dismissed EB-2 NIW Case: Civil Engineering

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: APR. 03, 2024 In Re: 30518681 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an entrepreneur, 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, 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 Nebraska Service Center denied the petition, concluding that the Petitioner did not 
qualify for classification as a member of the professions holding an advanced degree or as an 
individual of exceptional ability, and 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. The matter is now before us on 
appeal. 
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 
An advanced degree is any United States academic or professional degree or a foreign equivalent 
degree above that of a bachelor's degree. A United States bachelor's degree or foreign equivalent 
degree followed by five years of progressive experience in the specialty is the equivalent of a master's 
degree. 8 C.F.R. § 204.5(k)(2). In addition, "profession" is defined as of the occupations listed in 
section 101(a)(32) of the Act, as well as any occupation for which a United States baccalaureate degree 
or its foreign equivalent is the minimum requirement for entry into the occupation. 1 8 C.F.R. 
§ 204.5(k)(3). 
Furthermore, "exceptional ability" means a degree of expertise significantly above that ordinarily 
encountered in the sciences, arts, or business. 8 C.F.R. § 204.5(k)(2). A petitioner must initially 
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. 
submit documentation that satisfies at least three of six categories of evidence. 8 C.F.R. 
§ 204.5(k)(3)(ii)(A)-(F). Meeting at least three criteria, however, does not, in and of itself, establish 
eligibility for this classification. 2 If a petitioner does so, we will then conduct a final merits 
determination to decide whether the evidence in its totality shows that they are recognized as having 
a degree of expertise significantly above that ordinarily encountered in the field. 
If a petitioner demonstrates eligibility for the underlying EB-2 classification, 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, 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,3 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. Member of the Professions Holding an Advanced Degree 
In order to show that a petitioner holds a qualifying advanced degree, the petition must be accompanied 
by "[a]n official academic record showing that the alien has a United States advanced degree or a 
foreign equivalent degree." 8 C.F.R. § 204.5(k)(3)(i)(A). Alternatively, a petitioner may present "[a]n 
official academic record showing that the alien has a United States baccalaureate degree or a foreign 
equivalent degree, and 
evidence in the form of letters from current or former employer(s) showing that 
the alien has at least five years of progressive post-baccalaureate experience in the specialty." 8 C.F.R. 
§ 204.5(k)(3)(i)(B). 
The Petti oner presented his bachelor's de ree in civil ( dated June 19, 2018 and 
corresponding academic record from _____________________ in 
Uzbekistan. He also provided his certificate of graduation (March 10, 2021) for a general two-year 
Japanese language course and corresponding academic record froml Iin 
Japan. In denying the petition, the Director explained that the Petitioner "did not submit a detailed 
advisory evaluation of his credentials" showing their academic equivalence in the United States. The 
Director also stated that the Petitioner did not provide evidence showing that "he has at least five years 
of progressive post-baccalaureate experience in the specialty." 4 We agree with the Director's 
2 USCIS has previously confirmed the applicability of this two-part adjudicative approach in determining eligibility for 
exceptional ability classification. 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual/volume-6-
part-f-chapter-5. 
3 See also 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 USCTS' decision to grant or deny a national interest waiver to be 
discretionary in nature). 
4 The evidence indicates that the Petitioner did not receive his foreign bachelor's degree until June 19, 2018, and we count 
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determinations and the Petitioner does not contest them on appeal. Accordingly, the Petitioner has not 
demonstrated that he qualifies as a member of the professions holding an advanced degree. 
B. Exceptional Ability 
The Petitioner maintains on appeal that he meets at least three of the regulatory criteria for 
classification as an individual of exceptional ability. See 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). We agree 
with the Petitioner that he fulfills the academic record criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A), but the 
record does not support a finding that he satisfies any additional criteria. 
The Petitioner asserts that he meets the salary criterion at 8 C.F.R. § 204.5(k)(3)(ii)(D), but he does not 
point to specific evidence in the record showing that has commanded a salary, or other remuneration 
for services, which demonstrates exceptional ability. As such, the Petitioner has not established that he 
meets the requirements of this criterion. 
Regarding the membership in professional associations criterion at 8 C.F.R. § 204.5(k)(3)(ii)(E), the 
Petitioner provided documentation of his membership in the American Management Association 
(AMA) and information about the organization. The evidence presented, however, is not sufficient to 
demonstrate that AMA has a membership body comprised of individuals who have earned a U.S. 
baccalaureate degree or its foreign equivalent, or that the organization otherwise constitutes a 
professional association. 5 Accordingly, we agree with the Director's determination that the Petitioner 
has not satisfied this criterion. 
With respect to the recognition for achievements and significant contributions criterion at 8 C.F.R. 
