dismissed EB-2 NIW Case: Information Technology

Non-Precedent Decision of the
Administrative Appeals Office 
U.S. Citizenship 
and Immigration 
Services 
In Re: 30233516 Date: APR. 19, 2024 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an entrepreneur in the field of information technology, seeks employment-based 
second preference (EB-2) immigrant classification as a member of the professions holding an 
advanced degree 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 Nebraska Service Center denied the petition, concluding that the record did not 
establish that the Petitioner's proposed endeavor is of national importance, that he is well positioned 
to advance the proposed endeavor, and 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 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 I&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. Section 203(b )(2)(B)(i) of the Act. 
"Advanced degree" means any U.S. academic or professional degree or a foreign equivalent degree 
above that of baccalaureate. 8 C.F.R. § 204.5(k)(2). A U.S. baccalaureate degree or a foreign 
equivalent degree followed by five years of progressive experience in the specialty shall be considered 
the equivalent of a master's degree. Id. 
"Profession" means one of the occupations listed in section 101(a)(32) of the Act, 8 U.S.C. § 
l 10l(a)(32), 1 as well as any occupation for which a U.S. baccalaureate degree or its foreign equivalent 
is the minimum requirement for entry into the occupation. 8 C.F.R. § 204.5(k)(2). 
Once a petitioner demonstrates eligibility as either a member of the professions holding an advanced 
degree or an individual of exceptional ability, 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 U.S. Citizenship and Immigration Services (USCTS) 
may, as a matter of discretion,2 grant a national interest waiver if the petitioner demonstrates that: 
• 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. 
Id. 
The first 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. 
Id. 
The second prong shifts the focus from the proposed endeavor to the individual. To determine whether 
they are well positioned to advance the proposed endeavor, we consider factors including, but not 
limited to: their education, skills, knowledge, and record of success in related or similar efforts; a 
model or plan for future activities; any progress towards achieving the proposed endeavor; and the 
interest of potential customers, users, investors, or other relevant entities or individuals. Id. at 890. 
The third prong requires a petitioner to demonstrate 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. In performing 
this analysis, we may evaluate factors such as: whether, in light of the nature of the individual's 
qualifications or the proposed endeavor, it would be impractical either for them to secure a job offer 
or to obtain a labor certification; whether, even assuming that other qualified U.S. workers are 
available, the United States would still benefit from their contributions; and whether the national 
interest in their contributions is sufficiently urgent to warrant forgoing the labor certification process. 
In each case, the factors considered must, taken together, establish 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. 
Id. at 890-91. 
1 Profession shall include, but not be limited to, architects, engineers, lawyers, physicians, surgeons, and teachers in 
elementary or secondary schools, colleges, academics, or seminaries. Section 10l(a)(32) of the Act. 
2 See also 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). 
2 
TI. ANALYSIS 
At the time of filing his petition, the Petitioner proposed to work in the United States as a technology 
consultant in the field of electronics and wireless communications. In response to a request for 
evidence, the Petitioner proposed to work as an entrepreneur in the field of information technology. 
Specifically, the Petitioner indicated that he intends to work as the chief executive officer of his 
company, I which will be located inl IColorado, and that his company will provide 
a variety of services, including software and firmware updates on smartphones, tablets, laptops, and 
smart home devices, and engraving on such devices. On appeal, the Petitioner proposes to establish 
and operate! Ia U.S. software update company, and work in the field of transportation. 
As indicated above, the 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. Section 203(b )(2)(B)(i) of the Act. The Director determined that the 
Petitioner is eligible for the EB-2 classification as an advanced degree professional, and we agree. 
The remaining issue on appeal is whether the Petitioner is eligible or otherwise merits a waiver of that 
classification's job offer requirement. We conclude that he is not. While we may not address each 
piece of evidence individually, we have reviewed and considered each one. 
The Director determined that the record established the substantial merit of the Petitioner's proposed 
endeavor, but the Petitioner has not established that the proposed endeavor is of national importance, 
that he is well positioned to advance the proposed endeavor, and 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. 
Due to the inconsistent information provided by the Petitioner at various stages regarding his proposed 
endeavor, it is unclear whether the Petitioner proposes to work in the United States as a technology 
consultant in the field of electronics and wireless communications, as an entrepreneur in the field of 
information technology, or as an entrepreneur in the field of transportation. It is incumbent on the 
petitioner to resolve any inconsistencies in the record by independent objective evidence. Attempts to 
explain or reconcile the conflicting accounts, absent competent objective evidence pointing to where 
the truth, in fact, lies, will not suffice. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Doubt 
cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and 
sufficiency of the remaining evidence offered in support of the visa petition. Id. at 591. 
On appeal, the Petitioner maintains that his proposed endeavor has national importance, that he is well 
positioned to advance the proposed endeavor, and that he offers contributions of such value that, on 
balance, it would be beneficial to the United States to waive the job offer and labor certification 
requirements. 
The Petitioner contends that his proposed endeavor to establish and operate I I a U.S. 
software update company, has national importance because of its potential to generate substantial 
economic growth and job opportunities. The Petitioner asserts that over the next five years,
Iplans to hire 122 employees, contributing to the expansion of the U.S. job market, and 
that each direct job created in the computer systems design and related services industry has a 
significant impact on generating additional indirect jobs, further boosting employment prospects 
across the nation and contributing to increased tax revenues for both federal and state governments. 
