dismissed EB-2 NIW Case: Mechanical Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re: 10895295 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEP. 15, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a mechanical engineering researcher, 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 ofjob 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 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 a 
matter of discretion, 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 
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) 
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 
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. 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. 
Specifically, the Director concluded that the proposed endeavor has substantial merit and is of national 
importance; however, the Director also concluded that the record did not satisfy the second and third 
prongs of the Dhanasar framework. 
We disagree that the record establishes that the proposed endeavor has national importance, as required 
by the first Dhanasar prong. See Dhanasar, 26 I&N Dec. at 889. Accordingly, we withdraw the 
Director's finding that the evidence establishes that the proposed endeavor has national importance as 
contemplated by Dhanasar. 
The Petitioner initially described the proposed endeavor as follows: "[c]onducting experiments and 
~g data froml I devices in order to find fundamental laws behind I I 
L___J behavior. Disseminating results to field." At the time of filing the petition, the Petitioner 
worked as a postdoctoral fellow at.__ ________ ___, He elaborated that his future research 
plans would involve the following: 
Extend[ing] my research on both'----------.,,,,-------.,,---,--....,,... systems and 
I I surfaces. I would like to examine the empirical outcome of the 
implementation of my techniques in increasing the efficiency of an actual ~ 
Moreover, I plan to study the interaction of water with my newly-designed 
.__ _____ ~ surface in new ways. 
The Petitioner stated that his research "will reveal the unpredicted [sic] and inevitable challenges of 
implementing [ described] techniques, and thus, will increase our knowledge in I ~ field and 
help us to design a system that achieves optimal levels of efficiency." He also stated that his research 
"will provide more information on the economic feasibility of building such a~ system for our 
buildings fo during the day and consuming it at night - a path to lowering the 
consumption o ' The Petitioner further stated that his research will "increase[] 
our knowledge about utilizing surfaces to preven and enable ] us to 
design an optimized ~ surface. Th ~--~ industry, which suffers fro .__ ___ ___, on the 
I benefits from thislprojeT" Additionally, the Petitioner stated that his 
research "will shows [sic] us the effectiveness of surfaces inl l application ... and 
will facilitate further research on implementing it i~ I industry to achieve faster vessels." 
In response to the Director's request for evidence (RFE), the Petitioner submitted a letter from the 
chair of the I !university inl I Department of Mechanical Engineering and 
Materials Science. The letter asserts that, in October 2019, prior to the Director's decision, the 
2 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
3 
Petitioner "was offered and accepted a position as a [p ]ostdoctoral [ r ]esearch [ a ]ssociate ... in the 
Department of Mechanical Engineering & Materials Science atl I inl I 
As a postdoctoral research associate, the Petitioner would: 
work[] primarily on the '[p ]assive and compact.__~----------' project 
(supported by NASA), and his responsibilities include, but are not limited to, design, 
setup, and conduction of experiments, experimental analysis, writing reports, 
mentoring of students, and assisting with general lab tasks ( e.g., lab safety audits, etc.). 
Time permitting, he might also work on other projects which are currently being 
undertaken in [his supervisor's] research lab. 
In response to the RFE, the Petitioner described the change in employment-and in his research 
focus-as "a new opportunity to continue my journey as a postdoc." He stated that the new research 
focus "was not only perfectly aligned with my background in.__ _______ __. dynamics, but 
it was also fonded by NASA, showing its substantial merits to the field." 
A petitioner must establish eligibility for the benefit sought at the time the petition is filed. 8 C.F.R. 
§ 103.2(b )(1 ). The purpose of an RFE is to elicit farther information that clarifies whether eligibility 
for the benefit sought has been established. 8 C.F.R. § 103.2(b)(8). A visa petition may not be 
approved at a future date after the petitioner or beneficiary becomes eligible under a new set of facts. 
