dismissed EB-2 NIW Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the 
Administrative Appeals Office 
In Re: 19825395 
Appeal of Texas Service Center Decision 
Date: JAN. 24, 2022 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, an information technology specialist, seeks second preference 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 EB-2 classification. See Immigration and Nationality Act 
(the Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2). 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner qualified 
for classification as a member of the professions holding an advanced degree but that the Petitioner 
had not established that a waiver of the required job offer, and thus of the labor certification, would 
be in the national interest. 
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. 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. 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 ofjob offer-
(i) National interest waiver. ... the 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. 
While 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). 1 Dhanasar states that, after a petitioner has established 
eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) may, as a 
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. 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
foreign national 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 foreign national. To determine 
whether he or she 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; any progress towards achieving the proposed 
endeavor; and the interest of potential customers, users, investors, or other relevant entities or 
individuals. 
The third prong requires the 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, USCIS may evaluate factors such as: whether, in light of the nature of the foreign 
national's qualifications or the proposed endeavor, it would be impractical either for the foreign 
national 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 foreign 
national's contributions; and whether the national interest in the foreign national's contributions is 
sufficiently urgent to warrant forgoing the labor certification process. In each case, the factor(s) 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Dep 't ofTransp., 
22 l&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
2 
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. 2 
II. ANALYSIS 
The Director found that the Petitioner qualifies as a member of the professions holding an advanced 
degree. However, the Director concluded that the record does not establish that the Petitioner's 
endeavor has national importance. The Director also concluded the record did not satisfy the third 
Dhanasar prong. For the reasons discussed below, the Petitioner has not established that a waiver of 
the requirement of a job offer is warranted. 
Initially, the Petitioner described the endeavor as: 
[A] career plan ... to use the knowledge I have acquired in the [i]nformation 
[t]echnology field to work on large scale projects in the United States that involve 
complex [i]nformation [t]echnology [s]ystems. I am capable of developing, 
implementing, and managing all activities for such projects. I plan to continue using 
my intimate knowledge of information technology to directly help companies in the 
U.S. with their computer and information technology systems. I have extensive 
experience in the development of projects and integrated solutions in the context of 
management and optimization of IT processes. I intend to continue utilizing my 
exceptional expertise in the field of IT as an IT [ s ]pecialist, thus providing expert 
technological services to U.S. companies that require my unique skillset. 
In response to the Director's request for evidence (RFE), the Petitioner further stated that he "intends 
to offer his services for companies as an in-house [sic] in the [l]ocation he is needed. These companies 
may be any size organizations from small to large with constant need of perfecting their systems 
application [sic] like [h ]ospitals, [i]ndustries, [l]ogistics like Amazon and [ o ]nline medias [sic] like 
Facebook and Google." 
In the decision, the Director concluded the record does not establish that the proposed endeavor has 
national importance, observing that "the [P]etitioner has not shown his proposed endeavor in this case 
stands to sufficiently extend beyond an organization or its clients or the individuals [he] would serve 
to impact the industry or field more broadly." 
On appeal, the Petitioner asserts that the Director erred by "looking for national importance solely in 
geographic terms," that four support letters satisfy the first Dhanasar prong, and that his "mainly past 
achievements" and qualifications satisfy the national importance criterion. 
In determining national importance, the relevant question is not the importance of the industry, field, 
or profession in which an individual will work; instead, to assess national importance, we focus on the 
"specific endeavor that the foreign national proposes to undertake." See Dhanasar, 26 I&N Dec. at 
889. Dhanasar provided examples of endeavors that may have national importance, as required by 
the first prong, having "national or even global implications within a particular field, such as those 
2 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
3 
resulting from certain improved manufacturing processes or medical advances" and endeavors that 
have broader implications, such as "significant potential to employ U.S. workers or has other 
substantial positive economic effects, particularly in an economically depressed area." Id. at 889-90. 
