dismissed EB-2 NIW Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: FEB. 27, 2024 In Re: 30002436 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an entrepreneurial information technology consultant for business and industrial 
projects, seeks classification as a member of the professions holding an advanced degree or of 
exceptional ability. 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 the record did not 
establish 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. 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. 
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. 
Whilst 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 USCIS may as a matter of discretion 
grant a national interest waiver of the job offer, and thus of the labor certification, to a petitioner 
classified in the EB-2 category if they demonstrate that (1) the noncitizen's proposed endeavor has 
both substantial merit and national importance, (2) the noncitizen 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 first prong, substantial merit and national importance, focuses on the specific endeavor the 
noncitizen 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 noncitizen. To determine whether 
the noncitizen 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, progress towards achieving the proposed endeavor, and 
the interest of potential customers, users, investors, or other relevant entities or individuals are also 
key considerations. 
The third prong requires the petitioner to demonstrate that, on balance of applicable factors, it would 
be beneficial to the United States to waive the requirements of a job offer and thus of a labor 
certification. USCIS may evaluate factors such as whether, in light of the nature of the noncitizen' s 
qualification or the proposed endeavor, it would be impractical either for the noncitizen to secure a 
job offer or for the petition to obtain a labor certification; whether, even assuming that other qualified 
U.S. workers are available, the United States would still benefit from the noncitizen's contributions; 
and whether the national interest in the noncitizen's contributions is sufficiently urgent to warrant 
forgoing the labor certification process. Each of the factors 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. 
II. ANALYSIS 
The Director observed the Petitioner was eligible for EB-2 classification as an individual who is a 
member of the professions holding an advanced degree. But the Director ultimately concluded that 
the Petitioner's substantially meritorious 1 proposed endeavor did not rise to a level of national 
importance as required by the first prong of Dhanasar. The Director also determined that the 
Petitioner was not well positioned to advance their proposed endeavor. And the Director concluded 
that on balance of applicable factors, a waiver of the requirement of a job offer, and thus a labor 
certification, would not be beneficial to the national interest. 
On appeal, the Petitioner contends the Director's decision was based on an erroneous conclusion of 
law and facts. Specifically, the Petitioner contends the Director applied a higher standard of proof 
than the preponderance of the evidence standard and asserts the Director did not consider the totality 
1 The Petitioner submitted numerous articles, web pages, and reports from non-profit research organizations and executive 
level agencies related to the importance of information technology in the United States. This evidence supported the 
overall merit of the Petitioner's proposed field of endeavor. So the Director conectly concluded the Petitioner's proposed 
endeavor had substantial merit. But the same evidence does not adequately describe how the Petitioner's specific proposed 
endeavor demonstrates it has national or even global implications in the particular field, would broadly implicate matters 
rising to a level of national importance in the field, or confers positive economic effects as we will discuss below. 
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of the evidence the Petitioner submitted. Although the evidentiary standard in immigration 
proceedings is the lowest preponderance of the evidence standard, the burden is on the Petitioner alone 
to provide material, relevant, and probative evidence to meet that standard. 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); 
also see the definition of burden of proof from Black's Law Dictionary (11th ed. 2019) (reflecting the 
burden of proof includes both the burden of production and the burden of persuasion). First, a 
petitioner must satisfy the burden of production. As the term suggests, this burden requires a filing 
party to produce evidence in the form of documents, testimony, etc. that adheres to the governing 
statutory, regulatory, and policy provisions sufficient to have the issue decided on the merits. The 
Petitioner submitted their curriculum vitae, several recommendation letters, copies of their educational 
credentials, several certificates of attendance or participation in seminars or continuing education 
courses, articles and other "government reports" about computer engineering, business relocation, 
STEM (science, technology, engineering, mathematics) education and a shortage of STEM workers, 
expert opinion letter, and professional plan. 2 The Petitioner states on appeal that the evidence they 
submitted in the record prior to and at appeal demonstrated that the Petitioner meets all three prongs 
under the Dhanasar framework and merits a discretionary waiver of the job offer, and thus the labor 
certification, in the national interest. But as explained below, the Petitioner's evidence and assertions 
do not help them carry their burden of production and persuasion because they do not sufficiently 
relate to the proposed endeavor's national importance under the first prong of the Dhanasar 
framework. 
