dismissed EB-2 NIW Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: FEB. 6, 2024 In Re: 29546963 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an entrepreneur in 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. § l 153(b)(2). 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
establish he was eligible for, and merited as a matter of discretion, a national interest waiver. The 
matter is now before us on appeal. 8 C.F .R. § I 03 .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. An advanced degree is any United States 
academic or professional degree or a foreign equivalent degree above that of a bachelor's degree. A 
United States bachelor's degree or foreign equivalent degree followed by five years of progressive 
experience in the specialty is the equivalent of a master's degree. 8 C.F.R. § 204.5(k)(2). 
Exceptional ability means a degree of expertise significantly above that ordinarily encountered in the 
sciences, arts, or business. 8 C.F.R. § 204.5(k)(2). A petitioner must initially submit documentation 
that satisfies at least three of six categories of evidence. 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). 1 Meeting 
at least three criteria, however, does not, in and of itself, establish eligibility for this classification. 2 If 
1 If these types of evidence do not readily apply to the individual's occupation, a petitioner may submit comparable 
evidence to establish their eligibility. 8 C.F.R. § 204.5(k)(3)(iii). 
2 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of aliens of 
exceptional ability. 6 USCIS Policy Manual F.5(8)(2), https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5. 
a petitioner does so, we will then conduct a final merits determination to decide whether the evidence 
in its totality shows that they are recognized as having a degree of expertise significantly above that 
ordinarily encountered in the field. 
If a petitioner demonstrates eligibility for the underlying EB-2 classification, 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 (USCIS) may, as matter of discretion,3 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. 
II. ANALYSIS 
The Petitioner claimed eligibility for the EB-2 classification as both a member of the professions 
holding an advanced degree and as an individual of exceptional ability. The Director considered the 
Petitioner's eligibility for both and determined that neither was established. On appeal, the Petitioner 
asserts the Director erred because he is an individual of exceptional ability. The Petitioner does not 
contest the Director's determination that he is not an advanced degree professional, as such the issue 
is waived. See, e.g., Matter ofM-A-S-, 24 I&N Dec. 762, 767 n.2 (BIA 2009). 
A. Regulatory Criteria for Exceptional Ability 
The Petitioner claims to meet five of the six evidentiary criteria under 8 C.F.R. § 204.5(k)(3)(ii) to 
show that he is an individual of exceptional ability. He also asserts that comparable evidence 
establishes he is an individual of exceptional ability. Per the analysis below, we conclude that he does 
not meet the initial evidence requirement of at least three of the criteria, and that he has not shown the 
regulatory criteria are not readily applicable to his occupation for purposes of considering comparable 
evidence of exceptional ability. 
An official academic record showing that the [noncitizen] has a degree, diploma, 
certificate, or similar award from a college, university, school, or other institution of 
learning relating to the area ofexceptional ability; 8 C.F.R. § 204.5(k)(3)(ii)(A) 
We agree with the Director that the Petitioner's technologist degree, issued by the~-----~
IBrazil in 2014 meets this criterion. 
3 See Poursina v. USCIS, 936 F.3d 868, 872 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionaiy in nature). 
2 
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Evidence in the form of letter(s) from current or former employer(s) showing that the 
[noncitizen} has at least ten years offull-time experience in the occupation for which 
he is being sought; 8 C.F.R. § 204.5(k)(3)(ii)(B) 
Initially, the Petitioner relied upon letters from his former employers ,.....________ __, that 
verified his status as an employee, the title of his position, and dates of employment. However, the 
letters omitted whether he worked full-time and his duties. In response to the Director's request for 
evidence (RFE), the Petitioner submitted new letters from,_________ ~ verifying that his 
work for these companies was full-time. However, the Director determined that the letters were 
insufficient because no details of his duties were included, and the job title alone was insufficient. 
