dismissed EB-2 NIW Case: Cybersecurity

Non-Precedent Decision of the
Administrative Appeals Office 
U.S. Citizenship 
and Immigration 
Services 
In Re: 19628396 Date: OCT. 3, 2023 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner is seeking classification as an individual of exceptional ability in business, 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). 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 did not 
establish that he is an individual of exceptional ability or 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. 
On appeal, the Petitioner asserts that the Director erred in denying the petition and submits additional 
evidence to establish his eligibility for the benefit sought. Further, since filing the appeal, we 
encountered new information that undermines the Petitioner's claims as an individual of exceptional 
ability that merits a national interest waiver. See section 203(b )(2)(A) of the Act; see also Matter of 
Dhanasar, 26 I&N Dec. 884 (AAO 2016). On December 1, 2022, we issued a notice of our intention 
to dismiss the appeal (NOID) because the record did not establish the Petitioner's eligibility for the 
requested benefit. We issued this NOID to advise the Petitioner of derogatory information being 
considered and to provide an opportunity for him to rebut and present information to establish his 
eligibility for the immigration benefits sought. 8 C.F.R. § 103 .2(b )(16)(i). 
The Petitioner did not respond to the NOID within the time period provided. The Petitioner bears the 
burden of proof to demonstrate eligibility by a preponderance of the evidence. Matter of Chawathe, 
25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter de novo. Matter of 
Christo 's, Inc. , 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo 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: 
(2) [Noncitizens] who are members of the professions holding advanced degrees or 
[ noncitizens] 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 ofthe United States ( emphasis added), .... 
(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 [a noncitizen's] services in the sciences, arts, 
professions, or business be sought by an employer in the United States. 
Exceptional ability in the sciences, arts, or business is defined in 8 C.F.R. § 204.5(k)(2) as a degree of 
expertise significantly above that ordinarily encountered in the sciences, arts, or business. To qualify 
as an individual of exceptional ability, 8 C.F.R. § 204.5(k)(3)(ii) sets forth six criteria, of which an 
individual must meet at least three. 
The submission of sufficient initial evidence does not, however, in and of itself establish eligibility. 
If a petitioner satisfies these initial requirements, we then consider the entire record to determine 
whether the individual has a degree of expertise significantly above that ordinarily encountered. In 
making this determination, the truth is to be determined not by the quantity of evidence alone but by 
its quality. See Matter of Chawathe, 25 I&N Dec. at 369. See also Kazarian v. USCIS, 596 F.3d 
1115 (9th Cir. 2010) ( discussing a two-part review where the evidence is first counted and then, if it 
satisfies the required number of criteria, considered in the context of a final merits determination); 6 
USCIS Policy Manual F.5, https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5. 
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 
Matter of Dhanasar, 26 I&N Dec. at 884. 1 Dhanasar states that after a petitioner has established 
eligibility for EB-2 classification, 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 
1 In announcing this new framework. we vacated our prior precedent decision, Matter of New York State Department of 
Transportation. 22 l&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
2 See Poursina v. USC1S, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest waiver 
to be discretionary in nature). 
2 
of a job offer and thus of a labor certification. See Dhanasar, 26 I&N Dec. at 888-91, for elaboration 
on these three prongs. 
II. ISSUES 
The Petitioner indicates in the petition that he is "an entreQreneur in the c her intelli ence and 
technology industry" who is employed ir=n_t=h=e_U=n=it=e=d~S~t=a~te=s~------------------1 
Through his prospective endeavor, he will.__ _____________________ __. 
(N-) and,________ ___,(0-). He farther explains that while "[N-] devotes tremendous efforts 
into researching and developing innovations in technology and cybersecurity and marketing them to 
government and law enforcement entities.... [0-] will market its cybersecurity technology suite 
primarily to other businesses .... [0-] hopes to tackle one of the biggest threats to U.S. industry -
cyberattacks .... " 
A. U.S. Department of Commerce Entity List 
During the pendency of this appeal, we encountered new information that raises questions about 
whether the Petitioner qualifies as an individual of exceptional ability, who will substantially benefit 
prospectively the United States, and otherwise merit a national interest waiver as a matter of discretion. 
See section 203(b)(2)(A) of the Act; see also Dhanasar, 26 I&N Dec. at 889. 
Specifically, N- was added to the U.S. Department of Commerce, Bureau of Industry and Security 
(BIS)'s "Entity List" 3 based on a decision by the End-User Review Committee (ERC)4 in accordance 
with the regulations at 15 C.F.R. § 744. The ERC concluded that N-: 
[H]as been involved, is involved, or poses a significant risk of being or becoming 
involved in activities that are contrary to the national security or foreign policy interests 
of the United States and those acting on beha(f of such entities. Specifically, 
investigative information has shown that [N-] developed and supplied spyware to 
foreign governments that used this tool to maliciously target government officials, 
journalists, businesspeople, activists, academics, and embassy workers. 
