dismissed EB-2 NIW Case: Civil Engineering

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: FEB. 22, 2024 In Re: 27441707 
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 merited 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 a preponderance of the 
evidence. Matter of Chawathe, 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 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 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). 
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 1, 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 
The Petitioner is a civil engineer with several years of experience in the construction of metal 
scaffolding and other building support structures. He initially stated that he intends to continue 
working in this field in the United States, including training construction workers. The Director 
determined that the Petitioner established his eligibility for the EB-2 classification as a member of 
the professions holding an advanced degree. 2 Therefore the sole issue on appeal is whether the 
Petitioner merits a national interest waiver, as a matter of discretion. 
The first prong of the Dhanasar analytical framework, concerning the substantial merit and national 
importance of the proposed endeavor, 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. Dhanasar, 
26 I&N Dec. at 889. 
In his initial description of his proposed endeavor, the Petitioner stated that he "seeks to bring his 
experience in the area of civil construction to the United States, along with offering training to 
professionals in the field in order to meet the demand of teams, companies and other engineers." 
After review of the record, the Director issued a request for evidence (RFE), seeking in part further 
evidence to show that this endeavor met the first prong of the Dhanasar analytical framework. In 
response, the Petitioner submitted a business plan for~--------------' a company 
he founded several months after he filed the petition and would direct. He stated that this company 
would provide civil construction services, and that he would teach his employees and other 
construction workers "about efficient and sustainable construction processes." As the director and 
owner ofl Ithe Petitioner stated that he will "lead the company and will be responsible for 
coordinating the company's operating, commercial, and financial strategies and coordinating the 
work of other employees." 
The Director determined that the Petitioner's business plan and RFE response constituted an 
impermissible material change to his proposed endeavor. A petitioner may not make material 
1 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). 
2 The record includes a diploma and transcripts from the~-------~ in Brazil which show that the 
Petitioner was awarded a bachelor in civil engineering after five years of study. In addition, two letters from employers 
in Brazil confirm that he has the required five years of progressive, post-baccalaureate experience in the field to establish 
that he is a member of the professions holding an advanced degree. 
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changes to a petition in an effort to make a deficient petition conform to USCIS requirements. See 
Matter ofIzummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). Because of this material change in 
the petition, the Director concluded that the national importance of the Petitioner's proposed 
endeavor was "doubtful," and he therefore did not meet the first prong of the Dhanasar analytical 
framework. 
On appeal, the Petitioner asserts that the business plan and RFE response were not a material change 
to his proposed endeavor, "since the endeavor has always been comprise [sic] of working with 
specialized structures in the civil engineering construction field along with training other 
professionals." He further asserts that the RFE response addressed the deficiencies identified in the 
RFE, and provided a more detailed explanation of his proposed endeavor. 
The purpose of an RFE is to elicit information that clarifies whether eligibility for the benefit sought 
has been established as of the time the petition is filed. See 8 C.F.R. §§ 103.2(b)(l), 103.2(b)(8), 
103.2(b )( 12). In this case, the Petitioner made significant changes to his proposed endeavor in 
responding to the RFE that changed its nature and structure from employment as a civil engineer 
with a U.S. company to working as an entrepreneur and director of his own company. We note that 
in his initial submission, the Petitioner stated that his experience and skills "would be vital to any 
company offering [the Petitioner] a position in their company." In addition, he did not mention 
starting his own company or serving as its director, or performing duties such as "overseeing the 
overall performance of the business," "determine[ing] the company's service offering," and 
"maintain[ing] lasting bonds with clients." As the Dhanasar framework requires an analysis of the 
substantial merit and national importance of the specific endeavor proposed by a petitioner, such a 
change is material to their eligibility for a national interest waiver. So we agree with the Director's 
determination that the Petitioner's new proposed endeavor included in his RFE response was an 
impermissible material change to the petition. 
