dismissed EB-2 NIW Case: Energy Systems Engineering

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 23, 2024 In Re: 29547030 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an energy systems 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. Immigration and 
Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2). 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that a waiver of the job offer requirement would be in the national interest. The Director 
further concluded that the petition was incomplete because it did not include a required form. 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 Christo 's, Inc., 26 l&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. 1 If a petitioner demonstrates eligibility for the 
underlying EB-2 classification, 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 ofDhanasar, 26 I&N 
Dec. 884 (AAO 2016) provides the framework for adjudicating national interest petitions. Dhanasar 
states that U.S. Citizenship and Immigration Services (USCIS) may, as a matter of discretion2, grant 
a national interest waiver if the petitioner demonstrates that: 
1 The Director concluded that the Petitioner qualifies as an EB-2 advanced degree professional by holding a foreign degree 
which is equivalent to a U.S. advanced degree, which the record supports. 8 C.F.R. § 204.5(k)(2) and (k)(3)(i). 
2 USCIS has previously confinn ed the applicability of this two-part adjudicative approach in the context of individuals of 
exceptional ability. 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5 . 
• 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. 
All petitions requesting a national interest waiver of the job offer requirement must be accompanied 
by two fully-executed copies of U.S. Department of Labor (DOL) Form ETA 750B, Statement of 
Qualifications of Alien. 8 C.F.R. § 204.S(k)( 4)(ii). 3 
II. ANALYSIS 
The Petitioner seeks to work in the field of energy systems engineering in the United States, stating 
that he specializes in "solar-thermal systems, phase change materials, heat pumps, nanofluids, zero­
energy buildings, energy efficiency in buildings, energy-exergy analysis, and computational fluid 
dynamics." On appeal, he asserts that the Director applied the law erroneously, disregarded the facts 
presented in the petition, and disregarded the public policy objectives of the national interest waiver. 
For the reasons below, the Petitioner has not overcome the Director's denial and established his 
eligibility for a national interest waiver of the job offer requirement. 
A. Required Forms 
The first issue on appeal is the Petitioner's incomplete benefit request. The regulation at 8 C.F.R. 
§ 204.5(k)(4)(ii) requires petitioners requesting a national interest waiver to provide duplicate signed 
copies ofDOL Form ETA 750B as part of their initial evidence. Alternatively, USCIS will also accept 
signed duplicate copies ofDOL Form ETA 9089, Parts J, K, and L. 4 All benefit requests must include 
all the initial evidence required by applicable regulations and other USCIS instructions, and the 
absence of such evidence is grounds for denying that benefit request. 8 C.F .R. § 103 .2(b)(1 ), 
(b )(8)(ii). 5 
The Petitioner has not submitted either of the above DOL forms, despite being informed of the 
requirement by both the Director's request for evidence (RFE) and the denial notice. Furthermore, he 
has not addressed this issue on appeal, and so we consider it waived. See, e.g., Matter of O-R-E-, 
28 l&N Dec. 330, 336 n.5 (BIA 2021) (citing Matter of R-A-M-, 25 l&N Dec. 657, 658 n.2 (BIA 
2012)). The Petitioner's benefit request is incomplete and cannot be approved. 8 C.F.R. 
§ 204.5(k)(4)(ii). 
B. First Dhanasar Prong 
Although the lack of required initial evidence is dispositive in this case, we will also address the 
Petitioner's qualifications under the first Dhanasar prong, substantial merit and national importance. 
When adjudicating this prong, we consider the specific endeavor the Petitioner proposes to undertake. 
3 Alternatively, petitioners may submit two full-executed copies of DOL Form ETA 9089, Application for Permanent 
Employment Certification, Sections J, K, and L. See generanv 6 USCIS Policy Manual F.S(D), 
https://www.uscis.gov/policy-manual. 
4 See generally 6 USC1S Policy Manual, supra, at F.S(D). 
5 We further note that if, as here, a petitioner does not submit requested evidence in response to an RFE, and that evidence 
is dispositive of the benefit request, their petition shall be denied on that basis. 8 C.F.R. § 103.2(b)(l4). 
2 
Matter ofDhanasar, 26 I&N Dec. at 889. The endeavor's merit may be demonstrated in a range of 
areas, including business, entrepreneurialism, science, technology, culture, health, and education. Id. 
When considering an endeavor's national importance, however, the relevant question is not the 
importance of the industry or profession where the Petitioner will work, but the specific impact of that 
proposed endeavor. Id. at 889-90. An endeavor may have national importance i±: for example, it has 
national implications within a particular field or has significant potential to have a substantial positive 
economic effect, especially within an economically depressed area. Id. 
In his initial submission, the Petitioner provided his educational and research credentials, 
recommendation letters from his professors and supervisors, and an attorney letter stating that he "has 
not received any uob] offers yet even though he has been contacted by certain entities in the field," 
but that he "will be part of a major project and/or national organization once he receives employment 
authorization" 6 and that this will "benefit the United States scientifically and/or financially in the 
future." He did not complete Part 6 of his Form 1-140, Immigrant Petition for Alien Workers, which 
requests information about the proposed employment, or provide any other information about his 
proposed endeavor. 
As noted in the Director's RFE, the Petitioner's initial filing did not describe a cognizable endeavor 
that could be analyzed under the Dhanasar framework. See generally 6 USCIS Policy Manual, supra, 
at F.5(D)(l) ("The term 'endeavor' is more specific than the general occupation; a petitioner should 
offer details not only as to what the occupation normally involves, but what types of work the person 
proposes to undertake specifically within that occupation."). 7 The RFE therefore requested a detailed 
description of the endeavor, its merits, and its national importance. 