86 Fed. Reg. 60759 (emphasis added). Consequently, N- is subject to a licensure requirement for 
"[a]ll items subject to the EAR (see § 744.11 of the EAR)," with a "presumption of denial" for 
licensure review. Id. 
3 BIS published a final rule, Addition of Certain Entities to the Entity List, 86 Fed. Reg. 60759, 60760 (Nov. 4, 2021) (to 
be codified at 15 C.F.R. pt. 744) (86 Fed. Reg. 60759), amending 15 C.F.R. § 744 of BIS' Export Administration 
Regulations (EAR). 
The Entity List (supplement no. 4 to 15 C.F.R. § 744) identifies entities for which there is reasonable cause to believe, 
based on specific and articulable facts, that the entities have been involved, are involved, or pose a significant risk of being 
or becoming involved in activities contrary to the national security or foreign policy interests of the United States. 86 Fed. 
Reg. 60759. 
4 ERC is composed of representatives of the Departments of Commerce (Chair), State, Defense, Energy and, where 
appropriate, the Treasury, and makes all decisions regarding additions to, removals from, or other modifications to the 
Entity List. Id. 
3 
The Petitioner emphasizes that._________________ __. (H-), ._I_____ ___. 
.______ ___.I technology that forms the cornerstone of the products that N- markets to "foreign 
governments to remotely monitor nefarious actors who would otherwise be difficult or impossible to 
track down or prosecute." He states that through his proposed endeavor he will "provide substantial 
prospective benefit to the safety, security [and] economy of the United States," asserting that "[N-] 
has become a critical partner in worldwide efforts to fight terrorism and crime." 
However, N- was added to the Entity List "based on specific and articulated facts" that N- has 
"developed and supplied spyware to foreign governments that used this tool to maliciously target 
government officials, journalists, businesspeople, activists, academics, and embassy workers." 86 
Fed. Reg. 60759. N-'s addition to the Entity List indicates that the U.S. government has determined 
that N-' s products have been developed, marketed and used in ways that are contrary to the national 
security or foreign policy interests of the United States, which casts doubt on the Petitioner's assertion 
that his prospective endeavor has "broad implications for U.S national security and [will] help the 
nation combat terrorism and rival the technology of competing world powers." 
We informed the Petitioner in our NOID that he must resolve these inconsistencies in the record with 
independent, objective evidence pointing to where the truth lies, noting that doubt cast on any aspect 
of his evidence may lead to a reevaluation of the reliability and sufficiency of the remaining evidence 
offered in support of the visa petition. Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). However, 
the Petitioner did not respond to our NOID and left our concerns regarding these issues unanswered. 
Further, N-, through its Entity List designation, is subject to EAR licensure requirements that may 
limit its ability to conduct commercial transactions within the United States, and in some instances 
abroad. The Petitioner indicates that I I will continue his work with N- to market its 
products to U.S. "government and law enforcement entities." In our NOID, we asked the Petitioner 
to explain how he will effectively market N-'s cybersecurity products to U.S. government and law 
enforcement entities given these commercial transaction constraints, but he did not provide narrative 
or documentary evidence to overcome our concerns. 
Likewise, the Petitioner states that as 0-1 l"bring the cybersecurity advances we enabled 
for government to the newest risk terrain, business cybersecurity." While 0- has not been added to 
the Entity List, according to BIS' Frequently Asked Questions (FAQs), 0- may also be subject to EAR 
licensure requirements which may limit its ability to conduct commercial transactions within the 
United States and abroad. Specifically, BIS' FAQ #134 provides, in pertinent part: 5 
Subsidiaries, parent companies, and sister companies are legally distinct from listed 
entities. Therefore, the licensing and other obligations imposed on a listed entity by 
virtue of its being listed do not per se apply to its subsidiaries, parent companies, sister 
companies, or other legally distinct affiliates that are not listed on the Entity List. If: 
however, such a company, or even an unaffiliated company, acts as an agent, a front, 
or a shell company for the listed entity in order to facilitate transactions that would not 
otherwise be permissible with the listed entity, then the company is likely 
5 For more information about BIS FAQs, see https://www.bis.doc.gov/index.php/policy-guidance/deemed-exports/ 
deemed-expo11s-faq s/. 
4 
violating, inter alia, General Prohibition 10, EAR section 764.2(b) ( causing, aiding, or 
abetting a violation) and possibly other subsections of 764.2 as well. 
Though discussed in our NOID, the Petitioner has failed to address how he will market O-'s 
cybersecurity products (which he indicates have been developed in large part based on N-'s 
technologies) to U.S. businesses, given these potential EAR-related commercial transaction 
constraints. To substantiate his assertions that his proposed endeavor has both substantial merit and 
national importance, and that he is well positioned to advance the proposed endeavor, we asked the 
Petitioner in our NOID to provide independent, objective evidence addressing the impacts that N-'s 
Entity List designation and underlying EAR licensure requirements will have on 0-' s prospective 
business operations. See Dhanasar, 26 I&N Dec. at 889; see also Matter ofHo, 19 I&N Dec. at 591. 
