remanded EB-2 NIW Case: Civil Engineering

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 12, 2024 In Re: 29338178 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a civil engineer, seeks classification as a member of the professions holding an 
advanced degree. 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. 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 Petitioner qualifies 
as an advanced degree professional but that the record did not establish that a waiver of the job offer 
requirement is 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 l&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. 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. 
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. Section 203(b )(2)(B)(i) of the Act. 
The Director determined that the Petitioner qualifies as an advanced degree professional. Based upon 
the evidence in the record that the Petitioner possesses the foreign equivalent of a bachelor's degree 
in civil engineering followed by at least five years of progressive experience in civil engineering and 
construction projects, we agree. See 8 C.F.R. § 204.5(k)(2) (a U.S. bachelor's degree or the foreign 
equivalent followed by at least five years of progressive experience in the specialty is equivalent to a 
master's degree). 
Once a petitioner demonstrates eligibility for the EB-2 classification, the petitioner must then establish 
eligibility for a discretionary waiver of the job offer requirement "in the national interest." Section 
203(b )(2)(B)(i) of the Act. While neither 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 USCIS may, as a matter of 
discretion, 1 grant a national interest waiver if the petitioner demonstrates that: 
• 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. 
As to the Petitioner's request for a national interest waiver, the Director concluded that the Petitioner 
demonstrated the substantial merit of the proposed endeavor but not its national importance, and as 
such did not establish eligibility under the first prong of the Dhanasar analytical framework. The 
Director's decision did not analyze or make findings as to whether the Petitioner demonstrated 
eligibility under the second and third Dhanasar prongs, and denied the matter based solely on finding 
the first prong was not met. However, prior to the decision in this matter the Director stated in a 
request for evidence (RFE) that the record demonstrates both the substantial merit and the national 
importance of the proposed endeavor. Therefore, while the RFE requested additional evidence related 
to the second and third prongs, it did not request additional evidence to establish the first. 
On appeal, the Petitioner points out this discrepancy between the RFE and the decision and contends 
that, because the Director stated in the RFE that the record was sufficient to establish national 
importance, the petition was denied without an opportunity for the Petitioner to respond or present 
additional evidence related to this question. The Petitioner also asserts, because the decision did not 
include findings regarding the second and third Dhanasar prongs, that "we are left to conclude that 
USCIS does not contest our response to the RFE that [the Petitioner] is well-positioned, and that it 
would be beneficial to waive the requirement of a labor certification." 
We disagree with the Petitioner that the decision's lack of analysis as to prongs two and three leads to 
the conclusion that the Petitioner's RFE response was sufficient to establish those prongs. Rather, the 
Director's decision concludes only that because the record does not demonstrate the national 
importance of the endeavor, as required, the Petitioner has not demonstrated eligibility for a national 
interest waiver. Nevertheless, we agree that, due to the statement in the RFE that the record did in fact 
establish the requisite national importance, the Petitioner was not afforded an opportunity to provide 
additional evidence to potentially establish this requirement, if needed, prior to the Director's decision. 
Moreover, because the Director did not make a finding as to whether the Petitioner established prongs 
two and three of the Dhanasar framework, the decision rests entirely upon finding a deficiency that is 
contrary to what was stated in the RFE, and that the Petitioner did not previously have an opportunity 
to address. Therefore, we will withdraw the Director's decision. 
In addition to noting this discrepancy on appeal, the Petitioner also provides further arguments and 
briefing related to the potential national importance of the proposed endeavor and to the second and 
third Dhanasar prongs. Where a petition is denied based on a deficiency of proof, and the petitioner 
was not put on notice of the deficiency with a reasonable opportunity to address it before the denial, 
then we will remand the matter to allow the Director to consider and address the new evidence or 
1 See also Poursina v. USC1S. 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
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information. See Matter ofSoriano, 19 I&N Dec. 764, 766 (BIA 1988). Here, the Petitioner was not 
notified of the deficiencies as to the first prong before the denial. Additionally, although he was put 
on notice as to the potential deficiencies in establishing prongs two and three prior to the denial, 
without a finding from the Director as to whether the RFE response addressed those deficiencies, the 
Petitioner has not been provided with a reasonable opportunity to appeal those issues, if needed. 
Therefore, we will remand the matter for the Director to consider the Petitioner's arguments in the 
first instance. In addition to considering the information presented on appeal, the Director may 
consider requesting additional evidence, if needed. On remand, the Director should review the entire 
record and consider whether the Petitioner has established eligibility under each of the three prongs of 
the Dhanasar framework. Because we remand the matter to the Director to consider the Petitioner's 
arguments in the first instance, we express no opinion regarding the ultimate resolution of this case on 
remand. 
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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