dismissed EB-2 NIW Case: Construction Management

U.S. Citizenship 
and Immigration 
Services 
In Re: 23077028 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: DEC. 21, 2022 
Form 1-140, Immigrant Petition for Alien Worker (National Interest Waiver) 
The Petitioner, a project manager and consultant, seeks second preference immigrant classification as an 
advanced degree professional, 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). After a petitioner has established eligibility for EB-2 classification, U.S. Citizenship and 
Immigration Services (USCIS) may, as matter of discretion, grant a national interest waiver if the 
petitioner demonstrates eligibility under the analytical framework outlined in Matter of Dhanasar, 26 
l&N Dec. 884 (AAO 2016). 
The Director of the Texas Service Center determined the Petitioner qualifies as a member of the 
professions holding an advanced degree. Nevertheless, the Director denied the petition, concluding 
that the record did not establish the national importance of the proposed endeavor or that a waiver of 
the requirement of a job offer would be in the national interest. The matter is now before us on appeal. 
8 C.F.R. § 103.3. The Petitioner submits a brief and argues the Director erred in the decision. 
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 Christo '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. Because this classification requires that the 
individual's services be sought by a U.S. employer, a separate showing is required to establish that a 
waiver of the job offer requirement is in the national interest. 
Section 203(b) of the Act sets out this sequential framework: 
(2) Aliens who are members of the professions holding advanced degrees or aliens of 
exceptional ability. -
(A) In general. - Visas shall be made available ... to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or 
who because of their exceptional ability in the sciences, arts, or business, will 
substantially benefit prospectively the national economy, cultural or 
educational interests, or welfare of the United States, and whose services in the 
sciences, arts, professions, or business are sought by an employer in the United 
States. 
(B) Waiver of job offer -
(i) National interest waiver .... [T]he Attorney General may, when the Attorney 
General deems it to be in the national interest, waive the requirements of 
subparagraph (A) that an alien's services in the sciences, arts, professions, or 
business be sought by an employer in the United States. 
Section 10l{a)(32) of the Act, 8 USC § 1101(a)(32), provides that "[t]he term 'profession' shall 
include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in 
elementary or secondary schools, colleges, academics, or seminaries." 
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definitions: 
Advanced degree means any United States academic or professional degree or a foreign 
equivalent degree above that of baccalaureate. A United States baccalaureate degree 
or a foreign equivalent degree followed by at least five years of progressive experience 
in the specialty shall be considered the equivalent of a master's degree. If a doctoral 
degree is customarily required by the specialty, the alien must have a United States 
doctorate or a foreign equivalent degree. 
Exceptional ability in the sciences, arts, or business means a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business. 
Profession means one 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 in the occupation. 
In addition, the regulation at 8 C.F.R. § 204.5(k)(3)(ii) sets forth the specific evidentiary requirements 
for demonstrating eligibility as an individual of exceptional ability. A petitioner must submit 
documentation that satisfies at least three of the six categories of evidence listed at 8 C.F.R. 
§ 204.5(k)(3)(i i). 
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Furthermore, while neither the statute nor the pertinent regulations define the term "national interest," 
we set forth a framework for adjudicating national interest waiver petitions in the precedent decision 
Matter of Dhanasar, 26 l&N Dec. 884 (AAO 2016). In announcing this new framework, we vacated 
our prior precedent decision, Matter of New York State Department of Transportation, 22 l&N Dec. 
215 (Act. Assoc. Comm'r 1998). Dhanasar states that after a petitioner has established eligibility for 
EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) may grant a national interest 
waiver as matter of discretion. See also Poursina v. USCIS, 936 F.3d 868, 2019 WL 4051593 (9th 
Cir. 2019) (finding USCIS' decision to grant or deny a national interest waiver to be discretionary in 
nature). As a matter of discretion, the national interest waiver may be granted if the petitioner 
demonstrates: (1) that the foreign national's proposed endeavor has both substantial merit and national 
importance; (2) that the foreign national is well positioned to advance the proposed endeavor; and 
(3) 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. See Dhanasar, 26 l&N Dec. at 888-91, for elaboration on these three 
prongs. 