While we provided the Petitioner with an opportunity to supplement the record with evidence to 
address the aforementioned determinations by the U.S. government which may adversely impact his 
eligibility for the immigration benefits that he seeks in this petition, he elected not to do so. 8 C.F.R. 
§ 103.2(b)(16)(i). Based on the evidence provided by the Petitioner in the record and the derogatory 
evidence that we outlined in our NOID, we conclude that the Petitioner has not established more likely 
than not that he is an individual of exceptional ability whose proposed endeavor has both substantial 
merit and national importance, and that he is well positioned to advance the proposed endeavor. For 
these reasons, the petition may not be approved. For efficiency's sake, we incorporate the above 
discussion and analysis regarding this derogatory information into each of the bases in this decision 
for dismissing the appeal. 
B. Individual of Exceptional Ability 
Based on a review of the record in its totality, we conclude that the record, as currently constituted, 
does not establish that the Petitioner qualifies as an individual of exceptional ability under 8 C.F.R. 
§ 204.5(k)(3)(ii). 
The record indicates the Petitioner is "an entrepreneur in the cyber intelligence and technology 
industry" who is employed in the United Statesl lplans to largely concentrate efforts on 
two companies, N- and 0-. The Director denied the petition, concluding that the Petitioner did not 
fulfill any of the regulatory criteria under 8 C.F.R. § 204.5(k)(3)(ii) to show he is an individual of 
exceptional ability. Because the Petitioner does not indicate or establish that he qualifies as a member 
of the professions holding an advanced degree, the record must establish that he qualifies as an 
individual of exceptional ability. A petitioner must provide documentation that satisfies at least three 
of six regulatory criteria to meet the initial evidence requirements for this classification. See 8 C.F.R. 
§ 204.5(k)(3)(ii)(A)-(F). 
1. Regulatory Criteria at 8 C.F.R. § 204.5(k)(3)(ii) 
On appeal, the Petitioner asserts that he met four of the regulatory criteria at 8 C.F.R. § 
204.5(k)(3)(ii)(B), (D), (E), and (F) at the time of filing the petition. However, the Petitioner does not 
discuss the criteria at 8 C.F.R. § 204.5(k)(3)(ii)(A) and (C) on appeal or in the evidence offered on appeal, 
and the record does not establish his eligibility under these criteria. As the Petitioner does not contest 
the Director's conclusion that he did not meet these regulatory criteria, we consider these issues waived 
5 
on appeal. See Matter ofR-A-M-, 25 I&N Dec. 657, 658 n.2 (BIA 2012), (stating that when a filing 
party fails to appeal an issue addressed in an adverse decision, that issue is waived). 
The record also does not reflect that he satisfies at least three of the other regulatory criteria. 6 
Evidence in the form of letter(s) from current or former employer(s) showing that the 
[individual] has at least ten years offitll-time experience in the occupation for which 
he or she is being sought. 8 C.F.R. § 204.5(k)(3)(ii)(B). 
The petition was filed in March 2019; the Petitioner stated that with 0- com orts 
with the duties and responsibilities of those employed in the'---------..-------­
occupation. See U.S. Department of Labor, Occu~ational Outlook Handbook, 
https://www.onetonline.org/link/summaryl IThus, the record must establish that he had at 
least ten years of foll-time experience! _March 2019. 8 C.F.R. § 103.2(b)(l). 
In response to the Director's request for evidence (RFE), the Petitioner outlined his work experience 
as follows: 
•• I ~f [C-] (February 2007-2010); 
._________ ___,lofN-(June 2009 - June 2019), and its U.S. branch, [W-] 
A ril 2015 - Se tember 2017 ; 
• 1-------------r---~at [F-] (January 2013 -present); 
• 1--------~_.of[K-] (January2014-December2019); and 
• ~-----~of 0- (2017 - present). 
The Director concluded that he did not meet this criterion, indicating that while letters had been 
submitted from the Petitioner's current and former employers, the letters did not sufficiently detail his 
dates of employment; indicate whether the employment was foll-time; provide his job titles; or 
sufficiently describe his job duties. The Director also explained that the Petitioner did not adequately 
address how the evidence required under the criteria at 8 C.F.R. § 204.5(k)(3)(ii) does not readily apply 
to his occupation. On appeal, the Petitioner maintains that the evidence establishes that "over the 
course of the past decade or more [I have] held high-level positions I ~" 
We have reviewed and collectively considered the evidence in the record, including the letters from 
the Petitioner's colleagues, his personal and company financial documentation, as well as media 
articles about N- and 0- which suggest that he has recently been employed! IHowever, while 
the letters cover a period of more than ten rars, they do not establish that all of the Petitioner's claimed 
employment was I We agree with the Director that the letters do not provide 
sufficient detail regarding the dates of employment or job duties for us to determine that he had the 
requisite work experience! Iat the time of filing the petition. 
