dismissed EB-2 NIW Case: Cybersecurity

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAR. 7, 2024 In Re: 30188420 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a cybersecurity specialist and educator, 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. 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 qualified 
for classification as a member of the professions holding an advanced degree I but that he had not 
established that a waiver of the required job offer, and thus the labor certification, would be 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 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christa's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal because the Petitioner did not establish that his proposed endeavor has 
1 We note that it is unclear if the Petitioner qualifies for EB-2 classification based on an advanced degree. See 8 C.F .R. § 
204.5(k)(2) . The Petitioner submitted co ies of his Costa Rican de rees: a "Maestria Profesional" in lnfonnation 
Technology Engineering from the...._________ -.=====-=====-=====;---' and a "Bacherillerato 
en Inguenieria Informatica" in Computer Engineering from the _________ ....,... According to the American 
Association of Collegiate Registrars and Admission Officers' (AACRAO) Electronic Database for Global Education 
(EDGE), a "maestria" degree from Costa Rica is equivalent to a U.S. master's degree. However, the Petitioner 's degree 
is a "Maestria Profesional" and ACCRAO EDGE does not indicate if a professional master's degree is likewise equivalent 
to a U.S. master's degree. Further, ACCRAO EDGE indicates that a "bachillerato" is not the equivalent of a U.S. 
bachelor's degree. Rather, the Costa Rican equivalent to the U.S. bachelor's degree is the "bachiller universitario." From 
the infonnation submitted, it is not clear that the Petitioner's bachillerato would equate to a bachelor 's degree. We note 
that the Petitioner submitted an evaluation report from the Foundation for International Services, Inc. That report suggests 
that the Petitioner's "bachillerato" is equivalent to a U.S. bachelor 's degree, however, it appears to conflict with the 
infonnation in EDGE and should be resolved in any further filings. As the appeal is dismissed on other grounds, we need 
not reach, and therefore reserve, the issue of whether Petitioner is eligible for the EB-2 classification. See INS v. 
Bagamasbad, 429 U.S. 24, 25 (1976) (stating that agencies are not required to make "purely advisory findings" on issues 
that are unnecessary to the ultimate decision); see also Matter ofL-A-C- , 26 I&N Dec. 516, 526 n.7 (BIA 2015) (declining 
to reach alternative issues on appeal where the applicant did not otherwise meet their burden of proof). 
national importance under the first prong of the Dhanasar framework. See Matter of Dhanasar, 26 
I&N Dec. 884 (AAO 2016). 
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. Section 203(b )(2)(B)(i) of the Act. Next, a 
petitioner must then establish 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 ofDhanasar, 26 I&N Dec. at 889, provides the 
framework for adjudicating national interest waiver petitions. Dhanasar states that U.S. Citizenship 
and Immigration Services (USCIS) may, as matter of discretion, 2 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. 
II. ANALYSIS 
The first prong of the Dhanasar test - substantial merit and national importance - focuses on the 
specific endeavor the Petitioner proposes to undertake. Id. at 889. The Petitioner's proposed endeavor 
was to work as a cybersecurity specialist, educator and consultant. The Petitioner initially stated that 
he "propose[ d] the application of my training, knowledge, and expertise as a cybersecurity expert to 
design and developing [sic] security strategies to improve the cybersecurity posture of companies in 
the USA in any of the 8 domains that are proposed by the International Information System Security 
Certification Consortium." Those domains were "Security and Risk Management, Asset Security, 
Identity and Access Management (IAM), Security Assessment and Testing, Security Operations, and 
Software Development Security." Following initial review, the Director issued a request for evidence 
(RFE) asking the Petitioner to submit additional evidence that demonstrated that the Petitioner's 
proposed endeavor satisfied the national importance requirement under Dhanasar 's first prong. 
