dismissed EB-2 NIW Case: Electronics Engineering

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: OCT. 20, 2023 In Re: 28427544 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an electronics engineer, seeks classification as an individual of exceptional ability in 
the sciences, 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 that the record did not 
establish that the Petitioner qualifies for the national interest waiver. 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 nova. Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de nova review, 
we will dismiss the appeal. 
I. LAW 
To qualify for a national interest waiver, a petitioner must first show eligibility 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. 
An advanced degree is any United States academic or professional degree or a foreign equivalent 
degree above that of a bachelor's degree. A United States bachelor's degree or foreign equivalent 
degree followed by five years of progressive experience in the specialty is the equivalent of a master's 
degree. 
Exceptional ability means a degree of expertise significantly above that ordinarily encountered in the 
sciences, arts, or business. 8 C.F.R. § 204.5(k)(2). A petitioner must initially submit documentation 
that satisfies at least three of six categories of evidence. 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). 1 Meeting 
at least three criteria, however, does not, in and of itself, establish eligibility for this classification. 2 
users will then conduct a final merits determination to decide whether the evidence as a whole shows 
that the individual is recognized as having a degree of expertise significantly above that ordinarily 
encountered in the field. 
Once a petitioner demonstrates EB-2 eligibility, they 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 r&N Dec. 884, 889 (AAO 2016), provides the framework for adjudicating national 
interest waiver petitions. Dhanasar states that users may, as matter of discretion, 3 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. ANAL YSrS 
Although the Petitioner claimed EB-2 eligibility as an individual of exceptional ability, the Director 
concluded that the Petitioner qualifies for the alternative EB-2 classification of a member of the 
professions holding an advanced degree, because the Petitioner's occupation qualifies as a profession 
under 8 C.F.R. § 204.5(k)(2) and he holds a bachelor's degree followed by more than five years of 
progressive experience in the specialty. We need not consider this issue further, because the 
distinction between the two types of EB-2 classification does not affect eligibility for the national 
interest waiver. 
The issue before us is whether the Petitioner has 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 conclude that the Petitioner has not sufficiently demonstrated that he is well-positioned to advance 
the proposed endeavor under the second prong of the Dhanasar analytical framework. 
The Petitioner earned a bachelor's degree in electronics engineering in Venezuela in 2005. He worked 
in various capacities relating to maintenance of medical laboratory equipment in Venezuela and 
Colombia from 2006 to 2022, when he entered the United States as a B-2 nonimmigrant visitor. From 
2016 to 2022, he was self-employed, providing maintenance services to clients as a contractor. 
The Petitioner's proposed endeavor is to develop and distribute a smartphone application ( app ). When 
he first filed the petition, the Petitioner indicated that the purpose ofthe app would be assist individuals 
with cognitive or neurological disabilities with medical issues such as scheduling appointments, filling 
1 If these types of evidence do not readily apply to the individual's occupation, a petitioner may submit comparable 
evidence to establish their eligibility. 8 C.F .R. § 204.5(k)(3)(iii). 
2 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of individuals of 
exceptional ability. See generally 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual. 
3 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). 
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prescriptions, and tracking medical records. In response to a request for evidence, the Petitioner 
expanded the intended scope of the app, stating that it would help "people with any disability, to find 
medical services, therapy, jobs, schools, keep medical and health records, medical profile, recreation, 
and more." 
A petitioner must meet all eligibility requirements at the time of filing the petition. See 8 C.F .R. 
§ 103 .2(b )(1 ). A petitioner may not make material changes to a petition that has already been filed in 
an effo1i to make an apparently deficient petition conform to USCIS requirements. See Matter of 
Izummi, 22 I&N Dec. 169, 175 (Comm'r 1998). In the discussion below, we consider the proposed 
endeavor as described at the time of filing in August 2022. 
A. Substantial Merit and National Impo1iance 
The first Dhanasar 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 whether the proposed endeavor has national importance, we consider its potential 
prospective impact. Matter ofDhanasar, 26 I&N Dec. at 889. 
In the denial notice, the Director concluded that the Petitioner had established the substantial merit of 
the proposed endeavor, but not its national impmiance. The Director determined that the Petitioner 
had not shown that the proposed endeavor would result in "substantial positive economic effects"; 
"that his mobile app business stands to impact the regional or national population at a level consistent 
with having national importance," or "broader implications for the Engineering field." 
On appeal, the Petitioner contends that the Director en-ed by "limit[ing] discussion of the first 
Dhanasar prong to the endeavor's potential economic effects vis-a-vis [the Petitioner's] hiring of 
employees," and that the Director "failed to consider the endeavor's potential to broadly enhanc[e] 
societal welfare." 
We agree with the Petitioner that his "endeavor presents potential for broadly enhancing societal 
welfare" because he seeks to "improve the quality of life of people with physical and intellectual 
disabilities." In principle, millions of people could download and use the app, and the Petitioner 
asserts that the app would improve access to important and even essential services. 
We conclude that the Petitioner has established that the proposed endeavor has national importance. 
Next, we will consider whether the Petitioner has shown that he is well positioned to advance the 
proposed endeavor. 
