dismissed EB-2 NIW Case: Civil Engineering

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEP. 05, 2024 In Re: 33403817 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an Operations Manager and Marketing Developer, 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 Petitioner qualified 
for classification, 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. 
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. 
An advanced degree is any U.S. academic or professional degree or a foreign equivalent degree above 
that of a bachelor's degree. A U.S. 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. 
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 l&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. 
Id. 
II. ANALYSIS 
The Director concluded that the Petitioner qualifies as a member of the professions holding an 
advanced degree. Accordingly, the remaining issue to be determined on appeal 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 first prong, substantial merit and national importance, focuses on the specific endeavor that the 
noncitizen proposes to undertake. See Dhanasar, 26 I&N Dec. at 889. 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 Petitioner stated on the Form I-140, Immigrant Petition for Alien Workers, that his occupation is 
as an Operations Manager and Marketing Developer. He further described himself as a civil engineer 
with 20 years of professional experience in the swimming pool construction industry and asserted that 
his proposed endeavor was to establish a company that would deliver specialized civil engineering 
services in this industry. In a business plan submitted with the petition, the Petitioner stated that he 
planned to replicate an established model from Brazil, find a company that outsources the 
manufacturing of the modular system he would use, and monitor the manufacturing and market 
development of the product. The Petitioner also submitted a business plan in response to a request for 
evidence (RFE) which claimed that the swimming pool construction industry was the 34th largest 
construction industry in the United States with a market size of $9.6 billion. He contended that current 
pool construction methods are labor-intensive and expensive, but his "unique, patent-protected 
modular system" would result in cost savings for buildings and users. The updated business plan went 
on to argue that swimming pools add value to residential properties, as well as tourism to rental homes 
with pools, and that their construction contributes to economic stimulation by creating jobs and 
supporting local suppliers through the purchase of materials. The Petitioner noted that his modules 
could be adapted for water storage in emergencies because they can be assembled in any size and 
could be made available to military bases or isolated communities. In support of his argument that his 
endeavor had substantial merit and national importance, the business plan stated that his company is 
aligned with President Biden's Climate Resilience Regional Challenge and New Building Code 
Initiative to address the impacts of climate change, as well as the Emergency Plan for Adaptation and 
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). 
2 
Resilience to address water related issues in developing countries. He further asserted that his 
company would employ 14 people by the end of its fifth year and would have a ripple effect to other 
industries. The record also includes copies of the Petitioner's patents in Brazil, a magazine article 
featuring an interview with the Petitioner, letters of support, industry articles, and articles about 
immigrants and entrepreneurship. 
In denying the petition, the Director determined that although the proposed endeavor had substantial 
merit, the record contained insufficient evidence to demonstrate that the Petitioner's specific proposed 
endeavor had substantial positive national economic effects, such as by employing a significant 
population of workers. The Director further determined that the Petitioner had not shown that 
providing his expertise to a swimming pool construction company or a U.S. company had national or 
global implications beyond the impact on his company and its customers. 
On appeal, the Petitioner submits a brief and copies of previously-submitted technical patent 
documents. He renews claims that he has met the eligibility requirements for a national interest 
waiver. The Petitioner states that the Director's denial contradicted the evidence in the record, 
including his response to the RFE. In support of his claim that his proposed endeavor is of national 
importance, the Petitioner argues that because his is a STEM (science, technology, engineering, or 
mathematics) field, it should be viewed as of national importance according to recent USCIS policy 
guidance on national interest waivers and the Biden-Harris Administration's focus on attracting global 
talent in the STEM fields. He further contends that his endeavor aligns with current U.S. government 
initiatives. The Petitioner asserts that he would bring unique building technology to the United States 
and that the models he uses are environmentally efficient. In the appeal brief, he includes diagrams 
and explanations of the equipment and transportation methods he intends to use in his endeavor. The 
Petitioner further argues that this technology would serve various purposes, such as providing 
emergency water storage during national disasters. 
Regarding the Petitioner's assertions related to the national importance of his proposed endeavor, we 
adopt and affirm the Director's decision on this issue with the comments below. See Matter of 
Burbano, 20 I&N Dec. 872, 874 (BIA 1994); see also Giday v. INS, 113 F.3d 230, 234 (D.C. Cir. 
1997) (noting that the practice of adopting and affirming the decision below has been "universally 
accepted by every other circuit that has squarely confronted this issue"); Chen v. INS, 87 F.3d 5, 8 (1st 
Cir. 1996) (joining eight U.S. Court of Appeals in holding the appellate adjudicators may adopt and 
affirm the decision below as long as they give "individualized consideration" to the case). 
As a general matter, an appeal must specifically identify any erroneous conclusion oflaw or statement 
of fact in the unfavorable decision. See 8 C.F.R. § l 03.3(a)(l )(v). Here, while the Petitioner avers on 
appeal that he has provided evidence sufficient to demonstrate his eligibility for 
a national interest waiver, he does not specify, as required, how the Director erred or what factors in 
the decision were erroneous. Rather, the Petitioner largely reiterates the claims he made below and 
generally asserts that is proposed endeavor is of national importance. 
The Petitioner contends that his proposed endeavor falls within a STEM profession, which should be 
taken into consideration in determining its benefits for the United States. However, we find that the 
Petitioner's reliance on the national importance of the goals his endeavor seeks to address is misplaced. 
With respect to the first prong, as in all cases, the evidence must demonstrate that a STEM endeavor 
3 
has both substantial merit and national importance. 2 Many proposed endeavors that aim to advance 
STEM technologies and research, whether in academic or industry settings, not only have substantial 
merit in relation to U.S. science and technology interests, but also have sufficiently broad potential 
implications to demonstrate national importance. 3 On the other hand, while proposed classroom 
teaching activities in STEM, for example, may have substantial merit in relation to U.S. educational 
interests, such activities, by themselves, generally are not indicative of an impact in the field of STEM 
education more broadly, and therefore generally would not establish their national importance. 4 Here, 
the Petitioner has not shown that his endeavor aims to advance STEM technologies and research or 
has broad implications rather than simply working within a STEM profession. 
The record does not establish the national importance of the proposed endeavor as required by the first 
prong of the Dhanasar precedent decision. Therefore, the Petitioner has not demonstrated eligibility 
for a national interest waiver. Because the identified reasons for dismissal are dispositive of the 
Petitioner's appeal, we decline to reach and hereby reserve remaining arguments concerning eligibility 
under the Dhanasar framework. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976); see also Matter of 
L-A-C-, 26 I&N Dec. 516,526 n.7 (BIA 2015). 
III. CONCLUSION 
The Petitioner has not met the requisite first prong of the Dhanasar analytical framework. We 
conclude that the Petitioner has not established that he is eligible for or otherwise merits a national 
interest waiver. The petition will remain denied. 
ORDER: The appeal is dismissed. 
2 See generally 5 USCIS Policy Manual D.2, https://www.uscis.gov/policymanual. 
3 Id. 
4 Id. 
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