dismissed EB-2 NIW Case: Electrical Engineering

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JUL. 1, 2024 In Re: 30992905 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an engineer that will provide consulting services in areas of electrical engineering and 
technical sales, seeks classification as a member of the professions holding an advanced degree and as 
an individual of exceptional ability in the sciences, the arts, or business. See 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. See 
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 the record did not establish 
the Petitioner's eligibility for a national interest waiver under the Dhanasar framework. We dismissed 
a subsequent appeal. The matter is now before us on combined motions to reopen and reconsider. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). Upon review, we will dismiss the 
motion. 
The Director determined that the Petitioner had not met the three prongs of the framework set forth in 
Matter of Dhanasar, 26 l&N Dec. 884, 889 (AAO 2016). We dismissed the appeal, affirming the 
Director's determination about the first Dhanasar prong and reserving argument on the additional 
prongs. We also concluded that the Petitioner had shown eligibility for the underlying EB-2 
classification, an issue that the Director had not addressed in the denial decision. On motion, the 
Petitioner asserts that he meets the Dhanasar requirements for the national interest waiver. 
A. Motion to Reopen 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). Our review on motion is limited to reviewing our latest decision. 8 C.F.R. 
§ 103.5(a)(l)(ii). We may grant motions that satisfy these requirements and demonstrate eligibility 
for the requested benefit. See Matter of Coelho, 20 I&N Dec. 464, 473 (BIA 1992) (requiring that 
new evidence have the potential to change the outcome). 
On motion, the Petitioner contends that the "AAO has, in part, issued a boilerplate decision in critical 
matters, thus meriting a reopening of the matter at hand." However, upon review of the AAO decision, 
we discussed the Petitioner's qualifications and experience, as well as specifically referenced and 
analyzed the business plan, his personal statement, policy guidance, and an expert opinion letter. 
Although the Petitioner states we issued a boilerplate decision, he does not identify what specific 
content the AAO failed to consider or how the record contains evidence that overcomes the analysis 
and findings in our decision. Therefore, we do not find support for the Petitioner's assertion that the 
AAO did not issue a thorough decision. 
On motion, the Petitioner submits supplemental documentation and asserts that these new facts 
provide further detail on the projections outlined in the Petitioner's business plan for the proposed 
endeavor. As noted in our appellate decision, the Petitioner's business plan provides figures that are 
not suitably supported by relevant data and analysis specific to the Petitioner's proposed endeavor, 
and do not sufficiently demonstrate the claimed substantial positive economic effect. 
Upon review of the updated documentation for the Petitioner's business plan submitted on motion, the 
information reiterates the sales forecast for the proposed business from year one to year five and 
indicates that the company's sales will be primarily achieved through substantial investment in sales 
and marketing. The supplemental business plan also notes that the company will achieve revenues 
each year due to its many competitive advantages, including the Petitioner's professional expertise, 
qualified personnel, diversified marketing strategies, and personalized approach. In addition, the 
documentation indicates that the Petitioner's company will employ 15 individuals by the end of year 
five, which will expand the services provided by the company and create revenue growth and 
profitability. The updated business plan provides an outline of when the 15 employees will be hired 
and the duties for each position. 
To evaluate whether the Petitioner's proposed endeavor satisfies the national importance requirement, 
we look to evidence documenting the "potential prospective impact" of the work. Id. at 889. Here, 
the Petitioner did not demonstrate how the business would largely influence the field and rise to the 
level of national importance. In Dhanasar, we determined the petitioner's teaching activities did not 
rise to the level of having national importance because they would not impact his field more broadly. 
Id. at 893. The record does not show through supporting documentation how the Petitioner's endeavor 
of operating a consulting company sufficiently extends beyond his prospective customers and 
employees to impact the field or the U.S. economy more broadly at a level commensurate with national 
importance. 
