dismissed EB-2 NIW Case: Civil Engineering

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 30, 2024 In Re: 28963107 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a civil engineer with a background in construction project management, 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 record did not 
establish that a waiver of the classification's job offer requirement would be in the national interest. 
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 a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christa's, Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). Upon de novo 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.' 8 C.F.R. § 204.5(k)(2). A U.S. bachelor's degree or a foreign equivalent 
degree followed by five years of progressive experience in the specialty is the equivalent of a master's 
degree. Id. 
Once a petitioner demonstrates eligibility as either a member of the professions holding an advanced 
degree or an individual of exceptional ability, they must then establish that they merit a discretionary 
waiver of the job offer requirement "in the national interest." Section 203(b )(2)(B)(i) of the Act. 
While neither the statute nor the pertinent regulations define the term "national interest," Matter of 
Dhanasar, 26 I&N Dec. 884, 888-891 (AAO 2016), provides the framework for adjudicating national 
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 10l(a)(32) of the Act. 
interest waiver pet1t10ns. Dhanasar states that U.S. Citizenship and Immigration Services (USCIS) 
may, as matter of discretion, 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. 
II. ANALYSIS 
A. EB-2 Classification 
The Director did not determine if the Petitioner met the underlying EB-2 classification. However, the 
record demonstrates that the Petitioner's foreign degrees are equivalent to U.S. bachelor's degrees in 
agricultural engineering and civil engineering 2 and that he possesses more than five years of 
progressive experience in project management and civil engineering positions, which together 
establish he is a member of the professions holding an advanced degree. See 8 C.F.R. § 
204.5(k)(3)(i)(B). 
As such, the remaining issue to be determined is whether the Petitioner qualifies for a national interest 
waiver under the Dhanasar framework. 3 
B. Substantial Merit and National Importance 
The Petitioner's proposed endeavor, as described in his "Definitive Statement," is to be an 
entrepreneur in the construction field and contribute to the U.S. economy, and its societal welfare, by 
developing and expanding his company. The company will engage in homebuilding and construction 
services and has the five-year goal of "provide[ing] low-income 1,000 Sqft Housing Construction 
Project and Low-Income 1,700 Sqft Housing Construction Project." 
The Director issued a notice of intent to deny (NOID) requesting, in part, a more detailed description 
of the Petitioner's proposed endeavor as an entrepreneur in the construction industry and additional 
evidence explaining the national importance of the proposed endeavor. The Director's NOID noted 
that the Form I-140 stated that the Petitioner intended to "perform engineering duties in planning, 
designing, and overseeing construction and maintenance of building structures and facilities." The 
NOID took note of the evidence concerning the labor shortage in the Petitioner's field, and found it 
insufficient to establish the national importance of his endeavor. The Director also evaluated the 
Petitioner's business plan and found that it contained information that was not consistent with other 
evidence in the file, including the company's address and phone number, which are in Brazil. The 
Director noted that a lack of credible business plan made it insufficient to establish his endeavor had 
the potential to reach the level of "substantial positive economic effects," contemplated by Dhanasar. 
2 The Petitioner has two undergraduate degrees in agricultural and civil engineering, as well as almost twenty years of 
experience working in these fields in Brazil. To document these credentials, the Petitioner has provided copies of his 
degrees, coursework transcripts, and sufficiently detailed work experience letters. 
3 Although not addressed on appeal, we note that the Director incorrectly referenced a different petitioner and occupation 
on page two of the decision. Upon review, similar to the Petitioner's appeal brief which also erroneously mentions a 
different field (aviation), it appears this was a typographical error. 
2 
In response, the Petitioner provided a copy of his previously submitted business plan and "Definitive 
Statement," as well as additional industry articles and reports, and his professional resume. After 
consideration of the Petitioner's NOID response, the Director denied the petition. 
On appeal, the Petitioner asserts that in denying the petition, the Director "imposed novel substantive 
and evidentiary requirements beyond those set forth in the regulations," but does not point to any 
specific examples. The Petitioner farther alleges that the Director "did not apply the proper standard 
of proof in this case, instead imposing a stricter standard ... to the detriment of the appellant." Except 
where a different standard is specified by law, the "preponderance of the evidence" is the standard of 
proof governing immigration benefit requests. See Matter ofChawathe, 25 I&N Dec. at 3 7 5; see also 
Matter ofMartinez, 21 I&N Dec. 1035, 1036 (BIA 1997); Matter ofSao Hoo, 11 I&N Dec. 151, 152 
(BIA 1965). Accordingly, the "preponderance of the evidence" is the standard of proof governing 
national interest waiver petitions. See generally I USCIS Policy Manual, E.4(B), 
https://www.uscis.gov/policy-manual. While the Petitioner asserts that he has provided evidence 
sufficient to demonstrate his eligibility for a national interest waiver, he does not farther explain or 
identify a specific instance in which the Director applied a standard of proof other than the 
preponderance of evidence in denying the petition. 