Because the plain language of the criterion requires the Petitioner to establish that his 10 years of full­
time experience in the occupation in which he is being sought, here, software development, we agree 
that the lack of details regarding his positions at I Iare insufficient to meet his 
burden under this criterion. Matter ofChawathe, 25 I&N Dec. at 375-76. We note that other evidence 
in the record, specifically the letter from! Iletterhead is insufficient to 
establish his duties because! Idoes not appear to have the authority to verify the Petitioner's 
duties. I Idescribes meeting the Petitioner when he was a Process Analyst atl Iand 
the Petitioner worked as an Information Technology Analyst atl I The letter does not explain if
I I was the Petitioner's supervisor or has authority to verify his role at I I The 
Petitioner must resolve this ambiguity in the record with independent, objective evidence pointing to 
where the truth lies. Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). 
For these reasons, we conclude that the Petitioner has not established that he meets this criterion. 
Evidence that the [noncitizen} has commanded a salary, or other renumeration for 
services, which demonstrates exceptional ability; 8 C.F.R. § 204.5(k)(3)(ii)(D) 
To satisfy this criterion, the evidence must show that a petitioner has commanded a salary or 
remuneration for services that is indicative of his claimed exceptional ability relative to others working 
in the field. See generally, 6 USCIS Policy Manual F.5(B)(2), www.uscis.gov/policy-manual. In 
support, the Petitioner provided tax and income documentation from Brazilian authorities to establish 
he earned: 
• R$49,275.85 in 2019/2020 
• R$62,983.33 in 2018/2019 
• R$63,295.36 in 2017/2018 
In his RFE response, he asserted that because Brazil's gross domestic product per capita in 2019 was 
R$31,833.31, his income demonstrates that he is a high-income professional of exceptional ability. 
For comparison, he submitted information from vagas.com, showing that the average software 
developer salary in Brazil is R$3,455 per month (gross income), which is R$41,460 per year. 
While this evidence shows that the Petitioner's earnings in those years exceeded the average salary of 
software developers in Brazil at the time of filing, it does not show how his earnings compared with 
those of top earners in the software development field. In addition, the evidence provided considers 
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salaries for this position from across Brazil, and therefore does not take local or regional differences 
into account. In addition, because the letters from his employers did not list his job duties, it is unclear 
whether a software developer is a proper basis for comparison; the employment letters provided stated 
the Petitioner worked as an Information Technology Analyst. For these reasons, we agree with the 
Director's conclusion that this evidence does not establish that he commanded a salary indicative of 
his claimed exceptional ability relative to others working in the field. 
Evidence ofmembership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E) 
The Petitioner asserts his eligibility under this criterion based on his affiliations with the 
r 
~~l Brazil (the Union). A profession as defined at section 10l(a)(32) of the Act, 8 U.S.C. 
§ 1101(a)(32), includes but is not limited to architects, engineers, lawyers, physicians, 
surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries. 
The Petitioner asserts that these organizations are rofessional associations within the meaning 
of this criterion. The record indicates he joined~~------~-~ in 2022 and that 
he became a member of the Union in May 2011. .______ ____. have varying levels of 
membership, including student membership. As such, and because the Petitioner's evidence 
is insufficient to determine his level of membership, he does not meet this criterion based on 
his membership in these two organizations. Matter of Chawathe, 25 I&N Dec. at 375-76. 
Public source information indicates thatl Iis a pre-professional organization dedicated 
to certifying IT professionals. See https://wwwj lorg/home. As such, it does not meet 
the definition of a professional association as required under this criterion. Finally, the 
Petitioner's evidence verifying his membership in the Union does not explain, with any 
specificity, the purpose of the organization and the Petitioner's assertions are not sufficient to 
meet his burden. Id. For these reasons, we agree with the Director's conclusion that this 
evidence does not establish this criterion. 
Evidence ofrecognition for achievements and significant contributions to the industry 
or field by peers, governmental entities, or professional or business organizations. 
8 C.F.R. § 204.5(k)(3)(ii)(F) 
In support of this criterion, the Petitioner submitted five reference letters and an expert opinion letter. 
