dismissed EB-2 NIW Case: Civil Engineering

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEP. 28, 2023 In Re: 2828244 
Appeal of Nebraska 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. See Immigration and 
Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2). The Petitioner also seeks anational 
interest waiver of the job offer requirement that is attached to this EB-2 immigrant classification. See 
section 203(b)(2)(B)(i) of the Act, 8 U.S.C. § 1153(b)(2)(B)(i). U.S. Citizenship and Immigration 
Services (USCIS) may grant this discretionary waiver of the required job offer, and thus of a labor 
certification, when it is in the national interest to do so. 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish that the Petitioner is eligible for or otherwise merits 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 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de nova. Matter of Christa's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de nova 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. 
Once a petitioner demonstrates eligibility for the underlying classification, the petitioner must then 
establish eligibility for 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 USCIS may, as a 
matter of discretion1, 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 Director concluded that the Petitioner qualifies as a member of the professions holding an 
advanced degree. The record reflects that determination.2 
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 
Director determined that the Petitioner's endeavor has substantial merit and is ofnational importance. 
However, the Director determined that the record did not demonstrate that the Petitioner is well 
positioned to advance the proposed endeavor, and 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. Upon de nova review, 
we agree with the Director's determination that the Petitioner did not demonstrate that a waiver of the 
labor certification would be in the national interest.3 
A. Substantial Merit and National Importance 
The Petitioner proposes to work as a civil engineering project manager for his civil engineering 
services company, [ Iin Florida. The Petitioner's professional plan states that he would 
participate "in the development of construction projects" and oversee "its organization, programming, 
budget, and implementation, providing substantial socio-economic benefits for construction 
companies and [U.S.] citizens." His proposed endeavor "is to provide consultation to other 
professionals, developers, and construction managers to allow them to bring better results to their 
clients." The business would provide "innovative technologies" and "eco-friendly strategies to 
minimize the discharge of pollution, use recyclable and renewable materials in building projects, and 
minimize energy consumption and waste production." The Director determined that for the first prong 
of the Dhanasar framework, the Petitioner's endeavor has substantial merit and national importance. 
The Director did not provide reasoning for the findings. 
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. 
1 See also Poursina v. USClS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
2 To demonstrate he is an advanced degree professional, the Petitioner submitted his diploma for a titulo de civil engineer 
from Universidadl Iin Brazil in 2008, his academic transcripts, an academic evaluation, and letters 
from individuals who contracted the Petitioner as a civil engineer. The record demonstrates that he holds the foreign 
equivalent to a U.S. bachelor's degree in civil engineering and at least five years of progressive experience in his specialty. 
See 8 C.F.R. § 204.5(k)(3). 
3 While we may not discuss every document submitted, we have reviewed and considered each one. 
2 
Matter of Dhanasar, 26 l&N Dec. at 889. We agree with the Director that the record shows that the 
Petitioner's proposed endeavor as an entrepreneur and a civil engineer project manager for his business 
is of substantial merit. However, upon de nova review, we do not agree with the Director's 
determination that the endeavor has national importance. 
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 Matter of Dhanasar, 26 l&N Dec. at 889. In Dhanasar, 
we noted 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. Further, to 
evaluate whether the Petitioner's proposed endeavor satisfies the national importance requirement, we 
look to evidence documenting the "potential prospective impact" of his work. 
The Petitioner's professional plan describes his desire "to improve the construction industry and 
infrastructure system by helping construction companies realize safe and innovative projects." The 
Petitioner asserts the business will "develop innovative technologies to contribute to improving the 
U.S. [c]onstruction [i]industry, introducing these new projects to other engineers, transferring [his] 
knowledge, and training to [sic] new generations of professions, rendering the [United States] more 
competitive in the international market." Also, the business would be focused on the environment by 
using eco-friendly strategies in building projects to minimize pollution, energy consumption, and 
waste production. The Petitioner's business plan generally mentions that the business will "be 
particularly focused on managing projects in coastal areas ofFlorida in the context of climate change." 
The Petitioner asserts his endeavor will contribute to U.S. economic growth and human development 
by creating investment opportunities in the construction industry, creating jobs, generating income, 
and developing housing and infrastructure that will unite people. 
