dismissed EB-2 NIW Case: Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re: 18142718 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEP. 15, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a project engineer, seeks second preference immigrant classification as an individual 
of exceptional ability in the sciences, arts or business, as well as a national interest waiver of the job 
offer requirement attached to this EB-2 classification. See Immigration and Nationality Act (the Act) 
section 203(b)(2), 8 U.S.C. § 1153(b)(2). After a 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 national's 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 of 
Dhanasar, 26 l&N Dec. 884 (AAO 2016). 
The Director of the Texas Service Center determined that the Petitioner qualifies for the underlying 
classification as an advanced degree professional and that his proposed endeavor has both substantial 
merit and national importance. However, the Director denied the petition, concluding that the 
evidence did not establish that the Petitioner is well positioned to advance the proposed endeavor or 
that a waiver of the requirement of a job offer, and thus a labor certification, would be in the national 
interest. Accordingly, the Director determined that the Petitioner had not established eligibility for a 
national interest waiver. 
The matter is now before us on appeal. The Petitioner submits additional evidence and reasserts his 
eligibility, arguing that the Director erred in the decision. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for a national interest waiver, a petitioner must first demonstrate qualification 
for the underlying EB-2 visa classification (emphasis added), as either an advanced degree 
professional or an individual of exceptional ability in the sciences, arts, or business. Because this 
classification requires that the individual's services be sought by a U.S. employer, a separate showing 
is required to establish that a waiver of the job offer requirement is in the national interest. 
Section 203(b) of the Act sets out this sequential framework: 
(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 qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or 
who because of their exceptional ability in the sciences, arts, orb usiness, 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 are sought by an employer in the United 
States. 
(B) Waiver of job offer -
(i) National interest waiver .... [T]he 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, profess ions, or 
business be sought by an employer in the United States. 
Section 101 (a)(32) of the Act provides that "[t]he term 'profession' shall include but not be limited to 
architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, 
colleges, academics, or seminaries." 
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definitions: 
Advanced degree means any United States academic or professional degree or a foreign 
equivalent degree above that of baccalaureate. A United States baccalaureate degree 
or a foreign equivalent degree followed by at least five years of progressive experience 
in the specialty shall be considered the equivalent of a master's degree. If a doctoral 
degree is customarily required by the specialty, the alien must have a United States 
doctorate or a foreign equivalent degree. 
Exceptional ability in the sciences, arts, or business means a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business. 
Profession means one of the occupations listed in section 101(a)(32) of the Act, as well 
as any occupation for which a United States baccalaureate degree or its foreign 
equivalent is the minimum requirement for entry in the occupation. 
In addition, the 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 
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documentation that satisfies at least three of the six categories of evidence listed at 8 C.F.R. 
§ 204.5(k)(3)(ii). 
Furthermore, while neither the statute nor the pe1iinent regulations define the term "national interest," 
we set forth a framework for adjudicating national interest waiver petitions in the precedent decision 
Matter of Dhanasar, 26 l&N Dec. 884 (AAO 2016). In announcing this new framework, we vacated 
our prior precedent decision, Matter of New York State Department of Transportation, 22 l&N Dec. 
215 (Act. Assoc. Comm'r 1998). Dhanasar states that after a petitioner has established eligibility for 
EB-2 classification, USCIS may grant a national interest waiver as matter of discretion. See also 
Poursina v. USCIS, 936 F.3d 868, 2019 WL 4051593 (9th Cir. 2019) (findingUSCIS' decision to 
grant or deny a national interest waiver to be discretionary in nature). As a matter of discretion, the 
national interest waiver may be granted if the petitioner demonstrates: (1) that the foreign national's 
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. See 
Dhanasar, 26 l&N Dec. at 888-91, for elaboration on these three prongs. 
11. ANALYSIS 
The record indicates that the Petitioner earned a Ph.D. degree in engineering from a U.S. university in 
2017. Therefore, he qualifies as a member of the professions holding an advanced degree. The 
remaining issue to be determined is whether the Petitioner qualifies for a national interest waiver. For 
the reasons discussed below, we conclude that the Petitioner has not established eligibility for a 
national interest waiver under the analytical framework set forth in Dhanasar. 