The Petitioner also rovided letters from H- who describes ~I____ ~ 
However, the'----------------------------~ C- and N-. 
Petitioner has not sufficiently explained how the job duties inherent in developing software and 
6 While we may not discuss every document submitted, we have reviewed and considered each one. 
6 
cybersecurity tools are akin to those typically performed~-------~ While the record 
reflects that he I I in recent years, he did not provide a timeline sufficient to 
illustrate the various positions he held during his tenure with each of his companies and the specific 
job duties that he performed therein, supported by probative evidence. Matter of Chawathe, 25 I&N 
Dec. at 376. 
In our NOID, we asked the Petitioner to provide evidence that comports with the evidentiary 
requirements specified in 8 C.F.R. §§ 204.5(g)(l); 204.5(k)(3)(ii)(B) to establish that his claimed 
employment was~-------~ covering a period of at least ten years prior to the date of 
filing of this petition. 8 C.F.R. § 103.2(b)(l). However, he has elected not to respond to our request. 
Without more, the Petitioner has not established that he had at least ten years of work experience in 
I I Therefore, this criterion has not been met. 
Evidence o_fmembership in pro_fessional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
On appeal, the Petitioner contends that his membership in ~-------~ [G-] which he 
describes as "an elite professional association that demands outstanding achievements of its members" 
meets the regulatory standards for this criterion. He points to a letter from [Z-] to support 
his assertions. Z- indicates that he and the Petitioner~-------~F-, a capital investment 
firm. 
The regulation at 8 C.F.R. § 204.5(k)(3)(ii)(E) requires "[e]vidence of membership in professional 
associations." See 6 USCIS Policy Manual, supra, at F.5(B). The regulation at 8 C.F.R. § 204.5(k)(2) 
contains the following relevant definition: "Profession means one of the occupations listed in section 
10l(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." The Director determined 
that Z-' s letter was insufficient to establish that G- is a professional association. We agree. 
We asked the Petitioner in our NOID to provide evidence to establish that G- qualifies as a professional 
association, but he did not respond to our request. Beyond Z-' s letter and the Petitioner's own 
statements, the record does not contain sufficient documentary evidence about G- to demonstrate its 
eligibility requirements for membership or its mission. This criterion has not been met. 
Although the Petitioner asserts his eligibility for the criteria at 8 C.F.R. § 204.5(k)(3)(ii)(D) and (F) on 
appeal, the record does not currently establish that he has fulfilled the initial evidentiary requirement 
of three out of six criteria under 8 C.F.R. § 204.5(k)(3)(ii). As he is ineligible for the EB-2 
classification, we will not address the additional criteria. 
2. Final Merits Determination 
If a petitioner satisfies the initial regulatory requirements at 8 C.F.R. § 204.5(k)(3)(ii), we then 
consider the entire record to determine whether the individual has a degree of expertise significantly 
above that ordinarily encountered. See 6 USCIS Policy Manual F.2, https://www.uscis.gov/policy­
manual/volume-6-part-f-chapter-5. In this case, even if the Petitioner met at least three criteria under 
8 C.F.R. § 204.5(k)(3)(ii), the derogatory information outlined above raises important questions 
regarding whether his work I IN- and 0- "will substantially benefit prospectively the 
7 
national economy, cultural or educational interests, or welfare of the United States," as required by 
Section 203(b )(2)(A) of the Act. 
Although neither the statute nor the regulations specifically define the statutory phrase "substantially 
benefit," it has been interpreted broadly. Whether a person's employment meets this requirement 
requires a fact-dependent assessment of the case. CfMatter ofPrice, 20 I&N Dec. 953 (Assoc. Comm. 
1994) (golfer of beneficiary's caliber will substantially benefit prospectively the United States given 
the popularity of the sport in the EB-1 individual of extraordinary ability context); 6 USCIS Policy 
Manual F.2, https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-2. In order to determine 
whether a petitioner establishes eligibility as an individual of exceptional ability in the final merits 
determination, USCIS must evaluate all the evidence together when considering the petition in its 
entirety for the final merits determination, given the high level of expertise required for this immigrant 
classification. See 6 USCIS Policy Manual, supra, at F.5(B). 
On appeal, the Petitioner points to his recommendation letters stating they "describe [in] granular 
detail, [the writers'] experiences with [him] and describe [his] precise contributions to the business of 
cyber-intelligence and technology." He indicates that his "entrepreneurship skills in conjunction with 
[his] technical abilities make [him] uniquely exceptional." He contends that the Director erroneously 
concluded that the record "did not show that [he] had invented any cyber security product or tool." 
We agree that the record reflects the Petitioner's involvement in the development of the products 
created and marketed by N-. For instance, H- attested within his letters that the Petitioner played a 
critical role in the technological development of the software and cybersecurity tools that N- and 0-
continue to produce and market to this day, and some of the submitted media articles also discuss his 
involvement in the development ofN-'s products. 