However, the documentation in the record does not provide insight as to how the Petitioner intends to 
impact the fields of civil engineering and construction, the economy, or the environment more broadly 
as an individual working as a civil engineering project manager for his civil engineering services 
company. The Petitioner has not provided corroborating evidence to support his claims that his 
business' activities stand to provide substantial economic and environmental benefits to Florida or the 
United States. The Petitioner's claims that his civil engineering services business will benefit the 
Florida and U.S. economy and environment has not been established through independent and 
objective evidence. The Petitioner's statements are not sufficient to demonstrate his endeavor has the 
potential to provide his claimed economic and environmental benefits to Florida or the United States. 
The Petitioner must support his assertions with relevant, probative, and credible evidence. See Matter 
of Chawathe, 25 l&N Dec. at 376. Also, without sufficient documentary evidence that his proposed 
job duties as a civil engineering project manager for his business would impact the civil engineering 
and construction industries more broadly, rather than benefiting his civil engineering business and his 
proposed clients, the Petitioner has not demonstrated by a preponderance of the evidence that his 
proposed endeavor is of national importance. 
3 
The Petitioner cites his intention to share his skills with colleagues to contribute to the improvement 
of civil engineering techniques and the construction industry. 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. Matter of Dhanasar, 26 l&N Dec. at 893. Likewise, the 
Petitioner has not established that sharing his skills with colleagues rises to the level of having national 
importance. 
The record includes two expert opmIons providing analyses of the national importance of the 
Petitioner's proposed endeavor. The experts opine that the Petitioner's proposed endeavor of being 
the project manager of his civil engineering business has national importance on the construction 
industry. The opinions focus on the growing demand for civil engineers and project managers, and 
the importance of the civil engineering and construction fields, particularly the importance of using 
energy-efficient products and limiting the use of chemicals for construction projects. The opinions 
find that the Petitioner's business' contributions to the construction industry will provide positive 
economic and societal benefits to the United States by supporting U.S. government infrastructure 
initiatives and environmental sustainability. However, the opinions do not focus on the Petitioner's 
specific endeavor and how it will have a potential prospective impact on the U.S. economy, or in the 
fields of the proposed endeavor of civil engineering and construction. Simply stating that his work 
would support important industries, the U.S. economy, and the environment are not sufficient to meet 
the "national importance" requirement under the Dhanasar framework. 
To demonstrate the national importance of his proposed endeavor, the record also includes industry 
reports and articles. The reports and articles relate to the construction industry, infrastructure workers' 
ability to work during COVID-19, rising sea levels, civil engineers adapting to climate change, the 
shortage of civil engineers, the importance of civil engineering education, and the economic 
contributions of immigrant scientists and engineers. We recognize the importance of the civil 
engineering and construction industries, particularly in light of climate change and rising sea levels, 
and their related careers, as well as the significant contributions from immigrants who have become 
successful engineers and entrepreneurs. However, merely working in the civil engineering and 
construction fields or starting a civi I engineering services business to support these industries is 
insufficient to establish the national importance of the proposed endeavor. Instead, we focus on the 
"the specific endeavor that the foreign national proposes to undertake." See id. at 889. The industry 
reports and articles submitted do not discuss any projected economic or environmental impacts 
specifically attributable to the Petitioner's proposed endeavor. 
The Petitioner does not demonstrate that his proposed endeavor extends beyond his business and his 
future clients to impact the field or any other industries or the U.S. economy and environment more 
broadly at a level commensurate with national importance. Beyond general assertions, he has not 
demonstrated that the work he proposes to undertake as the project manager of his proposed civil 
engineering services business offers original innovations that contribute to advancements in his 
industry or otherwise has broader implications for his field. While the Petitioner's description of his 
endeavor is aspirational in the scope of its impact on the environment and the economy, he does not 
explain or provide evidence demonstrating how his business will "develop innovative technologies" 
to "improve the construction industry and infrastructure system." The Petitioner makes general 
assertions relating to his business being environmentally friendly; however, he does not provide details 
of how his business intends to help combat pollution and adapt its work to rising sea levels. The 
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economic, environmental, and societal benefits that the Petitioner claims depend on numerous factors, 
and the Petitioner did not offer a sufficiently direct evidentiary tie between his proposed business' 
civil engineering work and the claimed economic results. 
We withdraw the Director's finding on this issue. 
