dismissed EB-2 NIW Case: Engineering

U.S. Citizenship 
and Immigration 
Services 
MATTER OF N-C-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 14. 2017 
PETITION: FORM I-140. IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner. a research and development engineer. seeks second preference immigrant 
classification as a member of the professions holding an advanced degree. as well as a national 
interest waiver of the job oiler requirement attached to this EB-2 classification. See Immigration 
and Nationality Act (the Act) section 203(b )(2). 8 U .S.C. ~ 1 153(b )(2 ). After the petitioner has 
established eligibility for EB-2 classification. U.S. Citizenship and Immigration Services (USCIS) 
may. as matter of discretion. grant a national interest waiver if the petitioner demonstrates: (1) that 
the foreign nationars proposed endeavor has both substantial merit and national importance: (2) that 
the foreign national 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. Matter o/Dhanasar. 26 I&N Dec. 884 (AAO 2016). 
The Director of the Texas Service Center denied the Form I-140. Immigrant Petition for Alien 
Worker. finding that the Petitioner had not qualified for classification as a member of the professions 
holding an advanced degree or as an individual of exceptional ability. and that he had not established 
that a waiver of the required job otTer. and thus of the labor certification. would be in the national 
interest. 
On appeaL the Petitioner submits additional documentation and contends that he is eligible for a 
national interest waiver under the Dhanasar framework. I Ie notes that while two requests for 
evidence (RFEs) were issued by the Director. neither afforded him an opportunity to establish that he 
meets the standards set forth in Dhanasar. 
Upon de novo review. we will dismiss the appeal. 
I. LAW 
To establish eligibility for a national interest waiver. a petitioner must tirst 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 individuars services be sought by a U.S. employer. a separate showing is required 
to establish that a waiver of the job otTer requirement is in the national interest. 
Matter of N-( '_ 
Section 203(b) of the Act sets out this sequential fi-amework: 
(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 quali1ied 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 arc sought by an employer in the 
United States. 
(B) Waiver ofjob otTer~ 
(i) National interest waiver. ... [T]hc 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 recently 
set forth a new framework for adjudicating national interest waiver petitions. See Dhanasar. 26 I&N 
Dec. 884. 1 Dhanasar states that after EB-2 eligibility has been established. USCIS may. as a matter 
of discretion. grant a national interest waiver when the below prongs are met. 
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. 
The second prong shifts the focus from the proposed endeavor to the foreign national. To determine 
whether he or she is well positioned to advance the proposed endeavor. we consider factors 
including. but not limited to: the individual's 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 endeavor: and the interest of potential customers. users. investors. or other relevant entities 
or individuals. 
1 
In announcing this new framework. we vacated our prior precedent decision. Matter of Nell' York Stale Department of 
Transportation. 22 I&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOD. 
2 
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Matter olN-C'-
The third prong requires the petitioner to demonstrate that, on balance. it would be beneficial to the 
United States to waive the requirements of a job offer and thus of a labor cet1ification. In 
performing this analysis. US CIS may evaluate factors such as: whether, in light of the nature of the 
foreign national's qualifications or the proposed endeavor, it would be impractical either for the 
foreign national to secure a job offer or for the petitioner to obtain a labor certification: whether, 
even assuming that other qualified U.S. workers are available. the United States would still benefit 
from the foreign national's contributions; and whether the national interest in the foreign national's 
contributions is sufficiently urgent to warrant forgoing the labor certification process. ln each case. 
the factor(s) considered must taken together, indicate 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 
A. Member of the Professions Holding an Advanced Degree 
The Director found that the Petitoner did not qualify for classification as a member of the professions 
holding an advanced degree or as an individual of exceptional ability. The Petitioner, however. 
provided his Ph.D. in mechanical engineering (2009) from the and a copy of 
his ot1icial transcript. Accordingly. the Petitioner qualities as a member of the professions holding 
an advanced degree, and the Director's finding on this issue is withdrawn. 
B. National Interest Waiver 
The remaining issue to be detem1ined 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. The 
regulation at 8 C.F.R. § 204.5(k)(4)(ii) states. in pertinent part, "[tlo apply for the [national interest] 
exemption the petitioner must submit Form ETA-7508, Statement of Qualifications of Alien. in 
duplicate." The denial decision stated that .. since the petitioner did not submit this required 
evidence, USCIS must deny the Form I-140." With the appeal, the Petitioner otTers two properly 
signed and fully executed ETA-7508 forms. Therefore, the Director's finding on this issue is 
withdrawn. 
