dismissed EB-2 NIW Case: Electrical And Automation Engineering

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEP. 26, 2023 In Re: 28048385 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an electrical and automation engineer, seeks classification as a member of the 
professions holding an advanced degree. Immigration and Nationality Act (the Act) section 203(b )(2), 
8 U.S.C. § 1153(b )(2). The Petitioner also seeks a national interest waiver of the job offer requirement 
that is attached to this EB-2 immigrant classification. Section 203(b )(2)(B)(i) of the Act. 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 Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner's endeavor would have national importance, that the Petitioner is well­
positioned to advance that endeavor, or that, on balance, it would benefit the United States to waive 
the job offer requirement. 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 Christa'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. 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 )(2) of the Act. 
Neither the statute nor the pertinent regulations define the term "national interest." Matter of 
Dhanasar, 26 I&N Dec. 884 (AAO 2016) states that after EB-2 eligibility has been established, USCIS 
may, as a matter of discretion, grant a national interest waiver if the petitioner demonstrates that: 
(1) the noncitizen's proposed endeavor has both substantial merit and national importance; (2) that the 
noncitizen is well-positioned to advance the proposed endeavor; and (3) that, on balance, it would 
benefit the United States to waive the requirements of a job offer and thus of a labor certification. 
II. ANALYSIS 
A. National Importance 
The Petitioner, an electrical engineer who is currently employed in the United States as a fire alarm 
systems estimator, seeks to work as an automation and electrical engineer in the petroleum industry. 
The Director found that the Petitioner qualifies as an advanced degree professional, but does not meet 
any of the prongs of the Dhanasar test. On appeal, the Petitioner submits a brief contending that the 
Director used incorrect evidentiary standards and misinterpreted Dhanasar, as well as evidence 
regarding Dr. Dhanasar, the plaintiff in that case. Upon review, we do not find the Petitioner's claims 
persuasive. 
In deciding Dhanasar, we vacated Matter of New York State Dep 't of Transp., 22 I&N Dec. 215 
(Acting Assoc. Comm'r 1998) (NYSDOT), the case that set forth the former framework for 
adjudicating national interest waiver petitions. This older framework required, in part, that petitioners 
show that their endeavor's "proposed benefit will be national in scope," since "eligibility is not 
established solely by a showing that a beneficiary's field of endeavor has intrinsic merit." Id. at 217. 
On appeal, the Petitioner states that the Director misapplied the law because the national importance 
of his endeavor exceeds that of the noncitizen in NYSDOT. However, as this petition was filed 
subsequent to Dhanasar, the Petitioner must establish eligibility for a national interest waiver under 
the framework set forth in that decision. Therefore, the Petitioner's reliance on NYSDOT is misplaced 
and we will adjudicate this matter using the three prongs of the Dhanasar test. 
The first Dhanasar prong, substantial merit and national importance, focuses on the specific endeavor 
that the individual proposes to undertake. Dhanasar found that the NYSDOT "national in scope" 
standard was occasionally "construed too narrowly by focusing primarily on the geographic impact" 
of the endeavor's benefits and therefore replaced it with the requirement that an endeavor have 
"national importance." Matter ofDhanasar, 26 I&N Dec. at 887, 889-90. In determining whether a 
proposed endeavor has national importance, we consider its potential impact. An endeavor may meet 
this requirement i±: for example, it has national implications within a particular field, such as those 
resulting from improved manufacturing processes or medical advances, or if it has significant potential 
to employ U.S. workers or have other substantial positive economic effects, particularly in an 
economically depressed area. Id. at 889-90. 
In the present case, the Director used the Dhanasar test and found that while the Petitioner's endeavor 
has substantial merit, the evidence did not establish that it would have an impact rising to the level of 
national importance. On appeal, the Petitioner states that the Director misapplied the law because the 
national importance of his endeavor exceeds that of the noncitizen in Dhanasar. The Petitioner further 
contends that the Director erred by requiring a showing of the potential impact of the Petitioner's 
endeavor, stating that Dhanasar "never once ... mentions where Mr. Dhanasar works, or his level of 
impact" and instead "exclusively focuses on whether the specific field of endeavor is of importance to 
'U.S. advances in the field'" ( emphasis removed). 1 Finally, the Petitioner contends that national 
1 Contra Matter ofDhanasar, 26 T&N Dec. at 891 ("The petitioner proposes to engage in research and development relating 
2 
interest waiver petitions should be adjudicated using "a 'one-to-one' comparison using the actual and 
publicly available evidence of Mr. Dhanasar's real-world expertise and real-world evidence of Mr. 
Dhanasar's impact ... " and provides documentation which he states establishes that Dr. Dhanasar's 
impact is less than his own. 