A. The Proposed Endeavor 
The 
Petitioner intended to establish~----------~ to provide advisory and consulting 
services on information technology (IT) projects in the United States. The Petitioner's endeavor 
sought to provide software development, technical support, infrastructure monitoring, remote 
management, communications infrastructure, structured cabling, physical security and CCTV, and IT 
consulting services related to strategic project management to United States businesses in a broad 
spectrum of fields. The infirmity in the Petitioner's description of their endeavor is patent upon 
examination into the evidence and argument they introduced into the record. The Petitioner's evidence 
does not help them carry their burden of production and persuasion because it does not sufficiently 
support the proposed endeavor's national importance under the first prong of the Dhanasar 
framework. 
B. National Importance 
The Director concluded that the Petitioner did not demonstrate their proposed endeavor was of national 
importance because the Petitioner did not demonstrate that it has national or even global implications 
in its field, the broader implications of the proposed endeavor, or its potential positive economic 
effects. For the below reasons, we agree. 
In determining national importance under Dhanasar, the relevant question is not the importance of the 
field, industry, or profession in which the individual will work; instead, we focus on "the specific 
2 While we may not discuss every document submitted, we have reviewed and considered each one. 
3 
endeavor that the foreign national proposes to undertake." See Dhanasar, 26 I&N Dec. at 889. In 
Dhanasar, we farther noted that "we look for broader implications" of the proposed endeavor and that 
"[ a ]n undertaking may have a national importance for example, because it has national or even global 
implications within a particular field." Id. We also stated that "[a]n endeavor that has significant 
potential to employ U.S. workers or has other substantial positive economic effects, particularly in an 
economically depressed area, for instance, may well be understood to have national importance." Id 
at 890. So it is not what duties or what occupation the noncitizen will fill or perform but their actual 
plan with their occupation and duties that is examined. 
The Petitioner showcased their endeavor's potential global or national impact, any broader 
implications, and any positive economic effects stem from their spec[fic individual execution of their 
proposed endeavor based on their past work in the field. And the corpus of the evidence the Petitioner 
submitted into the record does not stray far from this core assertion. But the Petitioner's assertion 
spotlighted a fundamental misunderstanding of the Dhanasar framework's first prong. The first prong 
focuses on the proposed endeavor; not on the Petitioner's execution of that proposed endeavor. The 
Dhanasar framework is consequently unconcerned with the success of the proposed endeavor or the 
Petitioner's track record in their field of endeavor previously. 3 
For example, the Petitioner submitted several letters ofrecommendation into the record. But the letters 
do not refer to the Petitioner's proposed endeavor. Instead, they describe the Petitioner's "good 
performance of [their] functions" or otherwise described the work they did previously. The 
Petitioner's past performance, even past "good performance," of the duties they intended to perform 
as part of their proposed endeavor does not support that endeavor's national importance. It is not 
sufficiently evident how the Petitioner's "good performance" of their duties has global or national 
implications, broader implications, or positive economic effects. In the same vein, the Petitioner's 
educational credentials and professional certificates earned from participation in seminars or 
continuing professional education exercises are not sufficient to demonstrate the national importance 
of their proposed endeavor. 4 
The Petitioner asserts on appeal that their endeavor has global or national implications within the 
economy. They contend that their "proposed endeavor has the potential to serve the national interest 
of the United States by contributing to the growth of the American industry, creating new jobs, 
improving the efficiency and effectiveness of various industries, promoting the general welfare of the 
county, and promoting international cooperation." 
It is not evident from the Petitioner's professional plan how their proposed endeavor rises to a level of 
national importance. Whilst the professional plan identifies the size of the "information technology 
market" in the United States, it does not sufficiently show how the Petitioner's proposed endeavor's 
3 Whilst we agree with the Director's ultimate conclusion that the Petitioner's proposed endeavor was not nationally 
imp01tant, we do not agree with and withdraw the Director's comments that "source of funding," any party's "express 
interest" in the proposed endeavor, work the Petitioner has completed, or timeline the Petitioner intends to work in are 
relevant considerations to evaluate a proposed endeavor's national importance. These are more relevant considerations 
for an evaluation of eligibility under the second prong of the Dhanasar analytical framework. 
4 The Petitioner's contentions about their successful past performance in the field of endeavor they propose, as well as 
evidence and information of their achievements and recognition, would better serve a demonstration of eligibility under 
the Dhanasar framework's second prong. 
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function within that market has global or even national implications. Nor does the professional plan 
identify the broader implications of the proposed endeavor. For example, the Petitioner identified 
"increased productivity," "lower expenses," "a secure network," and "data redundancy" as benefits to 
entities engaging their endeavor for its services. But it is not evident how the "increased productivity," 
"lower expenses," "a secure network," and "data redundancy" of the entities that engage the Petitioner 
for its services would broadly implicate matters rising to a level of national importance. Or in other 
words, it is not apparent how the "increased productivity," "lower expenses," "a secure network," and 
"data redundancy" of the subset of entities engaging the Petitioner for their services would broadly 
implicate matters rising to a level of national importance to "the growth of the American industry, 
creating new jobs, improving the efficiency and effectiveness of various industries, promoting the 
general welfare of the county, and promoting international cooperation." 
