dismissed EB-2 NIW Case: Mechanical Engineering

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 25, 2024 In Re: 29127758 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner seeks classification as an individual of exceptional ability in the sciences, arts or 
business or, in the alternative, as a member of the professions holding an advanced degree. See 
Immigration and Nationality Act (the Act) section 203(b)(2) , 8 U.S.C. § 1153(b)(2). The Petitioner 
also seeks a national interest waiver of the job offer requirement that is attached to this EB-2 immigrant 
classification. See section 203(b )(2)(B)(i) of the Act, 8 U.S.C. § 1153(b )(2)(B)(i). U.S. Citizenship 
and Immigration Services (USCIS) may grant this discretionary waiver of the required job offer, and 
thus of a labor certification, when it is in the national interest to do so. 
The Director of the Texas Service Center denied the petition, concluding that the record does not 
establish the Petitioner qualifies for classification as an individual of exceptional ability. The Director 
did not address whether the Petitioner qualifies, in the alternative, as a member of the professions 
holding an advanced degree. The Director further concluded 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. The matter is now before us on appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc. , 26 I&N Dec. 53 7, 537 n.2 (AAO 2015). 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 a member of the professions holding an advanced 
degree 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. 
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 l&N Dec. 884 (AAO 2016). Dhanasar states that, after a petitioner has established 
eligibility for EB-2 classification, 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 of a labor certification. 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
noncitizen 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. 
See Matter ofDhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
II. ANALYSIS 
As noted above, the Director found that the 
record does not establish that the Petitioner qualifies as an 
individual of exceptional ability. However, the Director did not address whether the Petitioner 
qualifies as a member of the professions holding an advanced degree. On appeal, the Petitioner asserts, 
in relevant part, that the Director erred by not concluding the Petitioner qualifies as a member of the 
professions holding an advanced degree. The Director specifically noted that the record establishes 
"the [P]etitioner's foreign degree is equivalent to a Bachelor's degree in Mechanical Engineering at a 
college or university in the United States." The Director also acknowledged that the record contains 
"employment verification letters from his prior employers, reflecting he possesses seven years of 
fulltime employment" related to the proposed endeavor's occupation. Therefore, the Petitioner 
establishes on appeal that the Director erred by not concluding the Petitioner qualifies as a member of 
the professions holding an advanced degree. See 8 C.F.R. § 204.5(k)(2); 8 C.F.R. § 204.5(k)(3)(i). 
However, for the reasons discussed below, the Petitioner has not established that a waiver of the 
requirement of a job offer is warranted. 
Initially, the Petitioner described the endeavor as a plan to "seek employment as a [m]echanical 
[ e ]ngineer in the field of [ e ]ngineering, seeking to offer my services across the U.S." We note that the 
Petitioner did not initially indicate that the proposed endeavor would entail founding his own company 
or working as a mechanical engineering consultant, rather than as a mechanical engineer per se. The 
distinction appears to be significant because "[ m ]echanical engineers who sell services publicly must 
be licensed in all states and the District of Columbia." Bureau of Labor Statistics, U.S. Dep't of Labor, 
Occupational Outlook Handbook, Mechanical Engineers, https://www.bls.gov/ooh/architecture-and­
engineering/mechanical-engineers.htm#tab-4. 
In response to the Director's request for evidence (RFE), the Petitioner substantially modified his 
description of the proposed endeavor. In a business plan generally dated 2023, submitted in response 
to the RFE, the Petitioner asserted that he and his spouse would each be 50% co-owners of a startup 
company that "will provide engineering project consulting services to businesses across the United 
States." The business plan further asserts that the Petitioner would work as "the [ e ]xecutive [ m ]anager 
and [l]ead [ m ]echanical [ e ]ngineer" of his startup consulting company, which will "provide 
engineering consulting services to operators in ... the [e]ngineering [i]ndustry and domestic service 
sector in the U.S." The business plan also indicates that the company would employ four workers in 
the first year of operations, increasing to 17 workers in the fifth year of operations, including the 
2 
I 
Petitioner, respectively. The business plan does not clarify where the company would operate, 
although it notes that its "personnel will work directly with clients and provide their expertise on-site," 
apparently throughout the United States at unspecified locations. However, the Petitioner also 
submitted a certificate of organization for the startup company in response to the Director's RFE, 
indicating that the address of the company's registered office matches the residential address in 
I Pennsylvania, the Petitioner provided on the Form 1-140, Immigrant Petition for Alien 
Workers. 