B. Well Positioned to Advance the Proposed Endeavor 
The second Dhanasar prong shifts the focus from the proposed endeavor to the individual. To 
determine whether an individual is well positioned to advance the proposed endeavor, we consider 
factors including, but not limited to: their education, skills, knowledge and record of success in related 
or similar efforts; a model or plan for future activities; any progress towards achieving the proposed 
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endeavor; and the interest of potential customers, users, investors, or other relevant entities or 
individuals. Matter ofDhanasar, 26 I&N Dec. at 890. 
In concluding that the Petitioner had not met the second Dhanasar prong, the Director stated: 
[T]he petitioner has not demonstrated that he is well positioned to advance his proposed 
endeavor to create a mobile app while rnnning his own business. The petitioner has 
not submitted documentary evidence that he has had a record of success in developing 
apps or rnnning a business in the Biomedical Engineering field. The petitioner also 
failed to submit sufficient evidence of funding, users, and other relevant entities for his 
proposed endeavor. 
On appeal, the Petitioner argues that the Director did not sufficiently consider "[ q]uotes from 
investors" and "[ c ]onespondence from prospective / potential clients, customers, or users." The 
Petitioner refers, here, to a proposal from a consulting company, expressing interest in providing 
financing and designing the app in exchange for "40% of the company shares," and letters from three 
potential customers. These materials, however, all date from early 2023 and therefore they do not 
establish the Petitioner's progress toward achieving the proposed endeavor as of the petition's filing 
date in August 2022. As discussed above, a petitioner must meet all eligibility requirements at the 
time of filing the petition. Progress toward achieving the proposed endeavor that occuned after the 
time of filing cannot establish eligibility at the time of filing. 
The business plan, which describes the substantially revised version of the proposed endeavor rather 
than the original version described at the time of filing, dates from January 2023.4 The consulting 
company's proposal is dated late Febrnary 2023, and the Petitioner did not show that the proposal was 
under consideration or negotiation at the time of filing. 
The letters from potential customers all date from March 2023, and therefore they do not show 
potential customer interest in the proposed endeavor at the time of filing. All three potential customers 
- a behavioral therapy facility, a preschool, and a learning center for children with autism- are within 
20 miles of the Petitioner. These letters indicate some degree of local interest in the app that the 
Petitioner proposes to develop, but the Petitioner has not shown that this level of interest is sufficient 
to demonstrate that he is well positioned to advance the proposed endeavor. 5 
We further agree with the Director that the Petitioner has not established the required "education, 
skills, knowledge and record of success in related or similar efforts" stipulated in Dhanasar. 
4 The business plan in the record states: 'The Company will be stmctured as a sole prop1ietorship. There is a possibility 
of dividing the company's shares between the owner and the potential investor." By definition, a sole proprietorship has 
only one owner, and does not exist as a legal entity separate from that owner. See https://www.irs.gov/businesses/small­
businesses-self-employed/sole-proprietorships ("A sole proprietor is someone who owns an unincorporated business by 
himself or herself'). Therefore, a sole proprietorship has no shares to divide among multiple shareholders. This 
contradictory information about the fundamental nature of the proposed endeavor adds to doubts that the Petitioner is well 
positioned to advance that endeavor. 
5 Two of the letters contain mostly identical language, which undermines their probative value. Identical language in 
letters "suggests that the letters were all prepared by the same person and calls into question the persuasive value of the 
letters' content." Hamal v. US. Dep 't ofHomeland Security, No. 19-2534, slip op. at 8, n.3 (D.D.C. June 8, 2021). 
4 
Throughout this proceeding, in addition to calling himself an electronics engineer, the Petitioner has 
also asserted that he is a biomedical engineer. The Petitioner defined "biomedical engineering" as 
"focuse[ d] on the development of principles and designs to be applied to medicine and biology for 
health care purposes. For example, Biomedical engineers were heavily involved in the development 
of COVID-19 vaccines." He asserts that the proposed endeavor will be "a biomedical engineering 
fom." But the Petitioner's use of the label "biomedical engineering" does not establish that, or explain 
how, managing a company that develops smartphone apps relates to the Petitioner's education and 
employment hist01y. 
For this reason, we do not accept the Petitioner's argument on appeal that his history ofrepairing and 
maintaining medical laboratory equipment constitutes a track record of success in the same or similar 
endeavor that he proposes to undertake in the United States. His self-employment in that capacity 
does not amount to experience establishing and running the type of company described in the business 
plan. The Petitioner has not claimed or documented any prior experience with the kind of business 
described in the proposed endeavor. He has not established that the maintenance ofmedical laboratory 
equipment relates in any significant way to his proposed endeavor of running a company to develop 
and market a smartphone app. 
In light of the above conclusions, the Petitioner has not met his burden ofproof to show that he satisfies 
the second prong of the Dhanasar national interest test. Detailed discussion of the third Dhanasar 
prong cannot change the outcome of this appeal. Therefore, we reserve argument on the third prong. 6 
III. CONCLUSION 
The Petitioner has not established that he is well-positioned to advance the proposed endeavor. 
Therefore, the Petitioner has not shown eligibility for the national interest waiver, and we will dismiss 
the appeal as a matter of discretion. 
ORDER: The appeal is dismissed. 
6 See INS v. Bagamasbad, 429 U.S. 24, 25-26 ( 1976) (stating that, like courts, federal agencies are not generally required 
to make findings and decisions unnecessary to the results they reach); see also Matter olL-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). 
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