dismissed EB-2 NIW Case: Civil Engineering

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: OCT. 18, 2024 In Re: 34508926 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a civil engineer, seeks employment-based second preference (EB-2) 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 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 the Petitioner was eligible for a national interest waiver of the job offer requirement. 
The matter is now before us on appeal pursuant to 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 Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
To qualify for the underlying EB-2 visa classification, a petitioner must establish they are an advanced 
degree professional or an individual of exceptional ability in the sciences, arts, or business. Section 
203(b)(2)(A) of the Act. 
If a petitioner establishes eligibility for the underlying EB-2 classification, they must then demonstrate 
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, 889 (AAO 2016), provides the 
framework for adjudicating national interest waiver petitions. Dhanasar states that U.S. Citizenship 
and Immigration Services (USCIS) may, as matter of discretion, 1 grant a national interest waiver if 
the petitioner demonstrates that: 
1 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts (and Third 
in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver is discretionary 
in nature). 
• 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. 
Id. 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
individual 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. 
Id. at 889. 
The second prong shifts the focus from the proposed endeavor to the individual. To determine whether 
they are well positioned to advance the proposed endeavor, we consider factors including, but not 
limited to: their 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. Id. at 890. 
The third prong requires a 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, we may evaluate factors such as: whether, in light of the nature of the individual's 
qualifications or the proposed endeavor, it would be impractical either for them to secure a job offer 
or to obtain a labor certification; whether, even assuming that other qualified U.S. workers are 
available, the United States would still benefit from their contributions; and whether the national 
interest in their contributions is sufficiently urgent to warrant forgoing the labor certification process. 
In each case, the factor(s) considered must, taken together, establish 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. 
Id. at 890-91. 
II. ANALYSIS 
The Petitioner is a civil engineer who intends to develop an asphalt and paving consulting services 
firm based in Vermont. He notes that he will provide instruction and training to the labor force in the 
construction industry, with a particular focus on paving and asphalt, and will concentrate on best 
practices, sustainability, safety, and materials usage. He will also offer management consulting 
services to improve efficiency and profitability within construction firms. 
The Director found the Petitioner qualified for underlying EB-2 classification as a member of the 
professions holding an advanced degree. However, the Director determined that the Petitioner had 
not met the Dhanasar requirements for a waiver of a job offer and labor certification from a U.S. 
employer. Specifically, the Director concluded that the national importance of the endeavor had not 
been demonstrated under prong one and that the Petitioner had not shown that a waiver of the job offer 
requirement would be beneficial as required by prong three. We agree the Petitioner has not 
established the national importance of the endeavor, as required under the first prong of Dhanasar. 
2 
A. The Petitioner Has Not Demonstrated that the Endeavor Has National Importance 
On appeal, the Petitioner argues he has satisfied prong one of the Dhanasar framework. 2 He argues 
that the Director's denial "was made on the grounds of a serious misapplication of the regulations and 
laws governing the matter and an incorrect application of the standard of preponderance of the 
evidence." The Petitioner contends that the standard applied in denying the petition was significantly 
higher than preponderance of the evidence. In addition, the Petitioner argues that the Director 
inadequately considered the included job creation and economic impact projections and failed to fully 
consider the Petitioner's business plan. He argues that his endeavor has the "potential to transform 
the paving and infrastructure industry in the United States" and that the industry is currently dogged 
by labor shortages and lagging technology applications. His proposed endeavor will address this by 
"providing comprehensive training and advisory services to effectively tackle the labor shortage in the 
construction industry" and enhance professional competency, ultimately leading to better outcomes 
and project completions. 
The Petitioner also contends that the Director's decision strayed from the requirements of the 
Dhanasar framework by conflating or heightening the listed considerations for national importance. 
The Petitioner argues that the Director erroneously required him to show that "the potential to create 
jobs will have a substantial positive economic effect in economically depressed areas." The Petitioner 
highlights that the Dhanasar decision instead outlines different avenues by which national importance 
can be demonstrated: either by having a significant potential to employ U.S. workers, or having other 
substantial positive effects, or by demonstrating such effects in an economically depressed area. The 
Petitioner also takes issue with the Director's indication that he be required to show the "potential to 
employ a significant number of U.S. workers" when the Dhanasar precedent lists a "significant 
potential to employ U.S. workers" as the relevant inquiry and does not focus on numbers. Finally, the 
Petitioner argues that the Director imposed a "high-bar" requirement that the U.S. government have 
an interest in the specific endeavor. 
In support of these contentions, the Petitioner has submitted evidence including, but not limited to: a 
business plan detailing plans to provide training and consulting services over five years; letters of 
support; diplomas, transcripts, and certificates; employment history; an expert opinion regarding his 
eligibility for a national interest waiver; and articles providing context and background on the 
construction and paving industries and the impact of small businesses on the U.S. economy. The 
Petitioner stresses that the proposed endeavor is likely to be successful given his extensive educational 
and employment background and his intricate knowledge of paving work. He also stresses that his 
training and consulting will ease a crippling labor shortage and a technological lag in the construction 
industry. 