A National Importance 
Although the Director determined that the Petitioner's proposed endeavor has both substantial merit 
and national importance, we withdraw the Director's finding concerning the national importance portion 
of the Petitioner's eligibility under the first Dhanasar prong. As the below discussion illustrates, we 
conclude that the evidence is insufficient to support a finding thatthe endeavor has national importance. 
The Petitioner's nontechnical job description from the Fonn 1-140 is to "[c ]onduct research in traffic 
and transportation; perform microsimulation traffic modeling and analyze traffic operations, safety, 
capacity, and flow." The Petitioner currently works as a project engineer for a private engineering 
firm called I I 1n the initial filing, the Petitioner stated that his proposed endeavor is to "continue 
his research on the level of service (LOS), traffic capacity, and vulnerability to climate change effects 
of critical transportation infrastructure." He then referred our attention to a letter from an employee 
relations manager atl I which contains the following description of the Petitioner's project 
engineer position duties: 
[The Petitioner] is responsible for microsimulation traffic modeling and traffic 
operation analysis. He works on projects related to traffic operations, traffic capacity, 
signalized intersection and freeway analyses, evaluation of current and proposed road 
geometry and road conditions utilizing state of the art computer software. [The 
Petitioner] also works on traffic safety related projects, traffic signal optimization and 
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coordination, and traffic signalization of newly proposed roads and toll roads. He has 
also been involved in roundabouts modeling, traffic forecasts, traffic signal design, and 
ITS design for traffic applications, and drafting overhead and ground mounted road 
signs. 
It is important to note that the Petitioner described his proposed endeavor as conducting research, 
whereas his employer's! descririon does not explicitly include research as part of his project engineer 
position. Although the letter mentioned that the Petitioner "is responsible for," "works on," 
and "has been involved in" various projects, such descriptions do not contain details such as the 
specific clients or customers the Petitioner serves, the specific roadways or intersections his projects 
invo Ive, nor the software he uses in his analyses. While the position title of "project engineer" suggests 
that the Petitioner has specific and discrete projects that he will carry forward, we have little 
information concerning any such projects and whether they are research-based. Becausd ldid 
not describe the Petitioner's work as research, it is not apparent whether the referenced projects are 
included within his proposed endeavor. Here, we discern a distinction between engineering duties as 
part of his project engineer role and research as part of his proposed endeavor, but we do not have 
sufficient information with which to determine whether or how they differ. Furthermore, it is not 
apparentwhetherthe Petitioner has control over which projects he works on orwhetherl !assigns 
the project workload, which is an important factor if the focus of the projects diverge from the 
Petitioner's proposed research topics. In such a case, it is not known how much time the Petitioner 
would devote to his proposed endeavor while also executing his project engineering duties for I I 
To evaluate whether the Petitioner's proposed endeavor satisfies the national importance requirement, 
we look to evidence documenting the "potential prospective impact" of his work. As research has the 
potential to impact the field differently than engineering projects would, such details are important for 
determining the potential prospective impact of the proposed endeavor. In Dhanasar, we held that a 
petitioner must identify "the specific endeavor that the foreign national proposes to undertake." Id. at 
889. Although the Director determined that the Petitioner satisfied the national importance element 
of the first Dhanasar prong, we withdraw that finding and conclude that the Petitioner has not 
sufficiently described his proposed endeavor such that national importance has been established. 
The Petitioner submitted evidence of his publications and citation record to establish how his past 
research success suggests that his future endeavor will have a similar impact. Most the Petitioner's 
research publications were produced while the Petitioner was a student and researching under the 
auspices of university faculty. Notably, the record contains little evidence of the Petitioner's research 
since he left academia and joined a private engineering firm. The record contains a copy of one 2018 
article that appears to have been published during the Petitioner's tenure atl I While the Google 
Scholar citation record from the initial filing does not list this particular publication, the updated 
citation record submitted with the Petitioner's response to the Director's request for evidence (RFE) 
lists this article as well as another article published in 2020. According to the Google Scholar 
printouts, neither article has been cited to by other researchers. While we acknowledge that this may 
simply indicate that the Petitioner has thus far spent only a limited amount of time in his current role, 
the record nevertheless does not suppmi a finding that the Petitioner's work in his current position has 
had a broad impact on the field. This is important, as it calls into question the Petitioner's claims that 
his endeavor is nationally important and will have a broader impact. 
