dismissed EB-2 NIW Case: Electrical Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re: 25279098 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 20, 2023 
Form 1-140, Immigrant Petition for Alien Worker (National Interest Waiver) 
The Petitioner, an electrical engineer, 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. § l 153(b )(2). 
The Director of the Texas Service Center concluded that the Petitioner qualified for classification as an 
individual with an advanced degree, but denied the petition, concluding he did not establish that a 
waiver of the required job offer, and thus the labor certification, would be in the national interest. On 
appeal, the Petitioner contends that the Director did not sufficiently consider the submitted evidence 
demonstrating that he is eligible for a national interest waiver. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 l&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 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 ofjob 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. 
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 I&N Dec. 884, 889 (AAO 2016). Dhanasar states that after a petitioner has established 
eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) may, as matter 
of discretion 1, grant a national interest waiver if the petitioner demonstrates: (1) that 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 be beneficial to the 
United States to waive the requirements of a job offer and thus of a labor certification. 2 
II. ANALYSIS 
The sole issue to analyze is whether the Petitioner established that a waiver of the requirement of a job 
offer, and thus a labor certification, would be in the national interest. For the reasons discussed below, 
we agree with the Director that the Petitioner did not sufficiently demonstrate the national importance 
of his proposed endeavor under the first prong of the Dhanasar analytical framework. 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
foreign national 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. Id. 
Regarding his claim of eligibility under Dhanasar's first prong, the Petitioner initially indicated that his 
proposed endeavor was to continue using his expertise and knowledge in the field of electrical engineering 
"in the U.S. manufacturing, industrial, and engineering sectors." The Petitioner pointed to his more than 
1 7 years of experience working as an electrical chief at a factory in Pakistan and stated that he planned to 
"contribute significantly to U.S. electrical engineering projects, by helping to build and maintain large 
electrical projects." Later, in response to the Director's notice of intent to deny (NOID), the Petitioner 
again explained that he intended to advance his career in electrical engineering, in the field of 
1 See also Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
2 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
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manufacturing, but then stated he planned on launching his own business. The Petitioner stated that that 
his new proposed company would provide engineering and technical services, solar power and wind 
power consultation, energy consumption assessment and efficiency project plans, electrical engineering 
outsourcing services, and alternative energy project implementation. The Petitioner projected that the 
new company would pay approximately $4.29 million in wages during its first five years of operation and 
that it would establish at least four different regional offices throughout the United States. The Petitioner 
indicated that the company would be launched through a $200,000 initial investment, including $120,000 
from him, and another $80,000 from a business partner. 
In denying the petition, the Director concluded that the Petitioner's proposed endeavor was not 
sufficiently clear, due to the material change in his proposed plans from the time the petition was filed to 
the NOID response. The Director determined that the material change by the Petitioner to the proposed 
endeavor made its national importance and potential prospective impact questionable, and therefore, 
concluded that he did not demonstrate national importance. On appeal, the Petitioner does not discuss 
the Director's determination that a material change was made to the petition. The Petitioner asserts that 
he is uniquely qualified to advance his proposed endeavor; specifically, his proposed new electrical 
engineering company. The Petitioner states that his new business would be established in various 
historically underutilized business zones throughout the United States, boost the United States economy, 
and thereby be of national importance. 
The Petitioner must establish eligibility at the time of filing. 8 C.F.R. § 103.2(b)(l); Matter of 
Katigbak, 14 I&N Dec. 45, 49 (eomm'r 1971). Further, the purpose of a NOID is to elicit information 
that clarifies whether eligibility for the benefit sought has been established, as of the time the petition 
is filed. See 8 C.F.R. §§ 103.2(b)(l), 103.2(b)(8), 103.2(b)(12). A petitioner may not make material 
changes to a petition in an effort to make a deficient petition conform to users requirements. See 
Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. eomm'r 1998). If significant material changes are 
made to the initial request for approval, a petitioner must file a new petition rather than seek approval 
of a petition that is not supported by the facts in the record. The information provided by the Petitioner 
in the response to the Director's NOID did not clarify or provide more specificity to the proposed 
endeavor as initially described, but rather materially changed its focus. For instance, in support of the 
petition, the Petitioner indicated he would seek employment as an electrical engineer in the United 
States engineering market, while in response to the NOID he set forth extensive plans to launch a new 
business, including at least four branch offices throughout the country. Accordingly, the NOID 
response presented a new set of facts regarding the proposed endeavor, which is material to eligibility 
for a national interest waiver. See Matter of Katigbak, 14 I&N Dec. 45, 49; see also Dhanasar, 26 
I&N Dec. at 889-90. The fact that his endeavor falls within a STEM field does not automatically show 
eligibility for a national interest waiver. Specifically, the STEM endeavor must have both substantial 
merit and national importance in respect to the first prong of Dhanasar. See generally 6 users Policy 
Manual F.5(D)(2), https://www.uscis.gov/policymanual. 
In determining whether an individual qualifies for a national interest waiver, we must first rely on the 
specific proposed endeavor to determine whether it has both substantial merit and national importance 
under the Dhanasar analysis. Because the Petitioner has not provided consistent information 
regarding his proposed endeavor, we cannot conclude that his proposed endeavor would have national 
importance. On appeal, the Petitioner does not address this stated basis for denial discussed by the 
Director, but merely reiterates the same contentions specific to his proposed new electrical engineering 
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company. Therefore, since the Petitioner has not overcome the Director's stated basis for denial, we 
must dismiss the appeal. 
Because the documentation in the record does not establish the national importance of his proposed 
endeavor as required by the first prong of the Dhanasar precedent decision, the Petitioner 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 Petitioner's appellate arguments 
regarding his eligibility under the second and third prongs. 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 I&N Dec. 516, 526 n.7 (BIA 
2015) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
III. CONCLUSION 
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, we find that 
he has not established he is eligible for or otherwise merits a national interest waiver as a matter of 
discretion. 
ORDER: The appeal is dismissed. 
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