dismissed EB-2 NIW Case: Civil Engineering

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: OCT. 18, 2023 In Re: 28446346 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, aconstruction manager and civil engineer, seeks employment-based second preference 
(EB-2) immigrant classification as a member of the professions holding an advanced degree or as an 
individual of exceptional ability. Immigration and Nationality Act (the Act) section 203(b)(2), 8 
U.S.C. § 1153(b)(2). The Petitioner also seeks a national interest waiver of the job offer requirement 
that is attached to this EB-2 immigrant classification. See section 203(b)(2)(B)(i) of the Act, 8 U.S.C. 
§ 1153(b)(2)(B)(i). U.S. Citizenship and Immigration Services (USCIS) may grant this discretionary 
waiver of the required job offer, and thus of a labor certification, when it is in the national interest to 
do so. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner is eligible for or otherwise merits a national interest waiver as a matter of 
discretion. The matter is now before us on appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by apreponderance of the evidence. 
Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de nova. Matter a/Christa 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 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. Section 203(b)(2)(B)(i) of the Act. An 
advanced degree is any U.S. academic or professional degree or a foreign equivalent degree above 
that of a bachelor's degree.1 8 C.F.R. § 204.5(k)(2). A U.S. bachelor's degree or aforeign equivalent 
degree followed by five years of progressive experience in the specialty is the equivalent of a master's 
degree. Id. 
1 Profession shall include, but not be limited to, architects, engineers, lawyers, physicians, surgeons, and teachers in 
elementary or secondary schools, colleges, academics, or seminaries. Section 101(a)(32) of the Act. 
Once a petitioner demonstrates eligibility for the underlying classification, the petitioner must then 
establish eligibility for 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 l&N Dec. 884, 889 (AAO 2016), provides the 
framework for adjudicating national interest waiver petitions. Dhanasar states that USCIS may, as 
matter of discretion2, 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. 
11. ANALYSIS 
The Petitioner proposes to work as a construction manager for her new construction and civil 
engineering services business,~-------~ in Florida. 
The Director determined that the Petitioner established her eligibility as a member of the professions 
holding an advanced degree.3 However, the Director concluded the Petitioner did not establish that a 
waiver of the requirement of a job offer, and thus a labor certification, would be in the national interest. 
The Director found that while the Petitioner demonstrated the proposed endeavor has substantial merit, 
she did not establish that the proposed endeavor is of national importance, as required by the first 
Dhanasar prong. The Director did not make adetermination whether the Petitioner is well positioned 
to advance the proposed endeavor under the second prong of Dhanasar. For the third prong of 
Dhanasar, the Director found that, on balance, it would not be beneficial to the United States to waive 
the requirements of a job offer, and thus of a labor certification. However, the Director did not provide 
an analysis for this determination. Upon de novo review, we agree with the Director's determination 
that the Petitioner did not demonstrate that a waiver of the labor certification would be in the national 
interest.4 
The first prong of the Dhanasar analytical framework, substantial merit and national importance, 
focuses on the specific endeavor that a petitioner proposes to undertake. The endeavor's merit may 
be demonstrated in a range of areas, such as business, entrepreneurial ism, science, technology, culture, 
health, or education. 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." Matter of Dhanasar, 26 l&N Dec. 
at 889. 
The Petitioner's statement indicates that she intends to work as a construction manager for her 
business, which will focus on "being a competitive developer and builder in the Florida real estate 
2 See also Poursina v. USC1S, 936 F.3d 868 (9th Cir. 2019) (finding USCTS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
3 To demonstrate she is an advanced degree professional, the Petitioner submitted her diploma granting her the title of 
engineer from Universidadel Iin Brazil, the corresponding academic transcripts, an academic evaluation, 
and letters from her previous employers. The record demonstrates that she holds the foreign equivalent of a U.S. bachelor's 
degree in civil engineering and at least five years of progressive experience in her specialty. See 8 C.F.R. § 204.5(k)(3). 
4 While we may not discuss every document submitted, we have reviewed and considered each one. 
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market within five years." Her business would manage "all stages of construction or renovation," 
including "the analysis of soil characteristics, the study of sunlight and ventilation of the site, and the 
definition of foundation types." The Petitioner's business plan farther explains that the business would 
construct commercial and residential properties starting with two bedroom and two bathroom 
townhouses in the I I area of Florida. It intends to renovate and maintain rental homes, 
apartments, and townhomes in thel larea; construct homes in the.________ ____.area; and 
"to obtain infrastructure construction contracts for the sewage/water network and roads." We agree 
with the Director that the Petitioner's proposed endeavor has substantial merit. 
