dismissed EB-2 NIW Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 10792725 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 02, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, an information technology (IT) project manager, seeks second preference immigrant 
classification as an individual of exceptional ability in the sciences, arts or 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). After a petitioner 
has established eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) 
may, as matter of discretion, 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. Matter of Dhanasar, 26 l&N Dec. 884 (AAO 2016). 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
qualify for the underlying classification. The Director additionally determined that the proposed 
endeavor lacked national importance and that the evidence did not establish that the Petitioner is well 
positioned to advance the proposed endeavor. Accordingly, the Director determinedthatthe Petitioner 
had not established eligibility for a national interest waiver. 
The matter is now before us on appeal. The Petitioner submits additional evidence and reasserts her 
eligibility, arguing that the Director did not properly weigh and consider the evidence. 
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. LEGAL FRAMEWORK 
To establish eligibility for a national interest waiver, a petitioner must first demonstrate qualification 
for the underlying EB-2 visa classification (emphasis added), 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. 
Section 101 (a)(32) of the Act provides that "[t]he term 'profession' shall include but not be limited to 
architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, 
colleges, academics, or seminaries." 
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definitions: 
Advanced degree means any United States academic or professional degree or a foreign 
equivalent degree above that of baccalaureate. A United States baccalaureate degree 
or a foreign equivalent degree followed by at least five years of progressive experience 
in the specialty shall be considered the equivalent of a master's degree. If a doctoral 
degree is customarily required by the specialty, the alien must have a United States 
doctorate or a foreign equivalent degree. 
Exceptional ability in the sciences, arts, or business means a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business. 
Profession means one of the occupations listed in section 101(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. 
In addition, the regulation at 8 C.F.R. § 204.5(k)(3)(ii) sets forth the specific evidentiary requirements 
for demonstrating eligibility as an individual of exceptional ability. A petitioner must submit 
documentation that satisfies at least three of the six categories of evidence listed at 8 C.F.R. 
§ 204.5(k)(3)(ii). 
2 
Furthermore, while neither the statute nor the pertinent regulations define the term "national interesi" 
we set forth a framework for adjudicating national interest waiver petitions in the precedent decision 
Matter of Dhanasar, 26 l&N Dec. 884 (AAO 2016).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 wou Id be beneficial to the United States to 
waive the requirements of a job offer and thus of a labor certification. 3 
11. ANALYSIS 
The record indicates that the Petitioner qualifies as a member of the professions holding an advanced 
degree.4 The remaining issue to be determined, therefore, 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. 
Regarding the Petitioner's claim of eligibility under Dhanasar's first prong, she indicated that her 
proposed endeavor in the U.S. is to offer her "expertise to fill the gap of IT skilled professionals in the 
U.S. and bring innovative results to local companies, organizations, and individuals[, thereby] improving 
both their social and monetary interests. Either as a direct employee or self-employed, she plans to offer 
"expert IT services," as well as develop and introduce "quality research tools tailored to diverse 
industries" that will generate "direct and indirect jobs coupled with valuable contributions to the IT 
field .... " The Petitioner states that her services will help U.S. entities "adapt to specific field 
technologies that will allow them to penetrate culturally diverse, and business complex, markets, such 
as Latin America- where certain IT legislations and technological platforms are different from those 
in the United States, and thus hinder the operational efficiency, and profitability, of American 
companies in such geographic regions." However, for the reasons discussed below, we agree with the 
Director that the Petitioner has not sufficiently demonstrated the national importance of her proposed 
endeavor under the first prong of the Dhanasar analytical framework. 
In determining national importance, the relevant question is not the importance of the industry or 
profession in which the individual will work; instead, we focus on the "the specific endeavor that the 
foreign national proposes to unde1iake." See Dhanasar, 26 l&N Dec. at889. 5 In Dhanasar, we further 
noted that "we look for broader implications" of the proposed endeavor and that "[a]n undertaking 
may have 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. 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation. 22 I&NDec. 215 (Act. Assoc. Comm'r 1998). 
2 See also Poursina v. USCIS, 936 F.3d 868, 2019 WL 4051593 (9th Cir.2019)(fincling USCIS' decision to grant or deny 
a national interest wa iverto bed iscretionary in nature). 
3 See Dhanasar, 261 &N Dec. at 888-91, for elaboration on thesethreeprongs. 
4 The record contains evidence that the Petitioner earned a foreign four-year degree in computer science in 2000 and has 
at least five years of professional experience in the IT field. 
5 While we acknowledge industry reports and articles on the benefits of ITto national and international productivity, as 
well as the shortage of qualified IT professionals, these reports and articles are insufficientto substantiatethe Petitioner's 
claims concerning the national importance of her proposed endeavor because they do not speak to the specific impact of 
the Petitioner's work. 
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workers or has other substantial positive economic effects, particularly in an economically depressed 
area, for instance, may well be under stood to have national importance." Id. at 890. 
We also evaluate whether the Petitioner 's proposed endea vor satisfies the national importance 
requirement by looking to evidence that documents the "potential prosp ective impact " of her work. 
Although the Petitioner's statements reflect her intention to provide valuable consulting services for 
her employer and clients, she has not offered sufficient information and evidence to demonstrate that 
the prospective impact of her proposed endeavor rises to the level of 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, we conclude the 
record doe s not show that the Petitioner's proposed endeavor stands to suffi ciently extend beyond her 
employer and clientele to impact her fie ld or the nation's fiscal condition more broadly at a level 
commensuratewith national importance. 