Further, the Director requested that the Petitioner provide additional evidence that indicated that he 
was well-positioned to advance his proposed endeavor under Dhanasar 's second prong. Finally, the 
Director requested evidence establishing 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 response to the Director's RFE, the Petitioner reiterated his initial explanation of his proposed 
endeavor. The Petitioner also submitted an updated statement, letters of recommendation, and articles 
discussing the costs associated with cybersecurity threats, the shortage of cybersecurity professionals, 
and U.S. government initiatives. The government initiatives referenced are not specific to the 
Petitioner and involve cybersecurity themes generally (e.g., the National Institute of Standards and 
2 See also 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 to be 
discretionary in nature). 
2 
Technology's Cybersecurity Framework and the Cybersecurity and Infrastructure Security Agency's 
recognition of the importance of cybersecurity in safeguarding national security generally). 
The Director concluded that while this proposed endeavor had substantial merit, the Petitioner had not 
established that: (1) it would be nationally important, (2) that he was well positioned to advance the 
endeavor, or (3) that on balance, it would benefit the United States to waive the requirements of a job 
offer and thus of a labor certification. Specifically, the Director determined that the Petitioner had not 
provided sufficient evidence to determine how he planned to effectuate his proposed endeavor. 
Further, the Petitioner had not elaborated on whether he would, if granted a national interest waiver, 
continue to work for his current employer or pursue self-employment which would be relevant to the 
determination of the prospective economic impact of his proposed endeavor. Additionally, the 
Director concluded that while the Petitioner demonstrated a topical correlation between his proposed 
endeavor and critical issues involving cybersecurity, the Petitioner provided insufficient evidence that 
explained his specific proposed endeavor and how it would have an impact so substantial as to rise to 
the level of national importance. The evidence in the record does not support the conclusion that the 
proposed endeavor will extend beyond an organization, the Petitioner's employer, and its clients to 
impact the field of cybersecurity generally. 
On appeal, the Petitioner submits a legal brief: recommendation letters, and educational certificates. 
The Petitioner's legal brief asserts that the Director's decision provided "no basis" to call into question 
the evidence submitted. Upon inspection of the entire record, we conclude that the Director properly 
reviewed the evidence provided and analyzed the Petitioner's claims using the preponderance of the 
evidence standard. 3 The Petitioner has not met his burden of proof and provided relevant, probative, 
and credible evidence establishing the national importance of his proposed endeavor. Matter of 
Chawathe, 25 I&N Dec. 369,376. 4 
For instance, the Petitioner relies on the importance of the cybersecurity field generally and the 
shortage of cybersecurity experts as evidence of the national importance of his endeavor both on 
appeal and in his previous submissions. However, as the Director explained, the importance of an 
endeavor is determined not by the industry or occupation it involves, but by the Petitioner's specific 
proposed endeavor's prospective impact. Matter ofDhanasar, 26 I&N Dec. at 889-890. An endeavor 
may qualify if it has national implications within a particular field or if it has significant potential to 
have a substantial economic effect, especially in an economically depressed area. Id. The Director 
also specifically noted in her decision that the Petitioner's proposed endeavor provided insufficient 
details of his plans to continue his work and his means to accomplish his proposed endeavor. The 
Petitioner has not submitted a business plan to illustrate in detail his proposed endeavor. Although 
the Petitioner submitted a number of letters in support from various people in the cybersecurity field, 
the Director noted that the letters "do not meaningfully discuss the Petitioner's proposed endeavor" in 
order to establish how it might meet the standard of national importance. 
3 Because we deny the Petitioner's appeal based on the first prong of Dhanasar, we decline to reach and hereby reserve 
the Petitioner's remaining arguments on appeal. 
4 Although we do not address each and every document submitted by the Petitioner, we have reviewed the record in its 
entirety. 
