dismissed EB-2 NIW Case: Structural Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re: 10270824 
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 structural engineer, seeks second preference immigrant classification 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 Petitioner initially described the endeavor as "[relying] on significant experience and [utilizing 
his] independent judgement in planning and accomplishing goals" as a "structural engineer." In 
response to the Director's request for evidence (RFE), the Petitioner asserted that he is a structural 
engineer and researcher working as an assistant professor atl I University. In the decision 
denying the petition, the Director stated that "the evidence of record establishes that the [P]etitioner's 
proposed endeavor ... has substantial merit." However, the Director began the analysis of the second 
aspect of the first Dhanasar prong by stating that "the evidence of record does not support that the 
[P]etitioner's proposed endeavor has national importance." The Director then elaborated on the basis 
for that conclusion in the following paragraphs, which we omit for brevity. 
We note that the Director's analysis of the first Dhanasar prong ends with a paragraph, qualified by: 
"[t]o the extent that the [P]etitioner proposes to conduct research in the field of structural engineering, 
USCIS finds the evidence of record sufficient to demonstrate that such research is of national 
importance," which is inconsistent with the Director's initial statement to the contrary. 
Later in the decision, the Director reiterated the initial finding that the record does not support the 
conclusion that the endeavor has national importance. After concluding that the record does not 
establish the Petitioner is well positioned to advance the proposed endeavor, and further concluding 
that "[t]he evidence does not show that the [P]etitioner's qualifications, skills, and past history of 
influence in the field are such that his benefit to the nation outweighs going through the labor 
certification process," the Director restated: "[ a ]s previously discussed, USCIS does not find that the 
[P]etitioner's proposed endeavor has national importance." The Director further stated that "[the 
Petitioner] has not shown an urgent national interest in his own efforts." Those repeated conclusions 
clarify that the qualified statement regarding research did not overcome the initial conclusion to the 
contrary regarding the endeavor as a whole. 
Upon de nova review, we withdraw the Director's statement that, "[t]o the extent that the [P]etitioner 
proposes to conduct research in the field of structural engineering, USCIS finds the evidence of record 
sufficient to demonstrate that such research is of national importance" because the record-and the 
remainder of the decision-does not support that conclusion. 
On appeal, the Petitioner asserts that "[t]he denial notice acknowledged that the Petitioner has met the 
first prong, thus meeting the requirements that the Petitioner's endeavor has substantial merit and 
national importance (page 5) as set forth in/n re: Matter ofDhanasar." The Petitioner does not further 
address the Director's numerous, express conclusions that "USCIS does not find that the [P]etitioner's 
proposed endeavor has national importance." The Petitioner's assertion on appeal regarding one 
paragraph, prefaced with the qualification that it applies only "[t]o the extent that the [P]etitioner 
proposes to conduct research in the field of structural engineering" while also working full-time as a 
2 See Dhanasar, 26 I&N Dec. at 888-9L for elaboration on these three prongs. 
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teaching professor, mischaracterizes the totality of the decision's analysis regarding the issue of 
national importance. 
The Petitioner does not address on appeal how the Director erred by concluding that the record does 
not satisfy the national importance requirement of the first Dhanasar prong, which is dispositive. 
Furthermore, we note that the proposed endeavor materially changed after the time of filing. As the 
Director noted in the decision, the Petitioner initially described the proposed endeavor as working as 
a structural engineering researcher at I I through the I I 
staffing agency. However, as noted above, in response to the Director's RFE, the Petitioner stated 
instead that the proposed endeavor involved workin as an associate rofessor at 
University and as a consulting engineer at~---~--~-------~ At the time of 
filing, the proposed endeavor made no reference to working as a university professor. 
A visa petition may not be approved after a petitioner or beneficiary becomes eligible under a new set 
of facts. See 8 C.F.R. § 103.2(b)(l); see also Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 
(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). 
Because the proposed endeavor materially changed after the time of filing and because the Petitioner 
does not assert on appeal how the Director erred in concluding that the endeavor does not have national 
importance, the record does not establish eligibility under the first Dhanasar prong. We reserve our 
opinion regarding whether the record satisfies either the second or third Dhanasar prongs. 
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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