Additionally, the record contains publications that discuss the Petitioner's insights and investments in 
information technology businesses to establish his eligibility for the EB-2 classification as an 
individual of exceptional ability. The Petitioner asserts in the RFE response that press coverage shows 
that "[his] expertise is highly sought after and highly relevant in an environment that is increasingly 
reliant on technology and cybersecurity." 
The record contains copies of media articles discussing among other things, the start-up of 0- in the 
United States, and the Petitioner's investment in and involvement with N- and other technology firms. 
He indicates that his "work has been covered by CNN, Reuters, Globes, Business Wire, MIT 
Technology Review, C-Tech, TechGraph and others." He contends that "the substance of those 
publications contain praise of [his] work." However, we encountered recent media articles during the 
pendency of this appeal which identify serious concerns on the part of many individuals and 
organizations about the use of N-' s tools to maliciously target journalists, activists, and other persons, 
which appear to contradict the Petitioner's assertions about his favorable media coverage. 
For instance, ar-72021 Washington Post article, details how the use ofN-'s tools I 
I according to "an investigation by the 
Washington Post and 16 media partners." ~---------------------~ 
I
8 
Washington Post 2021 ), 
https ://www.washingtonpost.com/investigations/interactive/2021 I I I I ~----~ 
Another article, published in I I 2022 by the Washington Post discusses a I 
I Washington Post 
12022), https://www.washingtonpost.com/technology/2022A 
I The article explained that I 
IId. 
Inl I 2022, Reuters reported about 
I Reuters, I 12022). 
https ://www.reuters.com/world! I 
I According to the article I 
I Id. 
I 
While the Petitioner contends that "press coverage by internationally acclaimed media outlets on my 
work and my thoughts is farther evidence of the recognition of my achievements and significant 
contributions to the cyber intelligence and technology industry," recent media articles do not 
substantiate his assertions regarding his EB-2 eligibility as an individual of exceptional ability. Rather, 
the recent articles, such as those discussed above, report on ways in which the tools he developed for 
N- and plans to market in the United States through N- and 0-, have been used to compromise the 
privacy, safety and security of unsuspecting individuals and organizations. 
In our NOID, we provided the Petitioner with an opportunity to supplement the record with evidence 
to address the derogatory information put forth in recent media articles that we encountered after the 
filing of the appeal, but the Petitioner has not done so. 8 C.F.R. § 103.2(b)(16)(i). Doubt cast on any 
aspect of the Petitioner's [evidence] may, of course, lead to a reevaluation of the reliability and 
sufficiency of the remaining evidence offered in support of the visa petition. Matter ofHo, 19 I&N 
Dec. at 591-92. 
Considering the totality of the evidence, including the derogatory information identified and discussed 
in our NOID, which the Petitioner did not respond to, the Petitioner has not established more likely 
than not that he is an individual of exceptional ability who will substantially benefit prospectively the 
national economy, cultural or educational interests, or welfare of the United States, through his 
expertise! IN- and 0- in the cybersecurity and technology business. Section 203(b)(2)(A) 
9 
of the Act. 7 For this additional reason, the Petitioner has not established his eligibility for the EB-2 
classification. Matter of Chawathe, 25 I&N Dec. at 376. 
C. National Interest Waiver 
For the following reasons, we determined that the record does not establish, more 
likely than not, that 
the Petitioner qualifies for a national interest waiver under section 203(b)(2)(A) of the Act and the 
Dhanasar framework. 
1. Form ETA 9089, Application for Permanent Employment Certification, with Parts 
J, K, Lor ETA 750B 8 
The Petitioner did not submit a signed Form ETA 9089, Parts J, K, and L. According to 8 C.F.R. § 
204.5(k)(4)(ii), a petitioner must submit a Form ETA-750B, Statement of Qualifications of Alien, to 
establish that exemption from the job offer would be in the national interest with the petition. The 
Director requested the submission of this initial evidence in the RFE and ultimately denied the petition, 
in part, because he did not comply with this regulatory requirement. Each benefit request must be 
properly completed and filed with all initial evidence required by applicable regulations and other 
USCIS instructions. 8 C.F.R. § 103.2(b)(l). 
2. Substantial Merit and National Importance of the Proposed Endeavor 
The Director concluded that the Petitioner's proposed endeavor has substantial merit but also 
determined that he did not establish its national importance. We withdraw the Director's 
determination that the Petitioner's proposed endeavor has substantial merit but agree with his ultimate 
conclusion that the record does not establish that it has national importance. 
According to the Dhanasar framework we must focus on the specific endeavor that a petitioner 
proposes to undertake to determine whether it has substantial merit and national importance. See 
Dhanasar at 889. The Petitioner referenced the recommendation letters in the RFE response and 
indicated that "[ m ]y prominent peers in the field of cybersecurity and technology are unanimous in 
agreement regardinr the substantial merit and national importance of my ongoing work." 9 He asserts 
that the letter from IH- "confirms that I have developed cybersecurity products 
that have created a safer world," and points to H-' s assertion "[ o ]ur product has made the world safer 
and has armed governments to combat some of the worst actors all over the globe .... [the Petitioner's] 
continued stay in the United States is in the U.S. national interest so that he can continue cultivating 
the close and ongoing security relationship that he has already facilitated through [N-]." 