B. Well Positioned to Advance the Proposed Endeavor 
The second prong shifts the focus from the proposed endeavor to the individual. To determine whether 
a petitioner is 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. Matter of 
Dhanasar, 26 l&N Dec. at 892-93. 
The Director determined that the Petitioner did not establish that he is well positioned to advance his 
proposed endeavor. While acknowledging that the Petitioner's academic achievements and 
subsequent trainings show that he has been educated in his field of civil engineering, the Director 
noted that the Petitioner's education in his field alone is not sufficient to demonstrate that he is well 
positioned to advance his proposed endeavor. The Director found that the record did not support the 
Petitioner's claims that he had prior experience as an entrepreneur as the owner of his civil engineering 
consulting business in Colombia. The Director also reviewed the business plan noting that while it 
provided a plan for the business, it did not show how the Petitioner expected to fund the business and 
its indicated expenses. The Director pointed out that letters of recommendation from recent clients of 
his new business, I I show their working relationship during the business' first year of 
operation; however, the letters and the record did not support projections stated in the business plan 
relating to the business' profits and hiring employees. 
The Petitioner argues on appeal that "[t]he basis of the appeal is an erroneous application of the law 
and regulations ... to the facts of the present case." The Petitioner argues that the Director did not 
correctly consider the evidence, including documentation showing his academic achievements, his 14 
years of professional experience in the construction industry, and his work as project manager of his 
current business; his personal statements; the business plan; two expert opinion letters; and letters of 
support. The Petitioner argues that the evidence considered together shows by a preponderance of the 
evidence that he possesses the academic skills, professional experience, and notable progress required 
to succeed in the proposed endeavor. 
Upon de nova review, we agree with the Director's determination that the record does not demonstrate 
that the Petitioner is well positioned to advance the proposed endeavor. The standard of proof in this 
proceeding is preponderance of the evidence, meaning that a petitioner must show that what is claimed 
is "more likely than not" or "probably" true. Matter of Chawathe, 25 l&N Dec. at 375-76. To 
determine whether a petitioner has met the burden under the preponderance standard, we consider not 
only the quantity, but also the quality (including relevance, probative value, and credibility) of the 
evidence. Id.; Matter of E-M-, 20 l&N Dec. 77, 79-80 (Comm'r 1989). Here, the Director properly 
analyzed the Petitioner's documentation and weighed the evidence to evaluate the Petitioner's 
eligibility by a preponderance of the evidence. 
5 
The record includes the Petitioner's resume, personal statements, and a business plan claiming that he 
is well positioned based on his prior professional experience as a civil engineer, including his 
ownership of a civil engineering business.I Iin Colombia from 2016 to 
2021. However, the Director found that the record did not support with substantive evidence the 
Petitioner's claims that he had prior experience as an entrepreneur of.___________ __. 
The Director also found that documentation in the record contradicted the Petitioner's assertions that 
he owned and managed the business during the claimed time period, 2016 to 2021. 
The Petitioner argues on appeal that the Director should not have focused solely on his "past 
experiences, but also his future plans and prospects." The Petitioner asserts that Director focused 
solely on the success of the Petitioner's previous company within the civil engineering field, instead 
of considering "all the prospective benefits that his proposed endeavor as a Project Manager through 
his new U.S. [c]ompany may have in the United States." The Petitioner argues that Dhanasar does 
not mention that the Petitioner is required to demonstrate "success within the field as a whole." 
(emphasis omitted). He argues that the Director's reasoning is similar to the requirement of 
exceptional ability under 8 C.F.R. § 204.5(k)(2), which would require that he "demonstrate a past 
record that shows a level of achievement beyond that normally encountered in the field" and that he 
has already demonstrated meeting the requirements of the EB-2 classification as an advanced degree 
professional and is not required "to demonstrate a past record that shows a level of achievement 
beyond that normally encountered in the field beyond USCIS's consideration of the non-exhaustive 
list of factors suggested for evaluation of this prong by the AAO in Matter of Dhanasar [sic]." 
