dismissed EB-2 NIW Case: Industrial Engineering

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: AUG. 26, 2024 In Re: 32717456 
Appeal of Nebraska Service Center Decision 
Form I-140, Immigrant Petition for Alien Worker (National Interest Waiver) 
The Petitioner, an industrial engineer, seeks employment-based second preference (EB-2) immigrant 
classification as an advanced degree professional or an individual of exceptional ability, as well as a 
discretionary 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 Nebraska Service Center denied the petition, concluding that although the 
Petitioner qualifies for the EB-2 classification as an advanced degree professional, the record did not 
establish that a waiver of the required job offer, and thus labor certification, would be in the national 
interest. This matter is now before us on appeal, which we review de novo. Matter ofChristo 's, Inc., 
26 I&N Dec. 537, 537 n.2 (AAO 2015). The Petitioner bears the burden of establishing his eligibility 
by a preponderance of the evidence. Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). 
Upon de novo review, we will dismiss the appeal. 
I.LAW 
To be eligible for a national interest waiver, a petitioner must first establish eligibility for the 
underlying EB-2 visa classification, as an advanced degree professional or an individual of exceptional 
ability in the sciences, arts, or business. Section 203(b)(2)(A), (B) of the Act; 8 C.F.R. § 204.5(k)(l). 
If a petitioner establishes eligibility for the underlying EB-2 classification, they must then demonstrate 
that they warrant a discretionary waiver of the job offer requirement "in the national interest." 
Section 203(b)(2)(B)(i) of the Act. MatterofDhanasar, 26 I&NDec. 884,889 (AAO 2016), provides 
the framework for adjudicating national interest waiver petitions, which states that U.S. Citizenship 
and Immigration Services (USCIS) may, as matter of discretion, 1 grant a national interest waiver if 
the petitioner establishes that: (1) the proposed endeavor has both substantial merit and national 
importance; (2) they are well-positioned to advance their proposed endeavor; and (3) on balance, 
waiving the job offer and thus labor certification requirements would benefit the United States. Id. 
1 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts in holding 
that USCIS ' decision on a national interest waiver is discretionary in nature). 
II. EB-2 CLASSIFICATION 
As a preliminary matter, to establish that a petitioner holds a qualifying advanced degree, the petition 
must be accompanied by an official academic record evidencing a U.S. advanced degree or a foreign 
equivalent degree. 8 C.F.R. § 204.5(k)(3)(i)(A). For EB-2 classification purposes, "advanced degree" 
means a U.S. academic or professional degree or a foreign equivalent degree above that of a 
baccalaureate; and a U.S. 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. 
8 C.F.R. § 204.5(k)(2). In lieu of an academic or professional degree above that of a baccalaureate, a 
petitioner thus may alternatively present an official academic record evidencing a U.S. baccalaureate 
or a foreign equivalent degree, and evidence in the form ofletters from current or former employer(s) 
demonstrating at least five years of progressive post-degree experience in the specialty. 
8 C.F.R. § 204.5(k)(2), (k)(3)(i)(B). Evidence of qualifying experience must be in the form ofletters 
from current or former employers and shall include the name, address and title of the writer and a 
specific description of the duties performed, but if that evidence is unavailable, other documentation 
will be considered. 8 C.F .R. § 204.S(g)(l ). 
We agree with the Director's determination that the Petitioner has a foreign degree equivalent to a 
U.S. bachelor's degree as evidenced by his engineering diploma and school records from a Russian 
university, which show that his diploma is comparable to a four-year degree in the United States. 
However, we disagree with the Director's determination that the Petitioner has at least five years of 
progressive post-degree experience in the specialty, as required. 8 C.F.R. § 204.5(k)(2). In support 
of the requisite experience, the Petitioner submitted a letter from G-Z-2, the head of an aviation plant, 
stating that the Petitioner worked there as a production engineer from January 2018 to October 2019 
(one year and 10 months), and then from January 2022 to September 2022 (nine months). This letter, 
which is the only evidence he submitted to verify his post-degree experience, indicates that he worked 
at the aviation plant less than three years and it is unclear whether he worked there on a full-time basis. 
The Petitioner admits, and his resume, diploma, and the accompanying ETA Form-750 clearly show, 
that he obtained his bachelor's degree in June 2017 and he subsequently worked for the plant only 
during the above time periods from January 2018 to September 2022 for less than three years; and he 
does not claim, and the record does not indicate, he worked there since then and before he filed his 
petition. While we acknowledge G-Z's and the Petitioner's statements that he also worked at the same 
plant as an intern for over two years from 2015 to June 2017, this experience does not qualify as it 
was prior to obtaining his diploma. Consequently, the evidence does not establish that he has the 
requisite post-degree experience, and we therefore withdraw the Director's finding to the contrary. 3 
III. NATIONAL INTEREST WAIVER 
Regardless of a petitioner's underlying EB-2 classification eligibility, they still must show that they 
warrant a discretionary national interest waiver by satisfying Dhanasar's all three prongs, the first of 
2 We use initials to protect individuals' privacy. 
3 The Director did not address whether the Petitioner qualifies for the EB-2 classification based on exceptional ability. 