We note that letters, written for the purpose of supporting a petition for immigration benefits, are 
generally less probative than evidence which contemporaneously recognizes a petitioner for their 
achievements and contributions. See generally 6 USCJS Policy Manual F.5(B)(2), www.uscis.gov/ 
policy-manual. Overall, the five reference letters provide positive reviews of the Petitioner's 
professional endeavors, however they do not provide sufficient details of his achievements and 
significant contributions to the field as required by the plain language of the criterion. The first letter 
is from a former colleague at I I who describes when they met, and then provides a list of the 
Petitioner's contributions to his employer, such as developing and implementing software that made 
production more efficient at the company. The author describes the Petitioner as being "far above the 
average I'm used to seeing in the industry ... ," however he does not provide any specific details to 
understand the basis for this opinion or explain what contributions the Petitioner made to the industry, 
outside of his employer. The second letter is from a former colleague atl Iwho claims to have 
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met the Petitioner in 2016, and attests to his work on the "migration oOservers tol ~ .. at 
implementation of the [Service Level Agreement] control and monitoring system atl His 
letter describes additional professional endeavors carried out by the Petitioner, and that based on this 
work, he "recognize[ d] ... all of his logical and reasoning abilities, which are far beyond the ordinary, 
especially in terms of identifying strengths and weaknesses in order to propose alternative solutions, 
conclusions or approaches to problems [that] are not conventional." While the writer lauds the 
Petitioner's work performance for this company, the letter does not indicate that he received 
recognition for achievements and significant contributions to his industry or profession. 
The third letter, from an individual with 10 years of corporate professional experience in software 
development and information technology consulting, describes meeting the Petitioner in 2008, and 
him as the "most capable professionals [he] ever met." The author explains how the Petitioner's skills 
allow him to solve business problems such as supply chain problems between I I and its 
suppliers. He also explains that when they worked together, he could "clearly see that [the Petitioner] 
has strong critical thinking and solved complex problems. . .. I could see that he knows how to 
evaluate the performance of his entire system with great efficiency." Finally, he concludes that the 
Petitioner's focus in cloud software is cutting edge, and that he was an "incredible train[ er] to users 
and the entire team .... " The fourth writer describes his background and his current position as an 
information technology infrastructure specialist in the Brazilian Army. He explains that he worked 
with the Petitioner atl Idesigning and implementing software. He described the Petitioner 
as "a born entrepreneur," a "great trend predicter," and "capable of understanding documents related 
to his work, clearly identifying the points to be better detailed and attended to," and "a brilliant mind 
in the area of hard sciences ... as a software and web developer." The last letter is from a former 
colleague who worked with the Petitioner from 2005 until 2014. He describes the Petitioner's work 
which involved "more than 50 equipment including computers, servers, network equipment, computer 
equipment .... " He also describes the Petitioner as a "high-level professional in his analysis criteria, 
especially for mastering the entire technical apparatus in Software Development." 
These letters demonstrate that the Petitioner is highly regarded by several of his peers, however they 
do not describe specific achievements or contributions to his field or industry, as opposed to his work 
performance on behalf of his employers. As such, the letters do not establish this criterion. 
In addition to the above, the Petitioner provides an expert letter by professor of 
computer science, information systems, and cyber security at ~--------~ In the 
professor's discussion of prong two of the Dhanasar framework, he recites the Petitioner's education, 
work history, certifications in English language, web development, and cloud computing, and his 
memberships in the organizations discussed above. He also quotes extensively from the above 
referenced letters to conclude that the Petitioner is well-positioned to advance the proposed endeavor. 
