dismissed EB-2 NIW Case: Civil Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re : 18371307 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : SEPT . 21, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a civil engineer, seeks classification as a member of the professions holding an 
advanced degree and as an individual of exceptional ability in the sciences, arts, or business . See 
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 employment­
based, "EB-2" immigrant classification . See section 203(b )(2)(B)(i) of the Act. 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 Petitioner qualifies 
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. 
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. [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, users may, as a matter of discretion, 1 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 fust prong, regarding 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 , users 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 
1 See also Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature) . 
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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) 
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. 2 
II. ANALYSIS 
The record demonstrates that the Petitioner qualifies as a member of the professions, and that he holds 
two master's degrees in civil engineering from the University ofl I Brazil: a master of 
sciences (2007) and a master of business administration (2018). Therefore, the Petitioner's parallel 
claim of exceptional ability is moot. 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. 
The Petitioner claims to have held overlapping jobs with construction companies in the Brazilian 
province oft I with duties including "Design coordination of Real Estate complexes" and 
"Risk analysis of Real Estate investments" : 
Employer Title 
Design director 
Structural engineering & const. mgr. 
Construction manager 
From 
2006 
2007 
2013 
To 
2014 
2018 
2018 
The Petitioner asserts that he owns botl~ landLJind that his employment a.r==Jvas full-
time until he switched to a part-time schedule upon establishing! I The Petitioner also briefly 
taught courses on civil engineering and real estate atl !university and the University 
otj !between 2007 and 2009. The Petitioner has been in the United States since 2018 
as an F-1 nonimmigrant student. 
The substantial merit of the Petitioner's proposed endeavor is not in dispute. For the reasons discussed 
below, we agree with the Director that the Petitioner has not sufficiently demonstrated the national 
importance of his proposed endeavor under the first prong of the Dhanasar analytical framework. 3 
In Dhanasar, we explained the "national importance" element of the first prong of the framework: 
In determining whether the proposed endeavor has national importance, we consider 
its potential prospective impact. An 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 . But we do not evaluate prospective impact solely in geographic terms. 
Instead, we look for broader implications. Even ventures and undertakings that have 
as their focus one geographic area of the United States may properly be considered to 
have national importance. . . . An endeavor that has significant potential to employ 
2 See Dhanasar , 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
3 While we may not discuss every document submitted, we have reviewed and considered each one. 
3 
U.S. workers or has other substantial pos1t1ve economic effects, particularly in an 
economically depressed area, for instance, may well be understood to have national 
importance. 
Id. at 889-90. 
A business plan in the record describes the Petitioner's proposed endeavor as follows: 
[The Petitioner] seeks to improve the efficiency of small, mid-sized and large 
construction management and real estate investment companies. [The Petitioner] will 
provide highly specialized consulting services to help his clients improve their financial 
performance, make better-informed business decisions, and pursue growth strategies. 
[The Petitioner] will also create his own real estate investment company showing to 
the market in practice the potential of a rationalized approach of control uncertainties 
and risks involved in the real estate field. 
The Petitioner states his intention of "[p ]articipating in at least 12 distinct project engagements over 
the next 20 months as a consultant," and "[l]aunching at least 12 residential real estate developments 
in the first 24 months of operations," reaching 40 such developments by the fifth year. 
The Petitioner asserts that the proposed endeavor has "significant national importance because it will 
enhance the financial performance of U.S. businesses and significantly impact the economy, 
entrepreneurialism and social welfare." The Petitioner also asserts that the "endeavor will effectively 
streamline processes in construction projects that will significantly reduce time and money spent while 
increasing financial viability." 
Moreover, the Petitioner projects that, during the first five years of operation, the consulting company 
will "create 12 direct jobs in the first 5 years" and "create 48 additional job opportunities" among its 
clients, while the real estate development company will "create 25 direct jobs in the first 5 years and 
9 indirect jobs," for a total of 94 new jobs. 4 The Petitioner cites no specific source for the job creation 
estimates, stating instead that they arise from "considering the impact of the company's services on 
the market," "the momentum in the actual market and the U.S. economy forecast for the next 5 years." 