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Even if we assume that the Petitioner conducts research as a part of his duties atl I a conclusion 
not supported by the record, this still does not adequately address how his research would be known 
widely enough to have a broader impact rising to the level of national interest. Asl lis a private 
firm that presumably solicits business from clients and customers, it is not apparent that any internal 
research discoveries would be made publicly available rather than maintained as proprietary 
information. In addition, the Petitioner does not offer a sufficiently direct connection between his 
research and the roadway or traffic safety improvements that might be produced as a result of his 
findings. To illustrate, the Petitioner has not offered a proposed timeline for when his research will 
be incorporated into roadways and intersections, which roadways and intersections will feature his 
work, or whether any specific entities have incorporated his research into their transportation 
infrastructure. Accordingly, we conclude that the Petitioner must establish a more direct connection 
between the proposed endeavor and the broader implications of it. 
We examined the recommendation letters from academics and engineers familiar with the Petitioner's 
work. The authors largely discuss the same few examples of the Petitioner's past research 
accomplishments and how the authors believe these accomplishments contributed to the field. Although 
the authors describe the Petitioner's past research work, they demonstrate little knowledge of his work 
since the Petitioner left academia and began his position withl I nor do they offer information 
concerning the Petitioner's proposed endeavor. Overall, we observe that many authors broadly report 
the same information about the Petitioner's past research topics and how his research has been cited 
by other researchers. While research must add information to the pool of knowledge in some way in 
order to be accepted for publication, this alone is insufficient to substantiate a claim of impact to the 
field. Simply asserting the claim of contribution to the field does not persuasively establish actual 
contribution. In examining the citations referenced by the authors, we observe that some citations to 
the Petitioner's work merely support the conclusion that research has been conducted in this area 
already, butnotthatthe Petitioner's work has had an impact on the field. In other words, merely citing 
to the Petitioner's work does not necessarily mean that others are utilizing his "innovations" or 
"recommendations" such that actual impact to the field may be established. Significantly, we note 
that some of the researchers who cited to the Petitioner's work also cite other researchers for the same 
concept. In this way, the record neither shows that the Petitioner's work is innovative or novel, as 
some authors claimed in their recommendation letters, nor does it show that the Petitioner, as opposed 
to other researchers in the field, have produced the claimed research impact. 
Finally, we acknowledge the articles on roadway safety and traffic accidents, which the Petitioner 
submitted in support of his national importance arguments. However, in determining national 
importance, the relevant question is not the importance of the industry or profession in which the 
individual will work; instead, we focus on the "the specific endeavor that the foreign national proposes 
to undertake." Id. at 889. While the articles offer useful background information, they are of little 
probative value in this matter as they do not discuss the impact of the Petitioner's specific proposed 
endeavor. 
As previously stated, the Petitioner has not adequately described his proposed endeavor. Furthermore, 
to the extent that his proposed endeavor can be understood, we conclude that the record does not 
contain sufficient evidence to establish its national importance. For the foregoing reasons, we withdraw 
the Director's finding concerning the Petitioner's eligibility under the first Dhanasar prong and conclude 
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instead that the evidence is insufficient and lacks the requisite detail necessary to support a finding that 
the endeavor has national importance. 