A petitioner must establish eligibility for the benefit it is seeking at the time the petition is filed. See 
8 C.F.R. § 103.2(b)(l). A visa petition may not be approved based on speculation of future eligibility 
or after a petitioner becomes eligible under a new set of facts. See Matter of Katigbak, 14 I&N 
Dec. 45, 49 (Reg'l Comm'r 1971). 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 Izummi, 22 I&N 
Dec. 169, 176 (Assoc. Comm'r 1998). 
Whether the Petitioner would "seek employment as a [ m ]echanical [ e ]ngineer in the field of 
[ e ]ngineering" or found his own mechanical engineering consulting company and hire workers is 
material to the first Dhanasar prong because it addresses the scope of the proposed endeavor and 
whether it may have national importance. 1 See Matter ofDhanasar, 26 I&N Dec. at 888-90. Because 
the Petitioner did not initially indicate that the proposed endeavor would entail founding his own 
company or working as a mechanical engineering consultant, rather than as a licensed mechanical 
engineer per se, the 2023 business plan, dated after the Petitioner filed the Form 1-140 in 2022, presents 
a new set of material facts that cannot establish eligibility. See 8 C.F.R. § 103 .2(b)(1 ); Matter of 
Katigbak, 14 I&N Dec. at 49; Matter ofIzummi, 22 I&N Dec. at 176. Furthermore, because the new 
set of material facts regarding the founding of a mechanical engineering consulting company and the 
Petitioner's proposal to work as a mechanical engineering consultant cannot establish eligibility, 
references to that new set of facts, including in the Petitioner's response to the Director's RFE and on 
appeal, also cannot establish eligibility. See id. 
The Director acknowledged, "it appears that the act1v1t1es of the proposed endeavor will have 
substantial merit." However, the Director observed that "the record does not demonstrate the 
[P]etitioner's proposed endeavor will have the ability to create a significant number of job 
opportunities for U.S. workers." The Director also observed that the record does not establish the 
proposed endeavor may have substantial positive economic effects or "a broader potential prospective 
impact." Accordingly, the Director concluded that "the [P]etitioner has not established that the 
proposed endeavor is of national importance." The Director also concluded that the record does not 
satisfy the second and third Dhanasar prongs. 
On appeal, the Petitioner reasserts that his "proposed endeavor through [his startup mechanical 
engineering consulting company] is widely recognized by experts as being of substantial merit and 
national importance due to its significant contributions in several key areas." The Petitioner also 
1 It also is material to the second Dhanasar prong-whether an individual is well positioned to advance a proposed 
endeavor-because mechanical engineers in general, as opposed to mechanical engineering consultants, "who sell services 
publicly must be licensed in all states and the District of Columbia." Bureau of Labor Statistics, U.S. Dep't of Labor, 
Occupational Outlook Handbook, Mechanical Engineers, https://www.bls.gov/ooh/architecture-and-engineering/ 
mechanical-engineers.htm#tab-4. See Matter ofDhanasar, 26 l&N Dec. at 888-91, for elaboration on the three prongs. 
3 
references on appeal generalized information regarding "the oil and gas industry" and 
entrepreneurship. 
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 Matter of 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. 
Neither the business plan nor references to the Petitioner's proposal to found a mechanical engineering 
consulting company and hire workers, can establish eligibility for the reasons discussed above. See 
8 C.F.R. § 103.2(b)(l); Matter of Katigbak, 14 I&N Dec. at 49; Matter of Izummi, 22 I&N Dec. at 
176. The record does not establish how the Petitioner's plan, as indicated at the time of filing the 
Form I-140, to "seek employment as a [m]echanical [e]ngineer in the field of [e]ngineering, seeking 
to offer my services across the U.S." for some unspecified employer in some unspecified location may 
have "national or even global implications within a particular field, such as those resulting from certain 
improved manufacturing processes or medical advances" or broader implications, such as "significant 
potential to employ U.S. workers or ... other substantial positive economic effects, particularly in an 
economically depressed area." See Matter ofDhanasar, 26 I&N Dec. at 889-90. Moreover, as noted 
above, 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 id. at 889. Therefore, the 
Petitioner's generalized references on appeal to "the oil and gas industry" and entrepreneurship do not 
establish how the specific endeavor he proposes to undertake may have national importance, which is 
distinguishable from whether a particular industry in general may have national importance. 
In summation, the Petitioner has not established that the proposed endeavor has national importance, 
as required by the first Dhanasar prong; therefore, he is not eligible for a national interest waiver. We 
reserve our opinion regarding whether the record satisfies the second or third Dhanasar prong. See 
INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (stating that agencies are not required to make "purely 
advisory findings" on issues that are unnecessary to the ultimate decision); see also Matter ofL-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. 
4