dismissed EB-2 NIW Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: NOV . 17, 2023 In Re: 28803989 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an information technology entrepreneur, seeks classification as a member of the 
professions holding an advanced degree or of exceptional ability, 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 employment based second preference (EB-2) 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. See 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). 
The Director of the Texas 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 petition 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 that 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, 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 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 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 that 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 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. 
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 ofY-B-, 21 I&N Dec. 1136, 1142 n.3 (BIA 1998); see also the definition ofburden 
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 
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production. As the term suggests, this burden requires a filing party to produce evidence in the form 
of documents, testimony, etc. that adheres the governing statutory, regulatory, and policy provisions 
sufficient to have the issue decided on the merits. 
The evidence and argument the Petitioner introduced into the record does not help them carry their 
burden of production and persuasion. In support of their assertions of eligibility under the Dhanasar 
analytical framework, the Petitioner provided their business plan and evidence in the form of 
recommendation letters, professional certificates and memberships, numerous articles relating to 
cybersecurity and information technology,job offer letter, company registration documents, academic 
records, and resume. 1 
The Petitioner proposed to endeavor to establish a "startup information technology (IT) consulting 
firm" in the United States named~------~ The endeavor proposed to "provid[ e] 
cybersecurity services,2 asse[ss] current IT strategies, [ defin[ e] an IT governance policy and 
framework to align with an enterprise's business strategies, defin[e] project management 
methodologies, manag[ e] implementation of IT projects, including budgeting, forecasting, project 
planning and execution, and performance management." 
From the outset, the Petitioner's business plan couches their endeavor in terms of targeting their 
services to "mid-size to large enterprises" to provide "a holistic approach to IT management and 
governance by providing end to end IT solutions" based in the State of Texas. The Petitioner's 
business plan advances their intention to "focus on gaining market share in Austin and the surrounding 
region, before pushing advertising efforts to a national audience." 
To satisfy the first prong under the Dhanasar analytical framework, the Petitioner must demonstrate 
that their proposed endeavor has both substantial merit and national importance. The first prong 
focuses on the specific endeavor that the individual proposes to undertake. As stated above, the 
endeavor's merit may be demonstrated in a range of areas such as business, entrepreneurialism, 
science, technology, culture, health, or education. the record supports the Director's conclusion that 
the Petitioner's proposed endeavor was substantially meritorious. 
The Petitioner proposed their endeavor would have "national impact" by combatting cyberattacks, 
providing mission critical services for public and private sector organizations, and creating jobs. The 
Petitioner highlights "the uptick in remote working" as a reason for an "increase in network 
misconfigurations and delays in cyberattack detection and response, particular for smaller organization 
without dedicated IT support." The business plan anticipates that their cyber security services "will 
generate the most revenue" and "will serve as a gateway" to the Petitioner's proposed endeavor's 
services. 
1 While we may not discuss every document submitted, we have reviewed and considered each one. 
2 Although we agree with the Director's conclusion that the Petitioner's proposed endeavor does not demonstrate influence 
broadly implicating national importance, we do not agree with the Director's rationale to the extent it takes into account 
the Petitioner's education, training, and experience related to "skills required to combat cyber-attacks." Similarly, the 
Petitioner is not required to have "developed any strategy or idea that has been adopted by other IT professionals" to 
demonstrate the national importance of their proposed endeavor. The Petitioner's education, training, experience, and 
skills emanating therefrom are relevant to an analysis under Dhanasar's second prong, where we evaluate the positioning 
of an individual petitioner to advance their proposed endeavor. 
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The record contains numerous documents in the form of articles from media and government 
publications corresponding to numerous initiatives to improve cybersecurity. But these relate more to 
the substantiality of the proposed endeavor's merit than its national importance. In determining 
national importance, the focus is not on the importance of the industry in which the petitioner will 
work or even their past success. The focus is on "the specific endeavor that the foreign national 
proposes to undertake." See Dhanasar, 26 I&N Dec.at 889. 
In Dhanasar we said that "we look for broader implications." And it is here that the Petitioner's 
proposed endeavor's deficiencies are revealed. The record does not adequately describe how the 
Petitioner's cyber security services would broadly implicate the field of cyber security. That is not to 
say that the broader implications of the Petitioner's cyber security services are evaluated from a 
geographic perspective. Broader implications are not necessarily geographically evaluated; 
implications within a field which demonstrate a national or even international influence of broader 
scale can rise to a level of national importance. But the record as it is presently constituted does not 
sufficiently describe how the cyber security services the Petitioner will provide will influence the 
prevention of cyber-attacks beyond the "mid-size to large enterprises" that may engage the service of 
the Petitioner's proposed endeavor. 