B. Whether the Petitioner is Well Positioned to Advance the Proposed Endeavor 
The second prong shifts the focus from the proposed endeavor to the Petitioner. Initially we note that 
in our precedent Dhanasar decision, we found "[t]hepetitioner's education, experience, and expertise in 
his field, the significance of his role in research projects, as well as the sustained interest of and funding 
from government entities such as NASA and AFRL, position him well to continue to advance his 
proposed endeavor of hypersonic technology research." Id. at 893. As this demonstrates, we look to a 
variety of factors in determining whether a petitioner is well positioned to advance his proposed endeavor 
and citations are merely one factor among many that may contribute to such a finding. The record 
includes documentation of the Petitioner's curriculum vitae, academic degree, grant funding for his 
academic research topics, published articles, evidence of citations to his published work, and 
recommendation letters which discuss his past research projects and accomplishments as a civil 
engineer. Additionally, in his RFE response, the Petitioner submitted updated information on his 
citation and publication records, reference materials to support the Petitioner arguments that he has a 
record of success in his field, and a letter of recommendation from I ~ ofc=] 
University in Sweden. While we do not discuss each individual piece of evidence in the record, we 
have reviewed and considered each one. 
The Petitioner relied heavily on his citation rate and publications in support of his argument that he is 
well positioned to advance his proposed endeavor; however, as previously stated, we look to a variety 
of factors in determining whether a petitioner is well positioned to advance his proposed endeavor. The 
Petitioner asserted that his research "[is] novel," "has helped [other] authors," and "was critical 
information fo~ I's study." In addition, he claimed that his work was "crucial" to other 
researchers and "had a direct impact on the direction" of a I I and I I study. 
Although the Petitioner provided the relevant articles to evidence that these researchers and others 
have cited his work, we do not find support for the Petitioner claims within the articles or within other 
evidence in the record. It is not apparent how the Petitioner can comment on what is important to or 
relied upon by other researchers, particularly if the referenced articles do not contain support for such 
claims. 
As previously discussed, the authors of the originally submitted recommendation letters discussed the 
Petitioner's past research accomplishments and how the authors believe these accomplishments 
contributed to the field. However, some of the authors offered conclusions that are not supported by 
evidence in the record. For instance,---.====;--'• a professor in the Department of Civil and 
Architectural Engineering at the University o~ ~ stated that a particu larresearcherl I 
cited the Petitioner's work in recognition of its "cutting-edge" value and that the researchers recognized 
the "validity and novelty" of the Petitioner's work. In our examination of the relevant! I article, we 
observe no commentary on the cutting-edge, valid, or novel nature of the Petitioner's work. Rather, 
I I cites to the Petitioner's and others' research to illustrate how researche7 use machine iyrnin~I 
and computational intelligence. Similarly! lstated that researcher I and 
recognized the Petitioner's research as "innovative" and found his research parameters to be "important" 
far made ling ~ecific
1
parts of the freeway. In examining the relevant article, we obseNe that although 
I I an cite the Petitioner's research, along with the research of others, they do not state or 
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even imply that the Petitioner's work is innovative or important. Accordingly, we conclude that D I lmischaracterized the Petitioner's research accomplishments. 
Likewise,! !claimed that the Petitioner's work is "cutting edge" merely because other 
researchers have cited to the Petitioner's findings. However, we conclude that simply citing to the 
Petitioner to evidence that other researchers, including the Petitioner, have examined a particular topic 
does not persuasively establish that the work is "cutting-edge." I , I also claimed that the 
Petitioner's work is important to otherresearchers and that they "relied heavily" on it. I I 
included the specific example of the I I researchers in support of this claim. In review of 
the relevant article, we observe no mention or implication that the Petitioner's work was important to 
these researchers nor does it appear that it was heavily relied upon in relation to the other researches also 
cited within the publication. Once again, it is not apparent ho~ I can comment on what is 
importantto or relied upon by other researchers, particularly if the articles he referenced do not contain 
support for such assertions. 
We may, in our discretion, use opinion statements submitted by the Petitioner as advisory. Matter of 
Caron Int'l, Inc., 19 I&N Dec. 791, 795 (Comm'r 1988). However, where an opinion is not in accord 
with other information or is in any way questionable, we are not required to accept or may give less 
weight to that evidence. Id. Because some of the authors mischaracterized how others cite the 
Petitioner's work and offered unsubstantiated claims concerning the Petitioner's influence in the field, 
we question their credibility and conclude thatthese letters are of limited probative value in this matter. 