The Petitioner contends that the Director's RFEs did not did not offer him "'a chance to establish 
meeting the standards of Matter ofDiwnasar." as described in the denial decision. We note that the 
Director may, as a matter of discretion, request additional evidence if the record does not establish 
eligibility, but he is not required to do so. See 8 C.F.R. § 103 .2(b )(8). Regardless. the Petitioner has 
had an opportunity to address the Director's findings on appeaL and we review the record on a de 
novo basis. 
In the decision denying the petitiOn. the Director noted that the Petitioner had "not submitted a 
detailed description of the proposed endeavor.'' Under each prong. the Director concluded that the 
2 See Dhanasar. 26 I&N Dec. at 888-91. for elaboration on these three prongs. 
.
Matter ofN-C-
Petitioner had not submitted evidence satisfying the relevant requirements, but did not mention or 
discuss the documentation in the record. The record initially contained a January 2015 letter from 
listing only the Petitioner's job ""title of Tech Prof-Software 
Development'" and salary. In response to the Director's November 2016 RFE, the Petitioner 
identified ""Principal Tech Professional R&D Software Development'" as his "'most recent 
occupation," but offered no further discussion of the nature and merit ofhis proposed endeavor. 
As the Petitioner is applying for a waiver of the job offer requirement, he need not have a job offer 
from a specific employer. Nevertheless, information about the nature of his proposed endeavor is 
necessary for us to determine whether it has substantial merit and national importance: whether he is 
well positioned to advance such an endeavor: and whether, on balance, it would be beneficial to the 
United States to waive the requirements of a job offer and thus of a labor certi tication. Although the 
Director's decision did not include a meaningful discussion as to why the evidence presented was 
insufficient, the record supported the determination that the Petitioner did not provide adequate 
information regarding his proposed endeavor. In Dhanasar, we held that a petitioner must identify 
'"the specific endeavor that the foreign national proposes to undertake.'· !d. at 889. 
On appeal, the Petitioner provides additional information and evidence regarding his proposed 
endeavor. However, for the reasons discussed below, we find he has not established eligibility for a 
national interest waiver under the analytical framework set forth in Dhanasar. 
1. Substantial Merit and National Importance ofthe Proposed Endeavor 
In a letter accompanying his appeal, the Petitioner indicates that he is .. currently a senior research 
and development scientist working at an engineering consulting and software 
development company. He asserts that he intends to continue his "work in the engineering 
consulting business at · and will usc his skills "to diagnose industry challenges. propose 
solutions in the form of mathematical models and simulations. and to develop physics based 
algorithms and software solutions." The Petitioner further states that he is presently ·'working on 
developing software for Torque & Drag, Hydraulics. Drilling Dynamics, and Hole Cleaning and 
Completion to improve planning and tracking oil & gas drilling processes." 
The appellate submission includes a letter from Chief Executive Officer of 
stating that the Petitioner's work ""provides crucial benefits to the company and our 
U.S. clients." notes that his company supports "top Original Equipment 
Manufacturers and Tierl service providers in automotive [sicl. and major players in the oil & gas as 
well as consumer goods industry." He further explains that helps '"clients in improving 
their processes and solving their needs, by providing them expertise through a wide range of 
scientific. numerical modeling and engineering simulation solutions.'· 
With respect to the Petitioner's proposed endeavor, indicates that his projects include 
devising advanced drilling dynamics· models, predicting and understanding material failure, and 
solving clients' engineering challenges. In addition. he notes that the Petitioner's efforts involve 
4 
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Mal/er of N-C-
developing: advanced analytical and numerical methods for scientific software. new material 
models for rubbers and polymers, and methods for tluid structure interactions. We find that the 
Petitioner's work has substantial merit, as it is aimed at supporting consulting services and 
development of custom software solutions for the company's clients. 
