dismissed EB-2 NIW Case: Information Systems Management

U.S. Citizenship 
and Immigration 
Services 
In Re : 15776123 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JUNE 30, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree , Exceptional Ability , National 
Interest Waiver) 
The Petitioner , an information systems manager , seeks classification as a member of the profession s 
holding an advanced degree and as an individual of exceptional ability in the sciences , arts , or business . 
See 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. See section 203(b)(2)(B)(i) of the Act, 8 U.S.C . § 1153(b)(2)(B)(i) . 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 Nebraska Service Center denied the petition , concluding that the Petitioner 
qualifies for classification as an individual of exceptional ability in the science s, 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. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act , 8 U.S.C. § 1361. 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: 
(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 (AAO 2016). Dhanasar states that after a petitioner has established 
eligibility for EB-2 classification, users may, as matter of discretion, 1 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. 
The fust prong, regarding 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 , users may evaluate factors such as: whether , in light of the nature of the 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 
1 See also Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature) . 
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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 determined that the Petitioner does not qualify for classification as a member of the 
professions holding an advanced degree, but that he does qualify for classification as an individual of 
exceptional ability in the sciences. For reasons to be discussed below, we disagree with the latter 
determination, but first we will address the stated grounds for denial. The issue on appeal 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. 
The Petitioner earned a bachelor's degree in accounting froml !University in 2002, and he has 
worked for various information technology companies since 2004. Since 2006, the Petitioner has 
worked as a service engineer for I I in Egypt, the United Kingdom, and the United 
Arab Emirates. As outlined below, we agree with the Director that the Petitioner has not sufficiently 
demonstrated eligibility for a national interest waiver under the Dhanasar analytical framework. 
A. Substantial Merit and National Importance of the Proposed Endeavor 
We agree with the Director that the Petitioner has not sufficiently demonstrated the national 
importance of his proposed endeavor under the first prong of the Dhanasar analytical framework. 3 
In his initial statement, the Petitioner provides general information about his occupation, and describes 
his past employment, but he does not provide specific details about his proposed endeavor. "The first 
prong, substantial merit and national importance, focuses on the specific endeavor that the foreign 
national proposes to undertake." Matter of Dhanasar, 26 I&N Dec. at 889 (emphasis added). The 
proposed endeavor is not simply a declaration of intent to work in a particular field, occupation, or 
specialty. Nevertheless, the Petitioner relies on generalities about the occupation as a whole, stating: 
"It is clear that Information Systems Managers have both intrinsic merit and national importance." 
There exists no blanket waiver for information systems managers, and the Petitioner cannot qualify 
for the waiver simply by establishing that he has experience in that occupation. The Petitioner is 
correct that many different businesses and industries rely on computers, but it does not follow that, as 
an information systems manager, he will directly affect all, most, or many of those businesses and 
industries through his work. A broad range of potential employers does not imply that the Petitioner 
is likely to have a wide-ranging impact. 
In a request for evidence (RFE), the Director stated that the Petitioner did not "provide a detailed 
description of the proposed endeavor." In response, the Petitioner disputed this assertion, stating that 
his initial submission described his "15 year career in the field ... in detail." The Petitioner also 
stated: "in light of his extensive experience in this field, he will continue this endeavor in the United 
2 See Dhanasar , 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
3 While we may not discuss every document submitted, we have reviewed and considered each one. 
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States." The Petitioner's employment abroad concerned specific projects in England and the Middle 
East. The assertion that "he will continue this endeavor in the United States" says little about what 
the Petitioner plans to do, except that it will involve information systems management (which is an 
occupation, not a specific proposed endeavor). 
Most of the Petitioner's employment abroad was withl I but he did not show tha seeks 
to employ him in the United States. His response to the RFE includes an email message from ,,___......, 
dated June 10, 2020, indicating that the Petitioner had inquired about opportunities to work for.___ _ _. 
in the United States, but the company's human resources department "is advising to not pursue 
further," while encouraging the Petitioner "to pursue this same type of role operating out of the 
[Middle East]." 
On July 2, 2020 _______ ~ offered the Petitioner a position as "Enterprise Cloud Solutions 
Architect" beginning in October 2020. The letter specified: "We cannot assist you with filing for 
residency and a labor certification because of the length of time required." The Petitioner accepted 
the job offer, but the record does not show that the Petitioner subsequently began working there or 
entered the United States in some other capacity. 