The Petitioner argues that the funding his research received from the Florida Department of 
Transportation positions him well to advance his proposed endeavor. However, we conclude that this 
funding has I ittle relevance to the Petitioner's ability to carry out the proposed endeavor.I I 
University received the funding for a research project conducted at the university. The record does not 
indicate that the Petitioner personally, specifically, or exclusively received this funding. Second, the 
funding appears to have been for the university's research in this field, not the Petitioner's proposed 
endeavor. Third, although the Petitioner served as a graduate researcher on the team that utilized this 
grant funding, there is little indication that the Petitioner has had access to any grant funding after leaving 
academia and entering the workforce as a project engineer in a private firm. Accordingly, the Petitioner 
has not adequately established how this funding has any bearing on his ability to advance his proposed 
endeavor. 
We acknowledge the Petitioner's argument that the Director's misapplied Matter of Katigbak, 14 l&N 
Dec. 45 (Reg'l Comm'r. 1971) to reject evidence that post-dated the filing of the petition. While we agree 
that the Director did not specifically identify any evidence rejected for consideration, the Petitioner must 
nevertheless establish his eligibility at the time of filing for the immigration benefit. See 8 C.F.R. § 
103.2(b)(1). A visa petition may not be approved based on speculation of future eligibility or after the 
petitioner or beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 
17 I&N Dec. 248, 249 (Reg'l Comm'r 1978). As it pertains to the second Dhanasar prong, the 
Petitioner must establish that he is well positioned to advance the endeavor at the time of filing. 
Accordingly, any improved positioning that comes about after the filing of the petition, such as newly 
acquired funding or increased acclaim for his work, is not persuasive in establishing eligibility at the 
time of filing. 
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As previously noted in our national importance discussion, the Petitioner has not described his endeavor 
with sufficient detail. We do not know what specific engineering projects the Petitioner will work on or 
how they fit within his proposal to perform research. In addition, we also noted that the Petitioner has 
not identified any specific clients he works with, or any intersections or roadways where his research will 
be applied. Accordingly, he has not provided a sufficient model or planforfutureactivities, which inhibits 
our examination of the progress he has made towards achieving the proposed endeavor. As fully 
explained above, the university funding from the Florida Department of Transportation does not pertain 
to the Petitioner's proposed endeavor and therefore does not represent interest from potential customers, 
users, investors, or other relevant entities or individuals. Although the Petitioner has published research 
and obtained an advanced degree in his field, these factors alone are insufficient to establish that he is 
well positioned to advance his endeavor, particularly when the success of his research has not been 
substantiated. Here, we incorporate by reference our prior discussions of the Petitioner's claimed 
accomplishments in the field, the recommendation letters submitted on his behalf, and others' citations 
to his work. 
As the record is insufficient to show that the Petitioner is well positioned to advance his proposed 
research endeavor, he has not established that he satisfies the second prong of the Dhanasar 
framework. 
C. National Interest Waiver 
Because the documentation in the record does not establish the national importance of the Petitioner's 
proposed endeavor as required by the first prong of the Dhanasar precedentdecisionorthatthe Petitioner 
is well positioned to advance the proposed endeavor under the second prong, the Petitioner has not 
demonstrated eligibilityfor a national interest waiver. Further analysis of his eligibility under the third 
prong outlined in Dhanasar, therefore, would serve no meaningful purpose. 
Ill. CONCLUSION 
The Petitioner qualifies for classification as a member of the professions holding an advanced degree 
under section 203(b)(2)(A) oftheAct. However, the evidence has notshownthatthe proposed endeavor 
is of national importance or that the Petitioner is well positioned to advance it. As such, he has not 
established that a waiver of the job offer and labor certification would be in the national interest of the 
United States. Accordingly, the Petitioner has not established eligibility for the immigration benefit 
sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 l&N Dec. 127, 128 (BIA 
2013). 
ORDER: The appeal is dismissed. 
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