The Petitioner has not satisfied the first prong of the Dhanasar framework requiring a proposed 
endeavor to be of national importance. To evaluate whether the Petitioner's proposed endeavor 
satisfies the national importance requirement we look to evidence documenting the "potential 
prospective impact" of the proposed endeavor. In Dhanasar, we determined that the petitioner's 
2 The supporting brief and other documentation occasionally characterize this filing as a motion to reconsider; however, 
the Form I-290B, Notice of Appeal or Motion (appeal form) indicates that this is an appeal. We do not have jurisdiction 
over motions to reconsider decisions made by other offices. We have taken jurisdiction of the case as an appeal in 
accordance with the appeal form's notation. 
3 
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 find the record does not show that the Petitioner's 
proposed endeavor stands to sufficiently extend beyond his clientele to impact the construction 
industry, the paving industry, or otherwise impact economic initiatives more broadly at a level 
commensurate with national importance. 3 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. Specifically, he has not shown that the 
company's future staffing levels, business activity, associated tax revenue, and financial initiatives 
stand to provide substantial economic benefits in Vermont or in the United States generally. 
Although the evidence reflects the Petitioner 's intention to provide valuable services for the trainees 
and business clients he will work with, his contentions regarding the broader impacts are insufficiently 
supported and attenuated from the actual endeavor. These listed benefits are not the direct 
consequence of the Petitioner's endeavor; rather, they rely on a series of assumptions that the training 
and consulting services being offered will cause changes in his client's profitability and operations, 
thereby occasioning cascading changes to the paving industry. However, the Petitioner has not 
provided us with sufficient evidence that his endeavor has the potential to be the catalyst for such 
nationally-important change. Similarly, while he discusses his technical abilities and the lack of 
innovation in the paving industry, he has not indicated that he will offer the type of "improved 
manufacturing processes" or similar implications, as highlighted by Dhanasar, that would cause 
national implications in the field. Id. at 889. 
While the business plan outlines the intent to hire various employees and reach a particular revenue target, 
the support for these figures has not been provided; similarly, the Petitioner does not indicate how he 
calculated the expected number of courses to be given per month or the demand for these courses. 
Ultimately, the record does not demonstrate that benefits to the regional or national economy resulting 
from the Petitioner's undertaking would reach the level of "substantial positive economic effects" 
contemplated by Dhanasar. Id. at 890. Although the Petitioner has highlighted the importance of the 
paving industry to the economy, as well as the need for and impact from safe roadways that can be 
built profitably, he has not shown that the business services performed by the company would 
represent a significant share of the paving market or otherwise have a national impact. 
Our determination that the proposed endeavor lacks national importance is made following a de novo 
of the record as a whole. For clarity, we will also address the Petitioner ' s arguments that the Director 
imposed novel requirements. In analyzing the evidence, the Director correctly noted that the listed 
supporting documentation, including federal government reports and communications highlighting 
infrastructure and road safety, did not reference the Petitioner's specific proposed endeavor. This was 
not error; throughout our precedent decision in Dhanasar, we noted that the analysis "focuses on the 
specific endeavor that the foreign national proposes to undertake" rather than the importance of the 
industry more broadly. Id. at 889. The Petitioner's argument that the Director required evidence 
beyond that in Dhanasar by demanding that "the potential to create jobs will have a substantial positive 
economic effect in economically depressed areas" is likewise unsupported. At the outset, we note that 
3 The Petitioner has provided , and we have reviewed , a substantial number of documents outlining the importance of small 
businesses to the national and global economy, as well as highlighting the impacts of the construction and paving industry. 
However , the Dhanasar framework instructs us to evaluate the impact of the specific proposed endeavor, rather than the 
field or industry generally . Id. at 889. 
4 
the quoted language does not appear in the Director's decision. Furthermore, the Director correctly 
analyzed the proposed endeavor's significant potential to employ U.S. workers and, separately, any 
other substantial positive economic effects. 
Because the record does not establish the national importance of the proposed endeavor, the Petitioner 
has not demonstrated eligibility for a national interest waiver. We reserve opinion on whether the 
Petitioner could satisfy the third prong to qualify for a national interest waiver. See INS v. Bagamasbad, 
429 U.S. 24, 25 (1976) (stating that agencies are not required to make "purely advisory findings" on 
issues that are unnecessary to the ultimate decision); see also Matter ofL-A-C-, 26 I&N Dec. 516,526 
n. 7 (BIA 2015) ( declining to reach alternative issues on appeal where the applicant did not otherwise 
meet their burden of proof). 
ITT. CONCLUSION 
The Petitioner has not shown that the proposed endeavor is of national importance. Because he has not 
met the first prong of the Dhanasar analytical framework, we find 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. 
5