The letter, however, does not provide any more specificity or details to conclude the Petitioner's 
expertise is significantly above that ordinarily encountered in his field as required by 
8 C.F.R. § 204.5(k)(2). For these reasons, we conclude that the Petitioner does not meet this criterion. 
B. Comparable Evidence 
Under 8 C.F.R. § 204.5(k)(3)(iii), a petitioner may submit comparable evidence to establish eligibility, 
if USCTS determines that the evidentiary criteria described in the regulations do not readily apply to 
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the occupation. See generally 6 USCIS Policy Manual F.5(B)(2), www.uscis.gov/ 
policy-manual. When evaluating such comparable evidence, USCIS must consider whether the 
regulatory criteria are readily applicable to the occupation and, if not, whether the evidence provided 
is truly comparable to the criteria listed in that regulation. Id. However, general assertions that the 
listed regulatory criterion does not readily apply to an occupation are not acceptable. Id. Similarly, 
general claims that USCIS should accept comparable evidence are not persuasive. Id. A petitioner 
must explain why the evidence submitted is comparable. Id. Here, the Petitioner provides no 
explanation or details for us to understand how the evidentiary criteria do not apply, thus we decline 
to consider the comparable evidence he provides. 
C. Final Merits Determination 
The Petitioner has not demonstrated that he meets the initial evidentiary requirements for classification 
as an individual of exceptional ability by meeting at least three of the evidentiary criteria under 
8 C.F.R. § 204.5(k)(3)(ii). We thus need not conduct a final merits determination of whether the 
totality of the evidence establishes that he is recognized for having a degree of expertise significantly 
above that ordinarily encountered in the information technology field. Nevertheless, we have 
reviewed the evidence, in its totality, and conclude that it does not establish that he possesses the 
heightened level of expertise required for the requested classification. While he has completed 
relevant education and training and has experience working in his field, the evidence does not reflect 
that he has been recognized as standing above his peers to a significant extent. The evidence shows 
that the Petitioner has taken on responsibilities and duties commensurate with his education and 
experience in the field of information technology, but not that his level of expertise has been 
recognized as significantly above that ordinarily held by an experienced information technology 
analyst. As such, he has not established that he is an individual of exceptional ability. 
D. National Interest Waiver 
The Petitioner has not established his eligibility as a member of the professions holding an advanced 
degree or an individual of exceptional ability, and he therefore does not qualify for the EB-2 
classification. Because of this, he is not eligible for a national interest waiver of that classification's 
job offer requirement. We will nevertheless briefly review his proposed endeavor under the first prong 
of the Dhanasar analytical framework. 
The Petitioner's proposed endeavor is to own and operate a web and mobile systems development and 
ideation service provider.I Iregion. According 
to his business plan, his company aims to provide application programming interface services through 
cloud architecture, and business intelligence services, using various information technology tools and 
data science in general. In addition, he asserts his company may also provide information technology 
consulting services depending on demand. He plans to hire additional staff to include an intelligence 
analyst, software quality assurance analyst and tester, tutor, receptionist and information clerk, and a 
desktop publisher. 
The first prong of the Dhanasar framework, 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, 
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health, or education. In determining whether the proposed endeavor has national importance, we 
consider its potential prospective impact. Dhanasar, 26 I&N Dec. at 889. 
In their decision, the Director concluded that the evidence was sufficient to show that the Petitioner's 
proposed endeavor is of substantial merit. Based upon the evidence concerning the information 
technology industry and the importance of small businesses, information technology, and 
entrepreneurial ism to the U.S. economy, both of which are directly tied to the Petitioner's proposed 
endeavor, we agree that his endeavor is of substantial merit. 
Turning to the national importance of the Petitioner's proposed endeavor, the Director determined that 
the Petitioner had not established how his proposed business would have broader implications on the 
field, or that it would have a potential prospective impact on the national economy. On appeal, the 
Petitioner makes the same arguments as he did when responding to the Director's RFE. He stresses 
that because he will be starting his own company, the impact of his services will not be limited to a 
single employer and that he will locate his business in the greater~----------~area 
where technology innovation is expanding and he will be contributing to the "entrepreneurial 
ecosystem, promoting economic growth, and job creation in the region." 