The Petitioner's arguments are misplaced. The second prong shifts the focus from the proposed 
endeavor to the individual and considers factors including a petitioner's record of success in similar 
efforts. Matter of Dhanasar, 26 l&N Dec. at 892-93. The Petitioner's assertions that the Director 
should have focused more on "the prospective benefits" of the proposed endeavor instead relate to the 
first prong of Dhanasar. While the factors of Dhanasar 's second prong include consideration of a 
petitioner's model or plan for future activities, this speaks to whether a petitioner has developed a plan 
for the future of the proposed endeavor. Moreover, a petitioner must establish eligibility for the benefit 
it is seeking at the time the petition is filed. See 8 C.F.R. § 103.2(b)(I). A visa petition may not be 
approved based on speculation of future eligibility or after a petitioner becomes eligible under a new 
set of facts. See Matter of Katigbak, 14 l&N Dec. 45, 49 (Reg'I Comm'r 1971). 
For the Dhanasar second prong, a petitioner should submit evidence to document past achievements 
and corroborate projections related to the proposed endeavor to show that the petitioner is well­
positioned to advance the endeavor.4 Unsubstantiated claims do not meet a petitioner's burden.5 The 
Petitioner asserts in his resume, his personal statements, the business plan, and on appeal that his 14 
years of professional experience show that he is well positioned to advance his endeavor. However, 
he did not provide evidence to support his claims of owning and operating a civil engineering business 
from 2016 to 2021. The Petitioner must support his assertions with relevant, probative, and credible 
evidence. See Matter of Chawathe, 25 l&N Dec. at 376. 
4 See generally 6 USCIS Policy Manual, F.5(0)(1), https://www.uscis.gov/policymanual. 
5 See Matter of Chawathe, 25 l&N Dec. at 376; see generally 6 USCIS Policy Manual, supra, at F.5(0)(1). 
6 
Furthermore, as pointed out by the Director, evidence in the record contradicts the Petitioner's claims 
of owning a business in Colombia from 2016 to 2021. The Petitioner's 2019 to 2020 Australia tax 
documentation indicates the Petitioner was a resident of Australia during that time period and earned 
income for "a building and other industrial cleaning services business" in Australia. Also, the record 
shows that the Petitioner entered the United States on October 20, 2020, and remained in the United 
States when he filed this petition in February 2021. Therefore, the Director's decision stated, "No 
evidence was provided to demonstrate how the [Petitioner] was maintaining his company and job as a 
civil engineering consultant within the country of Colombia while living abroad [sic] in Australia and 
the United States." The Petitioner's appeal does not provide an explanation or evidence to resolve 
these inconsistencies in the record. Instead, the Petitioner argues that the Director should not have 
focused solely on his "past experiences, but also his future plans and prospects." These unresolved 
inconsistencies in the record cast doubt on the credibility of the documents submitted. See Matter of 
Ho, 19 l&N Dec. 582, 591-92 (BIA 1988) (a petitioner must resolve discrepancies in the record with 
independent, objective evidence pointing to where the truth lies). 
The Petitioner also indicates that he worked as an engineer for building projects in Colombia. While 
the record includes employment verification letters attesting to the dates of his employment as an 
engineer for those projects, the letters do not include details of his job duties. See 8 C.F.R. § 
204.5(g)(1) (detailing the requirements of letters submitted as evidence of qualifying experience or 
training). The Petitioner provided his own statements explaining his job responsibilities and his 
photographs of the projects. However, the record does not include evidence corroborating his claims. 
The Petitioner must support his assertions with relevant, probative, and credible evidence. See Matter 
of Chawathe, 25 l&N Dec. at 376. Without sufficient documentary evidence supporting his claimed 
prior work experience as a civil engineer for construction projects, the Petitioner has not demonstrated 
by a preponderance of the evidence that he has the claimed prior experience to make him well 
positioned to advance his proposed endeavor. 
Contrary to the Petitioner's argument that the Director's decision focused solely on his past work 
experience, the Director did consider a letter of recommendation from the Petitioner's current business 
colleague. Although the letter shows the Petitioner having a working relationship with DI I since April 2021, the Director pointed out that the Petitioner did not submit 
evidence demonstrating the success of his new business as claimed in the business plan dated 
November 2022. For instance, the Petitioner did not provide evidence of the business' claimed profits 
or hiring of two U.S. employees in its first year. 
