dismissed EB-2 NIW Case: Cybersecurity

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: OCT. 01, 2024 In Re: 33948593 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner seeks employment-based second preference (EB-2) immigrant classification as either a 
member of the professions holding an advanced degree or an individual of exceptional ability, 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 record did not 
establish that the Petitioner qualifies for EB-2 immigrant classification or that the Petitioner was 
eligible for the requested national interest waiver. The Director dismissed a subsequently filed 
combined motion to reopen and motion to reconsider, concluding that, although the combined motions 
established the Petitioner's eligibility for the underlying EB-2 immigrant classification, he did not 
establish eligibility for the requested national interest waiver. The Petitioner now appeals the 
Director's dismissal of the combined motions pursuant to 8 C.F.R. §§ 103.3 and 103.5(a)(6). 
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 Christa's, Inc., 26 l&N Dec. 537,537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
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. An advanced degree is any U.S. academic or professional degree or a foreign 
equivalent degree above that of a bachelor's degree. A U.S. bachelor's degree or foreign equivalent 
degree followed by five years of progressive experience in the specialty is the equivalent of a master's 
degree. 8 C.F.R. § 204.5(k)(2). 
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 l&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: 
• 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. 
A motion to reopen must state new facts and be supported by affidavits or other documentary evidence. 
8 C.F.R. § 103.5(a)(2); see also Matter of Coelho, 20 I&N Dec. 464, 473 (BIA 1992) (requiring that 
new evidence have the potential to change the outcome). A motion to reconsider must establish that 
the prior decision was based on an incorrect application of law or policy and that the decision was 
incorrect based on the evidence in the record of proceedings at the time of the decision. 
8 C.F.R. § 103.5(a)(3). A motion that does not meet applicable requirements shall be dismissed. 
8 C.F.R. § 103.5(a)(4). 
II. ANALYSIS 
As a preliminary matter, we emphasize that this appeal relates to the Director's April 2024 dismissal 
of the Petitioner's combined motions to reopen and reconsider. 2 In the Director's dismissal, they 
concluded that, although the Petitioner established eligibility for the requested EB-2 immigrant 
classification on motion, he did not establish his eligibility for the requested national interest waiver. 
Therefore, the question before us is whether the Director erred in dismissing the combined motions on 
that basis. Although the August 2023 decision is not the basis of the appeal, we will refer to portions of 
that decision because it informs our review of the Director's decision dismissing the combined motions. 
In their August 2023 decision, the Director determined that the Petitioner did not establish eligibility for 
a national interest waiver under Dhanasar' s three-prong analytical framework. See Matter ofDhanasar, 
26 I&N Dec. at 889. Specifically, the Director determined that, although the Petitioner's endeavor of 
operating an IT consulting company specializing in providing cybersecurity services to a variety of 
businesses was substantially meritorious, the record did not establish the Petitioner's endeavor was 
nationally important because the Petitioner did not show that his endeavor would result in broader 
implications to his field-beyond the direct benefits to his prospective clients-or otherwise result in 
substantial economic benefits contemplated in Dhanasar. Additionally, while the Director 
acknowledged the Petitioner's experience in his field, they nonetheless concluded that the record did 
not establish he was well-positioned to advance his proposed. The Director also concluded that the 
Petitioner had not established, on balance, that it would be beneficial for the United States to waive 
the job offer requirement. 
1 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts (and Third 
in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver is discretionary 
in nature). 
2 See 8 CFR §103.5(a)(6). 
2 
As stated, following the denial of their petition, the Petitioner filed a combined motion to reopen and 
motion to reconsider. On motion, the Petitioner offered the same or similar arguments asserting his 
eligibility for the national interest waiver which he previously made before the Director. He primarily 
discussed the importance of the cybersecurity field and the importance of safeguarding against data 
breaches, as well as his experience within the field, without addressing the conclusions made in the 
Director's decision regarding these assertions. Additionally, he submitted new letters from his former 
employers verifying his experience in the field. The Director concluded that the Petitioner established 
his eligibility for the underlying EB-2 immigrant classification, but did not establish eligibility for the 
requested national interest waiver. Specifically, the Director noted that, although the combined motions 
demonstrated the importance of the cybersecurity field, the Petitioner did not establish the national 
importance of his proposed endeavor, that he was well-positioned to advance his endeavor, or that, on 
balance, it would be beneficial for the United States to waive the job offer requirement. Accordingly, 
because the new evidence did not establish eligibility for the national interest waiver, nor did the motion 
give reasons for reconsideration supported by pertinent precedent decisions to overcome the basis for the 
denial, the Director dismissed the combined motions. 
