dismissed EB-2 NIW Case: Engineering

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: OCT. 05, 2023 In Re: 28089189 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an engineer with sales and management experience, seeks employment-based second 
preference (EB-2) immigrant classification as a member of the professions holding an advanced degree 
and/or an individual of exceptional ability, 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 Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner was eligible for, and merited as a matter of discretion, a waiver of the job 
offer requirement. 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. 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. 8 C.F.R. § 204.5(k)(2). 
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 of Dhanasar, 26 I&N Dec. 884, 889 (AAO 2016), provides the 
framework for adjudicating national interest waiver petitions. Dhanasar states that U.S. Citizenship 
and Immigration Services (USCIS) may, as matter of discretion 1, 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 Petitioner is an engineer with several years of experience as a sales engineer and in management 
positions. He proposes to serve as the general manager and head engineering consultant for I I
I I, a company he founded to provide consulting in the areas of electrical 
engineering and technical sales, and to facilitate business between companies in the United States and 
those in Ecuador and other South American countries. 
In his appeal, the Petitioner argues that by issuing a notice of intent to deny (NOID) instead of a request 
for evidence (RFE), the Director did not follow United States Citizenship and Immigration Services 
(USCIS) policy and prejudiced him by providing a shorter timeframe to respond with additional 
evidence and arguments than would have been provided in an RFE. Although 8 C.F.R. § 
103.2(b )(8)(iii) gives USCIS the discretion to issue an RFE or a NOID, neither the Act nor the 
regulations compels us to do so. In addition, since the Petitioner requested a national interest waiver, 
which is a discretionary benefit, the Director's decision to issue a NOID was in keeping with agency 
policy. See generally l USCIS Policy Manual E.6(F)(4), www.uscis.gov/policy-manual. 2 
A. Eligibility for the EB-2 Classification 
As noted by the Petitioner, the Director's decision did not include a determination regarding his 
eligibility for the EB-2 immigrant classification as either a member of the professions holding an 
advanced degree or an individual of exceptional ability. The record includes evidence of the 
Petitioner's Title of Electrical Engineer degree froml !University in Ecuador in 
2007, as well as a master's degree in industrial automation and control from the same institution in 
2015. An educational credential evaluation report concludes that this education is the equivalent of a 
bachelor's degree in electrical engineering and a master's degree in industrial automation and control 
from an accredited college or university in the United States. This evidence establishes the Petitioner's 
eligibility as a member of the professions holding an advanced degree, and thus his qualification for 
the EB-2 classification. Therefore, the sole remaining issue is whether, as a matter of discretion, the 
Petitioner merits a national interest waiver of the classification's job offer requirement. 
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 We further note that due to flexibility measures put in place in response to the COVID-19 pandemic, which were 
applicable at the time the NOID was issued, USCIS granted the Petitioner an additional 60 days to provide his response. 
That he submitted his response with approximately 30 days remaining in that period belies his claim to have been 
prejudiced by not having additional time to respond. 
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B. Substantial Merit and National Importance 
The first prong of the Dhanasar analytical framework, 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. Dhanasar, 26 I&N Dec. at 889. 
In their decision, the Director concluded that the Petitioner's proposed endeavor is of substantial merit. 
Based on the evidence of the merits of engineering consulting in the area of business, we agree. But 
the Director went on to conclude that the record was insufficient to show the proposed endeavor's 
national importance. They noted that the potential prospective impact of the Petitioner's specific 
endeavor had not been shown to broadly affect the engineering consulting industry, or to have national 
or even global implications. In addition, the Director concluded that the benefits to the local or 
regional economy from the proposed endeavor had not been demonstrated to potentially have 
substantial positive economic effects. 
On appeal, the Petitioner refers to his previously submitted evidence and arguments, asserting that the 
Director did not adequately consider his NOID response. With that response, he included an expert 
opinion letter froml la professor at University, who opined on his 
eligibility for a national interest waiver. But.______ _.letter largely repeats information found in 
the Petitioner's resume and business plan, and refers to data about the field of engineering and the 
engineering services industry in general. For example, when purporting to discuss the substantial 
positive economic effects of the Petitioner's proposed endeavor, which is a potentially positive factor 
mentioned in Dhanasar, the letter provides statistics regarding the size of the global engineering 
services market, the number of jobs in the engineering and architectural services sector in the United 
States, and the growth of the global management consulting industry. It does not explain any 
substantial positive economic effects of the Petitioner's specific proposed endeavor, which as noted 
above is the focus of the first prong of the analytical framework, and therefore does not support its 
national interest. 
The Petitioner also referred in the NOID response to his personal statement and the business plan for 
Iwhen discussing his proposed endeavor's potential positive economic effects and job 
creation, pointing out the plans to employ 15 individuals by the end of its fifth year of operation, 
including sales representatives and electrical engineers. We note that the business plan provides no 
basis for these hiring projections, providing statistics concerning broad regional and industry trends as 
opposed to specific information relating to this company and its potential clientele and workload. This 
is also the case for the business plan's sales and profit forecasts, which are projected to be 
approximately $800,000 and $100,000, respectively, at the end of the fifth year of operation. As these 
figures are not supported by relevant data and analysis specific to the Petitioner's proposed endeavor, 
they do not sufficiently demonstrate the claimed substantial positive economic effect. 
In addition to not sufficiently supporting these projections of the specific endeavor's economic impact, 
the Petitioner also has not established that those figures show that that impact would be of national 
importance. Notably, when referring to the potential to employ U.S. workers, the Dhanasar decision 
indicates that a "significant" potential, especially in an economically depressed area, "may well be 
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understood to have national importance." Dhanasar at 890. But the Petitioner has not demonstrated 
that the employment of 15 individuals, or the indirect employment of additional contractors and 
service providers, would be significant in the context of theI I Florida area where the 
business is to be located, or an a broader basis. 
The NOID response also refers to USCIS policy guidance stating that "Many proposed endeavors that 
aim to advance STEM technologies and research, whether in academic or industry settings ... have 
sufficiently broad potential implications to demonstrate national importance." See general(r 6 USCIS 
Policy Manual F.5(D)(2), www.uscis.gov/policy-manual. However, the Petitioner does not propose 
to conduct research or advance technologies in the field of electrical engineering, but to serve as a 
consultant and sales engineer to help businesses to upgrade or replace electrical machinery. And while 
he possesses an advanced degree in a STEM field, much like the petitioner in Dhanasar, STEM 
activities which do not impact a field more broadly are not of national importance. Dhanasar, 26 I&N 
Dec. at 893. 
For the reasons discussed above, we conclude that the Petitioner has not established that his proposed 
endeavor is of national importance, and he therefore does not meet the first prong of the Dhanasar 
analytical framework. 
III. CONCLUSION 
The Petitioner has established his eligibility for the EB-2 immigrant classification as a member of the 
professions holding an advanced degree. However, he has not demonstrated that his proposed 
endeavor is of national importance, and thus does not meet the first prong of the Dhanasar framework. 
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 the remaining prongs of the Dhanasar 
analytical framework. 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 an applicant is otherwise ineligible). 
ORDER: The appeal is dismissed. 
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