remanded EB-2 NIW Case: Mechanical Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re : 20492203 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAR. 24, 2022 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner seeks second preference immigrant classification, 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 had not 
established that a waiver of the required job offer, and thus of the labor certification, would be in the 
national interest. 
On appeal, the Petitioner asserts that he is eligible for a national interest waiver. 
In these proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit 
sought. Section 291 of the Act, 8 U.S.C. § 1361. Upon de novo review, we will withdraw the 
Director's decision and remand the matter for further review of the record and issuance of a new 
decision. 
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 of job offer-
(i) National interest waiver. ... [T]he 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. 
Section I 01 (a)(32) of the Act provides that "[t]he term 'profession' shall include but not be limited to 
architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, 
colleges, academics, or seminaries." 
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definitions: 
Advanced degree means any United States academic or professional degree or a foreign 
equivalent degree above that of baccalaureate. A United States baccalaureate degree 
or a foreign equivalent degree followed by at least five years of progressive experience 
in the specialty shall be considered the equivalent of a master's degree. If a doctoral 
degree is customarily required by the specialty, the alien must have a United States 
doctorate or a foreign equivalent degree. 
Exceptional ability in the sciences, arts. or business means a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business. 
Profession means one of the occupations listed in section 10 l(a)(32) of the Act, as well 
as any occupation for which a United States baccalaureate degree or its foreign 
equivalent is the minimum requirement for entry in the occupation. 
In addition to the definition of "advanced degree" provided at 8 C.F.R. § 204.5(k)(2), the regulation 
at 8 C.F.R. § 204.5(k)(3)(i)(B) provides that a petitioner present "[a]n official academic record 
showing that the alien has a United States baccalaureate degree or a foreign equivalent degree, and 
evidence in the form of letters from currentorformeremployer(s) showingthatthe alien has at least 
five years of progressive post-baccalaureate experience in the specialty." 
To demonstrate eligibility as an individual of exceptional ability, a pet1t10ner must submit 
documentation that satisfies at least three of the six categories of evidence listed at 8 C.F.R. 
§ 204.5(k)(3)(ii). 
Furthermore, 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 
2 
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 matter of discretion 2, 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 off er and thus of a labor 
certification. See Id. at 888-91, for elaboration on these three prongs. 
II. ANALYSIS 
For the reasons discussed below, we withdraw the Director's conclusions that the Petitioner has 
established that 1) he is an advanced degree professional and 2) his proposed endeavor meets prong 
one under the Dhanasar analysis. 
A. Eligibility for the Requested Classification 
As stated above, the first step to establishing eligibility for a national interest waiver is demonstrating 
qualification for the underlying EB-2 visa classification, as either an advanced degree professional or 
an individual of exceptional ability. 
The record establishes that the Petitioner holds the foreign equivalent of a U.S. bachelor's degree in 
mechanical engineering. As indicated above, the regulation at 8 C.F.R. § 204.5(k)(3)(i)(B) requires 
documentation of the "United States baccalaureate degree or [] foreign equivalent degree, and 
evidence in the form of letters from current or former employer(s) showing that the alien has at least 
five years of progressive post-baccalaureate experience in the specialty." 
In response to the Director's request for evidence (RFE), the Petitioner submits a translated "Record 
of Employment," which covers ten years of the Petitioner's employment as president of the company 
and lists his "responsibilities" as: 
• Surveil the resources of the company 
• Supervise the accomplishment of goals on sales 
• Execute strategic businesses for the growth and development of the company 
The Director should determine whether the Petitioner has sufficiently established "at least five years 
of progressive post-baccalaureate experience" in his specialty, mechanical engineering. 
If the Director determines that the Petitioner has not demonstrated that he is an advanced degree 
professional, he should then consider whether he is an individual of exceptional ability. 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 I&NDec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
2 Sec also Poursinav. USCIS, 936F.3d 868, 2019 WL4051593 (9th Cir. 2019) (finding USCIS' decision to grant or deny 
a national interest waiver to be discretionary in nature). 