II. ANALYSIS 
The Director determined that the Petitioner qualifies for the underlying EB-2 classification. Therefore, 
the remaining issue is whether the Petitioner has established eligibility for a national interest waiver 
under the Dhanasar framework. While we do not discuss each piece of evidence, we have reviewed 
and considered each one. 
A. The Proposed Endeavor 
In the initial January 2019 filing, the Petitioner stated that his proposed endeavor is to work in the 
construction industry as a project manager-consultant for the company,__ ____ ___, After 
reviewing the evidence submitted with the petition, the Director issued a request for evidence (RFE). 
The RFE notified the Petitioner that, among other deficiencies, the evidence did not establish the 
national importance of the proposed endeavor. In his RFE response, the Petitioner clarified that 
through his employment withl I he will work as a project manager and construction 
superintendent. The record contains a March 2021 letter, which states thatl I has 
employed the Petitioner since July 2020. The Petitioner has not acknowledged or explained the change 
in both in his employer and job title. 
The purpose of the RFE is to elicit further information that clarifies whether eligibility for the benefit 
sought has been established. 8 C.F.R. § 103.2(b)(8). USCIS regulations affirmatively require a 
petitioner to establish eligibility at the time the petition is filed. See 8 C.F.R. § 103.2(b)(1). 
Additionally, 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 Michelin Tire Corp., 17 l&N Dec. 
248, 249 (Reg'l Comm'r 1978). 1 The Petitioner should be aware of this in any future filings, as a 
change in the proposed endeavor is material to the benefit sought. 
1 The Director found the Petitioner established eligibility under the second Dhanasar prong based, in part, on the 
Petitioner's employment with a construction company. As the,__ ____ job opportunity began after the initial 
filing, it cannot serve as eligibility at the time of filing. Therefore, we withdraw the Director's finding that the Petitioner 
has established he is well positioned to advance his endeavor. 
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B. National Importance 
Even if we assume the Petitioner proposes to work as a project manager-consultant for construction 
companies generally and without regard to which company, we nevertheless conclude that he has not 
established the national importance of the proposed endeavor. To support a finding of national 
importance, the Petitioner emphasized the importance of green construction, real estate, and Science 
Engineering Technology and Mathematics (STEM) careers. He highlighted the economic importance 
of STEM professionals, specifically civil engineers, by providing statistics on STEM industries' high 
potential for growth, as well as the demand for and shortage of engineers. Similarly, the Petitioner 
cited statistics on growth potential for the construction and real estate fields, the billion-dollar value 
of the industries, and the jobs they provide. Despite these claims, the record contains insufficient 
information or evidence regarding any projected U.S. economic impact or job creation attributable to 
his specific work. We conclude that the record does not show benefits to the U.S. regional or national 
economy resulting from the Petitioner's employment would reach the level of "substantial positive 
economic effects" contemplated by Dhanasar. Id. at 890. 
The Petitioner suggested that various social factors, such as the COVID-19 pandemic, affordable 
housing crisis, and a shift towards eco-friendly sustainable construction processes elevate the 
importance of project managers and civil engineers in construction. The Petitioner provided 
documents discussing government initiatives to address environmental concerns, COVID-19 safety 
protocols, and the shortage of STEM professionals. He concluded that his endeavor has national 
importance because it impacts matters that a government entity has described as having national 
importance or is the subject of national initiatives. However, the Petitioner has not provided a 
sufficiently direct connect between his proposed endeavor and any national initiatives. For example, 
while construction materials and disposal may fall within government initiatives to address 
environmental issues, the Petitioner has not explained how his specific endeavor within the 
construction field is the subject of national initiatives. To further illustrate, the Petitioner has not 
suggested that governmental initiatives fund his proposed endeavor or that his employer is named in 
a particular initiative's announcement and plans. As such, the Petitioner has not established that the 
proposed endeavor is the subject of national initiatives, nor has he established that his endeavor 
operates on a scale that stands to impact matters that a government entity has described as having 
national importance. 
