dismissed EB-2 NIW Case: Computer Science

MATTER OF R-S-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 24, 2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an entrepreneur and computer programmer, seeks second preference 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 EB-2 classification. See Immigration 
and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2). After a petitioner has 
established eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) 
may, as 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. Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). 
The Director of the Nebraska Service Center denied the Form 1-140, Immigrant Petition for Alien 
Worker, finding that the Petitioner qualified for classification as a member of the professions 
holding an advanced degree, but that he 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 contends that he is eligible for a national interest waiver under the 
Dhanasar framework. 
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: 
Matter of R-S-
(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. 
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. 884.1 Dhanasar states that after EB-2 eligibility has been established, 
USCIS may, as a matter of discretion, grant a national interest waiver when the below prongs are 
met. 
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, USC IS may evaluate factors such as: whether, in light of the nature of the 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 I&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSD07). 
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Matter of R-S-
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) 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 Director found that the Petitoner qualifies as a member of the professions holding an advanced 
degree. The sole issue to be determined is whether the Petitioner has established that a waiver of the 
requirement of a job offer, and thus a labor certification, would be in the national interest. 
With respect to his proposed endeavor, the Petitioner asserted at the time of filing that he intended 
"to become a Software Engineer researcher/University faculty." 3 He further stated: "I would like to 
apply for full time faculty position at an American University or a best fit position in an IT 
[information technology] company." In addition, the Petitioner contended that he could seek 
employment as a computer and information systems manager, sales engineer, or chief technology 
officer. 
The Director issued a request for evidence (RFE) asking the Petitioner to provide clarification as to 
which one or more of these endeavors he intends to pursue in the United States. He was informed 
that if he intended to pursue multiple endeavors, he should provide information and evidence 
regarding his specific plans for each undertaking and explain how his time will be divided among 
them.4 
In response to the Director's RFE, the Petitioner indicated that he intends "to establish a computer 
company in the United States and contribute to the U.S. economy." The Petitioner, however, does 
not elaborate on the types of products and services his proposed U.S. computer company will 
provide. Nor does the record demonstrate that this endeavor will offer substantial economic benefits 
to the region in the United States where his company will operate or to the nation. For instance, the 
Petitioner has not identified the location of his company's operations in the United States, nor has he 
2 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
3 The Petitioner listed multiple universities where he could "apply for faculty/research position[s]" (including 
, and , but did not provide evidence of his communications with them or their interest in having him teach 
or conduct research. As the Petitioner is applying for a waiver of the job offer requirement, he need not have a job offer from 
a specific employer. Nevertheless, information about the nature of his proposed endeavor is necessary for us to determine 
whether it has substantial merit and national importance, and whether he is well positioned to advance such an endeavor. 
4 The Director further explained that that the Petitioner's initial statement "was too general with respect to how he intends to 
accomplish any one of the potential endeavors." For example, while the Petitioner identified various universities and 
described their research programs that interested him, he did not provide specific details about the projects he will undertake 
or evidence to support his particular research plans. 
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Matter of R-S-
provided information regarding any projected job creation resulting from his proposed business. The 
evidence does not show that his proposed computer company's benefits to the regional or national 
economy would reach the level of "substantial positive economic effects" contemplated by Dhanasar. 
Id. at 890. 
In addition, the Petitioner states: "Should my attempts to establish a computer company be fruitless, 
I will seek employment as a computer programmer or IT Manager at a U.S. company." 5 The 
Petitioner asserts that he "will apply for a suitable position at: 
[and] The record, however, does not include documentation of the Petitioner's 
communications with these organizations or their interest in hiring him. Nor is there information or 
evidence indicating the type of computer programming or IT work he will undertake on their behalf. 
Furthermore, the Petitioner indicates: 
I will also continue to undertake my research activities in the United States and will 
enhance the knowledge about computer science and specifically computer 
programming . . . . I have committed myself to conducting research on computer 
science subjects and will never stop from doing so if admitted to the United States. I 
will author and publish articles and books and will contribute to the computer field in 
the United States. 
The record does not include supporting documentation to corroborate the Petitioner's assertion that 
he will pursue computer science research in the United States, nor has he identified the specific 
research projects he will undertake. Despite the Director's request for clarification, the Petitioner 
has not provided sufficient information and evidence regarding his specific proposed activities in the 
United States. In Dhanasar, we held that a petitioner must identify "the specific endeavor that the 
foreign national proposes to undertake." Id. at 889. The record does not sufficiently explain the 
Petitioner's proposed endeavor(s) such that we are able to determine, without additional information 
and evidence, that his work will have both substantial merit and national importance and that he is 
well positioned to advance his proposed endeavor. Furthermore, the Petitioner has not established 
5 The record includes information from Wikipedia about the computer programming field, an article from FastCompany.com 
indicating that computer coding is an in-demand skill set, and an article in USA Today discussing the need for computer 
programming education. While these articles demonstrate the substantial merit of computer programming, they are not 
sufficient to establish the national importance of the Petitioner's proposed endeavor. The relevant question is not the 
importance of the fields, industries, or causes for which the individual will work; instead we focus on the "the specific 
endeavor that the foreign national proposes to undertake." See Dhanasar, 26 l&N Dec. at 889. In addition, the Petitioner 
points to the aforementioned articles and employment projections from the U.S. Department of Labor's Bureau of Labor 
Statistics as documentation showing "the shortage and need for computer programmers in the U.S." The projected shortage 
of computer programmers in the United States does not render the work of an individual computer programmer nationally 
important under the Dhanasar framework. We note that the U.S. Department of Labor addresses shortages of qualified 
workers through the labor certification process. Accordingly, a shortage alone does not demonstrate that waiving the 
requirement of a labor certification would benefit the United States. 
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Matter of R-S-
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. 
III. CONCLUSION 
As the Petitioner has not met the requisite three prongs set forth in the Dhanasar analytical framework, 
we find that he has not established he is eligible for or otherwise merits a national interest waiver as 
a matter of discretion. 
ORDER: The appeal is dismissed. 
Cite as Matter of R-S-, ID# 1563749 (AAO Sept. 24, 2018) 
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