§ 204.5(k)(3)(ii)(F), the Petitioner contends that his "educational background" and "professional 
experience" have "enabled [him] to contribute to his field," but he does not identify his specific 
achievements and contributions to his industry or field. While the Petitioner offered a certificate from 
his previous employer, I Idesignating him "Best Employee of the Year ... 
for effective and well-performed work," this certificate reflects internal recognition from the 
Beneficiary's employer and therefore it does not rise to the level of "achievements and significant 
contributions to the industry or field." For instance, the Petitioner's evidence was unaccompanied by 
documentation indicating that the Beneficiary's design, manufacturing, and assembly work relating to 
prefabricated building of metal structures has had an impact beyond his employer and its projects at a 
level indicative of "achievements and significant contributions to the industry or field." We therefore 
agree with the Director that Petitioner has not demonstrated he fulfills this criterion. 
only his progressive experience in the specialty after that date. The Form T-140, Immigrant Petition for Alien Workers, in 
this matter was filed on November 17, 2022. With respect to the Petitioner's five years of progressive post-baccalaureate 
experience in his specialty, he must demonstrate such experience at the time of filing the petition. See 8 C.F.R. 
§ I 03.2(b )(I). Based on the date he received his foreign bachelor's degree, the Petitioner is unable to demonstrate at least 
five years of progressive post-baccalaureate experience in his specialty at the time of filing the Form T-140. 
5 The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definition: "Profession means one of the 
occupations listed in section 10l(a)(32) of the Act, as well as any occupation for which a United States baccalaureate 
degree or its foreign equivalent is the minimum requirement for entry in the occupation." 
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For the reasons set forth above, the evidence does not demonstrate that the Petitioner satisfies at least 
three of the criteria at 8 C.F.R. § 204.5(k)(3)(ii) and has achieved the level of expertise required for 
exceptional ability classification . 
C. National Interest Waiver 
The remaining issue is whether the Petitioner has established that a waiver of the requirement of a job 
offer, and thus a labor certification, is in the national interest. 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. 
With respect to his proposed endeavor, the Petitioner asserted that he "is seeking employment in the 
United States of America as [an] entrepreneur in his field of endeavor. By carrying out [ the Petitioner' s] 
endeavor of being an independent business owner in his field of endeavor in the United States, [the 
Petitioner] will help contribute to the country's economy." The Petitioner further contended that his 
proposed work stands to "create additional jobs for American workers," facilitate "the growth of the 
American economy," and contribute "to the societal welfare of American citizens." 
In the appeal brief, the Petitioner states that he plans to own and operate "his own trucking company, 
which will be engaged in interstate transportation and will benefit interstate commerce." He claims that 
his proposed endeavor "is of national importance due to its far-reaching implications in the supply chain 
and logistics industry, its potential to create jobs and stimulate economic growth, its contributions to 
societal welfare and cultural enrichment, and its alignment with government initiatives aimed at 
strengthening the trucking workforce and the nation's infrastructure." 
While the Petitioner argues that his undertaking meets the fust prong of the Dhanasar framework , he 
has not offered sufficient infonnation and evidence to demonstrate that the prospective impact of his 
specific propos ed endeavor rises to the level of national importance. 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 his field more broadly. Id. at 893. Here, we conclude the Petitioner has not shown 
that his proposed endeavor stands to sufficiently extend beyond his business and its customers to 
impact his field, the logistics industry, the trucking workforce, U.S. s ocietal welfare, government 
initiatives, U.S. infrastructure, cultural enrichment, or the U.S. economy more broadly at a level 
commensurate with national importance . 
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 for our nation. Without sufficient information or evidence regarding any projected U.S. economic 
impact or job creation attributable to his future work, the Petitioner has not shown that the benefits to the 
regional or national economy resulting from his projects would reach the level of "substantial positive 
economic effects" contemplated by Dhanasar. Id. at 890. 
For the aforementioned reasons, the Petitioner's proposed work does not meet the first prong of the 
Dhanasar framework. Because the documentation in the record does not establish the national 
importance of his proposed endeavor as required by the first prong of the Dhanasar precedent decision, 
the Petitioner has not demonstrated eligibility for a national interest waiver. Since this issue is dispositive 
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of the Petitioner's appeal, we decline to reach and hereby reserve the appellate arguments regarding 
his eligibility under the second and third prongs outlined in Dhanasar. 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 I&N Dec. 516, 526 n.7 
(BIA 2015) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
III. CONCLUSION 
The Petitioner has not established that he satisfies the regulatory requirements for classification as a 
member of the professions holding an advanced degree or as an individual of exceptional ability. 
Further, as the Petitioner has not met the requisite first prong of 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. The appeal will be dismissed for the above stated reasons, with each considered 
as an independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
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