To illustrate our conclusion, we observe that the Petitioner described her proposed endeavor as an 
intention to "advance her career," a phras e which primarily suggests personal gain. Although she 
claims that the proposed endeavor will help U.S. companies, this help is contingent upon those 
companies paying her for her services or subscribing to her products, indicating advancement more so 
for the parties involved than for overall national impact. The Petitioner stated that she "participated 
in the conception, design, development, quality assurance, and implementation of the proprietary 
'Level 4 Pay software"' and that once this technology is implemented by other companies, it will 
maximize their revenue and increase the flow of money to the United States.6 Even if true, the 
Petitioner has not explained why this technology would confer a benefit beyond that afforded to the 
Petitioner and the companies who subscribe to the technology. For example, she does not explain in 
detail how it would maximize revenue in a mannerthatwould increase theflowof money to the United 
States, nor has she offered estimates of how much money would it generate. The Petitioner made little 
attempt to provide concrete numbers or estimates of revenue or how many companies must subscribe 
to the technology in order for it to increase the flow of money to the United States. 7 On appeal, the 
Petitioner argues that her contributions are notlimited to her employees and respective clients because 
technology work is disseminated throughout the industry by events, conferences, and word of mouth. 
However, the Petitioner has not explained how her proprietary payment plan technology and internal 
company work would be disseminated in this way and even if it was, what benefit dissemination alone 
would confer on a national or even regional scale. 
In addition, she claims that her leadership of projects at major companies significantly contributes to 
the economy, but she has not offered qualitativeorquantitative evidence of this. Although her services 
may have economically impacted the companies who hired her, this success has not been connected 
6 Without further explanation, it is unclearwhatlevel of involvement she had in the Level 4 Pay softlAfl.re and how much 
attribution or ownership she holds. For instance, the Petitioner has not submitted evidence to support a finding that the 
technology is proprietary, such as patents or other intellectual property documents. Moreover, the Petitioner has not 
explained in detail how this technology is significantly different or better than other on line payment platforms. While v-..e 
acknowledge the document containing three bullets explaining the "differentials" of this platform, the Petitioner has not 
adequately shown that these benefits are not also already offered by other payment platforms. 
7 We acknowledge the Statements of Work and various contractual documents engaging the Petitioner in IT -related 
services. Some of these documents are either missing signatures, relevant dates, have been entered into for short (tVl.0-
week) durations, or were executed afterthefiling of the 1-140 petition. 
4 
to a larger impact in the IT field or to the economy as a whole. The Petitioner claims her tactics are 
"known" to increase market share, productivity, and profitability, but the impact to the industry as a 
whole as a result of these tactics has not been substantiated in the record. 
The Petitioner claimed abstract economic benefits of her proposed endeavor, including that she will 
seize market and investment opportunities for U.S. companies doing business in Brazil and that she 
will "contribute to U.S. companies' productivity." We acknowledge statements that her proposed 
endeavor will ensure national economic contributions, however the record contains little concrete 
support for these statements. For instance, the Petitioner submitted insufficient evidence to support 
her claim of an increase in Gross Domestic Product (GDP) as a result of tax revenues linked to her 
business. As previously stated, she has not demonstrated how her assistance to U.S. companies will 
generate sufficient revenue to impact the national economy. Furthermore, the Petitioner has not 
demonstrated that the specific endeavor she proposes to undertake has significant potential to employ 
U.S. workers. Although she claims she will hire professionals, she has not stated how many, in what 
capacity, for how long, or how much she will pay them. Finally, the Petitioner has submitted 
insufficient evidence to support a finding that her proposed endeavor would make any appreciable 
difference in the "urgent shortage of qualified IT professionals in the U.S." Overall, any impact her 
proposed endeavor has appears to be localized, temporary, and internal in nature. Without sufficient 
information or evidence regarding any projected U.S. economic impactor job creation attributable to her 
future work, the record does not show that benefits to the U.S. regional or national economy resulting 
from the Petitioner's projects would reach the level of "substantial positive economic effects" 
contemplated by Dhanasar. Id. at 890. 
Lastly, the Petitioner points to her education, IT skills, project management abilities, knowledge of 
Brazilian markets, Oracle expertise, and years of experience. The Petitioner's knowledge, skills, and 
consulting experience, however, are considerations under Dhanasar's second prong, which "shifts 1he 
focus from the proposed endeavor to the foreign national." Id. at 890. The issue under the first prong 
is whether the Petitioner has demonstrated the national importance of her proposed work. 
In the present matter, thePetitioner'sevidenceis insufficientto show that her proposed work has broader 
implications for her field, as opposed to being limited to the clients and the companies who hire her. 
Accordingly , the Petitioner's proposedworkdoesnotmeetthe fir st prong of the Dhanasar framework. 
Because the documentation in the record does not establish the national importance of her proposed 
endeavor as required by the first prong of the Dhanasar precedent decision, the Petitioner has not 
demonstrated eligibility for a national interest waiver. Further analysis of her eligibility under the second 
and third prongs outlined in Dhanasar, therefore, would serve no meaningful purpose. 
111. CONCLUSION 
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, we find that 
she has not established she is eligible for or otherwise merits a national interest waiver as a matter of 
discretion. The appeal will be dismissed for the above stated reason. 
ORDER: The appeal is dismissed. 
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