dismissed EB-2 NIW Case: Petroleum Engineering

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date : WL. 14, 2023 In Re: 26964686 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner seeks classification as a member of the professions holding an advanced degree or of 
exceptional ability. 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. See Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny 
a national interest waiver to be discretionary in nature) . 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish 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 l&N Dec. 537, 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 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 would be in the national interest. 
Whilst 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) . Dhanasar states that USCIS may as a matter of discretion 
grant a national interest waiver of the job offer, and thus of the labor certification, to a petitioner 
classified in the EB-2 category if they demonstrate that (1) the noncitizen's proposed endeavor has 
both substantial merit and national importance, (2) 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. 
The second prong shifts the focus from the proposed endeavor to the noncitizen. To determine whether 
the noncitizen 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, progress towards achieving the proposed endeavor, and 
the interest of potential customers, users, investors, or other relevant entities or individuals are also 
key considerations. 
The third prong requires the petitioner to demonstrate that, on balance of applicable factors, it would 
be beneficial to the United States to waive the requirements of a job offer and thus of a labor 
certification. USCIS may evaluate factors such as whether, in light of the nature of the noncitizen' s 
qualification 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. Each of the factors 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. 
II. ANALYSIS 
A. Substantial Merit 
The Director concluded that the Petitioner did not establish the substantial merit of their proposed 
endeavor because the Petitioner's proposed endeavor contemplated their continued employment with 
their employer and the Petitioner's conflicting expressions of the proposed endeavor. An endeavor's 
merit may be demonstrated in a range of areas such as business, entrepreneurialism, science, 
technology, culture, health, or education. Dhanasar at 889. The Petitioner initially described their 
endeavor as "special project manager" for their employer, a large oilfield services company, 
performing "reservoir characterization" and "integration management." But the Petitioner alternately 
expressed their endeavor as "petroleum engineer" or "in the field of petroleum engineering," thereby 
introducing uncertainty into the record. 
Accordingly, the Director issued a request for evidence (RFE). 1 In response to the RFE, the Petitioner 
broadened their proposed endeavor, claiming they would now function as a "digital transformation, 
1 The Petitioner noted errors by the Director refening to a "sh01tage of human resources professionals" and a few instances 
2 
automations, and operations manager" functioning "within the niche discipline of Oil & Gas." In 
support, the Petitioner submitted a new Form 1-140 with the RFE response containing the new job title 
"Digital Transformation, Automation and Operations Manager," a non-technical job description 
referring to copies ofletters the Petitioner's employer submitted to USCIS in support of nonimmigrant 
petitions filed on the Petitioner's behalf, and 143 identified exhibits containing a variety of 
documentation cited by the Petitioner in support. 2 
A petitioner proposing an endeavor that simply continued their ongoing employment on a permanent 
indefinite basis, and without a thorough description, would likely face significant obstacles in 
demonstrating their proposed endeavor's substantial merit and national importance. But that does not 
preclude adequately described and substantiated proposed endeavors undertaken as part of a 
petitioner's continuing employment from evaluation of eligibility for a discretionary waiver of the 
requirement of a job offer, and thus a labor certification, in the national interest under the Dhanasar 
analytical framework. 3 
We share the Director's concern regarding the way the Petitioner described their proposed endeavor. 
The Petitioner's response to the RFE did appear to broaden the activities the Petitioner proposed to 
undertake in their endeavor. A petitioner must establish eligibility for the benefit they are seeking at 
the time the petition is filed. See Matter ofKatigbak, 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). 
Revisions submitted in response to an RFE constituting a materially different endeavor introduce 
ambiguity which prevents analysis into a proposed endeavor's substantial merit or national 
importance. But the Petitioner's revisions here only provided additional details with more 
information. The record reflects that the Petitioner's expanded activities clarify the "reservoir 
characterization" and "integration management" activities in the oil and gas industry they described 
in their initial petition. So the Petitioner's revisions broadening the description of the activities of the 
proposed endeavor, whilst concerning, retained the character and nature of the proposed endeavor 
initially described by the Petitioner. 
The record before us contains evidence of the characterization of the Petitioner's proposed endeavor 
in the oil and gas industry, which falls within the range of areas we concluded could demonstrate 
of incorrect pronoun usage in the RFE. We have noted and considered the Director's errors and conclude they did not 
impact the ultimate decision in this matter. 
2 The Petitioner alleges at appeal that the Director's RFE and Decision violated the Administrative Procedures Act ("AP A") 
because they were "boilerplate and contradictory" and "contained no discussion whatsoever regarding the voluminous 
evidence" submitted by the Petitioner. In the first instance, the Petitioner did not identify any specific section of the AP A 
the Director allegedly violated. Moreover, the Petitioner questioned the contents of the RFE and Denial in broad and 
general terms without identifying any specific examples. The RFE and the Denial both provided an individual 
consideration of the Petitioner's evidence. For example the Director discussed the contents of the Petitioner's petition 
support letter in the RFE with specific detail summarizing the Petitioner's contention. In the Denial, the Director included 
a consideration of the letters of recommendation submitted in the record. So we conclude that the Director followed the 
applicable regulations at 8 C.F.R. ~~ 103.2(a)(8) and 103.3. 