The Petitioner asserts that "the industries impacted by his undertaking are two of the largest and most 
essential areas to the United States' economy." A particular endeavor does not take on national 
importance simply because it would be part of a major industry; the collective impact or aggregate 
size of the entire industry does not give national importance to every component thereof or participant 
therein. 
Background materials intended to establish the significance of the construction industry include 
information about large-scale construction projects such as airports and skyscrapers, which lie well 
outside the Petitioner's stated focus on residential housing developments. 
4 Projected positions at the Petitioner's companies include designers, estimators, data analysts, construction workers, and 
various management and administrative positions. The business plan does not describe the projected indirect jobs. 
4 
In a request for evidence, the Director asked the Petitioner to "document how his endeavor stands to 
have substantial positive economic effects that will reach beyond his clients to benefit the nation." 
The Petitioner's response includes a revised version of the business plan. The two versions are mostly 
identical, except for the projections, many of which have been significantly reduced. The Petitioner 
revises the job creation numbers downward from 3 7 to 33 direct jobs, while adding one more indirect 
job for a total of 58. The Petitioner generally cites "a realistic scenario and the U.S. economy forecast," 
but does not identify a specific basis for the revisions. 
In the denial notice, the Director stated: 
The petitioner has not provided sufficient evidence which establishes that the 
prospective impact of his proposed endeavor rises to the level of national importance, 
nor does the record reflect how servicing a particular pool of clients will have broader 
implications in the field. When determining national importance, the petitioner's 
evidence must demonstrate how his future endeavor will offer original innovations that 
will advance the field more broadly. 
On appeal, the Petitioner quotes our observation 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, for instance, may well be understood to have national importance." The 
Petitioner asserts that the Director "fails to acknowledge the potential job opportunities that will result 
from [the Petitioner's] endeavor," and that "33 direct jobs and 58 ... indirect jobs are nationally 
important." The Petitioner farther asserts that "there is a direct relationship between employment and 
economic growth." The Petitioner acknowledges that the pandemic crisis ... has caused millions of 
Americans to lose their jobs" ( emphasis in original), and the Petitioner cites a Department of Labor 
report indicating that "New Jersey's economy saw a decline of 43,800 jobs lost in the construction 
industry alone" during April 2020. The Petitioner's observation that the COVID-19 pandemic has led 
to significant job loss in the construction industry raises the question of how his endeavor will support 
new jobs when established employers in the same industry have been losing employees, when his 
endeavor will not directly address the public health crisis that caused the job loss. 
Our holding that job creation "may" establish national importance does not presumptively or 
uniformly exempt employers from the job offer requirement. The Petitioner establishes the great size 
of the housing and construction industries, but does not explain how the level of projected job creation 
from his endeavor is nationally important in the context of those very large figures. The assertion that 
the Petitioner's consulting activity "will be assisting countless ... businesses" does not explain how 
his efforts will have a wider impact on the industries involved. 
Even within the more limited context of the proposed endeavor itself: the Petitioner revised his 
business plan, lowering the initial costs from $965,000 to $435,000, and reducing the projected 
revenues significantly - for instance, from $2.95 million to $1.785 million after two years, and from 
$5.63 million to $4.1 million after five years. The Petitioner does not explain why these revisions did 
not proportionately affect his projected employment figures. 
The Petitioner asserts that his proposed "endeavor is focused on providing improved construction 
practices ... that make construction planning more cost-effective." Once again, there is the question 
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of scale. The Petitioner does not show that his efforts in this area would produce a benefit beyond his 
own clients. 
For the reasons discussed, we conclude that the Petitioner has not established the national importance 
of his proposed endeavor. Because this issue, by itself: determines the outcome of the appeal, we 
decline to reach, and hereby reserve, the appellate arguments regarding the remaining prongs of the 
Dhanasar framework. 5 
III. CONCLUSION 
Because the Petitioner has not met the required first prong of the Dhanasar analytical framework, we 
conclude that he has not established eligibility for a national interest waiver as a matter of discretion. 
The appeal will be dismissed for the above stated reasons. 
ORDER: The appeal is dismissed. 
5 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). 
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