Dhanasar 's first prong focuses on the specific endeavor that the foreign national proposes to undertake 
and its "potential prospective impact." Dhanasar, 26 I&N Dec. at 889. In his "Definitive Statement," 
the Petitioner asserts that the company will be a strong contributor in addressing the "significant 
problem of the lack of affordable single-family houses in the U.S." The Petitioner submitted a letter 
of intent to invest in the company, explaining that the investor will give him $60,000 in exchange for 
a 5% ownership stake in the company. He also described having two other investors (for a total of 
four, including himself), for a total initial investment of $422,000 and a decision to reinvest for the 
first five years of operation, a total of $1,326,400. The company will provide the following products 
and services: brick exterior homes, wood exterior homes, stucco exterior homes, vinyl siding exterior 
homes, fiber cement exterior homes, and other exterior homes. His business plan explains these 
services in more detail. As the endeavor's merit may be demonstrated in a range of areas such as 
business, entrepreneurialism, science, technology, culture, health, or education, we conclude that the 
endeavor has substantial merit. Id. 
Here, much of the Petitioner's evidence relies on industry reports and articles concerning the 
infrastructure crisis, the shortage of civil engineers and construction manager professionals, and the 
Biden Administration's focus on improving infrastructure as an area of national importance. While 
these articles and industry reports explain the importance of his field, and the contributions made by 
immigrants to the U.S. economy, the information does not discuss the Petitioner's proposed endeavor 
or explain how it would be of national importance. Further, regarding his claims that "the impending 
shortage of Civil Engineers/Entrepreneurs in Home Building and Construction" makes his endeavor 
one of national importance, the U.S. Department of Labor directly addresses the shortage of workers 
through the labor certification process. We recognize the value of the housing construction industry 
and the importance of immigrant entrepreneurs in our economy, however merely working in an 
important field or profession is insufficient to establish the national importance of the proposed 
endeavor, as we explained in Dhanasar. Id. 
3 
The Petitioner also provided background information about the importance of attracting professionals 
in the sciences, technology, engineering, and mathematics (STEM fields). USCIS policy guidance 
sets forth "specific evidentiary considerations relating to STEM degrees and fields," but this guidance 
does not indicate that every proposed endeavor in a STEM field presumptively has national 
importance. See generally 6 USCIS Policy Manual F.5(D)(2), https://www.uscis.gov/policymanual. 
In determining whether the proposed endeavor has 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." Dhanasar, 26 I&N 
Dec. at 889. 
We also noted in Dhanasar 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 ... 
may well be understood to have national importance." Id. at 890. The Petitioner asserts that he "aims 
to contribute to the economy by providing low-income housing construction projects, thereby 
enhancing building and project management" expertise, which will" ... extend beyond the confines 
of [his] specific endeavors." He farther claims that his endeavor aligns with national initiatives to 
enhance economic activity, because he will "bring his globalized knowledge in significant financial 
and business topics to not only improve the American business platform, but also to create jobs within 
his own companies." 
In the financial analysis portion of the Petitioner's business plan, it is projected that the company will 
create 16 direct jobs, and 27 indirect jobs with a total cumulative wage payment of $1,808,545 and an 
estimated $538,000 in federal tax payments on income by the fifth year. However, the business plan 
does not sufficiently detail the basis for its financial and staffing projections. Regardless, the Petitioner 
has not established that, even based on these unsupported projections, its activity stands to provide 
"substantial economic benefits" as contemplated in Dhanasar. 
To bolster his assertion, the Petitioner claims that the company's three offices will be located within a 
Small Business Administration designated historically underutilized business zone (HUB Zone). 4 
However, the Petitioner has not demonstrated that his business meets the requirements for HUBZone 
certification. Further, to the extent that the Petitioner is trying to equate his business being in a 
HUBZone with Dhanasar 's emphasis on job creation and economic effects in an "economically 
depressed area," the evidence does not establish the company's ability to qualify for HUBZone 
certification, nor does it sufficiently explain how merely locating his office in an HUBZone qualifies 
as "substantial positive economic effects, particularly in an economically depressed area." 
