver and operator would work in each of the five 
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areas, or if each area would have its own driver and operator, totaling five, not one, of each. In total, 
the business plan indicated that the Petitioner anticipated employing between 21 and 29 workers. 
However, although the business plan indicated that the Petitioner "plans to establish an [e]ngineering 
[c ]onsulting company in the U.S." and that he "wants to open a branch of his family-owned successful 
Brazilian company[,]! I operating in the highway engineering consulting sector," it 
does not indicate where he plans to establish that consulting company and whether that consulting 
company would be the U.S. branch of I referenced throughout the record. 
Moreover, the record in general, and the business plan in particular, does not specify the location 
where the Petitioner intends to pursue the proposed endeavor and the location where the 21 to 29 
workers the Petitioner intends to employ would work. The record does not establish whether 
employing 21 to 29 workers-in any occupation, in general, or in the particular occupations identified 
in the business plan-in an unspecified location would have broader implications, such as "significant 
potential to employ U.S. workers or [have] other substantial positive economic effects, particularly in 
an economically depressed area." See Dhanasar, 26 I&N Dec. at. at 889-90. 
Finally, the Petitioner's assertion on appeal that the proposed endeavor "has national importance since 
it provides services to small to medium-sized businesses[,] helping them grow and succeed" does not 
explain how the services the Petitioner would provide to those businesses would have broader 
implications, such as "significant potential to employ U.S. workers or [have] other substantial positive 
economic effects, particularly in an economically depressed area." See id. The Petitioner asserts on 
appeal that "the U.S. Small Business Administration Office of Advocacy has stated that small 
businesses are the lifeblood of the U.S. economy, accounting for 44% of U.S. economic activity." 
However, as addressed above, in determining national importance, the relevant question is not the 
importance of the industry, field, or profession in which an individual will work; instead, to assess 
national imp01iance, we focus on the "specific endeavor that the [ noncitizen] proposes to undertake." 
See id. at 889. The record does not establish that the U.S. Small Business Administration Office of 
Advocacy commented on the specific endeavor that the Petitioner proposed to undertake; therefore, 
its comments regarding U.S. economic activity in general do not establish that the proposed endeavor 
has national importance. The record does not otherwise establish that the unspecified services that the 
Petitioner would provide to unidentified "small to medium-sized businesses" would have substantial 
positive economic effects that would rise to the level of national importance. See id. at 889-90. 
In summation, the Petitioner has not established that the proposed endeavor has national importance, 
as required by the first Dhanasar prong; therefore, he is not eligible for a national interest waiver. We 
reserve our opinion regarding whether the record satisfies the second or third Dhanasar prong. 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 (BIA 2015) (declining to reach alternative issues on appeal where an 
applicant is otherwise ineligible). 
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III. CONCLUSION 
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, we 
conclude that the Petitioner has not established eligibility for, or otherwise merits, a national interest 
waiver as a matter of discretion. 
ORDER: The appeal is dismissed. 
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