On appeal, the Petitioner resubmits a letter from I I CEO of who 
discusses the prospective benefit to the nation of.,_1------"""---';;..,I 0-, as~fo-1-lo_w_s_:___ ~ 
7 We incorporate the derogatory information presented in recent media aiticles into the record to detennine the Petitioner's 
eligibility for a national interest waiver. 
8 Form ETA 750 was replaced by ETA Form 9089 in March 2005. 
9 While we discuss a sampling of the letters submitted in support of the petition, we have reviewed and considered each 
one. 
10 
~---~I [0-], [the Petitioner] pivoted from investing in [N-'s] cyber-offensive 
approach to exploring a cyber-defensive approach. By bringing a suite of cyber 
intelligence tools under one platform, [0-'s] revolutionary technology will contribute 
to the cyber security industry in ways that directly address issues faced in the U.S. 
today. [0-'s] technology can help the U.S., for instance to triumph in the [] cyber­
conflict by allowing it to detect penetration, fraud, and other cyber-related threats with 
a single tool. To that end, [the Petitioner's] presence in the U.S. to foster the 
development and expansion of [0-'s] technological capabilities is imperative to the 
national interest. 
The Petitioner states that his proposed endeavor will "provide substantial prospective benefit to the 
safety, security [and] economy of the United States," asserting that "[N-] has become a critical partner 
in worldwide efforts to fight terrorism and crime." However, N-'s addition to the Entity List indicates 
that the U.S. government has determined that N-'s products have been developed, marketed and used 
in ways that are contrary to the national security or foreign policy interests of the United States, which 
casts doubt on his contention that the prospective endeavor has "broad implications for U.S national 
security and [ will] help the nation combat terrorism and rival the technology of competing world 
powers." In our N0ID, we asked the Petitioner to provide independent, objective evidence to reconcile 
the inconsistencies in the record regarding the substantial merit and national importance of his 
proposed endeavor, but he elected not to do so. See Matter ofHo, 19 I&N Dec. at 591. 
According to the evidence in the record, the Petitioner plans to market products he helped develop 
through N- and 0-. However, N-, through its Entity List designation, is subject to EAR licensure 
requirements that may limit its ability to conduct commercial transactions within the United States, 
and in some instances abroad - which strongly suggests that the U.S. government has determined 
otherwise. 10 See 15 e.F.R. § 744.11 of the EAR. 
In our N0ID, we raised questions and concerns regarding the derogatory information contained in 
recent reporting which we discuss above, which focus on ways in which the tools the Petitioner helped 
developed for N- and plans to market in the United States through N- and 0- have been used to 
compromise the privacy, safety and security of unsuspecting individuals and organizations. If a 
petitioner fails to resolve inconsistencies after users provides an opportunity to rebut or explain, then 
the inconsistencies may lead users to conclude that the facts stated in the petition are not true. Matter 
ofHo, 19 I&N Dec. at 591. 
Additionally, we observed in the N0ID that social media and information technology firms in the 
United States recently filed lawsuits against N- to prevent the future use of N-' s products in their 
cellular devices, applications, and social media platforms, among other things. 
For example, I I recently announced that it had filed a lawsuit against N- "to hold it 
accountable for the surveillance and tar and to seek "a ermanent in.unction to 
ban [N-] from using any .______________________________ _. 
10 BIS' program guidance raises similar questions and concerns regarding the cybersecurity products that the Petitioner 
intends to market in the United States through 0-, given how these potential EAR-related commercial transaction 
constraints may also apply to 0-. 
11 
'---------.-------.------.....--------~~r_e_s_s _re_l_e_as_e~---------; 2021 ), 
htt s://www newsroom/2021,--_._ ______..,......... ~------------------~ 
Similarly, '------,,====================L.f_1l_ed_a_l_aw_su_1_·t_in----"- ____,_2_0_1_9~ 
claiming that, ' 
'---------------------------------,--------,--' and 
seeks "a permanent injunction to prevent [N-] from accessing its platform." et al.,
.--------'------''------'------'---'-------=--..__-----------..--' 
L.________ ---r __________________ ___._,2020), 
https://www.justsecurity.org ________________________ __. 
We acknowledge that these litigation matters are ongoing, that N- denies allegations put forth byl I 
.______ ___.I and has made its own counter claims in filings that are currently being considered by 
the U.S courts. However, the privacy, safety and security concerns about the Petitioner's products 
expressed by these social media and information technology firms within these litigation matters are 
at odds with his assertions that his "peers in the field of cybersecurity and technology are unanimous 
in agreement regarding the substantial merit and national importance of my ongoing work." 11 Matter 
ofHo, 19 I&N Dec. at 591. 