In his response to the RFE, the Petitioner stated: "Recently, I contacted national laboratories where I 
applied for a job and was informed that the evaluation process takes time ... On the other hand, I have 
prepared a business plan and I will get the innovative and high-performance energy systems 
manufactured and present them to the US market." To support these statements, the Petitioner 
provided a list of post-doctoral research positions he had applied for, a patent application, a business 
plan, and a business funding pledge letter. We agree with the Director's conclusion that these materials 
do not establish the Petitioner's qualifications for the first Dhanasar prong. 
First, eligibility must be established at the time of filing. 8 C.F.R. § 103.2(b )(1). Therefore, petitioners 
may not make material changes to a petition that has already been filed in an effort to make a deficient 
benefit request conform to USCIS requirements. Matter of Izummi, 22 I&N Dec. 169, 175 (Assoc. 
Comm'r l998)(citingMatter ofKatigbak, 14 I&N Dec. 45, 49 (Comm'r 1971)). Here, the Petitioner's 
initial filing only mentioned that he had been contacted by unspecified parties regarding potential 
employment, and said nothing about starting a business that manufactures and sells "high-performance 
energy systems." The patent application, which is for a folding portable solar-powered air heater 
mentioned as a product in the Petitioner's business plan, is dated May 2023, as is the funding pledge 
letter. The record therefore indicates that the proposed endeavor of starting an energy system 
6 The Petitioner is currently in the United States after being admitted as a B-2 nonimmigrant visitor for pleasure, a visa 
classification that does not permit employment. 8 C.F.R. § 214.1 (e). 
7 We further note that the only initial documentation that addressed the proposed endeavor was the attorney letter. 
Counsel's unsubstantiated assertions do not constitute evidence. See, e.g., Matter ofS-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"). 
3 
manufacturing and sales company was a change made after the petition was filed in March 2023. 8 
Working for an existing organization and starting a new business are endeavors which differ in ways 
that are central to assessing their potential scientific, economic, or other impact and determining their 
national importance. As such, the changes the Petitioner made to his proposed endeavor in response 
to the Director's RFE are material to his eligibility under the first Dhanasar prong, and therefore 
cannot establish that eligibility. 9 Id. 
Furthermore, even ifwe were to accept the Petitioner's revised claims, which we do not, the evidence 
provided still does not establish a cognizable endeavor. The purpose of the national interest waiver is 
not to facilitate a petitioner's U.S. job search. While no job offer is required, anyone seeking such a 
waiver must identify the "specific endeavor" that they propose to undertake. Matter of Dhanasar, 
26 I&N Dec. at 889. Here, the Petitioner has not specified whether he will work as a researcher or 
start an energy systems business, or how he will divide his time between these activities if he intends 
to do both. Without this information, it is not possible to determine whether the proposed endeavor 
has substantial merit or whether it has the kinds of "broader implications" we look for when assessing 
national importance. Id. 
On appeal, the Petitioner submits an attorney letter stating that "[u]nder Dhanasar, the evidence that 
the endeavor has the potential to create significant merit may be established without immediate or 
quantifiable impact ... [ and] even furtherance of human knowledge qualifies for substantial merit and 
national importance even if such [an] endeavor does not economically benefit the United States." The 
letter farther states that "the proposed endeavor in this case definitely has the potential of being 
beneficial to the United States, to the environment and to humankind in general." 
The burden of proof in these proceedings lies with the Petitioner, who must provide probative, 
relevant, and credible documentation showing that the facts he seeks to prove are "probably" true. 
Matter of Chawathe, 26 I&N Dec. at 3 7 6 ( discussing the requirements of the "preponderance of the 
evidence" standard). Here, the Petitioner has not provided sufficient information about his endeavor 
to establish that it will "probably" farther human knowledge or otherwise substantially benefit the 
welfare, economy, or cultural or educational interests of the United States in the future. See generally 
6 USCIS Policy Manual, supra, at F.5(D). As noted above, counsel's unsubstantiated assertions do 
not constitute evidence. See Matter of S-M-, 22 I&N Dec. at 51 (BIA 1998). The recommendation 
letters and the general information provided about the importance of the Petitioner's scientific field do 
not relate specifically to his proposed endeavor, and are insufficiently probative to demonstrate that 
endeavor's merits, what impact it is likely to have, or how that impact will rise to the level of national 
importance. 
Finally, we acknowledge the Petitioner's 2022 doctoral degree in his field, as well as his work and 
publication history as a research assistant while earning this degree. However, these credentials relate 
to the second Dhanasar prong, which concerns the Petitioner's ability to advance his proposed 
8 These documents also date from after the Director's April 2023 RFE. 
9 We further note that an entrepreneurial endeavor requires different forms of preparation and experience than a non­
entrepreneurial one, which impacts the assessment of the second Dhanasar prong. This change in the endeavor is also 
relevant to the third prong's considerations of whether it would be impractical for the Petitioner to secure a job offer. For 
these additional reasons, the revised endeavor is a material change made after filing and will not be accepted. Id. 
4 
endeavor. They do not relate to whether that endeavor would have substantial merit or national 
importance. The Petitioner has not met the first Dhanasar prong. 
III. CONCLUSION 
The Petitioner has not submitted the DOL form required by 8 C.F.R. § 204.5(k)(4)(ii), and so has not 
properly applied for a national interest waiver. Additionally, he has not met the requisite first prong 
of the Dhanasar test. Because both of these issues are dispositive of the appeal, we need not address 
the Petitioner's eligibility under the other two Dhanasar 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 ultimate decision); see also Matter ofL-A-C-, 
26 I&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach alternative issues on appeal where the 
applicant did not otherwise meet their burden of proof). 
The Petitioner has not established that he is eligible for or otherwise merits a national interest waiver 
as a matter of discretion. The petition will remain denied. 
ORDER: The appeal is dismissed. 
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