dismissed EB-2 NIW Case: Industrial And Mechanical Services

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: AUG. 27, 2024 In Re: 33358439 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner seeks employment-based second preference (EB-2) immigrant classification as 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 the record did not establish 
the Petitioner was an individual of exceptional ability and that a waiver of the required job offer, and 
thus of the labor certification, would be in the national interest. 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 qualify for the underlying EB-2 visa classification, a petitioner must establish they are an advanced 
degree professional or an individual of exceptional ability in the sciences, arts, or business. Section 
203(b )(2)(A) of the Act. 
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 If 
a petitioner does so, we will then conduct a final merits determination to decide whether the evidence 
in its totality shows that they are recognized as having the requisite degree of expertise and will 
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 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-p art-f-chapter-5 . 
substantially benefit the national economy, cultural or educational interests, or welfare of the United 
States. Section 203(b )(2)(A) of the Act. 
If a petitioner establishes eligibility for the underlying EB-2 classification, they must then demonstrate 
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,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. 
Id. 
II. ANALYSIS 
A. Exceptional Ability 
The Director concluded the Petitioner met three of the six evidentiary criteria at 8 C.F.R. 
§ 204.5(k)(3)(ii)(A), (B), and (C), but that, upon review of the evidence its totality, had not established 
that he is recognized as having a degree of expertise significantly above that ordinarily encountered in 
the field. While we agree with the Director's ultimate conclusion, for the reasons discussed below, 
we disagree the Petitioner meets the criteria at 8 C.F.R. § 204.5(k)(3)(ii)(B) and (C). On appeal, the 
Petitioner maintains he qualifies for EB-2 classification as an individual of exceptional ability. 
Evidence in the form ofletter(s)from current or former employer(s) showing that the individual has 
at least ten years offull-time experience in the occupation for which he or she is being sought. 
8 C.F.R. § 204.5(k)(3)(ii)(B). 
Upon review, we disagree with the Director's conclusion that the Petitioner met this criterion, and 
hereby withdraw it. Two of the letters, which are not on letterhead, are from a contract coordinator 
and a planning technician and a third letter, although it is on letterhead, was written by an 
administrative assistant. The Petitioner has not established that these letters are from "current or 
former employer(s)," as opposed to colleagues for example, as required by the plain language of the 
regulation. As a result, the Petitioner has only established work experience from July 1, 2013 until 
October 9, 2015 and from December 21, 2015 until April 8, 2017. Without additional letters from his 
"current or former employer(s)," as required, we cannot conclude he has established he has at least ten 
years of full-time experience and meets this criterion. 
3 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts (and Third 
in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver is discretionary 
in nature). 
2 
A license to practice the profession or certification for a particular profession or occupation. 
8 C.F.R. § 204.5(k)(3)(ii)(C). 
We also disagree with the Director's determination that the Petitioner met this criterion, and hereby 
withdraw it. In support, the Petitioner provided a copy of his "Individual Registration and Good 
Standing Certificate" from the Regional Council oflndustrial Technicians, indicating he is "registered 
in this Council" and "is not in debt." Beyond a printout of the "Our story" section from their website, 
the Petitioner has not provided sufficient evidence to establish that this qualifies as a certification for 
a particular occupation. 4 Therefore, he has not established that he meets this criterion. 
The Petitioner has had a successful career in Brazil. But the record does not establish that he meets at 
least three of the evidentiary criteria at 8 C.F.R. §§ 204.5(k)(3)(ii)(A) through (F). Since the Petitioner 
did not satisfy the initial evidence requirements, we need not conduct a final merits analysis to 
determine whether the evidence in its totality shows that he is recognized as having a degree of 
expertise significantly above that ordinarily encountered in the sciences, arts, or business. 8 C.F.R. 
§ 204.5(k)(2). 
Because the Petitioner has not established eligibility for the underlying EB-2 classification, the petition 
is not approvable on this basis alone. 
B. National Interest Waiver 
The Petitioner's proposed endeavor is to establish a company in I I Louisiana that 
specializes "in construction and industrial assembly of metallic structures and mechanical maintenance 
services." The Petitioner stated that he intends "to contribute to the strengthening of the American 
economy and generate more direct and indirect jobs for American workers." 