3 
B. The Proposed Endeavor 
In Dhanasar, we held that a petitioner must identify "the specific endeavor that the foreign national 
proposes to undertake." On the Form I-140, Immigrant Petition for Alien Worker, the Petitioner 
provided the following information: 
Part 5 - Additional Information About the Petitioner 
Section 11. Occupation: Mechanical Engineer 
Part 6 - Basic Information About the Proposed Employment 
Section 1. Job Title: Petitioner left this section blank 
Section 2. SOC Code: 17-2141 3 
Section 3. Nontechnical Description of Job: Perform engineering duties in planning and 
designing tools, engines, machines, and other mechanically functioning equipment. 
On the U.S. DepartmentofLaborEmploymentand Training Administration Form ETA 750 Part B, 
Application for Alien Employment Certification, the Petitioner also listed "mechanical engineer" in 
Box 6 as the occupation in which he is seeking work. 
The Petitioner, through counsel, indicated in the initial letter of support that "[h]]is career plan in the 
United States is to continue working in [ m ]echanical [ e ]ngineering with multi-national companies, 
providing indispensable guidance regarding national and cross-border contracts involving the 
development of different manufacturing and engineering projects in the U.S. and abroad." 
In response to the Director's RFE, the Petitioner provided a "Professional Plan & Statement" indicating 
that, in addition to working as a mechanical engineer, he would also be an entrepreneur. The Petitioner 
submitted a business plan for his proposed endeavor, indicating that his holding company "offers project 
design and development services for the construction industry," in addition to selling "tiles, bathroom 
equipment (faucet[s], vanities, toilet[s]), and kitchen cabinet[s] to wholesale and resale." The Petitioner, 
however, must establish eligibility at the time of filing. 8 C.F.R. § 103 .2(b )(12); Matter of Katigbak, 
14 I&N Dec. 45, 49 (Comm'r 1971 ). Further, the purpose of anRFE is to elicit information that clarifies 
whether eligibility for the benefit sought has been established, as of the time the petition is filed. 
See 8 C.F.R. § § 103 .2(b )(1 ), 103.2(b )(8), 103.2(b )( 12). 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 
lzummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). If significant, material changes are made to 
the initial request for approval, a petitioner must file a new petition rather than seek approval of a 
petition that is not supported by the facts in the record. 
3 This standard occupational classification (SOC) code 1 7-2141 cmresponds to the occupation of mechanical engineers. 
Sec https://www.onetonline.org/link/summaty/l 7-2141.00 (lastaccessedMar. 24, 2022). 
4 
The Director, therefore, should considerwhetherthe information provided by the Petitioner in the RFE 
response provided more specificity to the proposed endeavor as initially described or presented a new 
set of facts regarding the proposed endeavor, which is material to eligibility for a national interest 
waiver. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg'l Comm'r 1978); see also 
Dhanasar, 26 I&N Dec. at 889-90. 
In determining whether an individual qualifies for a national interest waiver, we must rely on the 
specific proposed endeavor to determine whether (1) it has both substantial merit and national 
importance and (2) the foreign national is well positioned to advance it under the Dhanasar analysis. 
C. The Dhanasar Analysis 
If the Director concludes that the Petitioner provided consistent and sufficient information regarding the 
proposed endeavor( s) in the United States and that it is as both an entrepreneur and a mechanical engineer, 
he must then consider each endeavor separately. We note that in Dhanasar, we concluded that the 
petitioner's teaching activities did not rise to the level of having national importance because they 
would not impact his field more broadly. Id. at 893. 
III. CONCLUSION 
For the reasons discussed above, we are remanding the petition for the Director to consider anew 
whether the Petitioner 1) qualifies for EB-2 classification, the threshold determination in national 
interest waiver cases, 2) has provided sufficient and consistent information regarding his proposed 
endeavor, and 3) has established whether a waiver of the required job offer, and thus of the labor 
certification, would be in the national interest. The Director may request any additional evidence 
considered pertinent to the new determination. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for further 
proceedings consistent with the foregoing analysis and entry of a new decision. 
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