On appeal, instead of contesting the reasons for the Director's adverse decision on the combined 
motions, the Petitioner broadly states that the Director's denial was in error. In doing so, the Petitioner 
fails to specifically identify an erroneous conclusion oflaw or statement of fact in the Director's most 
recent decision dismissing the motions, which is the decision on appeal. The reason for filing an 
appeal is to provide an affected party with the means to remedy what they perceive as an erroneous 
conclusion of law or statement of fact within a decision in a previous proceeding. See 8 C.F.R. § 
103.3(a)(l)(v). It is insufficient to broadly assert that the Director made an improper determination. 
Where a question of law is presented, supporting authority should be included, and where the dispute 
is on the facts, there should be a discussion of the particular details contested. Matter of Valencia, 
19 I&N Dec. 354, 355 (BIA 1986). As the Petitioner does not contest the Director's most recent 
decision, this alone is a basis for dismissal. Nonetheless, upon a de novo review, we conclude that the 
Director properly dismissed the motion to reopen and motion to reconsider. 
On appeal, the Petitioner continues to rely on the importance of the cybersecurity and IT consulting fields 
rather than addressing the reason for the Director's dismissal. For example, the Petitioner contends that 
"IT consulting plays a vital role in preventing cyberattacks," and "IT consulting brings significant 
economic and social benefits." Yet, the Petitioner does not address the Director's conclusion that the 
record does not establish how his specific endeavor is nationally important. Additionally, the Petitioner 
relies on governmental interest in the success of small and medium-sized businesses to bolster the 
national importance of his proposed endeavor, but again does not establish how the broader 
implications of his endeavor would extend beyond his immediate clients to otherwise impact the field 
or small businesses at a level commensurate with national importance. 
The Petitioner also broadly claims that his endeavor will result in substantial economic effects without 
addressing the Director's prior determinations to the contrary and establishing how these 
determinations were erroneous. Although Dhanasar does not specify a number of U.S. workers that 
should be hired, a petitioner should nonetheless establish that the substantially positive economic 
effects claimed, for example through staffing levels or business activity, would rise to the level of 
national importance contemplated in Dhanasar. While any basic economic activity has the potential 
to positively impact a local economy, the Petitioner has not demonstrated how the economic activity 
3 
directly resulting from his proposed endeavor would rise to a level commensurate with national 
importance. 
And we acknowledge the Petitioner's claims on appeal relating to his employment as a STEM 
professional. However, as discussed, the Petitioner has not shown that his endeavor aims to advance 
STEM technologies and research or has broad implications rather than providing his limited professional 
services by working within a STEM profession. As such, these assertions do not overcome the Director's 
decision dismissing the combined motions. 
Regarding Dhanasar's second prong, the Petitioner does not directly address the Director's dismissal, 
and instead broadly states that he is well positioned to advance his endeavor based on the evidence 
submitted in the record. Similarly, regarding the third prong, the Petitioner does not address the 
Director's dismissal, but rather focuses on the importance of the cybersecurity field to establish that, 
on balance, it would be beneficial to waive the labor certification process. In doing so the Petitioner 
relies on the high demand and shortage of professionals in this field; however, such shortages of 
qualified workers are directly addressed by the U.S. Department of Labor through the labor 
certification process. As such, the Petitioner has not shown how this claimed shortage establishes it 
would be beneficial for the United States to waive the job offer requirement. 
The Petitioner's combined motion to reopen and motion to reconsider did not overcome the reasons for 
the Director's denial, as the new evidence submitted did not establish his eligibility for the national 
interest waiver under the Dhanasar framework, and the motion to reconsider did not identify an 
incorrect application of law or policy within the Director's decision supported by relevant caselaw, 
statute, or regulation. Accordingly, the Director properly dismissed his combined motion to reopen 
and motion to reconsider. See 8 C.F.R. § 103.5(a)(4). 
III. CONCLUSION 
For the reasons above, the Petitioner has not shown that the Director erred in dismissing either the 
motion to reopen or motion to reconsider. 
ORDER: The appeal is dismissed. 
4