See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg'l Comm'r 1978). A petitioner may not 
make material changes to a petition in an effort to make a deficient petition conform to USCIS 
requirements. See Matter of Izwnmi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). If significant, 
material changes are made to the initial request for approval, a petitioner must file a new petition rather 
than seek approval of a petition that is not supported by the facts in the record. 
The information provided by the Petitioner in the response to the Director's RFE did not clarify or 
provide more specificity to the proposed endeavor as initially described, but rather presented new 
elements to the endeavor in general, and a specific research focus dissimilar to the originally stated 
focus. The initial description of the p~oposel endeavor indicated the Petitioner would "[ e ]xtend my 
research" and "study the interaction o with my newly-designed I I surface in 
new ways" ( emphasis added). Moreover, unlike the initial proposed endeavor's focus "on both 
I I systems andl I surfaces," with possible applications for 
thel I industries, the new position's research focus would be "to develop a prototype 
with unprecedented I capabilities, which would serve as enabling technology for new 
.__ _______ _.missions." The RFE response does not describe how the new research focus 
would relate to "study[ing] the interaction ofl I with [the Petitioner's] newly-designed 
,__ _____ ___, surface in new ways," "lowering the consumption ofl I" 
"benefit[ing] ... [t]hel !industry," or aiding the j ~ industry to achieve faster vessels," 
which the Petitioner initiall stated his endeavor would accomplish. The record does not establish 
how "technology for new missions" may correspond tol !consumption 
or th ,__ ______ ___,industries. 
Additionally, although the RFE response indicated that the Petitioner "might also work on other 
projects which are currently being undertaken in [the supervisor's] research lab," it does not 
specifically state that the Petitioner would pursue the various research projects he initially described, 
4 
nor does it elaborate on whether there would be "[t]ime permitting" to do so. Accordingly, the RFE 
response presented a new set of facts regarding the proposed endeavor, which is material to eligibility 
for a national interest waiver. See Matter of Michelin Tire Corp., 17 I&N Dec. 248; see also Dhanasar, 
26 I&N Dec. at 889-90. 
Additionally, the record does not establish how the proposed endeavor, as initially described, has 
national importance, as contemplated by Dhanasar. 3 In determining national importance, the relevant 
question is not the importance of the industry, field, 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. 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 note that Dhanasar addresses "endeavors related to research, pure science, and the furtherance of 
human knowledge" under the first prong; however, the context of that discussion relates to the ways 
in which a proposed endeavor's "merit may be demonstrated," not to state that endeavors related to 
research categorically have national importance. Id. at 889. 
The Petitioner asserted the proposed endeavor would "extend" his research, "increasing the efficiency 
of an actualO, ... ] study the interaction ofc=]with my newly-designed~-----~ 
surface in new ways," "increase our knowledge in---ic==::::J field and help us to design a system that 
achieves optimal levels of efficiency," "enable[] us to dJsign al optimized! I surface," and 
"facilitate further research on implementing [materials] i industry to achieve faster vessels." 
However, he does not elaborate how the proposed endeavor would result in "national or even global 
implications within a particular field." Id. at 889. 
In summation, the Petitioner has not established that the proposed endeavor has national importance, 
as required by the first Dhanasar prong, and therefore is not eligible for a national interest waiver. 4 
We reserve our opinion regarding whether the record satisfies the second or third Dhanasar prong. 
3 Because the new set of facts presented in the RFE may not establish that, at the time of filing, the proposed endeavor was 
eligible for a national interest waiver, we need not address whether the new set of facts demonstrate national importance. 
See 8 C.F.R. § 103.2(b )(1 ), (8); see also Matter of Michelin Tire Corp., 17 T&N Dec. 248 (Reg' 1 Comm'r 1978); Dhanasar, 
26 T&N Dec. at 889-90. 
4 Because we conclude that the record does not satisfy the first Dhanasar prong, which is dispositive, we need not address 
the Petitioner's further assertions on appeal regarding the second and third prongs, or the other issues addressed in the 
brief. 
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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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