3 
The Petitioner's brief on appeal also puts forth a substantially different endeavor which is "to establish 
his own cybersecurity consultancy ... and also provide training to US employees to help fill the void in 
the job sector of his profession." While elements of his proposed endeavor are the same as initially 
claimed, the proposed endeavor put forward on appeal states that the Petitioner will "create an operate 
his own cybersecurity company." The Petitioner has provided no evidence of the creation of a 
company nor evidence of where such a company would be established. In the Petitioner's RFE 
response, he does not mention either being a consultant or an educator. Instead, he focused solely on 
being a "cybersecurity expert." Because the Petitioner was put on notice when the Director issued a 
request for evidence and given a reasonable opportunity to provide this evidence, we will not consider 
it for the first time on appeal. See 8 C.F.R. § 103.2(b) (11) (requiring all requested evidence be 
submitted together at one time); Matter ofSoriano, 19 I&N Dec. 764, 766 (BIA 1988) (declining to 
consider new evidence submitted on appeal because "the petitioner was put on notice of the required 
evidence and given a reasonable opportunity to provide it for the record before the denial"). A 
petitioner may not make material changes to a petition that has already been filed in an effort to make 
a deficient petition conform to USCIS requirements. Matter oflzummi, 22 I&N Dec. 169, 175 (Assoc. 
Comm'r 1998). Additionally, the substantially different concept put forward on appeal lacks sufficient 
detail to properly analyze such a claim even if we could consider it. 
Based on the evidence of record, the Petitioner's proposed endeavor ofbeing a cybersecurity specialist, 
educator, and consultant is too amorphous to meet his burden of proof The Director specifically noted 
the lack of detail in the Petitioner's proposed endeavor in her decision, but the Petitioner has not 
submitted anything on appeal to overcome that deficiency, and additionally proposed a substantially 
different endeavor. While the burden of proof is the preponderance of the evidence standard, the 
burden is on the Petitioner alone to provide material, relevant, and probative evidence to meet the 
requirements of the benefit they seek. Section 291 of the Act, 8 U.S.C. § 1361. A petitioner's burden 
of proof comprises both the initial burden of production as well as the ultimate burden of persuasion. 
Matter of Y-B-, 21 I&N Dec. 1136, 1142 n.3 (BIA 1998). 
The totality of the evidence submitted by the Petitioner does not support the conclusion that his specific 
proposed endeavor will have broader implications within the cybersecurity field. Nor does the 
evidence submitted demonstrate that the proposed endeavor has significant potential to employ U.S. 
workers or have substantial positive economic benefits (particularly in an economically depressed 
area). 
III. CONCLUSION 
The Petitioner has not submitted sufficient evidence to establish that his proposed endeavor will extend 
beyond an organization and its clients to impact the field of cybersecurity. In Dhanasar, we found 
that the petitioner's teaching activities were not sufficiently substantive in scope to meet the national 
importance aspect of prong one. Matter ofDhanasar, 26 I&N Dec. at 893. Similarly, the Petitioner's 
proposed endeavor has not been substantiated with sufficient evidence to demonstrate that its impact 
would be at the level of national importance. In determining national importance, the relevant question 
is not the importance of the industry in which the individual will work. Rather, the relevant question 
when assessing an endeavor's importance is the impact that will be specifically attributable to it. 
4 
Because the Petitioner has not established the national importance of his proposed endeavor as 
required by the first prong of the Dhanasar precedent decision, he has not demonstrated eligibility for 
a national interest waiver as a matter of discretion. 5 As the identified basis of denial is dispositive of 
the Petitioner's appeal, we need not address the Petitioner's eligibility under second or third prongs of 
Dhanasar and hereby reserve these issues. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (stating 
that agencies are not required to make "purely advisory findings" on issues that are unnecessary to the 
ultimate decision); see also Matter of L-A-C-, 26 I&N Dec. 516, 526 n.7 (BIA 2015) (declining to 
reach alternative issues on appeal where an applicant did not otherwise meet their burden of proof). 
The Petitioner has not established that he is eligible for or otherwise merits a national interest waiver 
as a matter of discretion. The petition will remain denied. 
ORDER: The appeal is dismissed. 
5 See Brasil v. Sec); ofDHS, 28 F.4th 1189, 1194 (11th Cir. 2022) (per curiam) (finding USCIS' decision to grant or deny 
a national interest waiver to be discretionary in nature). 
5