Although the Petitioner states that the supplemental business plan provides further details regarding 
the sales and personnel projections, it appears the information is similar to the original business plan 
and provides only general statements on how these projections were developed but does not provide 
sufficient information of the specific proposed endeavor. Moreover, the Petitioner did not demonstrate 
how his business plan's claimed revenue and employment projections, even if credible or plausible, 
have significant potential to employ U.S. workers or otherwise offers substantial positive economic 
effects for our nation. Although the business plan forecasts total sales of $200,200 in the first year 
and $846,405 by the fifth year, the Petitioner did not establish the significance of this data to show 
that the benefits to the regional or national economy would reach the level of "substantial positive 
economic effects" contemplated by Dhanasar. Id. at 890. Similarly, even though the business plan 
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claims the creation of 15 jobs by the end of year five, with payroll expenses totaling $571,236 in the 
fifth year, the Petitioner did not demonstrate the relevance of these numbers and show that such future 
staffing levels would provide substantial economic benefits to the regions in which he intends to focus 
with the expansion plans, or the U.S. economy more broadly, at a level commensurate with national 
importance. The Petitioner, for instance, did not establish that such employment figures would utilize 
a significant population of workers in the area or would substantially impact job creation and economic 
growth, either regionally or nationally. For all these reasons, the record does not demonstrate that, 
beyond the limited benefits provided to its prospective clients and employees, the Petitioner's 
proposed endeavor has broader implications rising to the level of having national importance or that 
it would offer substantial positive economic effects. 
B. Motion to Reconsider 
A motion to reconsider must establish that our prior decision was based on an incorrect application of 
law or policy and that the decision was incorrect based on the evidence in the record of proceedings 
at the time of the decision. 8 C.F.R. § 103.5(a)(3). Our review on motion is limited to reviewing our 
latest decision. 8 e.F.R. § 103.5(a)(l)(ii). We may grant motions that satisfy these requirements and 
demonstrate eligibility for the requested benefit. 
On motion, the Petitioner contests the correctness of our prior decision and asserts that we denied him 
due process. The Petitioner asserts he was unaware of derogatory information stated in the decision 
and was not afforded the opportunity to rebut this information when our decision concluded that the 
Petitioner's business plan provides "no basis" for the hiring projections. The regulation at 8 e.F.R. § 
103.2(b)(16)(i) provides that if the decision will be unfavorable to the petitioner and is based on 
derogatory information considered by users of which the petitioner is unaware, the petitioner shall 
be advised of this fact and offered an opportunity to rebut the information before the decision is 
rendered. However, the conclusion regarding the Petitioner's business plan is not derogatory 
information that was found outside of the record of proceedings. The statute does not purport for the 
AAO to send out notice for every single deficiency found in the record when the Petitioner must 
establish statutory eligibility requirements for a national interest waiver. The Petitioner must establish 
eligibility at the time of filing the immigrant visa petition and must continue to be eligible for the 
benefit through adjudication. 8 e.F.R. § 103.2(b)(l). 
Further, although the Petitioner states he was unaware of the deficiencies outlined in the appellate 
decision, his statements in response to the Director's notice of intent to deny (NOID) seem to indicate 
otherwise. In response to the NOID, the Petitioner summarized the NOID as follows: 
The users furthermore claims that the record falls short of establishing the national 
importance of [the Petitioner's] proposed endeavor. Specifically, it claims that the 
petitioner presented no financial proof or other evidence in the record to explain and 
demonstrate how his proposed endeavor will happen and eventually extend beyond a 
specific organization and its clients such as to impact the industry or field more broadly. 
It also claims that the petitioner failed to demonstrate that his proposed endeavor has 
national or even global implications with a particular field or industry. Finally, it states 
that he has not demonstrated that his specific endeavor has significant potential to 
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employ U.S. workers or otherwise offers substantial positive economic effects for our 
nation. 
Thus, the Petitioner was aware that USCIS requested evidence to corroborate claims regarding the 
proposed endeavor's financial projections and claims of national importance. 
On motion, the Petitioner also asserts that we erred by requiring evidence that the proposed endeavor 
should prove to generate such a significant number of jobs that it will be tantamount to a substantial 
economic effect for a given region. The Petitioner does not cite any passage from our appellate 
decision in which we required the Petitioner to establish both types of benefit to the United States. 
Nevertheless, the record shows that the Petitioner did argue both job creation and wider impact on the 
field as grounds for his national interest waiver claim. 
With regard to job creation, the Petitioner argues that the evidence need only show that the endeavor 
has significant potential to employ U.S. workers, not that it was going to generate employment to such 
a degree that the Service would find it imparts a substantial positive economic benefit. Here, the 
Petitioner appears to argue that the likelihood of employing U.S. workers ought to be a strong positive 
factor, regardless of the number of workers thus employed. But Dhanasar does not state that an 
intention to employ U.S. workers presumptively shows the national importance of a proposed 
endeavor. Rather, it refers to "[a]n endeavor that has significant potential to employ U.S. workers or 
has other substantial positive economic effects." Matter of Dhanasar, 26 I&N Dec. at 890. This 
phrasing shows that "a significant potential to employ U.S. workers" is one example of various types 
of "substantial positive economic effects." 
