dismissed EB-2 NIW Case: Industrial Engineering

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAR. 29, 2024 In Re: 30185378 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for Alien Workers (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner is an industrial engineer who seeks employment-based second preference (EB-2) 
immigrant classification as a member of the professions holding an advanced degree as well as a 
national interest waiver (NIW) of the job offer requirement attached to this classification. See 
Immigration and Nationality Act (the Act) section 203(b )(2), 8 U.S.C. § l 153(b )(2). 
The Texas Service Center Director denied the Form I-140, Immigrant Petition for Alien Workers 
(petition), concluding that the record did not establish the Petitioner merits a discretionary waiver of 
the job offer requirement in the national interest. The Petitioner bears the burden of proof to 
demonstrate eligibility to U.S. Citizenship and Immigration Services (USCIS) by a preponderance of 
the evidence. Section 291 of the Act; Matter ofChawathe , 25 I&N Dec. 369, 375 (AAO 2010). We 
review the questions in this matter de novo. Matter ofChristo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 
2015). Upon de novo review, we will dismiss the appeal. 
I. LAW 
To establish eligibility for an NIW, 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. 
Once a petitioner demonstrates eligibility as either a member of the professions holding an advanced 
degree or an individual of exceptional ability, 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 NIW 
petitions. Dhanasar states that USCIS may, as matter of discretion, grant an NIW 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. 
The purely discretionary determination of whether to grant or deny an NIW rests solely with USCIS. 
See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining four U.S. Circuit Courts of Appeals in 
concluding that USCIS' decision to grant or deny an NIW to be discretionary in nature). 
II. NATIONAL INTEREST WAIVER 
The Petitioner indicates his proposed endeavor is to rely on his experience in industrial engineering, 
construction, finance, and business development to facilitate real estate and construction engineering 
projects in the United States by creating a multidisciplinary engineering company capable of 
holistically assessing projects. He asserts this will result in a more successful approach to crafting 
engineering projects and his efforts will have a particular focus on increasing the U.S. housing supply 
to meet a growing demand. 
The Director did not make a specific determination of whether the Petitioner met the requirements for 
the EB-2 classification. And before we discuss any NIW requirements, we will address one of the 
errors the Petitioner attributes to the Director. The Petitioner claims the Director failed to provide any 
meaningful review for the evidence he submitted both initially and in the request for evidence (RFE) 
response and provides as an example, articles submitted in the RFE response. A review of the 
Director's decision does not bear out the Petitioner's assertions of error. The Director not only 
mentioned the articles, but they also explained why they carried diminished evidentiary value. The 
Director explained that the articles provided useful background information relating to the industry or 
profession in which the Petitioner would work, but none of them addressed the Petitioner's proposed 
endeavor. Here, the Petitioner has not established an error attributable to the Director. 
Additionally, the Petitioner provides a lengthy analysis relating to when an RFE is, and is not, 
warranted. But we see no reason to discuss these assertions as they have no bearing on the outcome 
of our decision. The Petitioner does however, state that the failure to discuss all elements of the 
evidence submitted with the original petition and the RFE response places him at a disadvantage and 
characterizes this is a significant defect in the Director's decision. The Petitioner notes in prior cases, 
federal courts have noted that decisions failing to contemplate or discuss the entirety of the evidence 
in a filing amounts to critical error in the adjudicative process. 
In support of this concept, the Petitioner cites to Buletini v. INS, 860 F. Supp. 1222, 1233 (E.D. Mich. 
1994). The Buletini court opinion referred to the Director's failure to consider all the forms of 
evidence that the petitioner in that case submitted such as the book and the medical dictionary he 
authored, and his study that appeared in the largest circulation newspaper in that petitioner's home 
nation. Buletini, 860 F. Supp. at 1232-33. These are forms of evidence that the Buletini court 
determined that USCIS director had failed to consider; the court did not indicate that director was 
required to discuss each and every piece of evidence within the record. 
