dismissed EB-2 NIW Case: Mechanical Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re : 23042124 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: DEC. 1, 2022 
Form I-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a mechanical engineer , seeks second preference immigrant classification as a member 
of the professions holding an advanced degree, 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 qualified 
for classification as a member of the professions holding an advanced degree but that the Petitioner 
had not established that a waiver of the required job offer, and thus of the labor certification , would 
be in the national interest. 
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. 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 of job offer-
(i) National interest waiver. ... the 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 te1m "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 Dhanasarstates that, after a petitioner has established 
eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) may, as a 
matter of discretion, grant a national interest waiver if the petitioner demonstrates: (1) that the 
noncitizen's proposed endeavor has both substantial merit and national importance; (2) that the 
noncitizen 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 ofa labor certification. 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
non citizen 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 dete1mining 
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 noncitizen. 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 non citizen's 
qualifications or the proposed endeavor, it would be impractical either for the noncitizen to secure a 
job offer or for the petitioner to obtain a labor certification; whether, even assuming that other qualified 
U.S. workers are available, the United States would still benefit from the noncitizen's contributions; 
and whether the national interest in the noncitizen's contributions is sufficiently urgent to warrant 
forgoing the labor certification process. In each case, the factor(s) considered must, taken together, 
1 In announcing this new framework, we vacatedourp1iorprecedent decision,MattcrofNew York State Dep't of Transp., 
22 I&NDec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
2 
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. 2 
II. ANALYSIS 
The Director found that the Petitioner qualifies as a member of the professions holding an advanced 
degree. The remaining issue to be determined is whether the Petitioner has established that a waiver 
of the requirement of a job offer, and thus of a labor certification, would be in the national interest 
For the reasons discussed below, the Petitioner has not established that a waiver of the requirement of 
a job off er is warranted. 
Initially, the Petitioner described the endeavor as a plan "to share her knowledge in the fields of 
product development, quality development and management with Companies, Universities and 
Research Centers to their benefit and that of the overall U.S. economy." She stated that she "will 
provide highly specialize services to help her employers improve their financial performance, market 
share, increase of market leadership and pursue growth strategies." She further stated that she "will 
not only help improve her employer's business operation, she will also help improve the local and 
U.S. economy through increased earning and the creation of a more stable business environment that 
is capable of sustained employment." The Petitioner also referenced development of an "aeronautical 
meal cart," described in a business plan. 
In response to the Director's request for evidence (RFE), the Petitioner submitted a copy of an 
employment contract with I dated August 25, 2021, indicating that the Petitioner "will 
start in a full-time position as Supplier Development Engineer - Mechanical." Similarly, on appeal, 
the Petitioner asserts, "Since August 2021, [I have] been employed as a Supplier Development 
Engineer for which is based in thel I industry." Specifically, the 
Petitioner asserts that she "provides a supplier development database for mechanical commodity, 
technical reviews, supplier risk assessments for new development processes, and she developed the 
company supplier database" for I 
The Petitioner's employment contract with contains a specific non-compete clause, as 
follows: 
Outside Activities. While you render services to the Company, you agree that you will 
not engage in any other employment, consulting or other business activity without the 
written consent of the Company. In addition, while you render services to the 
Company, you will not assist any person or entity in competing with the Company, in 
preparing to compete with the Company or in hiring any employees or consultants of 
the Company. 
The Petitioner also clarified in the RFE response that "in 2018, I was invited by University I I 
_ to develop an project in the aerospace sector, reducing absenteeii'm in 
the work environment of flight attendants." The Petitioner asserts that, through that research project 
for the University I I she studied _________________ 
2 SccDhanasar, 26l&NDec. at 888-91, for elaboration onthesethreeprongs. 
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and that she "was able to explain the longstanding question about the 
underlying cause of the human/employee association and the inappropriate work tools variant ... 
caused by the obsolete engineering of the manual version of the product." She further asserted, "I 
hope that I can continue my research or _______________ here." 