3 We note that during the pendency of these proceedings, the Petitioner's employer has changed from the large oilfield 
services company for whom they were initially working to a new employer which is a joint venture between the large 
oilfield services company and a large industrial automation and digital transformation company. The Petitioner's endeavor 
remained unchanged notwithstanding the change of employer. 
3 
endeavor of substantial merit. The record supports with citation to independent scholarly articles and 
media the substantial merits of the Petitioner's proposed endeavor. So we withdraw the Director's 
determination and conclude that the Petitioner's proposed endeavor has substantial merit. 
B. National Importance 
The Director concluded that the Petitioner did not demonstrate their proposed endeavor was of national 
importance because the Petitioner did not demonstrate the broader implications of the proposed 
endeavor or its potential positive economic effects. For the below reasons, we agree. 
In determining national importance under Dhanasar, the relevant question is not the importance of the 
field, industry, or profession in which the individual will work; instead, we focus on "the specific 
endeavor that the foreign national proposes to undertake." See Dhanasar, 26 I&N Dec. at 889. In 
Dhanasar, we farther noted that "we look for broader implications" of the proposed endeavor and that 
"[ a ]n undertaking may have a 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. What is critical in determining the national importance under Dhanasar is whether the 
proposed endeavor has a potential prospective impact with broader implications which rise to the level 
of national importance. So it is not what duties or what occupation the noncitizen will fill or perform 
but their actual plan with their occupation and duties that is examined. 
As stated above, the Petitioner's proposed endeavor is to continue their career as a "Digital 
Transformation, Automation and Operations Manager" working with U.S. companies in the field of 
oil and gas. The Petitioner roots their eligibility under this first prong of the Dhanasar framework by 
citing their previous professional experiences, awards, and recognitions as described in their 
curriculum vitae. The Petitioner submitted a personal statement together with several recommendation 
letters from previous associates describing the work that the Petitioner accomplished while in their 
employ to support the potential prospective impact of their work in the proposed endeavor. They also 
submitted numerous certificates purporting to support their skills in sub-disciplines of their field of 
endeavor. And they provided an advisory opinion froml Ian associate professor 
of mechanical engineering atl !University inl IOregon. 4 
On appeal, the Petitioner states that their proposed endeavor's national importance stems directly from 
their work and achievements earned over a career spanning two and half decades. The Petitioner 
contends that national importance is broadly implicated by the potential value of their continued work 
in their field of endeavor. 
Although the evidentiary standard in immigration proceedings is the lowest preponderance of the 
evidence standard, the burden is on the Petitioner alone to provide material, relevant, and probative 
evidence to meet that standard. Section 291 of the Act, 8 U.S.C. § 1361. A petitioner's burden of 
proof comprises both the initial burden of production, as well as the ultimate burden of 
persuasion. Matter ofY-B-, 21 I&N Dec. 1136, 1142 n.3 (BIA 1998); also see the definition ofburden 
4 While we may not discuss every document submitted, we have reviewed and considered each one. 
4 
of proof from Black's Law Dictionary (11th ed. 2019) (reflecting the burden of proof includes both 
the burden of production and the burden of persuasion). First, a petitioner must satisfy the burden of 
production. As the term suggests, this burden requires a filing party to produce evidence in the form 
of documents, testimony, etc. that adheres to the governing statutory, regulatory, and policy provisions 
sufficient to have the issue decided on the merits. 
The infirmity in the Petitioner's description of their endeavor is patent upon examination into the 
evidence and argument they introduced into the record. The Petitioner's evidence and argument do 
not help them carry their burden of production and persuasion because it does not relate to the proposed 
endeavor's national importance under the first prong of the Dhanasar framework. 
The Petitioner stresses that their execution of the proposed endeavor is what will elevate it to a level 
of national importance due to their continuous work in the field over the past 25 years. The Petitioner 
stated that their past work experience and achievements render their work in their proposed endeavor 
likely to achieve results that will benefit the United States national interest. On appeal, the Petitioner 
essentially attempts to convince us that their many years of progressive experience in the oil and gas 
industry elevates any endeavor they propose to undertake in the United States raised to the level of 
national importance. They also highlight their "prominence" and "importance" in their field up to 
now. But the Petitioner's claims are not persuasive. The Petitioner's argument spotlights a 
fundamental misunderstanding of the Dhanasar framework's first prong. The first prong focuses on 
the proposed endeavor; not on the Petitioner's execution of that proposed endeavor. The Dhanasar 
framework is consequently unconcerned with the likelihood of the success of the proposed endeavor 
or the Petitioner's longevity in their field of endeavor previously. The Petitioner's contentions about 
their successful past performance in the endeavor they propose, as well as evidence and information 
of their achievements and recognition, would better serve a demonstration of eligibility under the 
Dhanasar framework's second prong. So the Petitioner's contentions about their successful career­
to-date, as well as evidence and information of their achievements and recognition such that they are, 
are irrelevant to an examination of their eligibility under the first prong of the Dhanasar analytical 
framework. 
