remanded EB-2 NIW Case: Architecture And Construction

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEPT. 11, 2024 In Re: 33962257 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a project engineer in architecture and construction, seeks employment-based second 
preference (EB-2) 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 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 established 
that the Beneficiary qualified for EB-2 classification as an advanced degree professional, but did not 
demonstrate 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 pursuant to 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 withdraw the Director's decision and remand the matter for entry of a new decision consistent 
with the following analysis. 
I. LAW 
To qualify for the underlying EB-2 visa classification, a petitioner must establish they are an advanced 
degree professional or an individual of exceptional ability in the sciences, arts, or business. Section 
203(b )(2)(A) of the Act. 
If a petitioner establishes eligibility for the underlying EB-2 classification, they must then demonstrate 
that they merit a discretionary waiver of the job offer requirement "in the national interest." 
Section 203(b )(2)(B)(i) of the Act. While neither the statute nor the pertinent regulations define the 
term "national interest," Matter of Dhanasar, 26 I&N Dec. 884, 889 (AAO 2016), provides the 
framework for adjudicating national interest waiver petitions. Dhanasar states that U.S. Citizenship 
and Immigration Services (USCIS) may, as matter of discretion, 1 grant a national interest waiver if 
the petitioner demonstrates that: 
1 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts (and Third 
• The proposed endeavor has both substantial merit and national importance; 
• The individual is well-positioned to advance their proposed endeavor; and 
• On balance, waiving the job offer requirement would benefit the United States. 
Id. 
II. ANALYSIS 
The Petitioner submitted evidence that the Beneficiary holds the equivalent of a United States 
bachelor's degree in architectural studies and over five years of progressive experience in her 
specialty. The Director determined that the Beneficiary qualified for EB-2 classification as an 
advanced degree professional. We agree. 
In its first support letter submitted with the petition, the Petitioner stated the Beneficiary's proposed 
endeavor is to continue her employment as a project engineer with the Petitioner and engage in 
"architectural design and execution of complex infrastructure and construction projects to advance 
U.S. public transportation modernization and expansion and provide the U.S. population with access 
to safe mobility services and roadway networks, affordable housing, and healthcare facilities." 
A. Substantial Merit and National Importance 
The first Dhanasar prong, substantial merit and national importance, focuses on the specific endeavor 
that the individual 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. Matter ofDhanasar, 26 I&N Dec. at 889. 
The Director determined the Beneficiary's proposed endeavor has substantial merit. We agree. The 
Director concluded, however, that the Beneficiary's proposed endeavor did not have national 
importance. The Director reached this conclusion based on several misrepresentations of the record 
and her determination will be withdrawn. 
The Director referenced "several letters of support" that "provide details about the beneficiary's 
character, skills, and work ethic," but did not establish that she had made "significant contributions to 
the industry or field of engineer." As the Petitioner correctly asserts on appeal, the Petitioner did not 
submit letters that discussed the Beneficiary's character, skills and work ethic. Rather, the Petitioner 
submitted a support letter from the Beneficiary's current supervisor that discusses her experience and 
contributions to the Petitioner and letters from past employers verifying her employment and listing 
her job duties. The Director also misidentified the Beneficiary's field as "engineer." Although the 
Beneficiary is employed as a project engineer, the record shows she works in the field of architecture 
and construction. The Director's reference to support letters that the Petitioner did not submit and her 
in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver is discretionary 
in nature). 
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misidentification of the Beneficiary's field indicate that the Director's conclusion was not based on 
the record in this case. 
The Director also quoted from the Petitioner's letter submitted in response to the Director's request 
for evidence. The Director misidentified the quote as a statement of counsel and did not consider the 
statement as evidence. However, the Petitioner's letter explains why the Petitioner believes the 
Beneficiary's proposed endeavor has national importance and is relevant evidence that merits 
consideration of the Beneficiary's eligibility under the first Dhanasar prong. 
At several places in her decision, the Director refers to the Beneficiary as a man although the 
Beneficiary is a woman. This misidentification further indicates that the Director's determination was 
not based on the record in this case. 
The regulation at 8 C.F.R. § 103.3(a)(l)(i) states that when denying a petition, the Director shall 
explain in writing the specific reasons for denial. An officer must fully explain the reasons for denying 
the petition in order to allow the Petitioner a fair opportunity to contest the decision and our 
opportunity for meaningful appellate review. Cf Matter of M-P-, 20 I&N Dec. 786 (BIA 1994) 
(finding that an Immigration Judge must fully explain the reasons for denying a motion to allow the 
respondent a meaningful opportunity to challenge the determination on appeal). Here, the Director 
relied on evidence not in the record and misidentified the Beneficiary and her field of endeavor. 
Consequently, the Director's decision did not provide a sufficient explanation for the reasons for denial 
and did not provide the basis for a meaningful appeal. Accordingly, the Director's determination that 
the Beneficiary does not meet the first Dhanasar prong will be withdrawn. 
B. The Remaining Dhanasar Prongs 
The second prong shifts the focus from the proposed endeavor to the individual. To determine whether 
they are well positioned to advance the proposed endeavor, we consider factors including, but not 
limited to: their 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. Id. at 890. 
The third prong requires a 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, we may evaluate factors such as: whether, in light of the nature of the individual's 
qualifications or the proposed endeavor, it would be impractical either for them to secure a job offer 
or to obtain a labor certification; whether, even assuming that other qualified U.S. workers are 
available, the United States would still benefit from their contributions; and whether the national 
interest in their contributions is sufficiently urgent to warrant forgoing the labor certification process. 
In each case, the factor(s) considered must, taken together, establish 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. 
Id. at 890-91. 
A decision on whether an individual is eligible for and merits a national interest waiver requires an 
assessment of the individual's eligibility under each of the three Dhanasar prongs. Id. at 889. Here, 
the Director did not make a determination of whether the Beneficiary met the second and third 
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Dhanasar prongs of showing that she is well positioned to advance her proposed endeavor and 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 Director's decision is incomplete. The matter will be remanded to 
the Director to complete a full analysis of the Beneficiary's eligibility under all three Dhanasar prongs. 
III. CONCLUSION 
The 
Director's decision indicates her determinations were not entirely based on the record in this case. 
Her decision did not sufficiently specify the reasons for denial, did not provide the Petitioner with a 
meaningful opportunity to contest the decision, and did not provide us with the basis for meaningful 
appellate review. The Director's decision will be withdrawn and the matter will be remanded for entry 
of a new decision. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
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