Although we agree with the Petitioner that the Director did not directly discuss every piece of evidence 
that it considers as salient to qualifying under this program, he has not established how those omitted 
documents demonstrated eligibility. In other words, the Petitioner did not demonstrate that the 
Director's failure to discuss every document in detail changed the outcome of the case; that is the 
Petitioner's burden, which he fell short of meeting. When USCIS provides a reasoned consideration to 
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the petition, and has made adequate findings, it will not be required to specifically address each claim a 
petitioner makes, nor is it necessary for it to address every piece of evidence a petitioner presents. Amin 
v. Mayorkas, 24 F.4th 383,394 (5th Cir. 2022); Martinez v. INS, 970 F.2d 973,976 (1st Cir. 1992); aff'd 
Morales v. INS, 208 F.3d 323, 328 (1st Cir. 2000); see also Pakasi v. Holder, 577 F.3d 44, 48 (1st Cir. 
2009); Kazemzadeh v. US. Atty. Gen., 577 F.3d 1341, 1351 (11th Cir. 2009). "Nothing is to be gained 
by a laundry-list recital of all evidence on the record supporting each view on every issue." Puerto Rico 
Mar. Shipping Auth. v. Fed. Mar. Comm'n, 678 F.2d 327,351 (D.C. Cir. 1982) (finding claims to be 
unpersuasive that a trier of fact "did not consider the evidence because it did not catalogue every jot and 
tittle of testimony" or evidence). 
It is not enough to demonstrate errors in an agency's decision; the Petitioner must also establish that 
they were prejudiced by the mistakes. Shinseki v. Sanders, 556 U.S. 396, 409 (2009); Molina-Martinez 
v. United States, 578 U.S. 189,203 (2016); Amin, 24 F.4th at 394. While we agree that the Director did 
not discuss every form of evidence he presented, the Petitioner doesn't establish through his appeal brief 
that these materials are sufficient to demonstrate his proposed endeavor has national importance. 
As the Petitioner has not demonstrated he was prejudiced by the lack of discussion of any evidence, even 
ifwe agreed that this was an error, such a lapse appears harmless and is insufficient grounds upon which 
to base this appeal. Errors can be overlooked when they had no bearing on the substance of an agency's 
decision. Aguilar v. Garland, 60 F.4th 401,407 (8th Cir. 2023) ( citing Prohibition Juice Co. v. United 
States Food & Drug Admin., 45 F.4th 8, 24 (D.C. Cir. 2022)). The party that "seeks to have a judgment 
set aside because of an erroneous rnling carries the burden of showing that prejudice resulted." 
Shinseki, 556 U.S. at409 (quotingPalmerv. Hoffinan, 318 U.S. 109, 116 (1943)); Molina-Martinez, 578 
U.S. at 203. 
A. Substantial Merit and National Importance (Collectively Dhanasar 's First Prong) 
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. 
Dhanasar, 26 I&N Dec. at 889. The Director did not indicate whether the Petitioner's endeavor has 
substantial merit and we will not make a determination on that matter. 
But the Director did evaluate whether the proposed endeavor has national importance. When we 
evaluate national importance, the relevant question is not the importance of the industry or profession 
in which the foreign national will work. Rather, we focus on the "the specific endeavor that the foreign 
national proposes to undertake." See Dhanasar, 26 I&N Dec. at 889. The endeavor must substantially 
benefit and "impact the field ... more broadly" (Id. at 893) as "we look for broader implications" of 
the proposed endeavor and that"[ a ]n undertaking may have national importance for example, because 
it has national or even global implications within a particular field." Id. at 889. "An endeavor that 
has significant potential to employ 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 890. Ultimately, when we evaluate whether the Petitioner's proposed endeavor 
satisfies the national importance requirement, we look to evidence illustrating the "potential 
prospective impact" of his actual proposed work. Id. at 889. 