We notified the Petitioner of our intention in the NOID to dismiss the appeal, in part, with a 
determination that the Petitioner has not established, more likely than not, that his proposed endeavor 
has substantial merit and national importance. We provided an opportunity for him to supplement the 
record with evidence to address the derogatory information put forth in recent litigation matters that 
we encountered after the filing of the appeal which adversely impact his eligibility for a national 
interest waiver. However, the Petitioner did not respond to our NOID and left our concerns regarding 
these issues unanswered. Id. 
Because the evidence of record does not establish that the Petitioner's proposed endeavor has substantial 
merit or that it is of national importance under the first prong of the Dhanasar precedent decision, the 
Petitioner has not demonstrated eligibility for a national interest waiver. 
3. Well Positioned to Advance the Proposed Endeavor 
The second Dhanasar prong shifts the focus from the proposed endeavor to the foreign national. To 
determine whether a petitioner 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. See Dhanasar at 890. 
The Petitioner provided evidence, such as letters of recommendation, media articles, and historical 
material about the information technology businesses that he has focused on, which collectively 
suggest that he possesses skills, knowledge, and a record of success in starting up and operating 
11 We incorporate the derogatory information presented in recent litigation matters into the record to determine the 
Petitioner's eligibility for the EB-2 classification as an individual of exceptional ability. 
12 
information technology businesses. However, for the following reasons, the record does not 
sufficiently demonstrate how these positive factors will translate into achieving progress towards his 
proposed endeavor in the United States. 
On appeal, the Petitioner indicates that he is "well positioned to advance [his] proposed endeavor by 
continuing to grow [0-]." As evidence to show that 0- is "in charge of cybersecurity operations for 
prominent companies, including several in the U.S.," he provides contracts betwee~ land the 
New York Port Authority (NP A) for the provision of software, and services such as training, wireless 
monitoring, and automated attack mitigation for NPA's internet operations. However, he has not 
documented the relationship, between 0- andl ITherefore, we cannot determine howc=]
I !contractual arrangements with NP A are indicative of 0-' s "farther business plans in the U.S." 
Additionally, on appeal the Petitioner contends that 0- "has grown rapidly since its founding over 
three years ago," and offers a list of O-'s "significant clients," such as British Telecom, the First 
International Bank of Israel, and Bell Canada. The record does not contain documentation from these 
entities that describe 0-' s current or prospective business arrangements with them, or evidence that 
would otherwise substantiate that these "clients" intend to contract with 0- for their cybersecurity 
products and services. 
The Petitioner also provided a list of 0-' s employees and implies that 0-' s employee roster "has grown 
three-fold, from about 25 to over 80 [employees]." While the record contains an employee list and 
the Petitioner's paystubs, it does not include payroll or tax records to show that these individuals are 
employed by 0-. The employee list reflects the name and job title for each person, but only 10 of the 
82 persons listed have "USA" noted as their "territory" - the rest appear to be employed elsewhere. 
Therefore, he has not established the level of employment that O-'s U.S. prospective business activities 
have or will engender. 
In the RFE response, the Petitioner provided a letter from .________ _.who indicates that he is 
"an expert in computer science and technology." He contends that 0- has "interest from large 
corporate entities like Bank of America and Discover who are seeking a platform of the type that we 
are developing." However, the record contains no material from these entities to show their interest 
in O-'s products and services. Without more, this documentation does not substantiate the Petitioner's 
assertions regarding 0-' s ongoing business expansion in the United States; the interest of 0-' s 
potential customers in its services; or otherwise establish the progress that he has or will make towards 
achieving his proposed endeavor. 
The Petitioner states that through his prospective endeavor, he.
____________ ~N- as 
well as for 0-, but he has not sufficiently detailed how he will conduct business on N-'s behalf in the 
United States. In a letter submitted with the RFE response, I I [P-], managing director 
o~ !discusses N-'s business prospects in the United States, as follows: 
While I cannot speak to the specifics of [N-] and its related companies' clients, I know 
that they are an invaluable partner to the United States and our allies. Speaking to [the 
Petitioner] and other [N-] I I I believe that leading intelligence and law 
enforcement agencies around the globe and in the United States use this technology to 
tackle intractable security problems. State and local government law enforcement 
13 
organizations utilize [N-' s] superior technology to assist their efforts against terrorist 
and major criminal organizations. 
It is not apparent how P- came to have knowledge of the interest in N-'s products by government 
entities in the United States, beyond his discussions with N-'s executives. P-'s unsupported assertions 
that N- is "an invaluable partner to the United States," and that "leading intelligence and law 
enforcement agencies [in] the United States use this technology" do little to illuminate the Petitioner's 
plans for N-'s business operations here. 