We said in Dhanasar that "[a]n endeavor that has significant potential to employ U.S. workers or has 
other substantial positive economic effects, particularly in an economically depressed area, for 
instance, may well be understood to have national importance." Id at 890. The Petitioner's appeal 
generally mentions the proposed endeavor's capacity for "significant potential to employ US workers 
or other economic effects" and 'job creation and expansion of the tech industry." But the Petitioner's 
professional plan does not go further and identify any specific positive economic effect emanating 
from their proposed endeavor other than these vague generalized statements made without evidence. 
Instead, the Petitioner casts these benefits in light of "the technology sector" as "one of the largest 
contributors to high-wage job creation." On appeal the Petitioner cites an "economic multiplier effect" 
to characterize the potential prospective impact of the economic effects of their endeavor as they relate 
to job creation and significant potential to employ U.S. workers. But the Petitioner's "economic 
multiplier effect" assertion is made without citations to any material, relevant, or probative evidence. 5 
The Petitioner's professional plan also does not identify the magnitude of job creation to evaluate its 
significance. Moreover, the Petitioner's professional plan does not indicate or identify any 
economically depressed area within which their proposed endeavor would create jobs. So it is not 
entirely evident how the Petitioner's proposed endeavor positively effects economic considerations. 
USCIS may, in its discretion, use as advisory opinion statements from universities, professional 
organizations, or other sources submitted in evidence as expert testimony. See Matter ofCaron Int 'l, 
19 I&N Dec. 791, 795 (Comm'r 1988). However, the submission ofletters or opinion statements from 
experts supporting the petition is not presumptive evidence of eligibility. Id. The Petitioner submitted 
an expert opinion statement authored by Rene Aguirre Brach, a "post doctor in organization 
management" by and through.____________ __. But this opinion statement does not 
illustrate how the Petitioner's proposed endeavor rises to a level impacting national importance. In 
the first instance, we note that the author's background is in organizational management and not 
information technology consulting. However, setting this seeming incongruity to one side, the 
author's opinion also focused only on the Petitioner's ability and achievement when rendering their 
opinion. As we stated previously the first prong focuses on the proposed endeavor. So, a petitioner's 
ability and achievement are not relevant considerations to evaluate the national importance of the 
5 The Petitioner makes numerous other assertions on appeal without evidence, such as the "enhancement of societal 
welfare" by their proposed endeavor and its effects on healthcare, education, and sustainable energy. The record does not 
sufficiently link with material, relevant, or probative evidence information technology consulting services performed 
through the proposed endeavor to any effect on healthcare, education, or sustainable energy rising to a level of national 
importance. 
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proposed endeavor. The author does not venture farther from their description of the Petitioner's 
ability and achievement to evaluate the Petitioner's specific endeavor and how it can have a 
prospective positive impact nationally or globally or from the broader implications of its specific 
contributions to the information technology field. Nor does the author sufficiently describe any 
positive economic impacts. Or in other words, the author does not convincingly articulate the potential 
prospective impact of the Petitioner's endeavor so that a meaningful evaluation of the proposed 
endeavor's potential prospective impact can be made to determine if it rises to a level of national 
importance. 
In sum, the record does not contain relevant, probative, or material evidence establishing the 
Petitioner's proposed endeavor has potential positive impact either through its broader implications to 
its field or its positive economic effects. So we conclude that the Petitioner has not established that 
their proposed endeavor is of national importance. 
III. CONCLUSION 
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, we 
conclude that they do not merit a favorable exercise of discretion to waive the requirement of a job 
offer, and therefore a labor certification. And we reserve the issue of whether the Petitioner 
demonstrated eligibility under the remaining prongs of the Dhanasar analytical framework. See INS 
v. Bagamasbad, 429 U.S. 24, 25 (1976) ("courts and agencies are not required to make findings on 
issues the decision of which is unnecessary to the results they reach"); see also Matter ofL-A-C-, 26 
I&N Dec. 516, 526 n. 7 (BIA 2015) ( declining to reach alternative issues on appeal where an applicant 
is otherwise ineligible). So we dismiss the Petitioner's appeal. 
ORDER: The appeal is dismissed. 
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