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Within the appeal brief: the Petitioner discusses how his business plan supported his eligibility under 
Dhanasar 's first prong. Some portions of the business plan the Petitioner filed with the initial petition 
filing were in a foreign language. Without the Director prompting him to amend the business plan in 
the RFE, the Petitioner provided another business plan in the RFE response. The second business plan 
apparently corrected the foreign language issues, but several of the charts were missing data that was 
present in the initially provided version. The Petitioner also added information to other parts of the 
business plan, some of which is salient to his eligibility. For instance, the second business plan added 
the number of positions his endeavor would initially generate, as well as justification and analysis 
related to indirect job creation and the demand for his proposed endeavor. 
The Director did not identify these issues as being problematic to the Petitioner's claims even though 
they introduce the issue that he made material changes to the endeavor's business plan in between the 
initial filing and the RFE response. Material changes to a petitioner's claims are not allowed to 
improve upon their chances for a petition approval. A petitioner may not make material changes to a 
petition that has already been filed in an effort to make an apparently deficient petition conform to 
USCIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 175 (Assoc. Comm'r 1998). This 
adversely impacts the Petitioner's eligibility under the first prong as he relies on job creation to support 
his claims that the proposed endeavor has national importance. 
Next, the Petitioner raises arguments he presented in the RFE response that focused on several aspects 
of the construction and engineering industry rather than directly on his proposed endeavor. For 
instance, the Petitioner submitted a U.S. government report, a government press release, and website 
articles, none of which were about the Petitioner's proposed endeavor. In the appeal, the Petitioner 
mentions the proposed endeavor's focus on the construction and engineering broader industry while 
attempting to attribute the national importance of the broad industry to his endeavor and he explains 
how the endeavor aligns with recently enacted legislation. The Petitioner reasons that an increase in 
government investment in the construction industry through this legislation highlights the potential for 
considerable advancement, development, and participation in the construction sector. Simple 
alignment or shared common aspects with statutes relating to an industry are not sufficient to meet the 
first prong's national importance portion. In focusing on the construction and engineering industries, 
the Petitioner has not established the endeavor will substantially benefit and impact the field more 
broadly. This misplaced focus does not address the national importance requirements of the Dhanasar 
decision, nor does it adequately tie the Petitioner's endeavor to those occupational improvements. Id. 
at 893. 
We acknowledge the Petitioner intends for the endeavor to promote growth and inclusivity in the 
construction industry, to contribute to an increase in housing supply, and to meet the growing demand 
of the population. However, he has not shown that his endeavor will have substantial positive 
economic effects or impacts, which is a focus in Dhanasar for endeavors proposing to positively affect 
the economy. The Dhanasar decision explains that "[aa ]n endeavor that has significant potential to 
employ U.S. workers or has other substantial positive economic effects ... may well be understood to 
have national importance." Id. at 890. We acknowledge it isn't necessary for those effects to be 
national in scale. Still, Dhanasar does concentrate on an elevated showing from petitioners relating 
to the potential prospective impact, and on the potential to employ U.S. workers. First, petitioners 
should demonstrate "substantial positive economic effects" or impacts to a particular area, region, or 
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industry. Id. Second, simply having the potential to employ U.S. workers does not rise to the metric 
noted in Dhanasar that such potential be "significant." Id. Both of these exceed simply creating 
positive economic effects in the area, region, or industry or possible job creation, as this descriptive 
language in Dhanasar ("substantial" and "significant") carries meaning, is of particular importance 
for endeavors relating to economic improvement claims under the first prong, and is not considered 
dicta. 
In his appeal brief, the Petitioner claims his personal statements "contained ample arguments 
supported by objective documentary evidence to support the assertions therein with respect to the 
economic benefits of the Petitioner's proposed endeavor." Despite this conclusory statement, the 
evidence the Petitioner references relates to the construction industry and not to his actual proposed 
endeavor. It is insufficient, as the Petitioner asserts, that "[b ]y participating in the growth and 
development of the real estate and construction sectors, [his] endeavor is poised to not only contribute 
to economic recovery but also fuel sustained growth and prosperity." Lacking from the record is an 
indication of the extent to which the Petitioner's endeavor would make these contributions, and as 
such, a showing that his endeavor would have substantial positive economic effects rather than 
incremental or nominal impacts. 