3 
I 
In Dhanasar, we stated that an endeavor that has a 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. See Dhanasar, 26 I&N Dec. at 890. 
The Petitioner has not submitted evidence to support the projections in the business plan. Absent 
relevant, credible, and probative evidence to support the Petitioner's claims, the record does not 
establish that the proposed endeavor's impact will be of national importance. Moreover, the 
Petitioners has not offered sufficient information and evidence to support that his company would 
employ a significant population of workers in an economically depressed area or that his endeavor 
would offer a particular U.S. region or its population a substantial economic benefit through 
employment levels or business activity. The Petitioner has not established the claimed fact with 
unsupported testimonial evidence alone. See Matter ofSoffici, 22 I&N Dec. 158, 165 (Assoc. Comm'r 
1998) (stating that simply going on record without supporting documentary evidence is not sufficient 
for purposes of meeting the burden of proof in these proceedings). 
In addition, the Petitioner asserts that in line with the growing demand for skilled professionals in 
science, technology, engineering, and mathematics (STEM) fields, his company will address a 
shortage of STEM talent in the country by providing information technology services and training to 
other professionals in the field of information technology. 
While we acknowledge the growing demand for skilled professionals in STEM fields, the U.S. 
Department of Labor addresses worker shortages through the labor certification process. Therefore, a 
shortage of qualified professionals alone is not sufficient to demonstrate eligibility for the national 
interest waiver. See Dhanasar, 26 I&N Dec. at 885. 
Regarding the Petitioner's plan to provide training to other professionals in the field of information 
technology, the record does not show that this undertaking has broader implications in his field, as 
opposed to being limited to those who participate in his training sessions. While the Petitioner's plan 
to provide training to other professionals in the field of information technology has merit, the record 
does not sufficiently establish that his teaching or instructional activities offer benefits that extend 
beyond his students or trainees to impact the field of information technology more broadly. Likewise, 
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. See id. at 893. 
The Petitioner asserts that his company's intention to provide software and firmware updates and 
introduce new technologies to the U.S. market resonates with the U.S. administration's emphasis on 
technological leadership and innovations. The Petitioner also claims that his company will expand 
economic prosperity and opportunity by offering comprehensive information technology solutions that 
enhance business operations, reduce costs, and improve productivity. He further states that this 
emphasis on efficiency and cost reductions aligns with the U.S. administration's commitment to 
increasing economic productivity and ensuring the responsible allocation of resources, thereby 
solidifying the endeavor's national significance. The Petitioner further asserts that the presence of his 
company in the information technology sector carries significant weight in terms of national security, 
economy, and public health and safety because his company will contribute to the resilience of critical 
sectors against cyber threats and will safeguard vital aspects of the nation's functioning by maintaining 
and upgrading information technology infrastrncture. 
4 
In Dhanasar, we indicated that we look for broader implications of the proposed endeavor and that an 
undertaking may have national importance, for example, because it has national or even global 
implications within a particular field. See id. at 889. While we acknowledge the Petitioner's claims, 
he has not provided sufficient evidence to substantiate them. The Petitioner has not shown how his 
proposed endeavor to establish and operate I I which plans to provide software and 
firmware updates on wireless portable devices and engraving on such devices, would make a 
significant impact on the field of electronics and wireless communications, the field of information 
technology, or the field of transportation more broadly rather than benefiting his own company and its 
clients or customers. 
In addition, 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 specific endeavor 
that the foreign national proposes to undertake. See id. As such, the Petitioner must demonstrate by 
a preponderance of the evidence that his proposed endeavor to establish and operate a company, which 
plans to provide software and firmware updates on wireless portable devices and engraving on such 
devices, is of national importance. While we acknowledge the importance of technological leadership 
and innovations in the U.S. market and economy and the importance of information security in national 
security, economy, and public health and safety, the Petitioner has not shown that his proposed 
endeavor would impact, for example, the U.S. market, the U.S. economy, national security, public 
health, public safety, or the U.S. information technology infrastructure more broadly rather than 
benefiting his own company and its clients or customers. The Petitioner has not otherwise provided 
sufficient information and evidence to demonstrate the prospective impact of his proposed endeavor 
rises to the level of national importance. Without sufficient documentary evidence of its broader 
impact, the Petitioner's proposed work does not meet the national importance element of the first 
prong of the Dhanasar framework. 
Because the documentation in the record does not sufficiently demonstrate the national importance of his 
proposed endeavor required by the first prong of the Dhanasar precedent decision, the Petitioner has not 
established eligibility for a national interest waiver. Therefore, further analysis of his eligibility under the 
second and third prongs outlined in Dhanasar would serve no meaningful purpose, and we will reserve 
these issues for future consideration should the need arise. 3 
III. CONCLUSION 
The Petitioner has not established by a preponderance of the evidence that, as a matter of discretion, 
he is eligible for or otherwise merits a national interest waiver because he has not shown that his 
proposed endeavor is of national importance. 
ORDER: The appeal is dismissed. 
3 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 alternate issues on appeal where an applicant is otherwise ineligible). 
5