remanded EB-2 NIW Case: Civil Engineering

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: AUGUST 14, 2024 In Re: 33398380 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a civil engineer, 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 the Petitioner qualified for 
EB-2 classification as a member of the professions holding an advanced degree, but 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 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 
In his Proposed Endeavor document, the Petitioner states he will create a company,! 
I I which will specialize in architectural design, construction, and consulting services for 
renovations and new residential and commercial real estate ventures. The Petitioner states the 
company will be headquartered in I and operate in the southeast region of Florida. The 
Petitioner submitted a business plan for which explains the company will address the housing 
crisis in the United States by providing high-quality housing options that will contribute to the 
increased availability of residential units. 
The Director found the Petitioner is an advanced degree professional who is well positioned to advance 
his proposed endeavor. We agree. The Director determined the Petitioner did not establish the 
national importance of his proposed endeavor or that waiving the job offer requirement would benefit 
the United States. 
On appeal, the Petitioner asserts the Director made numerous factual errors and referenced evidence 
he did not submit, which deprived him of a fair opportunity to contest the decision. The record 
supports the Petitioner's claims. The Director stated the Petitioner "intends to work as an Entrepreneur 
in the mining/mineral sector," but the relevant evidence shows that the Petitioner is a civil engineer 
whose proposed endeavor is the establishment of thel !construction company. The Director also 
stated that according to the Petitioner's letter and personal statement, "the petitioner will expand and 
direct business activities ofI I a company in mining/mineral sector in Florida," and refers to 
I I as the Petitioner's company throughout the denial decision. However, the Petitioner's 
letters, personal statement and business plan all discuss the Petitioner's intent to create I I a 
construction company. 
The Director also referenced an "invitation from Brazil-Texas Chamber of Commerce for the 
petitioner to join as Mining Committee," evidence of "several projects that [were] initiated and 
currently underway by I under the petitioner's direction as its CEO," and letters that discuss 
"the petitioner's contributions to I I Specifically, the Director addressed letters from L-O-N­
W2 and R-D-J- that the Director stated were submitted in response to the request for evidence (RFE). 
De novo review shows the record contains no such evidence. To the contrary, the record addresses 
the Petitioner's proposed work for and contains letters from W-V-, E-A-, and E-T- which were 
submitted in response to the RFE. 
in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver is discretionary 
in nature). 
2 We use initials to protect the privacy of the referenced individuals. 
2 
These factual errors show the Director's decision was based on evidence not in the record of these 
proceedings. When denying a petition, an officer shall explain in writing the specific reasons for 
denial. 8 C.F.R. § 103.3(a)(l)(i). An officer must fully explain the reasons for denial to allow the 
petitioner a fair opportunity to contest the decision and our opportunity for meaningful appellate 
review. Cf. Matter ofM-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's errors deprived the Petitioner of a fair 
opportunity to appeal the denial and inhibit our ability to meaningfully review the denial on appeal. 
Consequently, we will remand the matter to the Director to assess whether the Petitioner is eligible for 
and merits a national interest waiver based on the record of proceedings in this case. 
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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