Further, through the business plan and the remaining evidence, the Petitioner has not demonstrated the 
"significant potential to employ U.S. workers," which is a focal point in Dhanasar. Id. Even if we 
presume the business plan projections are realized, also missing is the Petitioner's explanation of the 
manner in which these forecasted figures will offer substantial economic benefits to the area or to the 
industry. The Petitioner should provide sufficient evidence to support his claims that these estimates 
rise to the level of national importance and have a broad impact in his field. Id. at 893. 
Closing his appellate discussion of the first prong, the Petitioner notes the standard of review for 
meeting each of the relevant and respective prongs in the Dhanasar decision is a preponderance of the 
evidence standard. The Petitioner subsequently states: 
It is not inherently necessary to meet each of the possible evidentiary examples 
provided in the precedent decision in order to prove that a proposed endeavor is of 
national importance. Instead, so long as a Petitioner has provided sufficient evidence 
to demonstrate that the proposed endeavor is of national importance by a 
preponderance of the evidence, the standard is met and the prong is satisfied. 
Here, it is unclear what the Petitioner means when he references "each of the possible evidentiary 
examples" originating from the Dhanasar decision, as he does not expand on this concept. However, 
we make two observations. 
First, Dhanasar itself speaks to the requirements under the preponderance of the evidence standard 
when citing to Chawathe, 25 I&N Dec. at 376 and noting "a petitioner must establish that he or she 
more likely than not satisfies the qualifying elements." Dhanasar, 26 I&N Dec. at 889 n.8. Second, 
the Petitioner's simple assertions that she submitted evidence satisfying the NIW requirements by a 
preponderance of the evidence is a perfunctory method to apply the preponderance standard. Instead, 
we follow Chawathe 's reasoning when we consider a piece of evidence by evaluating its quality, 
reviewing its contents, and finally coming to a conclusion of whether that material supports a 
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petitioner's claims. That analysis should result in an officer determining whether a petitioner has 
preponderantly demonstrated that their claims are true, and that those claims are sufficient to satisfy 
the statutory and regulatory requirements, in addition to the interpretations of those legal sources as 
outlined in precedent decisions and agency guidance. Ultimately, the truth is to be determined not by 
the quantity of evidence alone but by its quality. Chawathe, 25 I&N Dec. at 376 (citingMatterofE-M-, 
20 I&N Dec. 77, 79-80 (Comm'r 1989)). 
In other words, the process of meeting the standard isn't simply submitting evidence; it requires an 
evaluation of those materials relating to their reliability and relevance. It does not appear the Petitioner 
factored these aspects into her analysis of the preponderance standard. And it remains that making a 
determination on what the evidence establishes under this immigrant program falls to USCIS, not to 
the Petitioner. See Matter ofCaron International, 19 I&N Dec. 791, 795 (Comm'r 1988). As a result, 
the Petitioner's assertions that the previously submitted evidence satisfies his burden of proof has been 
considered, but it is not determinative of the issue. Ultimately, we stated what is required to 
demonstrate a proposed endeavor has national importance in the second paragraph of this section. We 
incorporate those mandates here by reference and conclude for the reasons discussed above that the 
Petitioner has not met those requirements. 
B. Dhanasar 's Second and Third Prongs 
As we explain above, Dhanasar 's second and third prongs require the Petitioner to demonstrate he is 
eligible for an NIW meeting additional requirements. But because the Petitioner has not established 
that his proposed endeavor satisfies the Dhanasar framework's first prong, he is not eligible for an 
NIW and further discussion of the second and third prongs would serve no meaningful purpose. 
Consequently, we will not address and we reserve the Petitioner's remaining appellate arguments. 
Patel v. Garland, 596 U.S. 328, 332 (2022) (citing INS v. Bagamasbad, 429 U.S. 24, 25-26 (1976) 
(finding agencies are not required to make "purely advisory findings" on issues that are unnecessary 
to the ultimate decision)); see also Matter of Chen, 28 I&N Dec. 676, 677 n.l, 678 (BIA 2023) 
( declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is a petitioner's burden to establish 
eligibility for the immigration benefit sought. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
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