However, the Director found that the record did not establish her proposed endeavor has the potential 
to extend beyond her business and her clients to impact her field of endeavor at a level sufficiently 
commensurate with national importance. Therefore, the Director found that the Petitioner did not 
establish the national importance of her proposed endeavor, and she did not meet the first prong of the 
Dhanasar framework. 
The Petitioner argues on appeal that "[h]er proposed endeavor has substantial merit and is of national 
importance" explaining that her extensive professional knowledge and experience in civil engineering 
and construction management provide her the capability to advance her endeavor. She further argues 
that "the United States would greatly benefit from the expertise and skills of an experienced 
Construction Manager such as [the Petitioner] .... " Upon de nova review, we find the record does 
not demonstrate that the Petitioner's proposed endeavor satisfies the national importance element of 
Dhanasar ·s first prong, as discussed below. 
The standard of proof in this proceeding is a preponderance of the evidence, meaning that a petitioner 
must show that what is claimed is "more likely than not" or "probably" true. Matter of Chawathe, 25 
l&N Dec. at 375-76. To determine whether a petitioner has met the burden under the preponderance 
standard, we consider not only the quantity, but also the quality (including relevance, probative value, 
and credibility) of the evidence. Id.; Matter of E-M-, 20 l&N Dec. 77, 79-80 (Comm'r 1989). Here, 
the Director properly analyzed the Petitioner's documentation and weighed the evidence to evaluate 
the Petitioner's eligibility by a preponderance of the evidence. 
The Petitioner's reliance on her professional knowledge and experience to establish the national 
importance of her proposed endeavor is misplaced. Her professional knowledge and experience relate 
to the second prong of the Dhanasar framework, which "shifts the focus from the proposed endeavor 
to the foreign national." Matter of Dhanasar, 26 l&N Dec. at 890. The issue here is whether the 
specific endeavor that the Petitioner proposes to undertake has national importance under Dhanasar 's 
first prong. To evaluate whether the Petitioner's proposed endeavor satisfies the national importance 
requirement, we look to evidence documenting the "potential prospective impact" of her work. See 
id. at 889. 
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 the field more broadly. Id. at 893. The record 
does not demonstrate that the Petitioner's proposed endeavor will substantially benefit the field of 
construction management, as contemplated by Dhanasar: "[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." Id. The 
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evidence does not suggest that the Petitioner's construction and civil engineering services business 
would impact the construction management field more broadly. 
With the petition, the Petitioner submitted her statements and a business plan which indicate her 
proposed endeavor has national importance based on potential economic benefits. The business plan 
explains the expected growth of job opportunities in the construction industry in Florida due to the 
increase in residential and commercial development. The business plan states, "Construction 
companies not only build structures that encourage increased productivity and improve the standard 
of living but also greatly contribute directly to connecting communities, providing jobs, improving 
society, creating opportunities for investing and profit-making, and providing income for businesses 
that provide related goods or services." 
Based on the expected growth of the construction industry in Florida, the Petitioner expects for her 
business to facilitate positive interactions, create job opportunities, and generate significant revenue. 
The Petitioner asserts that her business "has great potential to deliver substantial positive economic 
effects to the [United States], attracting investors, including foreign ones, to dump their money into 
the U.S. real estate markets .... " The business plan also asserts that although the business' office 
will not be located in an underutilized business community, it will have a positive impact on those 
nearby communities. She asserts her business would provide economic benefits to the United States 
by generating taxes, creating direct and indirect jobs for U.S. workers, and provide economic benefits 
to Florida and its economically deprived areas. Specifically, the business expects to create four direct 
jobs and 70 indirect jobs, and generate over eight million dollars in revenue. The business plan also 
explains the Petitioner's experience; the business' services; the market for construction and civil 
engineering services; the business' marketing strategy; and the business' proposed staffing, and 
financial forecasts. 
However, the Petitioner has not provided corroborating evidence to support her claims that her 
business' activities stand to provide substantial economic benefits to Florida or the United States. The 
Petitioner's claims that her construction and civil engineering services business will benefit the Florida 
and U.S. economies have not been established through independent and objective evidence. The 
Petitioner's statements are not sufficient to demonstrate her endeavor has the potential to provide 
economic benefits. The Petitioner must support her assertions with relevant, probative, and credible 
evidence. See Matter of Chawathe, 25 l&N Dec. at 376. Also, without sufficient documentary 
evidence that her proposed job duties as construction manager of her business would impact the 
construction and civil engineering industries more broadly, rather than benefiting her business and her 
proposed clients, the Petitioner has not demonstrated by a preponderance of the evidence that her 
proposed endeavor is of national importance. 