We further note that a petitioner must meet eligibility requirements for the requested benefit at the 
time of filing the petition. 8 C.F.R. § 103.2(b)(l). The Petitioner's plans to establish and direct a 
new company formed after the filing date of his petition cannot retroactively establish eligibility. 
For these reasons, we will focus our analysis on the Petitioner's initial statement and evidence 
regarding his proposed endeavor. 
In support of the substantial merit of his initial proposed endeavor, the Petitioner submitted articles 
and reports about government plans to invest in infrastructure, the rebuilding of which would be led 
by civil engineers. Additional evidence submitted in response to the Director's RFE included a 
report about the use of metal in constructing hurricane-resistant homes. This evidence sufficiently 
establishes the substantial merit of the Petitioner's proposed endeavor in the area of business. 
Regarding the national importance of the Petitioner's proposed endeavor, the Petitioner highlighted 
his "expertise in metal structures and ... his innovative training methodology," and referred to a 
report from the Royal Academy of Engineering (United Kingdom) about the financial impact of the 
engineering field. But as stated above, the focus of the first prong of the Dhanasar analytical 
framework is the potential prospective impact of the specific proposed endeavor. Consideration of a 
petitioner's skills and work experience is relevant to the second prong, in which we determine 
whether they are well positioned to advance their proposed endeavor. And evidence concerning the 
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economic impact of the entire field of engineering does not aid m establishing the national 
importance of the Petitioner's specific endeavor. 
The Petitioner also stated that his plans to educate, train, and coach his team will lead to improved 
efficiency and better results for companies in the United States, and that this would "expand the 
benefit of his endeavor beyond his immediate reach." He included a translated copy of training 
materials he developed for his previous company in Brazil concerning the construction of 
scaffolding and other structures using metal tubes. But the Petitioner does not explain how his 
training would be adapted for use in an existing company employing him or for working and training 
conditions in the United States construction industry. 
More importantly, much like the petitioner's plan in Dhanasar to teach STEM subjects to students at 
the middle school and university levels, here the Petitioner has not submitted evidence to show that 
any such training would impact the fields of civil engineering or construction more broadly. Id. at 
893. The Petitioner submitted letters from his former employees who had participated in his training 
program and state that it helped them to progress in their careers. While the program undoubtedly 
impacted those workers who participated in it, and would have the potential to do so if implemented 
within a company in the United States, the letters do not demonstrate that that benefit would extend 
beyond those particular workers. 
Other evidence concerning the national importance of the Petitioner's proposed endeavor include a 
letter from an engineering professor who reviewed the Petitioner's educational records and work 
experience letters. He opined that the Petitioner "would be of great contribution to the United 
States" as his proposed endeavor would create jobs and contribute to the nation's economy. 
However, the writer does not provide details regarding the nature and extent of these predicted 
contributions, and does not refer to evidence supporting his assertions. This evidence is thus 
insufficient to aid in establishing the national importance of the Petitioner's proposed endeavor. 
The Petitioner also submits additional evidence on appeal, consisting of articles and reports about 
the U.S. construction industry and foreign investment. Like the previously submitted articles and 
reports discussed above, these materials show that the Petitioner's proposed endeavor is of 
substantial merit in the area of business. But they do not address the national importance of his 
specific endeavor, as they focus on the overall impact of the construction industry and foreign 
investment. 
For all of the reasons explained above, we conclude that the Petitioner has not established that his 
proposed endeavor is of national importance. He therefore does not meet the first prong of the 
Dhanasar analytical framework. 
III. CONCLUSION 
The Petitioner is eligible for the EB-2 classification as a member of the professions holding an 
advanced degree, but he has not established his eligibility under the first prong of the Dhansasar 
analytical framework. Since the identified basis for denial is dispositive of the Petitioner's appeal, 
we decline to reach and hereby reserve the Petitioner's appellate arguments regarding the second and 
third prongs of the Dhanasar analytical framework. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) 
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(stating that agencies are not required to make "purely advisory findings" on issues that are 
unnecessary to the ultimate decision); see also Matter of L-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). 
ORDER: The appeal is dismissed. 
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