dismissed EB-2 NIW Case: Mechanical Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re: 8207855 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JUNE 3, 2020 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, an entrepreneur, seeks second preference immigrant classification as a member of the 
professions holding an advanced degree and as an individual of exceptional ability, 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). 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
qualify for classification as a member of the professions holding an advanced degree or as an 
individual of exceptional ability, and that he had not had not established that a waiver of the required 
job offer, and thus of the labor certification, would be in the national interest. 
On appeal, the Petitioner submits additional documentation and a brief asserting that he is eligible for 
EB-2 classification and a national interest waiver. 
In these proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit 
sought. Section 291 of the Act, 8 U.S.C. § 1361. 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. 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, or business, 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 ofjob 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, professions, or 
business be sought by an employer in the United States. 
While neither the statute nor the pertinent 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 I&N Dec. 884 (AAO 2016). 1 Dhanasar states that after a petitioner has established 
eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) may, as matter 
of discretion 2, 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. 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
foreign national 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. 
The second prong shifts the focus from the proposed endeavor to the foreign national. To determine 
whether he or she is well positioned to advance the proposed endeavor, we consider factors including, 
but not limited to: the individual's education, skills, knowledge and record of success in related or 
similar efforts; a model or plan for future activities; any progress towards achieving the proposed 
endeavor; and the interest of potential customers, users, investors, or other relevant entities or 
individuals. 
The third prong requires the petitioner to demonstrate 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. In performing 
this analysis, USCIS may evaluate factors such as: whether, in light of the nature of the foreign 
national's qualifications or the proposed endeavor, it would be impractical either for the foreign 
national to secure a job offer or for the petitioner to obtain a labor certification; whether, even assuming 
1 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) (NYSDOT). 
2 See also Poursina v. USC1S. No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or 
deny a national interest waiver to be discretionary in nature). 
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that other qualified U.S. workers are available, the United States would still benefit from the foreign 
national's contributions; and whether the national interest in the foreign national's contributions is 
sufficiently urgent to warrant forgoing the labor certification process. In each case, the factor(s) 
considered must, taken together, indicate 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. 3 
II. ANALYSIS 
A. Translations 
Any document in a foreign language must be accompanied by a foll English language translation. 
8 C.F.R. § 103.2(b)(3). The translator must certify that the English language translation is complete 
and accurate, and that the translator is competent to translate from the foreign language into English. 
Id. In denying the petition, the Director stated that the English language translations of the Petitioner's 
foreign language documents were not properly certified as required by the aforementioned regulation. 
The Petitioner argues on appeal that the Director erred in concluding that he had not provided properly 
certified English language translations of his documents. Our review of the record indicates that the 
Petitioner provided six Certificate(s) of Translation from Languex Translation LLC each listing 
multiple documents that were translated from Portuguese to English. These certificates stated: "We 
Languex LLC, a professional translation company, hereby certify that the above mentioned documents 
have been translated by experienced and qualified professional translators and that, in our best 
judgment the translated text truly reflects the content, meaning, and style of the original document." 
The aforementioned Certificates of Translation and accompanying English language translations 
sufficiently comply with the requirements of the regulation at 8 C.F.R. § 103.2(b)(3). Accordingly, 
the Director's determination on this issue is withdrawn. 
B. Member of the Professions Holding an Advanced Degree 
In order to show that a petitioner holds a qualifying advanced degree, the petition must be accompanied 
by "[a]n official academic record showing that the alien has a United States advanced degree or a 
foreign equivalent degree." 8 C.F.R. § 204.5(k)(3)(i)(A). Alternatively, a petitioner may present "[a]n 
official academic record showing that the alien has a United States baccalaureate degree or a foreign 
equivalent degree, and evidence in the form of letters from current or former employer(s) showing that 
the alien has at least five years of progressive post-baccalaureate experience in the specialty." 8 C.F.R. 