First, regarding the Petitioner's proposed comparison to Dr. Dhanasar, the Petitioner cites no legal 
authority for a one-to-one comparison of two petitioners operating in different fields with different 
proposed endeavors. As noted by the Director in his denial decision, Dhanasar establishes an 
analytical framework to examine national interest waiver cases, but it does not indicate that a side­
by-side comparison of individual petitioners and endeavors is required. Here, the Petitioner 
misunderstands the nature of precedent decisions when he asserts that approvals are required for any 
petitioner with more impact than Dr. Dhanasar. 
Further, we decline to adopt the Petitioner's reading of Dhanasar as only requiring a showing that a 
petitioner's field or occupation is nationally important. Dhanasar specifically states: "In determining 
whether the proposed endeavor has national importance, we consider its potential impact." Matter of 
Dhanasar, 27 I&N Dec. at 889-90. If the importance of an endeavor's field was sufficient, in and of 
itself: to establish that the endeavor has national importance, there would be no need to articulate 
"substantial merit" and "national importance" as two separate components of the first prong of the 
Dhanasar test. As specifically noted in Dhanasar, an endeavor such as classroom teaching may be 
part of an important field with substantial merit without having enough of an impact on that field to 
be nationally important. Id. at 893. The Petitioner has not provided sufficient justification for his 
reading of Dhanasar, and as such we will evaluate his endeavor's national importance based on the 
specific nature of that endeavor and the impacts that will be attributable to it, rather than simply the 
field the endeavor is in. 
The Petitioner's initial cover letter stated that he "seeks employment in the field of Electrical and 
Automation Engineering in the Oil & Gas Sector." 2 In response to the Director's request for more 
specific information about his endeavor, the Petitioner submitted a letter "to clarify that [his] proposed 
endeavor is to continue working in the field of electrical and automation engineering," accompanied 
by documentation regarding his current employment as a fire alarm systems estimator. 3 The appellate 
brief emphasizes that the Petitioner's prospective impact would be greater than that of Dr. Dhanasar 
because he works in the private sector and in the nationally important field of petroleum energy. 
However, the unsubstantiated assertions of counsel do not constitute evidence. See, e.g., Matter of 
S-M-, 22 I&N Dec. 49, 51 (BIA 1998) ("statements in a brief: motion, or Notice of Appeal are not 
evidence and thus are not entitled to any evidentiary weight"). Further, as previously noted, a one-to­
one comparison of two petitioners operating in different fields with different proposed endeavors 
is not required here. 
to air and space propulsion systems, as well as to teach aerospace engineering, a~ !Agricultural and Technical 
State University ... "), id. at 893 (noting that Dr. Dhanasar's classroom teaching activities were not nationally impmtant 
because they did not impact the broader field of STEM education). 
2 While this letter alludes to the Petitioner performing research activities, there is no indication that he has ever been a 
researcher or that he will be one in the United States. 
3 There is no indication that this work relates to the petroleum energy field. 
3 
The statements made in the appellate brief regarding the endeavor's national importance are not 
supported by the evidence of record. The brief contends that the Petitioner "submitted probative expert 
letters from individuals holding senior positions throughout his industry describing the importance of 
[Petitioner's] expertise in engineering." The referenced letters do not corroborate this statement.4 For 
example, the support letter from R-R-S-J- states that the Petitioner is a "remarkable engineer who has 
already influenced other engineering professionals around the world," but provides no examples of 
which professionals he has influenced or how. This letter does not establish what impact the Petitioner 
proposes to have on his field. While we acknowledge the letters' praise of the Petitioner's abilities, 
this relates to the second prong of the Dhanasar test, which concerns whether he is well-positioned to 
advance his proposed endeavor. It does not relate to that endeavor's national importance. 
Furthermore, none of the letters address the Petitioner's potential U.S. endeavor except in the most 
general terms. Simply stating that a Petitioner will have a nationally important impact without 
articulating or documenting that impact does not meet the burden of proof in these proceedings. See 
Matter of Chawathe, 25 I&N Dec. at 376 (citing Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm'r 
1989)) (stating that the preponderance of the evidence standard requires examining each piece of 
evidence for relevance, probative value, and credibility, both individually and within the context of 
the totality of the evidence, to determine whether the fact to be proven is probably true). We 
acknowledge the record's many examples of the Petitioner's past work product, such as sales 
presentations and technical offers. However, the record does not document how these relate to any 
specific prospective impact of the Petitioner's endeavor in the United States, apart from the impact of 
the energy industry in general. 