And on appeal, the Petitioner does not specifically claim that he is an individual of exceptional ability. Given our 
determination as further discussed below is dispositive of this appeal, we do not independently reach this issue here. 
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which focuses on "substantial merit" and "national importance" of the specific endeavor they propose 
to undertake. Dhanasar, 26 I&N Dec. at 889. The endeavor's merit may be shown in a range of areas 
such as business, entrepreneurialism, science, technology, culture, health, or education. In evaluating 
whether the endeavor has national importance, we consider its potential prospective impact. Id. 
The Director concluded, in part, that although the Petitioner's proposed endeavor has substantial merit, 
the evidence did not establish that it is of national importance as required under the first prong of the 
Dhanasar framework. We agree. 
The Petitioner intends to work as an industrial engineer and administrative and facilities manager. On 
appeal, he alleges that the Director did not consider all relevant evidence in assessing the claimed 
national importance of his proposed endeavor and failed to provide a proper analysis. 
As an initial matter, the Director found that the Petitioner's business plan and assertions submitted in 
response to a request for evidence (RFE) regarding his new position as a chief executive officer (CEO) 
of his engineering firm constituted a material change to his proposed endeavor as described in his 
personal statement he provided at the time of filing. We agree with the Director's determination. 
If the Petitioner's RFE response proposes an activity in an entirely different field or occupation, that 
may be considered as a material change to the petition and disregarded on appeal. Matter ofIzwnmi, 
22 I&N Dec. 169, 175 (Assoc. Comm'r 1998) (holding that a petitioner may not make material 
changes to a petition to make otherwise a deficient petition conform to USCIS requirements); see also 
8 C.F.R. § 103.2(b)(l) (stating that petitioners must establish eligibility at the time of filing); 
Matter ofKatigbak, 14 I&N Dec. 45, 49 (Reg. Comm'r 1971) (same). In his personal statement filed 
with his petition, the Petitioner unequivocally stated that his proposed endeavor is to work as "an 
independent contractor" as "an industrial engineer" and also work "in administrative and facilities 
management." But the business plan he submitted in response to the RFE, without further explanation, 
states that he will open and operate his own company and manage numerous employees, including 
engineers, and lead the firm as a CEO. The business plan also lists and describes the Petitioner only 
as a CEO, rather than an engineer or administrative manager as he initially proposed. Moreover, as 
the Director found, the business plan, without any independent evidence, proposes a number of 
prospective employees and financial projections for his company, whereas the Petitioner's initially 
proposed work primarily as an independent industrial engineer lacked any entrepreneurial goals or 
related projections. Thus, the Petitioner's changing roles, initially from an independent engineer and 
administrative manager at the time of filing then later to a business leader performing purely executive 
functions as descried in the business plan in response to the RFE, impedes our ability to assess whether 
his proposed endeavor has national importance. Other than generally alleging that the Director 
miscited Matter ofKatigbak, the Petitioner does not meaningfully dispute the Director's finding that 
the new role as a CEO materially changes his initially proposed role as an independent contractor, and 
he does not cite any relevant legal authority for the proposition that such a change is not material. 
Even if the proposed endeavor as described in the RFE response merely clarifies the proposed 
endeavor in the Petitioner's initial statement, the totality of the evidence, including the business plan, 
does not show that it has national importance. As stated, in determining whether the proposed 
endeavor has national importance, we consider its potential prospective impact and look for evidence 
that may be indicate national importance. Matter ofDhanasar, 26 I&N Dec. at 889-890. Although 
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the Petitioner's proposed endeavor as an industrial engineer and now also as CEO of his engineering 
firm has substantial merit, the record does not establish that it would have significant potential to 
employ U.S. workers, have substantial positive economic impact, broadly impact the industry beyond 
his career and potential customers, or otherwise have broader economic or societal implications rising 
to the level of national importance. 
In reasserting that his proposed endeavor has national importance, the Petitioner primarily relies on 
his academic credentials and professional experience, as indicated in his resume, personal statement, 
business plan, support letters, as well as the same market information included in the industry articles 
he submitted below pertaining to the claimed importance of the engineering and manufacturing fields. 
He further reasserts that, given his background and skills, which he claims ideally position him for the 
market and its high demands, his work as an engineer and CEO will have substantial positive economic 
and societal impact. But the referenced evidence focuses on the Petitioner's experience and expertise 
and specifically pertains to Dhanasar' s second prong, which "shifts the focus from the proposed 
endeavor to the foreign national." Id. at 890. For assessing the national importance of a proposed 
endeavor under Dhanasar's first prong, we look to its "potential prospective impact." Id. at 889. 