§ 204.5(k)(3)(i)(B). 
The Petitioner presented his Mechanical Engineering diploma (1975) and school transcript from the 
Technological Institute ofl I as well as an academic credential evaluation indicating 
that the aforementioned diploma is the foreign equivalent of a Bachelor's degree in Mechanical 
Engineering from an accredited college or university in the United States. In the decision denying the 
petition, the Director indicated that without certified English language translations of the Petitioner's 
diploma and transcript, USCIS was unable to determine whether he qualified as a member of the 
professions holding an advanced degree. As discussed previously, the English language translations 
3 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
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accompanying the Petitioner's documents sufficiently comply with the requirements of the regulation 
at 8 C.F.R. § 103.2(b)(3), and therefore we withdraw the Director's determination on this issue. 
In addition, the Petitioner submitted letters from employers and other corroborating evidence 
demonstrating that he has at least five years of progressive post-baccalaureate experience in mechanical 
engineering and production management to constitute the equivalent to an advanced degree in his 
specialty. See 8 C.F.R. § 204.5(k)(2) and 8 C.F.R. § 204.5(k)(3)(i)(B). He has established therefore 
that he qualifies for classification as a member of the professions holding an advanced degree. 4 
C. National Interest Waiver 
The remaining issue is whether the Petitioner has established that a waiver of the requirement of a job 
offer, and thus a labor certification, is in the national interest. The regulation at 8 C.F.R. § 204.5(k)(4)(ii) 
states, in pertinent part, "[t]o apply for the [national interest] exemption the petitioner must submit 
Form ETA-750B, Statement of Qualifications of Alien, in duplicate." The Petitioner did not execute 
this required document for the petition, and therefore he has not properly applied for the national 
interest waiver. For this reason, the Petitioner has not established eligibility for the benefit sought. 
Furthermore, as discussed below, we agree with the Director that the Petitioner has not established 
eligibility for a national interest waiver under the analytical framework set forth in Dhanasar. 
Regarding his claim of eligibility under Dhanasar' s first prong, the Petitioner indicated that his proposed 
work as an entrepreneur involves "development of his new business endeavor intended for the United 
States, and branded asl I a fitness and sports training equipment company." He stated that "the 
primary product forl lis that of an aerobic, strength and fitness treadmill design ... with design 
enhancements made by [the Petitioner] through his technical mechanical engineering background." The 
Petitioner further explained that he plans to "reach across international borders through the export of his 
health and fitness industry product" from Brazil, "thereby expanding its positive health influences to 
developing countries." In addition, he asserted that his proposed endeavor stands to bolster "the U.S. Job 
market and economy through his success in expansion of sales, trade, and distribution. This will cause 
other U.S. businesses and manufacturers to benefit from its planned expansion needs." 
In response to the Director's request for evidence (RFE), the Petitioner presented a "Business Plan" he 
developed fo~ 15 His business plan states: 
~-----~ . . . will be a Florida-based company which will import fitness and 
training equipment designed in Brazil. The products are designed by the Brazilian 
affiliates' companies. Following the successful establishment of the Company's 
operations, it will start the design of a new product line intended for both the U.S. market 
and to be exported to Canada, Latin America, and the European Union. 
4 Because the Petitioner qualifies for the underlying visa classification as a member of the professions holding an advanced 
degree, discussion of his eligibility as an individual of exceptional ability would serve no meaningful purpose. 
5 The Petitioner's response air included dacnrentation from the Florida Department of State indicating that he filed 
"Articles of Organization" for~----~ on August 31, 2018. We note that the Petitioner formed this company 
after he filed the petition. Eligibility, however, must be established at the time of filing. See 8 C.F.R. § 103.2(b )(1 ). 