H-, farther explains in his letter that "[N-'s] products have brought about 
'----------' 
tremendous security benefits to the global community, including the law enforcement interests of the 
United States. Although, for a variety of contractual and other legal reasons, I cannot disclose a list 
of [N-] clients ..... " Similarly,! Ia U.S. Air Force veteran and president of one of 
N-' s subsidiaries, states in his letter: 
[N- has] developed an advanced intelligence tool that filled a major gap within the 
national security apparatus of the U.S. and other western governments .... [The 
Petitioner's] efforts led directly to the success that [N-] has had, via [its subsidiary], in 
the U.S. market. [His] business leadership has been critical in bringing the tools 
required to harness technology to prevent terrorism and apprehend criminals to the law 
enforcement and counterterrorism professionals who use them.... [He] was integral 
in establishing ties to U.S. governmental customers that use [N-'s] products to achieve 
their missions .... Given the proprietary and sensitive nature of law enforcement and 
counterterrorism work, most of the successes of [N-' s] products must remain a secret. 
Notably, the Director requested documentary evidence, such as correspondence from N-'s prospective 
clients or customers, and copies of contracts, agreements, and licenses to show that the Petitioner is 
well positioned to pursue the proposed endeavor. But the Petitioner did not provide the requested 
evidence in his RFE response. "Failure to submit requested evidence which precludes a material line 
of inquiry shall be grounds for denying the [petition]." 8 C.F.R. § 103.2(b)(14). 
Although a petitioner may always refuse to submit confidential commercial information if it is deemed 
too sensitive, a petitioner must also satisfy the burden of proof and runs the risk of a denial. CfMatter 
ofMarques, 16 I&N Dec. 314 (BIA 1977) (holding the "respondent had every right to assert his claim 
under the Fifth Amendment[; however], in so doing he runs the risk that he may fail to carry his burden 
of persuasion with respect to his application.)" Beyond statements such as those discussed above, the 
record does not contain evidence to establish that (1) U.S. government entities are prospectively 
interested in N-'s products; or (2) progress has or will be made towards achieving the Petitioner's 
proposed endeavor with regard to his plans to expand N-'s U.S. business operations. 
Moreover, we again take note that N-, through its Entity List designation, is subject to EAR licensure 
requirements that may limit its ability to conduct commercial transactions within the United States, 
and in some instances abroad. It is not apparent how the Petitioner will effectively market N-' s 
cybersecurity products to U.S. government and law enforcement entities given these commercial 
transaction constraints. As previously discussed, BIS' program guidance also raises questions and 
concerns regarding how the Petitioner will market O-'s cybersecurity products, (which he indicates 
14 
have been developed in large part based on N-'s technologies) to U.S. businesses. 12 See 15 C.F.R. § 
744.11 of the EAR. 
The questions and concerns that we raised in our NOID regarding these important issues have gone 
unanswered as the Petitioner did not provide probative evidence regarding his eligibility in response 
to our NOID. 8 C.F.R. § 103.2(b)(16)(i). Matter of Ho, 19 I&N Dec. at 591. As the evidence of 
record is insufficient to demonstrate that the Petitioner is well positioned to advance his proposed 
endeavor, he has not satisfied the Dhanasar 's second prong, and is ineligible for a national interest 
waiver. 
4. Balancing Factors to Determine Waiver's Benefit to the United States 
On the third Dhanasar prong, the Director concluded that the Petitioner did not show that there is an 
urgent national interest in his specific proposed endeavor, or that he will offer contributions of such 
value, that over all they will benefit the nation, even if other U.S. workers were available. We agree. 
On appeal, the Petitioner asserts that his letters of recommendation "describe[] in great detail the 
software tools that [I have] developed and continu[e] to develop.... Former military personnel even 
explained how [my] cybersecurity innovations and companies would have broad implications for U.S. 
national security and [ will] help the nation combat terrorism and rival the technology of competing 
world powers. Beyond a shadow of a doubt, [I have] shown that [my] work is sufficiently urgent and 
potentially beneficial to the United States." 
As discussed, the N-'s addition to the Entity List indicates that the U.S. government has determined 
that N-'s products have been developed, marketed, and used in ways that are contrary to the national 
security or foreign policy interests of the United States. We acknowledge that he has enjoyed 
successes I I information technology businesses, but these positive factors 
when considered in the context of the lack of sufficient evidence about how he will prospectively 
pursue his endeavor! IN- and 0-, along with the derogatory information in the record that 
we have discussed in detail in our NOID and above, are insufficient to demonstrate on balance, that it 
would be beneficial to the United States to waive the requirements of a job offer and thus of a labor 
certification. The Petitioner has not satisfied Dhanasar 's third prong. 
III. CONCLUSION 
The burden of proof in these proceedings rests solely with the Petitioner. Section 291 of the Act, 
8 U.S.C. § 1361. We conclude that the Petitioner has not established he qualifies as an individual of 
exceptional ability; or, that he is eligible for or otherwise merits a national interest waiver as a matter 
of discretion. The appeal will be dismissed for the above stated reasons, with each considered as an 
independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
12 As previously explained, the Petitioner failed to address these concerns. Matter ofHo, 19 l&N, Dec. at 591. 
15