The same is true for the IT governance services the Petitioner's proposed endeavor will offer to the 
"mid-size to large enterprises" it intends to target as part of its marketing strategy. The record does 
not adequately justify how the preparation of an IT department at a "mid-size to large enterprise" 
engaging the Petitioner's proposed endeavor for emerging trends and issues, alignment with business 
strategy, or comprehension of key stakeholders of the roles and responsibilities in IT governance at 
their enterprise broadly implicates matters in the field ofIT governance as a whole. Or in other words, 
it is unclear from the record how the establishment or improvement of IT governance structures at 
specific entities would implicate any matters in the field beyond those specific entities. 
The Petitioner's employment verification and employment letters did not reflect how the proposed 
endeavor implicates national importance because the letters focused on the Petitioner's past work. 
When evaluating the national importance of a proposed endeavor under the first prong of Dhanasar, 
we are concerned with its potential prospective or future impact. The Petitioner's demonstration of 
prior similar work does not have an influence on the proposed endeavor's potential prospective impact 
based on its national importance. 
And whilst the Petitioner anticipates increasing gross income, a hiring spree increasing their head 
count, and increasing their expenditures on salary, it is not clear from the record how this job creation 
for the proposed endeavor itself would have a substantial prospective positive economic effect 
commensurate with national importance. 3 The Petitioner's aspirations did not demonstrate the 
national importance of the endeavor because they, whether realized or not, would not extend beyond 
the endeavor itself to have an impact on a level of national importance. The record also did not contain 
sufficient probative, material, or relevant evidence showing how the endeavor's hiring plan would 
3 Whilst we agree with the Director's conclusion regarding the job creation anticipated by the proposed endeavor, we 
withdraw the Director's statements about the Petitioner's "contribut[ion] of some money of [their] own towards the initial 
startup funds ... " The lawful funding of a proposed endeavor is not relevant to evaluation of the endeavor's national 
importance under the Dhanasar analytical framework. 
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influence the area's unemployment rate or how the endeavor's operations and revenue rose to a level 
of national importance. And whilst the Petitioner asserts that the job creation from their endeavor 
would not be constrained by geography and they would directly employ or contract with individuals 
nationwide due to remote work paradigms, the record does not provide context as to the significance 
of potential for job creation through the proposed endeavor rising to a level of national importance or 
if the job creation will be in an area or areas which have traditionally been economically depressed. 4 
The relevant inquiry for evaluation of an endeavor's national importance is whether the prospective 
positive impact judged by the endeavor's broader implications or positive economic effects apply 
beyond just narrowly conferring the proposed endeavor's benefit. The Petitioner here has not 
demonstrated how conferring the benefit to the "mid-size to large enterprises" they intend to solicit 
have any implication or benefit rising to a level beyond them and touching matters of national 
importance. 
III. CONCLUSION 
The Petitioner has not met the requisite first prong of the Dhanasar analytical framework. Because 
this issue is dispositive of the Petitioner's appeal, we decline to reach and hereby reserve the remaining 
arguments concerning eligibility under the remaining Dhanasar prongs. 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-1, 26 I&N Dec. 216, 526n. 7 
(BIA 2015) (declining to reach alternate issues on appeal where an applicant is otherwise eligible). 
So we conclude the Petitioner has not established that they are eligible for or otherwise merit a national 
interest waiver of the job offer requirement, and thus of a labor certification. Accordingly, the appeal 
will be dismissed. 
ORDER: The appeal is dismissed. 
4 Whilst we agree with the Director's conclusion regarding the job creation anticipated by the proposed endeavor, we 
withdraw the Director's statements about whether the Petitioner could "afford to use contractors when [they] are still trying 
to build a reputation" for the endeavor. The success, failure, marketing/competitive strategy, and reputation of a proposed 
endeavor lawfully undertaking or intending to do undertake relevant activities is irrelevant to an evaluation of whether the 
proposed endeavor is engaged in matters rising to a level of national importance under the Dhanasar analytical framework. 
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