The Director acknowledged that "the submitted evidence establishes that the [P]etitioner's proposed 
endeavor as an engineer in the United States, providing her expertise and services to U.S. companies, 
which serves the business interests of her employer ( or prospective employer), its clients/customers, 
alliances, and the [P]etitioner's workplace has substantial merit." However, the Director concluded 
that the record "does not demonstrate that the [P]etitioner's proposed endeavor has national 
importance" because it "does not convey an understanding of how the [P]etitioner's proposed 
employment activities stand to have a broader impact on her field." 
On appeal, the Petitioner asserts that the following evidence establishes that the proposed endeavor 
has national importance: 
• A letter written by chairman of the manufacturing 
engineeringdepartmenta~ in Ohio, submitted 
for the first time on appeal; 
• The Petitioner's business plan for the development of an 
• Several industry articles and reports; 
• A collection of job offer emails sent to the Petitioner from various companies; and 
• A Memorandum published by the U.S. Department of Homeland Security's 
Cybersecurity & Infrastructure Security Agency in 2020, titled "Memorandum on 
Identification of Essential Critical Infrastructure Workers During COVID-19 
Response." 
In determining national importance, the relevant question is not the importance of the industry, field, 
or profession in which an individual will work; instead, to assess national importance, we focus on the 
"specific endeavor that the [noncitizen] proposes to undertake." See Dhanasar, 26 I&N Dec. at 889. 
Dhanasar provided examples of endeavors that may have national importance, as required by the first 
prong, having "national or even global implications within a particular field, such as those resulting 
from certain improved manufacturing processes or medical advances" and endeavors that have broader 
implications, such as "significant potential to employ U.S. workers or has other substantial positive 
economic effects, particularly in an economically depressed area." Id. at 889-90. 
We first note that the Petitioner's reliance on industry reports and articles in the record regarding 
engineering, consulting, and aviation industries in general is misplaced. The articles and reports in 
the record, including "It's Official-Engineering Helps Economies to Grow," "Quality Control in 
Engineering Management," "Why is Industrial Engineering Important?," "Management Consulting 
Services Market to See Huge Growth by 2026: Deloitte, IBM, Booz Allen Hamilton," "2020 Small 
Business Profile," and "Why Is the Aviation Industry So Important?," do not address the Petitioner, 
her proposed endeavor, and how the specific endeavor that the Petitioner proposes to undertake will 
have "national or even global implications within a particular field, such as those resulting from certain 
improved manufacturing processes or medical advances" and endeavors that have broader 
implications, such as "significant potential to employ U.S. workers or has other substantial positive 
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economic effects, particularly in an economically depressed area." Id. at 889-90. Similarly, the 
business history time line of I the Petitioner's employer, does not address the Petitioner, 
her proposed endeavor, and how the specific endeavor that the Petitioner proposes to undertake will 
have "national or even global implications within a particular field." Id. at 889. 
We next note that the non-compete clause in the Petitioner's employment contract with 
submitted in response to the RFE, quoted in full above, precludes her from continuing to develop her 
I I and from engaging in any other employment, consulting, or other business 
activity without the written consent of I The record does not contain the written consent 
of I for the Petitioner to continue developing her or to otherwise 
engage in any other employment, consulting, or other business activity. Therefore, while the Petitioner 
is employed byl l her endeavor appears to be limited to providing her services for the 
benefit of I and its clients and customers. 