The Petitioner also submitted a letter from a professor at.
_____________ ___. purporting 
to establish the national importance of his endeavor because it will create jobs and contribute to the 
4 The HUBZone program promotes business growth in underutilized business zones with the goal of awarding three percent 
of federal contract dollars to companies that are HUBZone certified. See https://www.sba.gov/federal­
contracting/contracting-assistance-programs/hubzone-program. Operating a business in an HUBZone offers several 
advantages including eligibility for federal contracting preferences, access to set-aside contracts, and potential tax 
incentives. Id. Businesses seeking HUBZone certification must ensure that their business is owned and controlled by U.S. 
citizens, a community development corporation, an agricultural cooperative, or an Indian tribe. Id. Further, the business's 
principal office must be located in the designated HUBZone, and it must be the location where the greatest number of 
employees perform their work. Id. 
4 
U.S. economy. The letter explains that construction is growing, and that construction managers, like 
the Petitioner , are expected to be needed as overall construction activity increases. The letter explains 
how construction of schools, residences, office buildings, retail outlets, hospitals, restaurants, and 
other structures, new roads, bridges, and sewer pipe systems are being upgraded or replaced. The 
letter also mentions that the United States is investing in infrastructure and construction spending is 
going up. The section of the letter dedicated to Dhanasar 's first prong consists of general information 
about the importance of the construction industry and the role of construction managers within that 
industry. The professor emphasizes how the field and industry are growing (e.g., "[a]ltogether, real 
estate construction contributed $115 trillion to the nation 's economic output."). He also adds that the 
COVID-19 pandemic created more at home workers who want bigger homes leading to more home 
construction. The professor did not elaborate on this point with specific regard to the Petitioner ( or 
his proposed endeavor). Notably, the professor's emphasis on large single-family homes differs from 
the Petitioner 's proposed endeavor of building affordable houses. We may, in our discretion, use 
opinion statements submitted by the Petitioner as advisory. Matter of Caron Int'l, Inc., 19 I&N Dec. 
791 , 795 (Comm 'r 1988). However, where an opinion is not in accord with other information or is in 
any way questionable, we are not required to accept or may give less weight to that opinion. Id. 
In addition, the Petitioner's resume and recommendation letters only address his past accomplishments 
as an agricultural and civil engineer and project manager on construction projects, but they do not 
demonstrate the national importance of his endeavor's "potential prospective impact." Dhanasar, 26 
l&N Dec. at 889. The Petitioner 's recommendation letters discuss his successful handling of past 
projects, his expertise as an engineer and project manager, his success at reducing costs and completing 
projects ahead of schedule, and his professionalism and work ethic, as well as his student contribution 
to scholarly research. While we acknowledge that the Petitioner has made valuable contributions to 
his employers, his expertise pertains to Dhanasar 's second prong, which "shifts the focus from the 
proposed endeavor to the foreign national." Id. at 890. The issue here is whether the specific endeavor 
he proposes to undertake has national importance under Dhanasar's first prong. 
Here, the record does not show that the Petitioner's proposed endeavor stands to sufficiently extend 
beyond his clients to impact the field of construction or project management more broadly at a level 
commensurate with national importance. Nor has he shown that the particular work he proposes to 
undertake offers original innovations that contribute to advancements or otherwise has broader 
implications for his field. Furthermore, the Petitioner has not demonstrated that his specific endeavor 
has significant potential to employ U.S. workers or otherwise offers substantial positive economic 
effects for our nation. Without evidence regarding any projected U.S. economic impact or job creation 
directly attributable to his future work, the record does not show that benefits to the regional or national 
economy resulting from the Petitioner's endeavor would reach the level of "substantial positive economic 
effects" contemplated by Dhanasar. Id. at 890. 
As the Petitioner has not sufficiently established the national importance of his proposed endeavor 
and, thus, does not meet the first prong of the Dhanasar analysis, we decline to reach and hereby 
reserve the Petitioner 's arguments regarding his eligibility 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 ofL-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). 
5 
III. CONCLUSION 
As the Petitioner has not met the first prong 
set forth in 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. 
ORDER: The appeal is dismissed. 
6