To satisfy the national importance requirement, the Petitioner must demonstrate the ·'potential 
prospective impact" of his work. The Petitioner contends that his '·work in the fields of mechanicaL 
materials and computational science and engineering ... has implications for improvements in 
technology, industry, manufacturing, transportation, and energy.'' but he does not discuss the breadth 
of those implications or provide supporting documentation. However. the Petitioner has not 
established that his proposed work for has implications beyond his company and its 
clients at a level sufficient to establish the national importance of his endeavor. 3 While 
contends that Petitioner's work will provide a benefit to the wide range of U.S. industries 
that is ''supporting such as Automotive, Petroleum. and Consumer goods,'' he does not 
sufficiently explain or demonstrate how the work stands to affect these broader industries. Nor does 
the record show, for instance, that the specific work the Petitioner proposes to undertake offers 
original innovations to advance these overall industries, or that it otherwise has wider implications in 
the software development field. As the Petitioner has not established that his specific endeavor's 
prospective impact supports a finding of national importance, he has not met the first prong of the 
Dhanasar framework. 4 
C. Well Positioned to Advance the Proposed Endeavor 
The second prong shifts the focus from the proposed endeavor to the Petitioner's qualifications. The 
Petitioner submitted his curriculum vitae, academic records, employment verifications, training 
certifications, student awards, and membership. He also provided 
evidence of his graduate research work (a conference presentation and two articles in 
and documentation of articles that cited to his findings. In addition, 
the Petitioner otTered reference letters discussing his spark plasma sintering metallurgy research 
projects at the and drillstring dynamics modeling project at 
On appeaL the Petitioner provides the aforementioned letter from and 
further citations to his graduate research work. He also submits a letter discussing his academic 
background, engineering skills, past work experience, and present job duties and projects at 
In Dhanasar, we determined that the petitioner's teaching activities did not rise to the level of having national 
importance because they would not impact his field more broadly. !d. at 893. 
4 While the record indicates that the Petitioner performed and published metallurgical research as part of his Ph.D. 
studies at the he has not identified conducting and publishing metallurgy research as his proposed 
endeavor. Rather. the record shows that he intends to work as an engineering consultant and software developer for 
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Matter ofN-C-
We find that the Petitioner's past experience renders him well positioned to advance his proposed 
endeavor aimed at supporting engineering consulting work and software development 
projects. For example. states that the Petitioner used "his knowledge and background to 
develop tools and ways to improve drilling in typical and extended-reach wells·· and this work had a 
"sizable impact on the company's Research and Development strategy." In addition. 
a senior technical leader at indicates that the Petitioner led '"the effm1s of 
architecting a new software solution that replaces long time t1uid completion and drilling 
t1uid applications.'' Furthermore. global simulation team manager at 
asserts that he and the Petitioner worked on a project to devise "a module of substantial 
well development software" and that the Petitioner provided solid and insightful '·advice and guidance 
on numerical analysis. algorithm development. and complex mathematically-related code 
development." 
In addition to his work experience with and the 
record includes letters discussing the Petitioner· s graduate research at For 
instance, with respect to the Petitioner's articles in 
a senior material scientist at states that he considers the Petitioner's '·2007 and 
2009 papers on the subject of material sintering to be very valuable" and that he cited to the findings 
in his dissertation. The appellate submission includes citation evidence from 
reflecting that the Petitioner's 2007 and 2009 articles in 
have been cited to 16 and 14 times, respectively. 
The evidence discussed above is sufficient to demonstrate that the Petitioner is well positioned to 
advance his proposed endeavor of supporting engineering consulting and software 
development projects. 5 Accordingly. he has established that he satisfies the second prong of the 
Dhanasar framework. 
D. Balancing Factors to Determine Waiver's Benet1t to the United States 
As explained above. the third prong requires the petitioner to demonstrate 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. Here. the Petitioner claims that he is eligible for a waiver due to his knowledge and 
experience. accomplishments that arc greater than those of his peers. and the impracticality of labor 
certification. However. as the Petitioner has not established the national importance of his proposed 
5 While we find that the Petitioner is well positioned to support engineering consulting and software 
development projects. the evidence is not sufficient to demonstrate that his past work has affected the software 
development field beyond his company's projects. or that he has otherwise been integral to advancing product or process 
innovations that have garnered significant interest in the petroleum or consumer goods manufacturing industries. 
Therefore. had the Petitioner met the first prong by demonstrating that his proposed endeavor has broader implications in 
his field (such as by influencing practices in the mechanical or computational engineering fields or by developing 
innovative production methods that affect the petroleum or consumer goods manufacturing industry industries), the 
record does not show that his background and progress in those broader endeavors render him well positioned to advance 
them. 
lvfatter olN-( '_ 
endeavor as required by the first prong of the Dhanasar framework. he is not eligible for a national 
interest waiver and further discussion of the balancing factors under the third prong would serve no 
meaningful purpose. 
Ill. CONCLUSION 
As the Petitioner has not met the requisite three prongs set t(xth in the Dhanasar analytical framework. 
we find that he has not established eligibility for or otherwise merits a national interest waiver as a 
matter of discretion. 
ORDER: The appeal is dismissed. 
Cite as Matter olN-C-. ID# 860831 (AAO Dec. 14. 2017)