dismissed EB-2 NIW Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: FEB. 23, 2024 In Re: 29137234 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an entrepreneur in the field of information technology (IT), seeks classification as a 
member of the professions holding an advanced degree. 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. U.S. Citizenship and Immigration Services (USCIS) may grant this 
discretionary waiver of the required job offer, and thus ofa 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 record did not 
establish that the Petitioner qualifies for the national interest waiver. 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 of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We 
review the questions in this matter de nova. Matter ofChristo 's, Inc., 26 I&N Dec. 537,537 n.2 (AAO 
2015). Upon de nova review, we will dismiss the appeal. 
I. LAW 
To qualify for a national interest waiver, a petitioner must first show eligibility for the underlying 
EB-2 visa classification, as either an advanced degree professional or an individual of exceptional 
ability in the sciences, arts, or business . Section 203(b)(2)(B)(i) of the Act. 
Once a petitioner demonstrates EB-2 eligibility, they must then establish that they merit a discretionary 
waiver of the job offer requirement "in the national interest." Section 203(b )(2)(B)(i) of the Act. 
While neither the statute nor the pertinent regulations define the term "national interest," Matter of 
Dhanasar, 26 I&N Dec. 884, 889 (AAO 2016), provides the framework for adjudicating national 
interest waiver petitions. Dhanasar states that USCIS may, as matter of discretion, 1 grant a national 
interest waiver if the petitioner demonstrates that: 
1 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts, and Third 
in an unpublished decision, in concluding that USCIS' decision to grant or deny a national interest waiver is discretionary 
in nature). 
• The proposed endeavor has both substantial merit and national importance; 
• The individual is well positioned to advance their proposed endeavor; and 
• On balance, waiving the job offer requirement would benefit the United States. 
II. ANALYSIS 
The record demonstrates that the Petitioner qualifies as a member of the professions holding the 
equivalent of an advanced degree as defined at 8 C.F.R. § 204.5(k)(2). The remaining issue to be 
determined is whether the Petitioner has established that a waiver of the requirement of a job offer, 
and thus a labor ce1tification, would be in the national interest. 
In his native Brazil, the Petitioner earned a bachelor's degree in business management in 2005, 
followed by graduate-level training in strategic management. Also in Brazil, the Petitioner worked in 
various IT capacities for an automobile manufacturer in 2008, and for a steel company from 2008 to 
2016. Since 2017, the Petitioner has spent most of his time in the United States, initially in F-2 
nonimmigrant status as the spouse of an F-1 nonimmigrant student. The Petitioner is president and 
chief technology officer of an TT services company that he established in Florida in 2017. 
The Petitioner stated that his "proposed endeavor in the United States is to lead [his company, which] 
designs IT solutions for businesses that do not have the structure to develop and invest in (R&D) IT 
solutions in-house." A business plan in the record states that "[t]he Company is active and in 
operation," serving businesses in such fields as law, accounting, and real estate. 
The Director determined that the Petitioner had established the substantial merit of the proposed 
endeavor, and that the Petitioner is well positioned to advance that endeavor. But the Director denied 
the petition based on the detem1ination that the Petitioner had not established the proposed endeavor's 
national importance, and that the Petitioner had not shown that, on balance, a waiver of the job offer 
requirement would benefit the United States. 
A. Substantial Merit and National Importance 
The first Dhanasar prong, substantial merit and national importance, focuses on the specific endeavor 
that the individual 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. Matter ofDhanasar, 26 I&N Dec. at 889. We look for broader implications. An 
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 889-890. 
An introductory brief submitted with the petition includes a section with the heading "The National 
Importance of the Beneficiary's proposed field of endeavor," discussing various subjects relating to 
the IT industry. But the Petitioner must establish the national importance of his specific proposed 
endeavor. See Matter ofDhanasar, 26 I&N Dec. at 889. The importance of an entire field, such as 
IT, does not necessarily show the importance of one endeavor within that field. The term "endeavor" 
is more specific than the general occupation; a petitioner should offer details not only as to what the 
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occupation normally involves, but what types of work the person proposes to undertake specifically 
within that occupation. See, generally, 6 USCIS Policy Manual F.5(D)(l), https://www.uscis.gov/ 
po !icy-manual. 