Next, we acknowledge that the "Memorandum on Identification of Essential Critical Infrastructure 
Workers During COVID-19 Response" indicates that "workers who conduct a range of operations and 
services that are essential to continued critical infrastructure viability ... should continue normal 
operations, appropriately modified to account for Centers for Disease Control (CDC) workforce and 
customer protection guidance" during the CO VID-19 pandemic." However, the memorandum also 
states that the list of essential workers "is advisory in nature. It is not, nor should it be considered to 
be, a federal directive or standard in and of itself." The Petitioner's assertion on appeal that her 
proposed endeavor has national importance because "engineers have been deemed critical and 
essential in various industries like healthcare, energy, communications and information technology, 
and defense industrial base" through the memorandum is misplaced. The record establishes that the 
Petitioner works as a mechanical engineer for which the Petitioner described in 
res onse to the Director's RFE as a com an in the 
'----------------------------------------' not 
in the "healthcare, energy, communications and information technology, and defense industrial base" 
industries. Even to the extent that the Petitioner's employer is in the industries contemplated by the 
memorandum, the memorandum does not establish that the proposed endeavor has national 
importance. In determining national importance, the relevant question is not the importance of the 
industry, field, or profession in which an individual will work; instead, to assess national importance, 
we focus on the "specific endeavor that the [noncitizen] proposes to undertake." Id. at 889. The 
memorandum does not address the Petitioner, her proposed endeavor, and how the specific endeavor 
that the Petitioner proposes to undertake will have "national or even global implications within a 
particular field, such as those resulting from certain improved manufacturing processes or medical 
advances" and endeavors that have broader implications, such as "significant potential to employ U.S. 
workers or has other substantial positive economic effects, particularly in an economically depressed 
area." Id. at 889-90. 
Finally, the Petitioner's reliance on opinion letter is misplaced. As a matter of 
discretion, we may 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, we may give an opinion statement less 
weight if it is not in accord with other information in the record or if it is in any way questionable. 
Id. We are ultimately responsible for making the final determination regarding an individual's 
eligibility for the benefit sought; the submission of expert opinion letters is not presumptive evidence 
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of eligibility. Id.; see also Matter ofV-K-, 24 I&N Dec. 500, 502 n.2 (BIA 2008) ("[E]xpert opinion 
testimony, while undoubtedly a form of evidence, does not purport to be evidence as to 'fact' but 
rather is admissible only if 'it will assist the trier of fact to understand the evidence or to determine a 
fact in issue."') . 
____ opines that the Petitioner's "research in the areas of Ergonomic and Reengineering 
Sustainability for Institutions of airlines ... will benefit the entire airlines and aid institutions in 
achieving engineering sustainability while fulfilling their economic and social commitments to their 
stakeholders, the Association of Flight Attendants in U.S. (AFAC-WA) and U.S. Air Force." 
However, the record does not establish that the Petitioner's duties at I include conducting 
research in the areas of ergonomic and reengineering sustainability for airlines. I I also 
opines that the Petitioner "plans to reach small business owners and new entrepreneurs by offering a 
variety of reengineering in current and new products launch, product improvement and process 
improvement in current products, keeping high quality of products, increasing the company market 
share and producing in low cost." We note thatl opines that "[cc Jars and other automobiles 
are an industry worth over $250 billion worldwide, with production trending towards efficiency and 
sustainability," and we note that the Petitioner asserts that her employer "is based in the automotive 
industry." However, as discussed above, the relevant question is not the importance of the industry, 
field, or profession in which an individual will work; instead, to assess national importance, we focus 
on the "specific endeavor that the [ noncitizen] proposes to undertake." See Dhanasar, 26 I&N Dec. 
at 889.1 I letter does not address how the specific endeavor that the Petitioner proposes 
to undertake-which appears to be as a mechanical engineer forl will have "national 
or even global implications within a particular field, such as those resulting from certain improved 
manufacturing processes or medical advances" and endeavors that have broader implications, such as 
"significant potential to employ U.S. workers or has other substantial positive economic effects, 
particularly in an economically depressed area." Id. at 889-90. 
In summation, the Petitioner has not established that the proposed endeavor has national importance, 
as required by the first Dhanasar prong; therefore, she is not eligible for a national interest waiver. 
We reserve our opinion regarding whether the record satisfies the second or third Dhanasarprong. 
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 of 
L-A-C-, 26 I&N Dec. 516,526 n.7 (BIA 2015) (declining to reach alternative issues on appeal where 
an applicant is otherwise ineligible). 
III. CONCLUSION 
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, we 
conclude that the Petitioner has not established eligibility for, or otherwise merits, a national interest 
waiver as a matter of discretion. 
ORDER: The appeal is dismissed. 
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