The Director determined that the Petitioner's proposed endeavor was of substantial merit, and we 
agree. However, the Director concluded the Petitioner did not establish that his proposed endeavor 
has national importance. 
On appeal, the Petitioner contends the Director did not give due regard to the evidence submitted, 
specifically his resume, business plan, documentation of his work in the field, letters of 
recommendation, and industry reports and articles. He asserts he has demonstrated the national 
importance of his proposed endeavor consistent with the first prong of the Dhanasar framework. 
The first 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. 
Id. at 889. We look for broader implications. An endeavor that has significant potential to employ 
4 Profession is defined as one of the occupations listed in section 101 (a)(32) of the Act, as well as any occupation for which 
a U.S. baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation. 8 C.F.R. 
§ 204.5(k)(2). As the record does not establish that an industrial/mechanical technician meets the definition of a profession, 
the Petitioner must establish that this is a certification for a particular occupation. 
3 
U.S . workers or has other substantial positive economic effects, particularly in an economically 
depressed area, for instance, may well be understood to have national importance . Id. at 889-890. 
Here, the Petitioner has not shown that the specific endeavor he proposes to undertake has significant 
potential to employ U.S. workers or otherwise offers substantial positive economic effects for the 
United States. Specifically, the Petitioner has not demonstrated that his company's future staffing 
levels and business activity stand to provide substantial economic benefits in Louisiana or the United 
States. While the Petitioner claims his company plans to hire 57 employees, generate direct and indirect 
jobs, and has the potential to employ U.S. workers and will bring substantial positive economic effects, 
particularly in economically depressed areas, he has not provided a basis for these projections or presented 
evidence indicating that the benefits to the regional or national economy resulting from his undertaking 
would reach the level of "substantial positive economic effects" contemplated by Dhanasar. Id. at 890. 
In addition, although the Petitioner asserts that his endeavor stands to create substantial benefits to the 
U.S. economy, he has not offered sufficient evidence that the area where his company plans to operate 
in Louisiana will be an area that is economically depressed, that he would employ a significant 
population of workers in that area, or that his endeavor would offer the region or its population a 
substantial economic benefit through employment levels, tax revenue, or business activity. While any 
basic economic activity has the potential to positively impact the economy, the Petitioner has not 
demonstrated how the economic activity of his proposed endeavor would rise to the level of national 
importance. 
The Petitioner highlights the shortage of refinery operators and industrial maintenance professionals . 
However, the national shortage of refinery operators and industrial maintenance professionals is not, 
in and of itself, sufficient to establish the national importance of the Petitioner's endeavor. Further, 
the Department of Labor directly addresses U.S. worker shortages through the labor certification 
process. 
While the Petitioner's statements reflect his intention to own and operate a construction and 
mechanical maintenance services company, the Petitioner has not offered sufficient information and 
evidence to demonstrate that the prospective impact of his proposed endeavor rises to the level of 
national importance . 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. Id. 
at 893. Here, we similarly conclude the record does not show that the Petitioner's propose d endeavor 
stands to sufficiently extend beyond his clients to impact the industry more broadly at a level 
commensurate with national importance . Nor has he documented that the particular work he proposes 
to undertake offers original innovations that contribute to advancements in construction and 
mechanical maintenance services or otherwise has broader implications for his field. For a ll these 
reasons, the Petitioner 's proposed endeavor does not meet the first prong of the Dhanasar framework. 
Because the Petitioner has not established eligibility under the first prong of the Dhanasar test, we 
need not address his eligibility under the remaining prongs, and we hereby reserve them. 5 The burden 
of proof is on the Petitioner to establish that he meets each eligibility requirement of the benefit sought 
5 See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("courts and agencies are not required to make findings on issues the 
decision of which is unnecessary to the results they reach"); see also Matter ofL-A-C-, 26 l&N Dec. 516, 526 n. 7 (BIA 
2015) ( declining to reach alternate issues on appeal where an applicant is otherwise ineligible). 
4 
by a preponderance of the evidence. Matter of Chawathe, 25 I&N Dec. at 375-376. The Petitioner 
has not done so here and, therefore, we conclude that he has not established eligibility for a national 
interest waiver as a matter of discretion. 
ORDER: The appeal is dismissed. 
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