Although we agree that these fields and industries are important and may be the subject of national 
initiatives, we conclude that this does not necessarily establish the national importance of the proposed 
endeavor. When 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 id. at 889. As the Director's decision 
explained, much of the Petitioner's evidence relates to the importance of the industries and professions 
named above, rather than his specific proposed endeavor. Even considering the articles, reports, and 
statistics collectively and in the totality of circumstances, we still conclude that they do not support a 
finding that the proposed endeavor has national importance. 
To establish national importance, the Petitioner must demonstrate the proposed endeavor's impact. 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 
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implications within a particular field." Id. at 889. Although the Petitioner stated that he developed 
crisis management solutions for supply chain issues, has unique knowledge and skills, as well as rare 
expertise, he has not supported these assertions with sufficient evidence. The evidence does not 
suggest that the Petitioner's methods, solutions, or skills differ from or improve upon those already 
available and in use in the United States. Stated another way, the evidence does not support a finding 
that his proposed endeavor will have any implications within a particular field. As the Director 
explained, the Petitioner's endeavor may impact the companies he works for and their clientele, but 
the record does not establish that his proposed endeavor stands to impact the field as a whole. 
In addition, even if the Petitioner had provided evidence of his unique skills and knowledge, as well 
as rare expertise, this would not support a finding that the proposed endeavor has national importance. 
Rather, these qualities relate to the second prong of the Dhanasar framework, which "shifts the focus 
from the proposed endeavor to the foreign national." Id. at 890. The issue here is whether the 
Petitioner's specific endeavor has national importance under Dhanasar's first prong. WhileO 
I of the I I College of I I as well as current and former 
employers praise the Petitioner's education, experience, past success, personal qualities, and the 
results he achieved, we likewise conclude that these factors relate to the Petitioner's eligibility under 
the second Dhanasar prong. 
The Petitioner emphasized the importance of his duties and role within various companies. In support, 
he provided letters and statements that describe his duties and the results he achieved for his 
employers. Documents in the record label the Petitioner's past and current roles as "pivotal" and 
"invaluable." Further, his current employer stated that his work is "vital" to their operations and 
mission as a company. While this evidence demonstrates the magnitude and importance of his work 
for the company that employs him, we conclude that it does not demonstrate the national importance 
of the proposed endeavor. The record does not suggest that the Petitioner's work would meet the 
current demand for project managers and civil engineers, address the national shortage in these and 
related fields, or extend beyond his employers and clients. Accordingly, we conclude that the 
Petitioner has not sufficiently demonstrated how his proposed endeavor would impact his field or the 
nation. 
On appeal, the Petitioner relies upon the evidence he previously submitted to argue that the Director 
applied a stricter standard of proof and did not consider the evidence collectively.2 The Petitioner 
draws attention to the personal declaration he submitted with his RFE response in conjunction with 
the articles and reports he provided. In addition, the Petitioner reasserts that he developed crisis 
management solutions for supply chain problems during the COVID-19 pandemic, as well as 
implemented sanitation and safety protocols to keep his workforce healthy. He stresses these examples 
to demonstrate the importance of his role within the company. However, as explained, while the 
Petitioner may positively impact his employer, this does not establish that the proposed endeavor will 
broadly impact the field or his profession. The Petitioner's valuable services that enable his employer 
to continue projects during the pandemic certainly supports the importance of his role for that 
employer. However, this does not establish the national importance of the proposed endeavor. 
2 The Petitioner also asserts that the Director overlooked facts, but he does not describe with specificity which facts the 
Director overlooked. 
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Furthermore, the COVID-19 pandemic began after the Petitioner filed his petition and therefore cannot 
serve as a basis for the proposed endeavor's national importance. 
The Petitioner continues to rely upon the merits of the services he will provide, his personal and 
professional qualities, and the importance of the construction and engineering fields. However, neither 
the evidence nor arguments sufficiently demonstrate the proposed endeavor's national importance. 
Therefore, we conclude that the Petitioner has not met the requisite first prong of the Dhanasar 
framework. 
Ill. CONCLUSION 
The documentation 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. Further analysis of his eligibility under the second and third 
prongs outlined in Dhanasar would serve no meaningful purpose. 
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) (stating that "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). 
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. 
The appeal will be dismissed for the above stated reasons. 
ORDER: The appeal is dismissed. 
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