dismissed EB-2 NIW Case: Electromechanical Engineering

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAR. 28, 2024 In Re: 30044608 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an electromechanical engineer, seeks employment-based second preference (EB-2) 
immigrant classification as a noncitizen of exceptional ability,1 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. § 1153(b)(2). 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner did not 
establish that he was anoncitizen of exceptional abi Iity or that a waiver of the classification's job offer 
requirement, and thus of the labor certification, would be in the national interest. 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 apreponderance of the evidence. 
Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de nova. Mattera/Christa's, Inc., 26 l&N Dec. 537,537 n.2 (AAO 2015). 
Upon de nova review, we will dismiss the appeal because the Petitioner did not establish that his 
proposed endeavor has national importance and thus, he did not meet the national importance 
requirement of the first prong of the Dhanasar framework. See Matter of Dhanasar, 26 l&N Dec. 884 
(AAO 2016). Because this identified basis for denial is dispositive of the Petitioner's appeal, we 
decline to reach and hereby reserve the Petitioner's appellate arguments regarding whether he 
established that he met the requirements of EB-2 classification and the remaining Dhanasar 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 l&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach alternative issues on appeal where 
an applicant is otherwise ineligible). 
I. LAW 
Exceptional ability in the sciences, arts, or business means a degree of expertise significantly above 
that ordinarily encountered in the sciences, arts, or business. 8 C.F.R. § 204.5(k)(2). In addition, the 
1 We note that the Petitioner never sought classification as an advanced degree professional before the Director or on 
appeal. 
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)(ii). However, meeting the minimum requirements by providing at least three types of 
initial evidence does not, in itself, establish that the individual in fact meets the requirements for 
exceptional ability. See 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policymanual. In 
the second part of the analysis, officers should evaluate the evidence together when considering the 
petition in its entirety for the final merits determination. Id. The officer must determine whether the 
petitioner, by a preponderance of the evidence, has demonstrated a degree of expertise significantly 
above that ordinarily encountered in the sciences, arts, or business. Id. 
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. Next, a 
petitioner must then establish that they merit 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. at 889, provides the 
framework for adjudicating national interest waiver petitions. Dhanasar states that U.S. Citizenship 
and Immigration Services (USCIS) may, as matter of discretion,2 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 determined that the Petitioner had not submitted sufficient evidence to demonstrate 
eligibility for EB-2 classification as a noncitizen of exceptional ability. 3 Further, the Director 
determined that the Petitioner had provided insufficient evidence to demonstrate his eligibility for the 
national interest waiver under the Dhanasar framework. 
The Petitioner, through counsel, states that he has 38 years of experience, including 20 years as an 
"electromechanical engineer." According to the Petitioner's Form ETA-750, which only lists 
experience si nee 2017, he is currently employed as "Head ofProduction/Technical Manager" at a ti rm 
that he founded based Ukraine. Accordin to his resume, the Petitioner also works as a 
manufacturing engineer at 
A memorandum prepared by counsel explains that the Petitioner's latest 
project has "to do with plasma and its application to water, wastewater, and material treatment." 
2 See also Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts (and 
Third in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver to be 
discretionary in nature). 
3 We note that the Director's decision erroneously states that the Petitioner "submitted sufficient evidence to establish that 
he is an alien of exceptional ability" on page 4. However, the Director's decision contains a subsection titled "E21 
Exceptional Ability" where the Petitioner is unambiguously put on notice that the Director determined that the Petitioner 
did not qualify for the requested EB-2 classification. 
2 
Initially, the Petitioner submitted evidence of his education and experience, recommendation letters, 
an award, and a legal memorandum prepared by counsel describing his asserted eligibility for EB-2 
classification and a national interest waiver. 
Following initial review, the Director issued a request for evidence (RFE) allowing the Petitioner an 
opportunity to submit additional evidence in attempt to establish his eligibility for the national interest 
waiver. The Petitioner's response to the RFE includes a letter from counsel addressing both 
exceptional ability as well as the three Dhanasar prongs, an education printout, a letter written by
I I about the Petitioner in 20234 along with a biography of I I and related a 
university release, background information about plasma, a proprietary
I I copies of a provisional patent application co-filed by the Petitioner, a list of possible future 
patent applications, and the Petitioner's statement. 