The job offer does not specify the duties of the position, but even if it did, it would not establish the 
nature of the proposed endeavor at the time of filing. The record does not indicate that the Petitioner 
was contemplating employment withl lwhen he filed the petition in November 2019. The 
above correspondence shows that the Petitioner was conten;rlatinJ employment wit~ las late as 
June 2020, securing the job offer frorrJ O I only after declined to hire him in the United 
States. 
In the denial notice, the Director stated: "It is conjecture and speculation to claim that the beneficiary 
will contribute to the American economy. At best, the field of the endeavor and the role as it has been 
described, appears to be localized to the petitioner." The Petitioner disputes this conclusion, asserting 
that he "pointed out specific examples ... as to how he has contributed to his field with specific 
projects and accomplishments that have made a positive impact in his field, and also how his 
accomplishments have affected both organizations and his field globally." 
The Petitioner has not articulated any specific information regarding his intended future work. As 
explained above, establishing the proposed endeavor is not simply a matter of describing past 
employment and stating the intention to continue performing similar work. Some occupations may be 
more conducive to the waiver than others, but the Dhanasar framework revolves around the specific 
proposed endeavor, rather than creating blanket waivers for entire occupations, specialties, or fields. 
By statute, the job offer requirement ordinarily applies to foreign nationals (including information 
systems managers) with exceptional ability, defined as "a degree of expertise significantly above that 
ordinarily encountered" in a given field. 4 Therefore, the Petitioner cannot qualify for the waiver 
merely by asserting that he possesses significant expertise in his occupation, but that appears to be the 
core of his claim in this proceeding. 
4 8 C.F.R. § 204.5(k)(2). 
4 
Because the Petitioner has cited his past work as the sole benchmark for the national importance of 
his work, it is significant that the evidence of record does not establish how that work benefited others 
beside his employers and their clients. Recommendation letters submitted with the initial filing 
indicated that his work was beneficial to I I and its clients , but successful completion of 
assignment s does not show that his work had, and will continue to have, national importance . In a 
congratulatory email reproduced in the record , a member of1 Is sales staff told the Petitioner, "if 
you weren't there, we would not have closed this deal." The email describes how a rival company 
was "holding their breath ... and hopina for anr kind of failure ," but the Petitioner 's dedication "left 
them no excuse to talk negati vely" about s database platform. This project may have benefited 
the client , and certainly benefited I I but the Petitioner has not shown that it was of national 
importance fo~ I to close this particular deal instead of its competitor. ( Certainly the competitor , 
a major information technology company based in the United States, derived no direct benefit from 
the transaction .) Likewise , the Petitioner does not establish that this client's use o~ ts product 
is significant at a national level, and even then, there is no indication that the Petitioner developed the 
product rather than participated in installing and servicing an existing product for this particular client. 
The Petitioner has not sufficiently described the proposed endeavor, and has not established its 
national importance. In Dhanasar, we determined 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. Here, the record does not show that the Petitioner 's proposed endeavor (to the extent described) 
stands to sufficiently extend beyond his employer(s) and their projects to impact the industry more 
broadly at a level commensurate with national importance . Nor has he shown that the particular work 
he proposes to undertake offers original innovations that contribute to advancements in the field, rather 
than just affecting projects involving his company, or otherwise has broader implica tions for his field. 
For all these reasons, the Petitione r' s propo sed work does not meet the first prong of the Dhanasar 
framework. 
B. Balancing Factors to Determine Waiver 's Benefit to the United States 
As explained below , we agree with the Director's determination that the Petitioner did not show, on 
balance , that the Petitioner's potential benefit to the United States outweighs the national interest 
inherent in the labor certification requirement. 
The Petitioner 's initial statement includes this passage : 
On balance, it would benefit the United States to have someone with [the Petitioner's] 
extensive experience in the field of information management engineering to advance 
the goals of improved efficiencies and performance through the use of technology .... 
A highly skilled information technology engineer such as [the Petitioner] would help 
American businesses become more competitive in the global economy because he is 
able to utilize his skills at managing computer and information systems to increase 
organizational efficiencies and improve a company 's bottom line. 
This statement relies on generalities rather than any specific information about how the Petitioner , in 
particular , would benefit the United States. He states that "every industry ... relies on computer 
systems," and that he "will be a tremendous asset to any U.S . company ." But the Petitioner , if granted 
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the waiver, would not work for "every industry"; he would work for one particular company, and he 
has not shown how that work would produce benefits beyond that unnamed, hypothetical employer. 
