dismissed EB-2 NIW Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAR. 7, 2024 In Re: 29137179 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a consultant in the information technology field, seeks employment-based second 
preference (EB-2) immigrant classification as an advanced degree professional, 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 Petitioner did not 
establish that he is eligible for or otherwise merits a national interest waiver as a matter of discretion. 
The Director concluded that the Petitioner met the underlying EB-2 classification as an individual with 
an advanced degree and that his proposed endeavor was of substantial merit. However, the Director 
also concluded the record did not support the proposed endeavor's national importance, that the 
Petitioner was well-positioned to advance the endeavor, or that on balance, it was beneficial to the 
United States to waive the job offer requirement. 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 Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
On appeal, the Petitioner asserts that the Director applied novel substantive and evidentiary 
requirements and deprived the Petitioner of his due process rights and fair treatment. However, instead 
of identifying erroneous conclusions of law or statements of fact, the Petitioner makes references that 
are not in the Director's decision. For example, the Petitioner states that the Director deprived him of 
his due process rights by not conducting a final merits determination on whether he is qualified as an 
individual of exceptional ability. However, the Director determined that the Petitioner met the EB-2 
classification as a member of the profession holding an advance degree or its equivalent. Therefore, 
no exceptional ability determination is needed as the Petitioner satisfied eligibility for the underlying 
EB-2 classification. See 203(b)(2) of the Act, 8 U.S.C. § l 153(b)(2) and 8 C.F.R. § 204.5(k)(2). The 
Petitioner also states that the Director, "erroneously assumed that the Appellant's proposed endeavor 
does not have substantial merit. .. . " However, the Director determined that "[the Petitioner's] 
proposed endeavor is of substantial merit. ... " 
Further, the Petitioner restates similar reasoning on appeal that the Director already considered and 
addressed in denying the petition, and relies on evidence and explanations previously provided, which 
the Director referenced, quoted, and cited in the decision. The Director thoroughly addressed the 
Dhanasar framework and explained why the Petitioner meets some of the eligibility criteria, but not 
all, and therefore why she denied the petition. See Matter ofDhanasar, 26 I&N Dec. 884, 889 (AAO 
2016). 
We adopt and affirm the Director's decision regarding the Petitioner's eligibility under the first 
Dhanasar prong. See Matter ofBurbano, 20 I&N Dec. 872, 874 (BIA 1994); see also Giday v. INS, 
113 F.3d 230, 234 (D.C. Cir. 1997) (noting that the practice of adopting and affirming the decision 
below has been "universally accepted by every other circuit that has squarely confronted the issue"); 
Chen v. INS, 87 F.3d 5, 8 (1st Cir. 1996) (joining eight circuit courts in holding that appellate 
adjudicators may adopt and affirm the decision below as long as they give "individualized 
consideration" to the case). 
The Petitioner states in the appeal and in the business plan that the proposed endeavor will be 
generating eight jobs for U.S. workers. The number of jobs created does not rise to the level ot: 
"significant potential to employ U.S. workers" as required by Dhanasar. Id. at 890. The Petitioner 
also asserts that he has over 24 years of work experience that proves he will successfully manage his 
business. This is more appropriate for an analysis on whether the Petitioner is well positioned to 
advance the endeavor and does not further a national importance determination. In addition, in the 
appeal and in the record, the Petitioner relies heavily on industry articles and reports about the 
importance of the information technology industry. While we acknowledge the industry's importance, 
the relevant question when determining whether a proposed endeavor will have national importance 
is not the importance of the industry or profession in which the Petitioner will work, but the specific 
impact of the proposed endeavor. Id at 889. Here, the record does not establish that the proposed 
endeavor will have "national or even global implications" within the field of information technology. 
Id. For the above reasons, we adopt and affirm the Director's analysis and decision regarding the first 
Dhanasar prong and conclude the Petitioner has not established he is eligible for or otherwise merits 
a national interest waiver. 
Since the identified basis for denial is dispositive of the Petitioner's appeal, we decline to reach and 
hereby reserve our opinion regarding whether the record satisfies the second or third Dhanasar prongs. 
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 is otherwise ineligible). 
ORDER: The appeal is dismissed. 
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