Upon review of the Petitioner's RFE response, the Director determined that the Petitioner had not 
established that he is a person of exceptional ability or that he meets any of three prongs under the 
Dhanasar framework. Specifically, the Director concluded that he had not established that he met at 
least three of the six criteria to show eligibility for EB-2 classification as a noncitizen of exceptional 
ability.5 The Director further concluded that the Petitioner had not identified his proposed endeavor 
with enough specificity to allow any meaningful discussion of the endeavor. Next, the Director 
concluded that the Petitioner had not demonstrated that his proposed endeavor had substantial merit 
and national importance, that he was well-positioned to advance his proposed endeavor, or that, on 
balance, it would be beneficial to the United States to waive the requirements of a job offer, and thus 
of the labor certification. 
On appeal, the Petitioner submits a legal brief and asserts that the Director "committed error in finding 
that" the Petitioner "did not establish that he is an individual of exceptional ability." Further, the 
Petitioner asserts that the Director "committed an error of fact in finding" that the Petitioner "failed to 
meet the requirement for a National Interest Waiver." The Petitioner references evidence already in 
the record and states that the evidence in the record is sufficient to grant his case. As we have reserved 
discussion of the Petitioner's potential EB2 classification, we will address the Petitioner's potential 
qualification under the first prong. 
A. Substantial Merit and National Importance 
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 
4 The Director found that the Petitioner submitted "the same recommendation letter" from Dr. David Garman in his RFE 
response. However, the letter contains new information and has a different date. 
5 We note that the Director did not consider evidence that the Petitioner submitted in his RFE response relating to his 
license. The decision notes that the Petitioner submitted a "printout from K12 Academics discussing the Higher Education 
Diplomas and Certificates in Ukraine." However, the Director omitted any analysis of the document in discussing whether 
the Petitioner met the exceptional ability criteria. The K12 Academics printout states that "[t]he Diploma is the State­
recognized document which serves both as an educational certificate and a professional license ... " in Ukraine. Because 
we resolve this appeal on a different basis, we need not reach, and therefore reserve this issue. 
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whether the proposed endeavor has national importance, we consider its potential prospective impact. 
Matter of Dhanasar, 26 l&N Dec. at 889. The relevant question is not the importance of the field, 
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. In Dhanasar, we further noted that 
"we look for broader implications" of the proposed endeavor and that "[aa]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. 
The Director concluded that "[i]t is apparent that the petitioner intends to work as an Electrical 
Engineer in the field of Engineering." In the Petitioner's response to the RFE, he submitted a signed 
statement where he referred to himself as an "electromechanical engineer" who designs "apparatus 
and systems for the facilitation of complex plasma phenomena." The Petitioner further elaborated that 
the "widespread use of plasma technologies will help make a change in the Earth's ecology, provide 
industrial-scale solutions for a cleaner and healthier future and a more efficient and prosperous 
economy." The Petitioner states that he has "developed a complex electrical system in the form of a 
cylindrical inductor for the formation and persistance [sic] of a non thermal plasma in a processing 
zone." The Petitioner says that his invention "will allow the purification of effluents from industrial 
enterprises, manure from livestock farms, [and] wastewater from field hospitals." However, the 
Director stated that "USCIS is unable to determine that his proposed work will have both substantial 
merit and national importance." 
On appeal, we find that the Petitioner has sufficiently specified his general work as an 
"electromechanical engineer" in the field of cold plasma applications to discuss and consider whether 
he meets the first prong. We do, however, agree with the Director that the manner in which the 
Petitioner would carry out any of these activities, and, therefore, his specific proposed endeavor is 
unduly vague. As explained below, we withdraw the Director's determination and conclude that the 
Petitioner provided sufficient evidence to demonstrate that his proposed endeavor has substantial 
merit, but not national importance. 