The Petitioner cites the job offer letter from! Ito show that there is urgency to the petition. In 
that letterJ lstated: "We cannot assist you with filing for residency and a labor certification 
because of the length of time required. We have an immediate need that has to be filled." This letter, 
however, does not meet the Dhanasar standard of showing that the national interest in the Petitioner's 
contributions is sufficiently urgent to warrant forgoing the labor certification process; the Petitioner 
does not explain why it is in the national interest (as opposed to one employer's interest) to fill the 
position immediately. 
On appeal, the Petitioner states that the communications from I I anal I "proved that it 
would be impractical for him to obtain a labor certification." Dhanasar discusses the impracticality 
issue in a footnote: 
For example, the labor certification process may prevent a petitioning employer from 
hiring a foreign national with unique knowledge or skills that are not easily articulated 
in a labor certification. . . . Likewise, because of the nature of the proposed endeavor, 
it may be impractical for an entrepreneur or self-employed inventor, when advancing 
an endeavor on his or her own, to secure a job offer from a U.S. employer. 
Id. at 890 n. l 0. The Petitioner has not established that labor certification is inherently impractical for 
the type of position he seeks, in the ways discussed above. Rather, two prospective employers declined 
to pursue labor certification in this particular instance. To grant the national interest waiver because 
a given employer could seek a labor certification, but chooses not to do so, would be to effectively 
downgrade labor certification from a statutory requirement to an option that employers and prospective 
employees may freely disregard. 
For the above reasons, the Petitioner has not satisfied the third prong of the Dhanasar framework. 
Because the Petitioner has not satisfied all three prongs of the Dhanasar framework, the petition 
cannot be approved. 
C. Exceptional Ability 
Beyond the above grounds, we disagree with the Director's determination that the Petitioner has 
established eligibility for the underlying immigrant classification as an individual of exceptional 
ability. Detailed discussion of this issue cannot change the outcome of this appeal, and we may 
therefore reserve such discussion. 5 
Nevertheless, we briefly note that the regulation at 8 C.F.R. § 204.5(k)(3)(ii) requires petitioners to 
satisfy at least three of six listed criteria to establish exceptional ability. Here, the Petitioner claims to 
5 See INS v. Bagamasbad, 429 U.S. 24, 25-26 (1976) (stating that, like courts, federal agencies are not generally required 
to make findings and decisions unnecessary to the results they reach); see also Matter of L-A-C-, 26 l&N Dec. 516, 526 
n. 7 (BIA 2015) ( declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
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satisfy four of them. The Petitioner's evidence is questionable under at least two of those claimed 
criteria. 
An official academic record showing that the alien has a degree, diploma, certificate, 
or similar award from a college, university, school, or other institution of learning 
relating to the area of exceptional ability. 8 C.F.R. § 204.5(h)(3)(ii)(A) 
~-~!University awarded the Petitioner a degree evaluated as being equivalent to a "Bachelor of 
Business Administration in Accounting." The Petitioner has not shown that this degree relates to his 
area of claimed exceptional ability. Out of 40 course titles listed, only two, "Computers in 
Accounting" and "Accounting Information Systems," have any demonstrable relation to his intended 
occupation in information systems management. 
The Petitioner also holds certificates issued byl lcorporation and by Egypt's Ministry of 
Communication and Information, which are more closely related to his intended occupation, but the 
Petitioner has not established thatl I or the Ministry is "a college, university, school, or other 
institution of learning" as the regulation requires. The certificates appear to reflect short-term, 
product-specific training, rather than anything comparable to an academic degree. Some certificates 
show the terml !University," but the record does not establish that this term refers to an actual 
institution of learning rather than an internal training program. 
Evidence of recognition for achievements and significant contributions to the industry 
or field by peers, governmental entities, or professional or business organizations. 
8 C.F.R. § 204.5(h)(3)(ii)(F) 
The Petitioner documents no formal recognition for achievements or significant contributions to the 
industry or field. He submits letters of recommendation from employers and a client, and evidence of 
internal recognition froltj I but these materials relate to the Petitioner's work on specific projects 
that benefited his employer and its clients. They do not establish achievements and significant 
contributions to the industry or field. 
If the Petitioner had otherwise established eligibility for the benefit sought, then the above issues 
would warrant farther discussion. But, because the Petitioner has not shown that he qualifies for the 
national interest waiver, we need not delve farther into the issue of exceptional ability. 
III. CONCLUSION 
Because the Petitioner has not met the required first and third prongs of the Dhanasar analytical 
framework, we conclude that he has not established eligibility for a national interest waiver as a matter 
of discretion. The appeal will be dismissed for the above stated reasons. 
ORDER: The appeal is dismissed. 
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