4 
This plan includes market analyses, information about competitors, financial forecasts and projections, 
and a description of company management and personnel. 6 The Petitioner maintained that his 
proposed endeavor "is beyond borders, as it utilizes E-Commerce and national chain outlets through 
Walmart and Amazon for its sales, and wholesale distribution, as set forth in the Business Plan." He 
further indicated that "his endeavors as an entrepreneur are devoted to creating jobs where none were 
before, and as the Business Plan projects." 
Additionally, the Petitioner pointed to the U.S. Department of State's "National Interests and Strategic 
Goals" for "Economic Prosperity" which state: 
To expand exports and open markets, assist American Business, foster economic 
growth, and promote sustainable development. 
• Open Markets - Open world markets to increase trade and free the flow of 
goods, services and capital. 
• U.S. Exports - Expand U.S. exports to $1.2 trillion early in the 21st century. 
• Global Economic Growth - Increase global economic growth and stability. 
• Economic Development - Promote broad-based, sustainable growth in 
developing countries and transitional economies. 
The Petitioner asserted that his proposed endeavor is aimed at "carrying out his goals of expansion 
and trade," integrating his business with "developing countries," and contributing to "the health and 
welfare of these economies through his expansion." He contended that his undertaking involves 
"expanding global trade, promoting the health, welfare, and economies of developing nations and at 
the same time that of the United States." He also argued that his proposed work offers "newer business 
opportunities through his tum-around 'core restructurings' he envisions to naturally flow as a direct 
effect from his immersion in the 'E-Commerce' marketplace in the United States." The record 
therefore shows that the Petitioner's proposed endeavor as a fitness products entrepreneur has 
substantial merit. 
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." See Dhanasar, 26 I&N Dec. at 889. In Dhanasar, we further 
noted that "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. We also stated that "[a]n 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 890.7 
6 Regarding future staffing. the Petitioner's business plan anticipates thatl I will have three employees in 
year one, four employees in year two, and ten employees in year three. In addition, his plan offers sales projections of 
$449,985 in year one, $877,477 in year two, and $5,046,105 in year three. The Petitioner, however, does not adequately 
explain how these sales forecasts were calculated. 
7 In the present matter. the Director determined that the Petitioner had "not established that the proposed endeavor is of 
national importance" under Dhanasar's first prong, and the Petitioner does not contest that determination on appeal. 
5 
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. Although the 
Petitioner asserted that his endeavor offers "a high likelihood for economic success in job creation as 
well as revenue," he 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 find that the 
Petitioner has not shown that his proposed endeavor stands to sufficiently extend beyond his company 
to impact his field, U.S. exports, public health, or the fitness industry more broadly at a level 
commensurate with national importance. 
Furthermore, the Petitioner has not demonstrated that the specific endeavor he proposes to undertake 
has significant potential to employ U.S. workers or otherwise offers substantial positive economic 
effects for our nation. Specifically, he has not shown that his company's future staffing levels, 
business activity, and international exports stand to provide substantial economic benefits in Florida 
or the United States. While the sales forecast forl !indicates that the company has growth 
potential, it does not demonstrate that benefits to the regional or national economy resulting from the 
Petitioner's undertaking would reach the level of "substantial positive economic effects" contemplated 
by Dhanasar. Id. at 890. In addition, although the Petitioner asserts that his company will hire U.S. 
employees, he has not offered sufficient evidence that the area wherel I operates 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, business activity, or international trade. Accordingly, we agree with the Director 
that the Petitioner's proposed work does not meet the first prong of the Dhanasar framework. 
Because the documentation in the record does not establish the national importance of his proposed 
endeavor as required by the first prong of the Dhanasar precedent decision, the Petitioner has not 
demonstrated eligibility for a national interest waiver. Further analysis of his eligibility under the second 
and third prongs outlined in Dhanasar, therefore, would serve no meaningful purpose. 
III. CONCLUSION 
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, we find that 
he has not established he is eligible for or otherwise merits a national interest waiver as a matter of 
discretion. The appeal will be dismissed for the above stated reasons, with each considered as an 
independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
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