When adjudicating the substantial merit portion of prong one, we consider the specific endeavor the 
Petitioner proposes to undertake. Matter of Dhanasar, 26 l&N Dec. at 889. "In addition, officers may 
consider evidence of the endeavor's potential significant economic impact, but "merit may be 
established without immediate or quantifiable economic impact" and "endeavors related to research, 
pure science, and the furtherance of human knowledge may qualify, whether or not the potential 
accomplishments in those fields are likely to translate into economic benefits for the United States." 
See generally 6 USCIS Policy Manual F.5(D)(1), https: //www.uscis.gov/policy-manual. 
In response to the RFE, the Petitioner provided sufficient evidence of the substantial merit of his 
proposed endeavor. For instance, the Petitioner's endeavor has applications in the purification of 
effluents, manure, and wastewater. Further, his endeavor could be used for the processing of mineral 
ores. Finally, the endeavor could find uses in providing "Plasma Activated Water" for use in 
agriculture. 
4 
Next, regarding national importance, the Director determined that the Petitioner had not established 
how he "will be engaged in the field" and that he did not "identify his proposed projects and goals that 
he will undertake as part of his work." As a result, the Director concluded that "USCIS cannot 
meaningfully discuss the endeavor." 
On appeal, we conclude that the Petitioner submitted insufficient evidence to establish that his 
proposed endeavor is of national importance. 
The Petitioner states that "[t]he widespread use of plasma technologies will help make a change in the 
Earth's ecology, provide industrial-scale solutions for a cleaner and healthier future and a more 
efficient and prosperous econom ." To su art that assertion, the Petitioner submitted two 
recommendation letters from alon with his bio ra h and a news release about 
the letter's author, a presentation titled ____________ by I I a 
provisional patent filed at the U.S. Trademark and Patent Office (USTPO), a recommendation letter 
from (Director of I I, a fact sheet published by the Biden 
Administration on PFAS Pollution, an article titled I lfroml lfrom 2018, an article 
titled "New directions for processing - Non Thermal Plasma - a potentially sustainable outcome," an 
article titled "Here's what's in the bipartisan infrastructure package," an article titled "Recent advances 
of cold plasma technology for water and soil remediation: A critical review," and, a list of five 
potential patents. 
While the Petitioner submits articles describing the perilous state of U.S. infrastructure and the 
potential uses of cold plasma, these articles are not specific to his proposed endeavor. 6 For instance, 
the article titled "Here's what's in the bipartisan infrastructure package," discusses President Joe Biden 
having signed a $1.2 trillion infrastructure bill in November 2021, but the article does not explain how 
the Petitioner's proposed endeavor will help better American infrastructure. The article does not 
mention the Petitioner by name. Although there is a section titled "Improving power and water 
systems" and another titled "Environmental remediation," the article provides general information 
about the bill and not infmmation specific to the Petitioner's endeavor. 
The Petitioner references the fact sheet put out by the Biden Administration on forever chemicals like 
per- and polyfluoroalkyl substances (PFAS). The fact sheet talks about the Biden Administration's 
efforts to deliver clean water across the United States by mobilizing "federal, state, and local 
investments to confront contamination, protect public health, and advance environmental justice." 
However, the article does not mention the Petitioner or anything to do with using plasma to purify the 
nation's water supply. 
Likewise, the Petitioner's statement, provided in response to the Director's RFE, does not articulate 
how his proposed endeavor will have a potential prospective impact. The Petitioner does not identify 
whether he will carry out his proposed endeavor as an employee of a company, or if he will start his 
own company. The Petitioner has not provided a model of how his endeavor will employ U.S. workers 
or any study of the potential positive economic impacts. As noted, 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 
6 While we discuss a sampling of these articles and reports, we have reviewed and considered each one. 
5 
I 
importance for example, because it has national or even global implications within a particular field." 
Matter of Dhanasar, 26 l&N Dec. at 889. 
Of note, the Petitioner submits a filing receipt from USTPO from 2022. The receipt lists 
lthe Petitioner, and I las the inventors and applicants. The provisional patent 
was obtained for the invention titled 
,____________________ The Petitioner's statement does not refer to 
the patent filing. Further, counsel's brief on appeal makes no mention of the application for a 
provisional patent. Thus, we can give the patent application little weight in determining the national 
importance of the Petitioner's endeavor. 