The record does not sufficiently detail the basis for its financial and staffing projections, or adequately 
explain how these projections will be realized. The Petitioner has not provided corroborating evidence 
demonstrating that her business' future staffing levels and business activities stand to provide 
substantial economic benefits to Florida and the United States. While the Petitioner expresses her 
desire to contribute to the United States and its underutilized business areas, she has not established 
with specific, probative evidence that her endeavor will have broader implications in her field, will 
have significant potential to employ U.S. workers, or will have other substantial positive economic 
effects in an economically underutilized business area of Florida or in the United States. Even if we 
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were to assume everything the Petitioner claims will happen, the record lacks evidence showing that 
creating four direct jobs and 70 indirect job, and generating over eight million dollars of revenue rises 
to the level of national importance. 
The Petitioner further claims that the national importance of her proposed endeavor is evidenced in 
published articles. The record includes articles relating to the economic benefits of immigrants 
working in the United States and of immigrant entrepreneurs. We recognize the importance of 
immigrants to the U.S. economy, and the significant contributions from immigrants who have become 
successful entrepreneurs. However, being an immigrant working in the United States in the 
construction management field or starting a construction and civil engineering services business is 
insufficient to establish the national importance of the proposed endeavor. Instead, of focusing on the 
importance of immigrants to the U.S. economy or the need for workers in the United States, we focus 
on the "the specific endeavor that the foreign national proposes to undertake." See Matter of 
Dhanasar, 26 l&N Dec. at 889. In Dhanasar, we 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. The articles submitted do not discuss any projected economic 
impact specifically attributable to the Petitioner's proposed endeavor. 
To further support the national importance of her proposed endeavor, the record includes an opinion 
from I I adjunct professor of mathematics atl ICollege of New York. The 
opinion, however, mainly focuses on the importance of the construction industry on the U.S. economy 
and the need for affordable housing. It describes how the construction industry supports national 
initiatives and that the Petitioner 's experience make her capable to provide construction management 
and civil engineering services to the construction industry. Instead of focusing on the Petitioner ' s 
specific proposed endeavor having a prospective impact in the field of construction management, the 
opinion focuses on the importance of the construction industry and how the Petitioner's experience as 
a construction manager and civil engineer would be beneficial to the United States. 
The opinion further indicates that the Petitioner 's proposed endeavor has national importance based 
on the business projecting to create four direct jobs and 70 indirect jobs which will benefit the U.S. 
economy. As explained above, the Petitioner 's projected direct and indirect job creation has not been 
corroborated with independent, probative evidence. The submission of letters from experts supporting 
the petition is not presumptive evidence of eligibility. Matter of Caron lnt 'I, 19 l&N Dec. 791, 795 
(Comm'r. 1988); see also Matter of D-R-, 25 l&N Dec. 445, 460 n.13 (BIA 2011) (discussing the 
varying weight that may be given expert testimony based on relevance, reliability, and the overall 
probative value). 
The Petitioner does not demonstrate that her proposed endeavor extends beyond her business and her 
future clients to impact the field or any other industries or the U.S. economy more broadly at a level 
commensurate with national importance. Beyond general assertions, she has not demonstrated that 
the work she proposes to undertake as the owner and construction manager of her proposed 
construction and civil engineering services business offers original innovations that contribute to 
advancements in her industry or otherwise has broader implications for her field. The economic 
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benefits that the Petitioner claims depend on numerous factors, and the Petitioner did not offer a 
sufficiently direct evidentiary tie between her proposed business' construction and civil engineering 
services work and the claimed economic results. 
Because the documentation in the record does not sufficiently establish the national importance of the 
Petitioner's proposed endeavor as required by the first prong of the Dhanasar precedent decision, she 
has not demonstrated eligibility for a national interest waiver. Since the identified basis for denial is 
dispositive of the Petitioner's appeal, we decline to reach and hereby reserve the Petitioner's eligibility 
and appellate arguments under the second and third prongs. 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 l&N Dec. 516, 526 n.7 (BIA 
2015) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
111. CONCLUSION 
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, we find 
that the Petitioner has not established eligibility for a national interest waiver as amatter of discretion. 
The appeal will be dismissed for the above stated reasons. 
ORDER: The appeal is dismissed. 
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