dismissed EB-2 NIW Case: Civil Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re: 22221372 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JAN. 11, 2023 
Form 1-140, Immigrant Petition for Alien Worker (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 a waiver of the 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 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) . 
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, 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. ELIGIBILITY FOR THE EB-2 CLASSIFICATION 
The Director did not include a determination of the Petitioner's eligibility for the EB-2 classification 
in his decision. Although the Petitioner initially claimed eligibility as an individual of exceptional 
ability, on appeal she states that she qualifies as a member of the professions holding an advanced 
degree. The record includes a copy of her diploma from I I School of Engineering in Brazil, 
awarding her the title of engineer, as well as an academic evaluation concluding that this degree is the 
equivalent of a bachelor's degree in civil engineering from an accredited institution in the United 
States. In addition, the Petitioner submitted letters from three former employers documenting her 
employment as an engineer for at least five years after she earned her degree. This evidence establishes 
her qualification as a member of the professions holding an advanced degree, and therefore her 
eligibility for the EB-2 immigrant visa classification. 
III. NA TTONAL INTEREST W AIYER 
The Petitioner initially indicated that her proposed endeavor would be to "continue working as a Civil 
Engineer with multi-national companies in the U.S., providing indispensable guidance regarding 
cross-border transactions involving the development of different projects in Brazil." In response to 
the Director's notice of intent to deny (NOID), the Petitioner submitted a second statement in which 
she proposed to work as an entrepreneur and CEO of her own company that would provide 
construction management services for construction of buildings, landscaping, and inspection and 
maintenance. She also indicated that she would seek out infrastructure projects with government 
agencies in the United States, referencing the current administration's infrastructure investment plan, 
and provided evidence that she formed a company in Florida approximately two weeks after receiving 
the NOID. 
The purpose of a NOID is to notify a petitioner ofUSCIS' intent to deny a benefit request and explain 
the reasons for that, and to allow for a limited period for response, which may include additional 
evidence. 8 C.F.R. §§ 103.2(b)(8) and (11). Here, the Petitioner's initial description of her proposed 
endeavor did not include plans to form her own company as an entrepreneur or managing that company 
as its CEO. The Petitioner has not shown that working for a company to provide guidance on 
construction projects in Brazil and forming and managing her own company are the same endeavor. 
We conclude that the NOID response presented a new set of facts regarding the Petitioner's proposed 
endeavor, which is material to her eligibility for a national interest waiver. A petitioner must meet 
eligibility requirements for the requested benefit at the time of filing the petition. 8 C.F.R. § 
1 See also Poursina v. USCJS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionmy in nature). 
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103.2(b)(l). The Petitioner's plans to establish a new company and perform services as a CEO for 
this entity formed after the filing date cannot retroactively establish eligibility. A petitioner may not 
make material changes to a petition that has already been filed to make an apparently deficient petition 
conform to USCIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 175 (Comm'r 1998). 
A. Substantial Merit and National Importance 
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. 
Dhanasar, 26 I&N Dec. at 889. 
As noted above, the Director notified the Petitioner that she had not established that her initial 
proposed endeavor was of national importance. While she initially submitted evidence including 
reports about civil engineers in general and the state of the construction industry in the United States, 
this evidence did not concern her specific endeavor of providing guidance to U.S. companies 
regarding construction projects in Brazil. In determining national importance, the relevant question 
is not the importance of the industry or profession in which the individual will work; instead, we 
focus on the "the specific endeavor that the foreign national proposes to undertake." See Dhanasar, 
26 I&N Dec. at 889. In addition, we indicated that "we look for broader implications" of the 
proposed endeavor and that "[a ]n undertaking may have national importance for example, because it 
has national or even global implications within a particular field." Id. We also stated 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." Id. at 890. 
In response to the NOID, the Petitioner did not submit additional evidence or arguments in support of 
her initial proposed endeavor, but instead proposed a new endeavor which constituted an 
impermissible material change to her petition. However, even if the Petitioner had submitted evidence 
regarding her proposal to start and manage her own business with her initial filing, we agree with the 
Director and conclude that the record does not sufficiently demonstrate the national importance of this 
endeavor. 
We first note that although the evidence, which includes a business plan for the Petitioner's newly 
created company, makes several references to the Biden administration's infrastructure plan, it does 
not provide information regarding any specific infrastructure projects, or even the type of 
infrastructure projects, in which the company would be engaged in managing. It therefore does not 
demonstrate the potential implications of any work related to infrastructure which might be conducted 
by the company. 
The Petitioner also asserts in both her NOID response and on appeal that her proposed endeavor will 
"lead to an enhanced and improved construction and development," "generate both economic and 
social value for the United States," and "result in the production of U.S. jobs." Regarding the first 
point, she goes on to state that she "offers innovations and improvements of broad implications to the 
United States," and refers to her statement submitted in response to the NOID. While that statement 
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indicates that her work will "contribute to access to innovation," it does not describe the ways in which 
her endeavor or her company will create and deploy innovations that will have broader implications 
for the construction industry in the United States. While the plan describes the use of existing 
computer technology and social media to advance the Petitioner's business, it does not demonstrate 
that these practices would impact the field beyond the company and its clients. 
As for the economic value and job creation that the Petitioner asserts her company will offer, the 
business plan includes projections of more than $800,000 in net income by the fifth year of operation 
and the creation of 44 direct jobs in that same timeframe. However, the plan does not provide 
sufficient detail of the basis for these projections, or adequately explain how these income and staffing 
targets will be realized. It therefore does not demonstrate that the Petitioner's business will have an 
impact on the construction industry or the U.S. economy at a level commensurate with national 
importance. In addition, the record does not indicate that the location of the business and its proposed 
operations is an economically depressed area, or that the endeavor would otherwise have substantial 
positive economic effects. 
The Petitioner's initial proposal, to work for a company in the United States to provide guidance 
regarding construction projects in Brazil, was not supported by sufficient evidence of its national 
importance under the first prong of the Dhanasar analytical framework, and the Petitioner abandoned 
this proposed endeavor in favor of a completely different one when responding to the Director's NOID. 
While this was an impermissible material change to the petition, the evidence submitted in support of 
this new endeavor also would not have sufficiently established its national importance. We therefore 
conclude that the Petitioner has not established that has satisfied the first prong. 
IV. CONCLUSION 
As the Petitioner has not established her eligibility under the first prong of the Dhanasar framework, 
she is not eligible for and does not merit a national interest waiver. While she asserts on appeal that 
she meets the second and third Dhanasar prongs, we will reserve these issues. 2 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. 
2 See INS v. Bagamasbad. 429 U.S. 24, 25-26 ( 1976) (stating that, like courts, federal agencies are not generally required 
to make findings and decisions unnecessary to the results they reach). 
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