The business plan for the Petitioner's company indicates that the Petitioner's company provides 
services in "equipment (hardware), systems and applications (software), as well as security, 
automation, and technical suppo1i for IT operations." The plan projects hiring eight employees 
between 2022 and 2027, but at the time the Petitioner filed the petition, the Petitioner was the 
company's only employee. The Petitioner did not show that the company had employed anyone else 
since its founding in 2017. 
The business plan states that the Petitioner's proposed endeavor will have "National-level Impact" by 
"helping the longevity of [customers], as well as supporting their growth," and by "helping them 
increase productivity and sales, as well as improving their time-to-market." The business plan does 
not show how benefit to individual customers has broader implications that give national importance 
to the proposed endeavor. 
The "National-level Impact" portion of the business plan identifies areas of concern such as "Operating 
in an Important Sector and Contributing to Foreign Direct Investment" and "Enhancing Clients' 
Security." The importance of these general subjects is not in dispute, but their overall significance 
does not establish the national importance of the Petitioner's proposed endeavor in particular. For 
example, security is important for every business, but it does not follow that one company has national 
importance because it provides security solutions to a small number of clients. The business plan does 
not quantify the proposed endeavor's expected impact in the identified areas of concern. 
The Director issued a request for evidence (RFE), stating that the Petitioner had not shown that the 
proposed endeavor would have broader implications, either economically or from innovations that 
advance the field, that would "sufficiently extend beyond [the Petitioner's company] and its clients to 
impact the industry or field more broadly." 
In response, the Petitioner asserted that his "tech tools and innovations can help business to grow, stay 
atop, and attract more investment," leading to broader impact. As an example, the Petitioner cited a 
project his company unde1iook for "a real estate group of companies," developing a new application 
(app) "focusing on streamlin[ing] real estate transactions, by accelerating compliance and facilitating 
the closing." The Petitioner stated: "The NEW APP is in its test phase and is fully implemented and 
in-use by [the client] and selected realtors and investors" in Florida and Brazil. An official of the 
client organization stated: "The APP has assisted [the company] in more than 31 transactions ... 
totaling USD 31 million." The Petitioner did not establish the significance of these figures in the 
context of the U.S. real estate market. Also, he did not establish that his company's app significantly 
affected the outcome of the individual transactions, or that the transactions would not have occuITed 
without the app. The available evidence indicates that the app was in ve1y limited use when the 
Petitioner responded to the RFE. 
The Petitioner asserted: "Innovations that [the Petitioner] creates through his IT projects are vital to 
introduce novelty to existing product lines or processes. It can be used to design a new technique or 
upgrade an existing business process and operating system." These appear to be generic assertions 
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about the IT field, and do not establish the impact ofthe Petitioner's work beyond benefit to his clients. 
Underscoring this point, the Petitioner cited letters from four customers, each attesting to the quality 
of the service that the Petitioner's company has provided to them. The letters show that the Petitioner's 
company has met its clients' needs, but they do not establish that the company has had a significant 
impact beyond the four customers in and around I I Florida who submitted letters on the 
Petitioner's behalf. Fmihermore, the letters describe apps that the Petitioner custom-designed for each 
customer. This ensures that the app closely matches a particular customer's needs, but it also limits 
the use of the app to that customer. 
In the RFE, the Director noted the Petitioner's plan to hire eight employees over five years, and stated: 
"USCIS cannot conclude that the petitioner's specific proposed endeavor ... has significant potential 
to employ U.S. workers or otherwise offers substantial positive economic effects for the nation as 
contemplated by Dhanasar." In response, the Petitioner asserted that "Matter of Dhanasar never 
established how many employees are enough to show national interest." But Dhanasar also did not 
establish that every employment-creating endeavor, regardless of size, has national importance. 
Different endeavors will impact the national interest in different ways, and the burden is on the 
Petitioner to establish that the creation of eight jobs over five years has broader economic implications. 
The Petitioner has not done so here. 
The Petitioner observed that "the Job Creation Requirement for EB-5 Investor Green Car[ d]s is (10) 
ten full-time jobs," under section 203(b )(5) ofthe Act. The EB-5 program is a different category based 
on different regulations, with requirements beyond job creation. Even if it were comparable, which it 
is not, the Petitioner has not established that his proposed endeavor would directly create ten full-time 
jobs. The business plan shows seven full-time jobs and one part-time job. 