In Dhanasar, we observed: 
The regulation at 8 C.F.R. § 204.5(k)(2) defines "exceptional ability" as "a degree of 
expertise significantly above that ordinarily encountered" in a given area of endeavor. 
By statute, individuals of exceptional ability are generally subject to the job offer/labor 
certification requirement; they are not exempt by virtue of their exceptional ability. 
Therefore ... a given petitioner ... cannot qualify for a waiver just by demonstrating 
a degree of expertise significantly above that ordinarily encountered in his field of 
expertise. 
Id. at 886 n.3. The same logic applies when discussing the potential benefit that a given individual 
offers to the United States. By statute, EB-2 classification is intended for those who "will substantially 
benefit prospectively the national economy, cultural or educational interests, or welfare of the United 
States." Section 203(b )(2)(A) of the Act. But individuals offering this substantial prospective benefit 
are presumptively subject to the statutory job offer requirement. 
On appeal, the Petitioner states that his company's employment of 15 people is above average in the 
United States since the IBISWorld Industry report indicated that the average number of employees per 
company in the Electrical Engineering Services Industry in the United States is seven employees. 
However, this article is general in nature and does not involve the Petitioner and his proposed 
endeavor. The Petitioner did not explain that the companies studied to report the projections in the 
IBISWorld report are like the Petitioner's proposed endeavor in order to make such a comparison. 
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On motion, the Petitioner also stated that our decision limits the Petitioner to a "salesman" when he is 
in fact intending on conducting research, advancing technologies, and transferring best practices 
between that of the United States and Latin America. However, our appellate decision never refers 
the Petitioner as a salesman. The Petitioner also claims that we erred when we stated that the Petitioner 
does not propose to conduct research or advance technologies in the field of electrical engineering, 
but to serve as a consultant and sales engineer to help businesses to upgrade or replace electrical 
machinery. He said his personal statement indicated that he will "strive to set industry standards 
through research, innovation, and safety, and will continually improve my products and processes to 
keep both clients and employees engaged, trained and environmentally compliant." We recognize the 
Petitioner's general statements of setting industry standards, but the evidence does not sufficiently 
demonstrate that the Petitioner's specific undertaking stands to have an impact beyond the 
organizations and clients he would serve, or that his proposed work would otherwise have broader 
implications for the electrical engineering industry or initiatives. For example, the record does not 
establish the Petitioner has plans to introduce novel methodologies or techniques that may be 
disseminated to or adopted by others operating in the field or industry, or otherwise articulate how he 
will contribute to research and development of our nation's electrical engineering services. 
The Petitioner also states that AAO erred when it stated that the expert opinion letter from Dr.I 
I I a professor at ________ who opined on his eligibility for a national interest 
waiver, does not sufficiently explain any substantial positive economic effects of the Petitioner's 
specific proposed endeavor. Although Dr. I I indicated that the Petitioner's proposed endeavor 
will "help provide direct and indirect jobs to American citizens, aiding its initiative to support its 
workers," he did not provide sufficient evidence of how he came to this conclusion. On motion, the 
Petitioner contends that Dr. I I is "clearly referring to 207.6 total indirect jobs according to the 
multipliers provided by the Economic Policy Institute as well as the total tax payment of $129,293 by 
Year 5 of the endeavor's operation," as well as other information found in the business plan. However, 
we noted that there is a lack of clarity in parts of the business plan that can affect the findings found 
by Dr. I lin his opinion letter. The business plan stated several general statements and lacked 
corroborating evidence to establish the claims. The Petitioner does not refute the conclusions in the 
appellate decision in which we specifically addressed that letter. A motion to reconsider is not a 
process by which a party may submit, in essence, the same brief presented on appeal and seek 
reconsideration by generally alleging error in the prior decision. Matter of O-S-G-, 24 I&N Dec. 56, 
58 (BIA 2006). 
Although the Petitioner has submitted additional evidence in support of the motion to reopen, the 
Petitioner has not established eligibility. On motion to reconsider, the Petitioner has not established 
that our previous decision was based on an incorrect application of law or policy at the time we issued 
our decision. Therefore, we will dismiss the motion. 8 C.F.R. § 103.5(a)(4). 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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