He outlines that the major impacts stemming from his endeavor include economic impact, job creation, 
professional development and collaboration, advancements in the field of information technology 
through the development of software and by participating in conferences, workshops and industry 
events, as well as the payment of taxes. He also claims that because his business will be committed 
to sustainable business practices and social responsibility, he will "implement measures to reduce 
environmental impact, promote diversity and inclusion, and adopt good corporate governance 
practices." He further asserts that his endeavor is aligned with USCIS' STEM policy4 as it relates to 
waivers of national interest, and with government efforts to bolster cybersecurity, which is tied to our 
national defense. He argues that many of the technologies his company will focus on will support 
U.S. government priorities such as pandemic readiness and prevention, climate change, research and 
innovation in critical and emerging technologies, innovation for equity, and national security and 
economic resilience. Finally, he argues there is a shortage of STEM workers, and specifically software 
developers like himself, and that there is a growing need for these workers. 
To evaluate whether the Petitioner's proposed endeavor satisfies the national importance requirement 
we look to evidence documenting the "potential prospective impact" of his work. We recognize the 
overall value of the IT industry, attracting STEM talent, and strengthening our nation's cybersecurity 
and information technology infrastructure to maintain U.S. competitiveness. However, the evidence 
does not demonstrate that the Petitioner's specific undertaking stands to have an impact beyond the 
organization and clients he would serve, or that his proposed work would otherwise have broader 
implications for the IT industry or U.S. cybersecurity initiatives. For example, he does not claim, and 
the record does not establish, that he plans to introduce novel technologies or IT advancements that 
may be disseminated to or adopted by others operating in the field or industry, or otherwise articulate 
how he will contribute to development of our nation's cybersecurity. For example, he notes that his 
company will advance national security and economic resilience in the United States because there 
4 USCIS' STEM policy provides specific considerations when adjudicating a national interest waiver. See 6 USCIS Policy 
Manual F.5(D)(2), https://www.uscis.gov/policy-manual. 
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are a "lack of professional[ s] with [his] skills [in] ... biosafety and biosecurity ... ," however a lack 
of professionals is an insufficient reason to conclude his endeavor is of national importance to our 
national or cyber security. Overall, his assertions speak to the substantial merit of his endeavor, 
however they are insufficient to conclude it will have the kind of broad impact contemplated under 
Dhanasar. 
In Dhanasar, we determined that the petitioner's teaching activities did not rise to the level of national 
importance because they would not impact his field more broadly. Id. at 893. Here, we conclude the 
Petitioner has not shown that his proposed endeavor stands to sufficiently extend beyond his future 
clientele to impact the information technology industry or U.S. economy more broadly at a level 
commensurate with national importance. Moreover, the Petitioner has not demonstrated that the 
specific endeavor he proposes to undertake has significant potential to employ U.S. workers or 
otherwise offers substantial positive economic effects for our nation. Without sufficient information 
or evidence regarding any projected U.S. economic impact or job creation attributable to his future 
work, the Petitioner has not shown that the benefits to the regional or national economy resulting from 
his projects would reach the level of "substantial positive economic effects" contemplated by 
Dhanasar. Id. at 890. In sum, the Petitioner has not shown that his business and the information 
technology he intends to provide would raise the potential prospective impact of his endeavor to that 
of national interest, because he has not demonstrated that this would have broader implications for the 
U.S. economy or the software development or information technology field. 
III. CONCLUSION 
The Petitioner has not demonstrated their eligibility for EB-2 permanent immigrant classification. 
And the record contains insufficient evidence to establish they met the first prong of the Dhanasar 
analytical framework. Because the Petitioner has not established that the proposed endeavor has 
national importance, as required by the first Dhanasar prong, they are not eligible for a national 
interest waiver. We reserve our opinion regarding whether the record satisfies the second or third 
Dhanasar prong. See INS v Bagamasbad, 429 U.S. 24, 25 (1976) (noting "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). 
ORDER: The appeal is dismissed. 
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