The Petitioner also submitted a separate statement, emphasizing his experience and expertise. These 
factors weigh on the second Dhanasar prong, regarding whether the Petitioner is well positioned to 
advance the proposed endeavor, which the Director already granted. They do not inherently give 
national importance to that endeavor. 
The Director denied the petition, stating that the Petitioner had not established that the proposed 
endeavor "will potentially impact the field oflnformation Technology at a national level," or that "the 
particular work he proposes to unde1iake offers original innovations that contribute to the 
advancements in his field of endeavor, or otherwise has broader implications in his field." The 
Director considered the Petitioner's claims of economic impact, but did not find them persuasive. 
On appeal, the Petitioner submits an "updated business plan," relying on new figures, such as the claim 
that the company will hire 13, rather than 8, new employees during the next five years. The Petitioner 
did not submit this information either with the initial filing of the petition or in response to the RFE. 
The Petitioner's revision of the figures in his business plan at this late date does not establish e1Tors of 
fact or law in the Director's decision as required by 8 C.F.R. § 103.3(a)(l)(v), because the Petitioner 
did not make this information available for the Director's consideration prior to the denial. 
The appeal includes more information about projects that the Petitioner's company undertook for its 
clients, but the Director did not dispute that the Petitioner's proposed endeavor would benefit the 
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company's customers. Rather, a key basis for the denial is that the Petitioner had not established that 
the proposed endeavor would produce significant benefit beyond those individual clients. 
The Petitioner provides estimated figures about the proposed endeavor's potential future performance, 
such as projected revenues and taxes, but does not establish that the figures amount to the substantial 
positive economic effects contemplated in Dhanasar. With respect to the Petitioner's reliance on 
financial estimates, it is significant that the Petitioner is not describing a new or hypothetical endeavor. 
Rather, the proposed endeavor is the continued operation of a company that had existed for five years 
before the Petitioner filed the petition in 2022. When discussing the company's past activity, the 
Petitioner has discussed projects for four customers, but submitted little information and evidence 
about the company's overall performance during those first five years. The Petitioner was apparently 
the company's only employee during that time; the business plan submitted with the petition does not 
show any other existing employees. The Petitioner's arguments hinge, to a large extent, on projections 
about the company's future perfonnance. However, the lack of evidence about the company's past 
performance diminishes the weight we give to those estimates, as do the Petitioner's changes to those 
projections and estimates. 
The Petitioner states: 
[T]he company will also work in the educational sector, by promoting academic 
development and professional improvement for professors at American universities 
through agreements and offering internships. By improving on established guidelines 
for IT Solutions in academia, [the Petitioner] will help bridge a gap between college 
students' academic limitations and transitioning them to a more practical work 
environment upon graduation. 
This vague and general assertion is entirely new on appeal. The Petitioner does not elaborate as to 
"the established guidelines for IT Solutions in academia" or how his proposed endeavor would 
improve upon them at a nationally significant level. The Petitioner did not propose an academic 
component when he filed the petition, nor in response to the RFE when the Director had specifically 
called for more evidence about the endeavor and an explanation of its importance. Earlier discussions 
of the proposed endeavor centered on benefit to the company's clients. Therefore, the new claim of 
"work in the educational sector" appears to represent a material change to the proposed endeavor. A 
petitioner may not make material changes to a petition that has already been filed in an effort to make 
an apparently deficient petition contemn to USCIS requirements. See Matter ofIzummi, 22 I&N Dec. 
169, 175 (Comm'r 1998). 
We agree with the Director that the Petitioner has not met his burden of proof to establish the national 
impmiance of his proposed endeavor. 
In light of the above conclusions, the Petitioner has not met his burden of proof to show the national 
importance of the proposed endeavor. Detailed discussion of the remaining Dhanasar prongs cannot 
change the outcome of this appeal. Therefore, we reserve argument on the second and third prongs. 2 
2 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 olL-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). 
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III. CONCLUSION 
The Petitioner has not established the national importance of the proposed endeavor. Therefore, the 
Petitioner has not shown eligibility for the national interest waiver, and we will dismiss the appeal as 
a matter of discretion. 
ORDER: The appeal is dismissed. 
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