In sum, the petition indicates that the Petitioner will work as an electrical and automation engineer in 
the petroleum industry without documenting what kind of work, specifically, he will undertake. See 
generally 6 USCIS Policy Manual F.5(D)(l), https://www.uscis.gov/policymanual (stating that an 
endeavor is more specific than a general occupation and petitioners should explain their specific 
projects and goals or what areas they will work in rather than simply stating the typical duties of their 
occupations). The Petitioner has the evidentiary burden of establishing what that endeavor will be and 
how it will have national importance. Here, he has not provided sufficient information about the 
endeavor to establish what scientific, economic, or other benefits would be attributable to it. 5 
The record does not establish that the Petitioner's endeavor would have national implications in his 
field, have a substantial economic benefit, or otherwise benefit the United States on a level that rises 
to national importance. Therefore, he has not established his eligibility under the first prong of the 
Dhanasar test. Because this issue is dispositive, we need not address his eligibility under the other 
two prongs and hereby reserve those issues. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (stating 
that agencies are not required to make "purely advisory findings" on issues that are unnecessary to the 
4 While we will not address the contents of each letter individually, we have read and analyzed each one. 
5 This concern also applies to the Petitioner's contention that he qualifies for a national interest waiver because he works 
in a Science, Technology, Engineering, or Mathematics (STEM) field. The specific STEM evidentiary considerations 
mentioned by the Petitioner are only applicable where the endeavor concerns critical and emerging technologies or other 
STEM areas important to U.S. competitiveness and national security. See generally 6 USCIS Policy Manual, supra at 
F.5(D)(2). There is insufficient information in the record to establish that the Petitioner's endeavor implicates these 
nationally important areas. Furthermore, working in a STEM field does not exempt petitioners from establishing the 
national importance of their endeavors. Id. 
4 
I 
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 did not otherwise meet their burden of proof). 
The Petitioner has not established his eligibility for a national interest waiver. 
B. Advanced Degree Professional 
Beyond the decision of the Director, the Petitioner has not established his qualifications as an EB-2 
advanced degree professional. An advanced degree professional petition must include documentation 
establishing that the noncitizen either has a qualifying advanced degree or has a U.S. baccalaureate 
degree or foreign equivalent degree and at least five years of progressive post-baccalaureate 
experience in his specialty. 8 C.F.R. § 204.5(k)(3)(i). 
The Petitioner does not claim, and the record does not indicate, that he holds an advanced degree as 
defined at 8 C.F.R. § 204.5(k)(2). As such, in order to qualify for the advanced degree professional 
classification, he must establish that he has a qualifying baccalaureate degree as well as five years of 
progressive work experience in his specialty. The record indicates that the Petitioner's foreign 
baccalaureate degree is equivalent to a U.S. baccalaureate degree in electrical engineering. However, 
the Petitioner did not submit the evidence required to establish his five years of qualifying work 
expenence. 
Qualifying work experience must be documented using letters from employers which include the 
name, address, and title of the writer, as well as a specific description of the duties performed by the 
noncitizen. 8 C.F .R. § 204.5(g)(l ). If such evidence is unavailable, 6 other documentation relating to 
the noncitizen's work experience will be considered. Id. In this instance, the Petitioner provided a 
work experience evaluation and letters regarding the following employment: 
• ~ 1997 to 2003; 
,,____________ ____,I---;-2012-2015;• 
• ir--------------,... ___JI-July 2015 to May 2019; and 
• .___________ __.~ January 3, 2021, to September 23, 2022 (letter date) . 
The letters from o not include the job titles of the writers, as required 
by regulation. Similarly, the letter from I Idoes not include the writer's address, aid only I 
states his former job title as "(Ex) Venezuela Account Manager". Finally, the letter from 
I concerns employment that the Petitioner entered into after the petition filing date of 
July 2020. Eligibility must be established as of the time of filing. 8 C.F.R. § 103.2(b)(l). Therefore, 
any work experience gained after the filing date cannot be counted towards the Petitioner's eligibility 
for the advanced degree professional criterion. 
The employment letters provided do not meet the requirements of 8 C.F.R. §204.5(g)(l ). As such, the 
Petitioner has not documented his five years of progressive post-baccalaureate work experience in his 
profession, and he does not qualify as an advanced degree professional. In any future filing in this 
matter, the Petitioner should address this issue and submit appropriate documentation under 8 C.F.R. 
§ 204.5(g)(l) to demonstrate his qualifying work experience. 
6 There is no indication that such evidence is unavailable in this case. 
5 
III. CONCLUSION 
The Petitioner has not met the requisite first prong of the Dhanasar analytical framework. He 
therefore has not established that he is eligible for or otherwise merits a national interest waiver as a 
matter of discretion. Furthermore, we withdraw the Director's finding that the Petitioner is qualified 
for the EB-2 advanced degree professional classification. 
ORDER: The appeal is dismissed. 
6