The Petitioner provided two letters from I I one from 2022 and one from 2023. I I 
as of the 2022 letter, was a visiting professor at thel Iin Australia and 
was formerly the inaugural dean of the I lat the I I 
I Istates that he has been "involved in water and wastewater treatment and 
other associated technologies for over 40 years." In this letter, I Istates that he has been 
retained by I I as a consultant to advise on new technologies, 
particularly on Non-Thermal (or Cold) Plasma technologies." He states that 
technology" is the only cold plasma technology that can be 
I I regarding water, wastewater, and material 
treatment. While I I concludes that the Petitioner has "become a world expert on [the] 
design, operation and implementation" of _____ technology and that the Petitioner has 
"the sole complete unstanding [sic] of the development process, the qualitative outcomes from 
processing and the background to the experimental work already undertaken," he does not describe 
how the Petitioner will effectuate his proposed endeavor or what the endeavor's scale will be. 
Both letters reference I I having worked with the Petitioner over the "past 18 months." D 
describes the Petitioner's work generally, but it is unclear whether his general work would be 
the Petitioner's proposed endeavor, as the Petitioner has not sufficiently articulated the parameters of 
any proposed endeavor. For instance, I I states that he has examined the Petitioner's 
"proposals for development of the technology and if the company elects to proceed with patenting 
there are potentially 4 new patents associated with these developments." He further states that"[ o]n 
the other hand preservation of the intellectual property as proprietary or trade secrets is an equally 
valid option to be made by the company." 
As a matter of discretion, we may use opinion statements submitted by the Petitioner as 
advisory. Matter ofCaron Int'l, Inc., 19 I&N Dec. 791, 795 (Comm'r 1988). However, we will reject 
an opinion or give it less weight if it is not in accord with other information in the record or if it is in 
any way questionable. Id. We are ultimately responsible for making the final determination regarding 
an individual's eligibility for the benefit sought; the submission of expert opinion letters is not 
presumptive evidence of eligibility. Id. 
Here, the letters from I I are of I ittle probative value as the letters do not specifically address 
the Petitioner's proposed endeavor and why it would have national importance. I Idoes not 
provide details on how the Petitioner's proposed endeavor will have a prospective impact on the 
United States, including the national or global implications on cold plasma technology applications, 
6 
the potential to employ U.S. workers, or the positive economic effects. While his opinion provides 
some specific details, those details are not in harmony with the Petitioner's statement regarding his 
proposed endeavor. "In determining national importance, the officer's analysis should focus on what 
the beneficiary will be doing rather than the specific occupational classification." 6 USCIS Policy 
Manual F.5(D)(1), https://www.uscis.gov/policy-manual. His letter also suggests that much of the 
Petitioner's work might not extend beyond his current employer based on potential intellectual 
property issues. 
The Petitioner, through his counsel's brief on appeal, relies on assertions regarding the national 
importance of the Petitioner's proposed endeavor. The brief states that the evidence submitted 
"establishes the importance of and that the potential for the plasma technology is extensive and has 
applications in the fields of water and wastewater including treatment of PAS/PFOS." Counsel's 
unsubstantiated assertions do not constitute evidence. See, e.g., Matter of S-M-, 22 l&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"). However, as discussed above, it is the endeavor itself that is 
relevant and not the field of the endeavor. The evidence does not sufficiently demonstrate the 
proposed endeavor's national importance. Therefore, we conclude that the Petitioner has not 
established that he meets the requisite first prong of the Dhanasar framework. 
Because the Petitioner has not established the national importance of his proposed endeavor as 
required by Dhanasar's first prong, he is not eligible for a national interest waiver and further 
discussion of the balancing factors under the second and third prongs would serve no meaningful 
purpose. As previously noted, we reserve the Petitioner's appellate arguments regarding whether he 
established that he met the requirements of EB-2 classification and the remaining Dhanasar 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 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 all of the requisite three prongs set forth in the Dhanasar analytical 
framework, we conclude 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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