The proposed endeavor of providing generalized information technology services to a company or 
companies benefits those companies and clients. However, the record does not establish how the 
endeavor would have broader implications in terms of significant potential to employ U.S. workers or 
have substantial positive economic effects, beyond the Petitioner's employer and clients, as 
contemplated by the first Dhanasar prong. See id. at 889. For example, the Petitioner specified that 
he would "offer his services for companies as an in-house [sic]," without elaborating on how providing 
services for a specific employer would have broader implications to rise to the level of national 
importance. Petitioners bear the burden of articulating how they satisfy eligibility criteria. See 
section 291 of the Act, 8 U.S.C. § 1361 
The Petitioner mischaracterizes the Director's decision as "looking for national importance solely in 
geographic terms." On the contrary, the Director explained that the Petitioner's discussion of "the 
field of the proposed endeavor," rather than the particular endeavor itself, "failed to establish how the 
specifically proposed endeavor would prospectively have national importance." The Director also 
observed that the record did not establish "how the [P]etitioner, by offering his IT services to 
individual companies, would result in broad benefits on [a] national scale." The Director's decision 
does not purport that the proposed endeavor may otherwise have national importance, but for any 
geographic limitation. Despite the Petitioner's characterization, the Director specifically noted in the 
first criterion analysis that "the record failed to establish that the proposed endeavor has a potential to 
employ a significant number of workers anywhere in the US." (emphasis added). 
Next, the support letters do not address how the "specific endeavor that the foreign national proposes 
to undertake," see Dhanasar, 26 I&N Dec. at 889, may have national importance. Instead, they 
address what the authors describe as "[h]]is substantial and broad history of remarkable 
accomplishments," "[h]]is track record of exceptional achievements," "[h]]is history of 
accomplishments," and "[h]is comprehensive history of significant accomplishments," respectively. 3 
The letter authors' discussion of the Petitioner's prior accomplishments are material to the second 
Dhanasar prong-whether a petitioner is well-positioned to advance a proposed endeavor-not 
material to the first prong-whether a proposed endeavor has both substantial merit and national 
importance. See id. at 888-91. 
Similar to the support letters, although the Petitioner's "mainly past achievements" and qualifications 
referenced on appeal are material to the second Dhanasar prong, they are not material to whether the 
specific endeavor may have national importance. We first note that the Petitioner's references to a 
company he founded in 2019, both on appeal and in response to the RFE, are misplaced. The Petitioner 
explains that he merely "registered" the company in 2018 and was "unable to perform any activities 
until March 2019, when I [was] granted the employment authorization." The instant petition filing 
date was December 2018. A petitioner must establish eligibility at the time of filing a nonimmigrant 
visa petition. 8 C.F.R. § 103.2(b)(l). A visa petition may not be approved at a future date after a 
petitioner becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 
3 Although we discuss only examples of each of the letters' content for brevity, we have reviewed the record in its entirety. 
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248 (Reg'l Comm'r 1978). Accordingly, the "activities" the Petitioner performed in 2019 and 
thereafter may not establish eligibility at the time of filing in 2018. Furthermore, the Petitioner 
specifically described the proposed endeavor as working "in-house" for a company, not founding his 
own company and seeking to employ a staff of workers. Therefore, even if the Petitioner had 
"performed any activities" as of the petition filing date under the auspices of the company he founded, 
that would present a new set of facts that would be inconsistent with the specific endeavor the 
Petitioner stated he would pursue. See id. 
As discussed above, the Petitioner's other references on appeal to his "mainly past achievements" 
while working for various firms between 2008 and 2010, 2010 and 2012, and 2012 and 2017,4 
respectively, do not address how the prospective "specific endeavor that the foreign national proposes 
to undertake" may have national importance. See Dhanasar, 26 I&N Dec. at 889. For similar reasons, 
although the Petitioner's references on appeal to his past education and information technology 
certifications are material to the second Dhanasar prong, they do not address how the prospective 
endeavor may have national importance. 5 
In summation, the Petitioner has not established that the proposed endeavor has national importance, 
as required by the first Dhanasar prong, and therefore he is 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) ("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 of 
L-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). 
III. CONCLUSION 
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, we 
conclude that the Petitioner has not established eligibility for, or otherwise merits, a national interest 
waiver as a matter of discretion. 
ORDER: The appeal is dismissed. 
4 Similarly, the Petitioner's receipt of awards for "exceed[ing] expectations" in 2016 and 2017 does not address the 
prospective endeavor and how it may rise to the level of national impmtance. 
5 We also note that, again, the Petitioner's references to certifications received after the petition filing date may not establish 
eligibility, even to the extent that they are material. 8 C.F.R. § 103.2(b)(l); see also Matter of Michelin Tire Co1p., 17 l&N 
Dec. 248. 
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