Thus, as relevant here, we assess whether the specific endeavor he proposes to undertake has broader 
national or global significance, rather than on his experience and expertise or on the importance of the 
field or industry in which he proposes to engage based on his qualifications. Id. Here, as an engineer 
and CEO of his company, the Petitioner proposes to lead and expand his company by utilizing his 
expertise and "the latest technologies" in delivering "innovative, sustainable, and cost-effective 
engineering solutions." He further claims his company will be "a trusted industry leader." However, 
the record does not contain any evidence that his claimed innovative, industry-leading methods were 
or would be adopted by the industry, made any impact in the field, or otherwise have far-reaching 
implications. Further, the industry reports he submitted, which were also incorporated into his 
business plan, generally highlight the importance of the engineering, manufacturing, and infrastructure 
fields, rather than their significance in relation to the Petitioner's specific endeavor. Although we 
acknowledge that the proposed endeavor could have a positive impact on his career and business, the 
Petitioner has not persuasively explained, and the record, including his business plan, does not 
demonstrate how his work would have the broader implications for the industry and U.S. economy as 
he claims, beyond his business and potential customers. 
The record, for instance, does not show that the proposed endeavor would have "significant potential 
to employ U.S. workers" or "substantial positive economic effects, particularly in an economically 
depressed area," which may indicate national importance. Id. at 890. The Petitioner's business plan 
includes an organizational chart and a five-year plan listing him as CEO initially overseeing two 
employees; and by year five, six employees comprising a production manager, operations manager, 
designer, bookkeeper, sales and marketing associate, and engineers. The business plan projects that 
by the fifth year of the firm's operation, it will have a total revenue of $3.5 million, total expenses of 
nearly $2. 9 million, and remaining net income of about $610,000. However, these figures, which the 
Petitioner claims represent potentially significant economic impact, lack corroborating evidence that 
would objectively substantiate them. Further, while the business plan also includes personal and 
organizational plans and general duty descriptions, the record, including his business plan, aspirational 
assertions, support letters, and industry reports, does not contain any evidence-based justifications for 
the staffing projections and the claimed need for operation expansion and increased number of 
employees. The record also does not reflect whether or how any of his proposed services would 
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actually help an economically depressed area. Even assuming the accuracy of the financial and 
employment projections, the evidence does not show how a small business with the stated projections 
indicates national economic significance. The record therefore does not establish that the Petitioner's 
proposed endeavor has significant potential to employ U.S. workers or will have substantial positive 
economic effects that may indicate national importance. Although the Petitioner continues to highlight 
that his proposed endeavor also will have major economic impact by indirectly generating hundreds 
of jobs and residual economic activities, the record does not support that the claimed indirect impact 
would be directly attributable to his proposed work. 4 
Lastly, the record also includes letters from individuals indicating a general willingness to invest in 
and obtain services from the Petitioner's company. However, they do not contain any detail as to the 
economic impact the Petitioner claims the potential investments would generate, and they do not speak 
to his specific proposed endeavor or how it has broader implications to the field and industry beyond 
his own business and clients. The support letters also lack independently corroborating evidence, as 
the letter writers only state their general intent without any specific terms that would be binding. 
While the Petitioner continues to express his desire to contribute to the U.S. engineering industry and 
its economy, he has not established with specific, probative evidence that his proposed endeavor will 
have broader implications in his field, have significant potential to employ U.S. workers, or have other 
substantial positive economic or societal effects. See Matter of Chawathe, 25 I&N Dec. at 375-76 
(holding that in reviewing the record we consider not only the quantity, but also the quality, including 
relevance and probative value, of the evidence). The Petitioner therefore has not demonstrated that 
his proposed endeavor has broader national importance as contemplated by the Dhanasar framework. 
As the identified ground for denial, the Petitioner's inability to meet Dhanasar's first prong, is 
dispositive of this appeal, we decline to reach the remaining appeal arguments as to the Director's 
findings that he also did not meet the second and third prongs of the Dhanasar framework. See, e.g., 
INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (stating that agencies are not required to reach issues that 
are unnecessary to the ultimate decision). 
ORDER: The appeal is dismissed. 
4 The Petitioner also submits new documents on appeal, comprising a support letter, a training certificate, and an amended 
business plan, which now projects by year five 29 employees (five times the initial staffing projection) and includes 
adjusted financial figures, also increased manyfold. But the Director's RFE specifically notified the Petitioner of the 
evidentiary deficiency and provided him an opportunity to submit additional evidence, in response to which he submitted, 
inter alia, his initial business plan. We therefore decline to consider the new documents on appeal. 8 C.F.R. § I03.2(b)(l l) 
(requiring all requested evidence be submitted together at one time); Matter ofSoriano, 19 T&N Dec. 764, 766 (BIA 1988) 
( declining to consider new evidence on appeal where the petitioner was put on notice of the required evidence and given 
a reasonable opportunity to provide it before the denial). Even if the updated business plan were considered, it also lacks 
explanation and independent evidence for the increased projections and does not othenvise establish national importance. 
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