The record includes another letter of recommendation from his current business' client, I I 
,______.I stating their having a business relationship since June 2022, which we note is after the 
date of filing this petition. As noted above, a petitioner must establish eligibility for the benefit it is 
seeking at the time the petition is filed. See 8 C.F.R. § 103.2(b)(I). Evidence of a business relationship 
developed after the filing of the petition cannot be used to establish eligibility. 
The Petitioner argues that the Director "did not apply the correct standard of review" when analyzing 
the business plan. He points out that the business plan is dated in November 2022, after the date of 
filing the petition, and the Director "erred in analyzing the evidence under inappropriate reasoning" 
since the Director pointed out that the Petitioner must establish eligibility at the time of filing. He 
argues that the business plan detailing his civil engineering business was requested by the Director in 
7 
a request for evidence notice and is not required to be dated prior to the date of filing the petition. 
However, the Petitioner mischaracterizes the Director' s analysis of the business plan. While the 
Director's decision points out that the business plan is dated after the date of filing the petition and 
that the Petitioner must establish eligibility at the time of filing, the Director stated, "we will discuss 
the information contained in [the business plan]" and analyzed the claims in the business plan relating 
to financial and employment projections. Therefore, the Petitioner's assertion that the Director did 
not apply the correct standard of review in analyzing the business plan is without merit. 
The Petitioner stresses on appeal that he established his business inl 12021, prior to filing this 
petition in April 2021, and states, "According to the law, the [Petitioner] had to prove that he had 
established the company BEFORE the initial filing, and it has been proven." We note that a petitioner 
proposing to establish a business is not required to establish the company prior to filing the petition. 
Instead, an entrepreneur petitioner's ownership interest in a U.S. entity may have probative value in 
demonstrating the petitioner is well positioned to advance the endeavor. 6 Although the Petitioner 
provided evidence showing he incorporated a company in Florida just prior to filing the petition, this 
is not the only factor to consider when determining if he is well positioned to advance his proposed 
endeavor. 
The Petitioner further argues that the Director did not consider the two expert opinions submitted with 
the petition. However, the Petitioner is incorrect since the Director did consider the opinions in the 
decision stating, 
[A] claim to well positioning within the expert opinion letters provided is that the 
[Petitioner] ran his own company as a consultant within the civil engineering 
industry for the years of 2016 to 2021. No evidence has been provided to 
demonstrate the [Petitioner] being self-employed or evidence to demonstrate the 
existence of a company by the name of: I lthat was 
owned by the [Petitioner] in Colombia per letters within the filing. 
The opinions are based in part on the Petitioner's prior experience in the field, including his work as 
an engineer for building projects in Colombia and with his own company in Colombia. However, as 
explained above, other than the Petitioner's explanations ofhis prior work experience, the record does 
not include independent, probative evidence corroborating his claimed work experience. Where an 
opinion is not in accord with other information or is in any way questionable, USCIS is not required 
to accept it or may give it less weight. See Matter of Sea, Inc., 19 l&N Dec. 817 (Comm'r 1988). The 
submission of letters from experts supporting the petition is not presumptive evidence of eligibility. 
Matter of Caron lnt 'I, 19 l&N Dec. 791, 795 (Comm ' r. 1988); see also Matter of D-R-, 25 l&N Dec. 
445, 460 n.13 (BIA 2011) (discussing the varying weight that may be given expert testimony based 
on relevance, reliability, and the overall probative value). Here, the reliability of the expert opinions 
is in question since they are based on the Petitioner's uncorroborated assertions. 
Because the documentation in the record does not sufficiently establish the Petitioner is well 
positioned to advance the proposed endeavor as required by the second prong of the Dhanasar 
framework, he has not demonstrated eligibility for a national interest waiver. Since the identified basis 
for denial is dispositive of the Petitioner's appeal, we decline to reach and hereby reserve the 
6 See generally 6 USCIS Policy Manual, supra, at F.5(0)(4) . 
8 
Petitioner's remaining appellate arguments regarding his eligibility under Dhanasar framework. 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 of L-A-C-, 
26 l&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach alternative issues on appeal where an 
applicant is otherwise ineligible). 
Ill. CONCLUSION 
As the Petitioner has not met the requisite second prong of the Dhanasar analytical framework, we 
find that the Petitioner has not established eligibility for a national interest waiver as a matter of 
discretion. 
The appeal will be dismissed for the above stated reasons. 
ORDER: The appeal is dismissed. 
9