The Petitioner's employment verification and employment letters did not reflect how the proposed 
endeavor implicates national importance because the letters focused on the Petitioner's past work. 
When evaluating the national importance of a proposed endeavor under the first prong of Dhanasar, 
we are concerned with its potential prospective or future impact. The Petitioner's demonstration of 
prior similar work does not have an influence on the proposed endeavor's potential prospective impact 
based on its national importance. 
Moreover, the certificates in various discrete subjects such as GO HSE, auditing, management, and 
disruptive strategy the Petitioner introduced into the record do not illuminate the endeavor's national 
importance. The certificates earned by the Petitioner relate to them as an individual and their own 
personal development of their core skills. The proposed endeavor's national importance stands 
separate and apart from the Petitioner's skills. 5 
5 As stated previously, the Petitioner's education, skills, and knowledge are a relevant point for evaluation under 
Dhanasar's second prong. 
5 
USCIS may, in its discretion, use as advisory opinion statements from universities, professional 
organizations, or other sources submitted in evidence as expert testimony. See Matter ofCaron Int 'l, 
19 I&N Dec. 791, 795 (Comm'r 1988). However, the submission ofletters from experts supporting 
the petition is not presumptive evidence of eligibility. Id. The advisory opinion submitted by the 
Petitioner does not illustrate how the Petitioner's proposed endeavor rises to national importance 
either. The writer mainly focused their analysis on the Petitioner's past performance of development 
and expansion duties with their previous employer. But when the advisory opinion does evaluate the 
endeavor's national interest, it speaks of it in vague or generalized conclusions. For example, the 
writer contends that the Petitioner's endeavor has "significant potential to employ U.S. workers or has 
other substantial positive economic effects, particularly in an economically depressed area." But the 
writer does not identify the specific economically disadvantaged area. And whilst the writer identified 
the specific responsibilities and actions the Petitioner would undertake in their proposed endeavor with 
a summary of the prominence and influence of the oil and gas industry, there was no citation to any 
authority supporting its claim that the Petitioner's performance of the proposed endeavor for their 
employers influenced the greater oil and gas industry in a manner implicating the national interest. 
Moreover, the writer emphasized the proposed endeavor's impact to societal welfare or cultural or 
artistic enrichment by connecting the Petitioner's performance of the endeavor to "keep[ing] gas prices 
low" and "reduc[ing] the effects of current employment trends in the oil and gas industries, which can 
have significant social benefits for the workers, as unemployment has been linked with increased 
stress, communal tensions, homelessness, depression and anxiety." Again, the writer did not describe 
how their work for a single corporate entity in the field of oil and gas could keep gas prices low or 
decrease unemployment in a manner that invoked the national interest. The writer mentioned Bureau 
of Land Management, Energy Information Administration, Inflation Reduction Act initiatives to 
demonstrate that the Petitioner's endeavor impacted a matter that a government entity had described 
as having national importance or was the subject of national initiatives. But the writer's description 
and citation of the governmental initiatives were aspirational, broad, and general. The record did not 
reflect how the Petitioner's proposed endeavor to continue their career as a "Digital Transformation, 
Automation and Operations Manager" working with U.S. companies in the field of oil and gas would 
ensure that Bureau of Land Management onshore oil and gas activities were executed. The record did 
not explain how the Petitioner's proposed endeavor influenced Department of the Interior 
responsibilities related to the Inflation Reduction Act. A vast field such as oil and gas has many 
components and facets which could implicate the national interest. An endeavor residing within a 
broad field with components or facets of national interest is not nationally important as a default. The 
writer did not explain the Petitioner's proposed endeavor's potential prospective impact by identifying 
its broader implications or any positive economic effects that it could be credited with. So we conclude 
that the Petitioner has not established that their proposed endeavor is of national importance. 
III. CONCLUSION 
Because the identified reasons are dispositive of the Petitioner's appeal, we decline to reach and hereby 
reserve remaining arguments concerning eligibility under the remaining Dhanasar prongs. 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 alternate issues on appeal where an applicant is 
otherwise ineligible). 
6 
The Petitioner has not met the requisite first prong of the Dhanasar analytical framework. So we 
conclude that they have not established that they are eligible for or otherwise merit a national interest 
waiver of the job offer requirement, and thus of a labor certification. Accordingly the appeal will be 
dismissed. 
ORDER: The appeal is dismissed. 
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