dismissed EB-2 NIW Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 8, 2024 In Re: 29022299 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an IT manager, seeks employment-based second preference (EB-2) immigrant 
classification as a member of the professions holding an advanced degree and an individual of 
exceptional ability, 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 Petitioner 
qualified for classification as amember of the professions holding an advanced degree, but that he had 
not established 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 of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de nova. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 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. Section 203(b)(2)(B)(i) of the Act. 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. 
While neither the statute nor the pe1iinent 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 l&N Dec. 884 (AAO 2016). Dhanasar states that U.S. Citizenship and Immigration 
Services (USCIS) may, as matter of discretion1, grant a national interest waiver of the job offer, and 
thus the labor certification, to a petitioner classified in the EB-2 category if the petitioner demonstrates 
1 See also 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). 
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 petitioner to obtain a labor certification; whether, in I ight 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 concluded that the Petitioner qualified as a member of the professions holding an 
advanced degree. Accordingly, the remaining issue to be determined on appeal is whether the 
Petitioner has established that a waiver of the requirement of a job offer, and thus of a labor 
certification, would be in the national interest. For the reasons discussed below, the Petitioner has not 
established that a waiver of the requirement of a job offer is warranted. 
In the petition, the Petitioner described his proposed endeavor as a plan "to become a successful 
business owner and software developer." The Petitioner explained in his statement, "my education 
and professional experience have uniquely prepared me for a continuation of my very successful 
software developer career in the United States, and I would love nothing more than to contribute my 
talent, experience, and ability as a software developer to the benefit of the United States of America 
[sic]." 
In a request for evidence (RFE), the Director informed the Petitioner that he "did not provide 
documentation specifically describing what specific projects and activities the proposed endeavor wi 11 
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consist of and how said actions will produce these broad results." The Director further noted "it is 
unclear what your proposed endeavor is, and as a result, whether or not it has substantial merit or 
national importance." 
In response to the RFE and in support of his claim that the proposed endeavor has substantial merit 
and national importance, the Petitioner provided published articles and industry reports addressing 
shortage of workers and projected job growth in computer and information technology occupations. 
The Petitioner also submitted a February 2022 report by a subcommittee of the National Science & 
Technology Council titled "Critical and Emerging Technologies List Update (CET)," which discusses 
areas that are of particular importance to the national security of the United States including advanced 
computing. In addition, the Petitioner submitted a business plan and explained in his response to the 
RFE that he plans to "open an IT consulting firm inl IIllinois" in order to "provide 
professional and reliable IT consulting services to private and public companies in the United States 
to help them operate sustainably." 
In denying the petition, the Director determined that the Petitioner had demonstrated the proposed 
endeavor's substantial merit but not its national importance. In particular, the Director found that the 
Petitioner "did not provide documentation specifically describing what specific projects and activities 
the proposed endeavor will consist of and how said actions will produce these broad results." 
On appeal, the Petitioner resubmits the same documents and asserts that the Director "failed to give 
due weight to the business plan." The Petitioner further asserts that the proposed endeavor is "an IT 
and cybersecurity consulting firm calledl lthat is set to be based in I l 
Illinois. [The Petitioner] intends to provide his services to many entities that need IT assistance, 
particularly in the field of cybersecurity." The Petitioner reiterates that his consulting firm will be 
"able to contribute to the overall U.S. economy by providing expert services within the Information 
Technology industry, optimizing the economy for the digital age and contributing to job creation and 
tax revenue, as well as improving the security culture of U.S. companies as they digitize their 
operations." 
We agree with the Director's decision that the Petitioner has demonstrated the proposed endeavor's 
substantial merit but not its national importance. In determining whether the proposed endeavor has 
national importance, we consider its potential prospective impact. Further, the relevant question is not 
the importance of the field, industry, or profession in which the individual will work; instead, we focus 
on the "the specific endeavor that the foreign national proposes to undertake." See Dhanasar, 26 l&N 
Dec. at 889. 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. workers or has other substantial positive economic effects, 
particularly in an economically depressed area, for instance, may well be understood to have national 
importance." Id. at 890. 
To evaluate whether the Petitioner's proposed endeavor satisfies the national importance requirement, 
we look to evidence documenting the "potential prospective impact" of the Petitioner's work. While 
the Petitioner's statements reflect his intention to "provide services to many entities" and "expand his 
clientele" to impact the field of cybersecurity, the Petitioner has not offered sufficient information and 
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evidence to demonstrate that the prospective impact of his 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 Petitioner has not shown that his proposed endeavor stands to 
suff iciently extend beyond his clients and specific companies he plans to work with to impact the IT 
and cybersecurity field or the U.S. economy more broadly at a level commensurate with national 
importance. 
As previously mentioned, the Petitioner provided documentation relating to industry reports regarding 
computer and information technology occupations. In addition, the Petitioner contends that his 
endeavor "falls squarely within the CET subfield of Communications and Networking security." The 
Petitioner also asserts that his "unique skill set positions him as one of the professionals who can 
transform the US digital security sector to meet the demands of the future. This will not only benefit 
the national economy, but national security interests as well." Though we acknowledge the 
Petitioner's experience and skill set, the Petitioner must nonetheless demonstrate the national 
importance of his specific proposed endeavor of owning and operating his IT and cybersecurity 
consulting firm rather than the importance of the national initiatives and interests, industries, or fields. 
The Director addressed the lack of documentation "specifically describing what specific projects and 
activities the proposed endeavor will consist of and how said actions will produce those broad results" 
in the RFE and in the decision denying the petition. In response, the Petitioner stresses his prior 
employment experience, qualifications, and past contributions and achievements. Here, although an 
individual's experience, qualifications, contributions, and achievements are material, they are 
misplaced in the context of the first Dhanasar prong. These experiences are material to the second 
Dhanasar prong-whether an individual is well positioned to advance a proposed endeavor; however, 
they are immaterial to the first Dhanasar prong-whether a specific, prospective, proposed endeavor 
has both substantial merit and national importance. See id. at 888-91. 
The Director also discussed the Petitioner's business plan at length and found that the Petitioner "has 
not shown that the company's future staffing levels and consulting activity stand to provide substantial 
economic benefits in Illinois or the United States. While the forecast for the business indicates that 
the business has growth potential, it does not demonstrate the benefits to the regional or national 
economy resulting from the petitioner[']s undertaking would reach the level of 'substantial positive 
economic effects' contemplated by Dhanasar." The Director further noted that the Petitioner has not 
demonstrated his specific endeavor "has significant potential to employ U.S. workers or otherwise 
offers substantial positive economic effects" for the United States by offering "sufficient evidence that 
the company would employ a significant population of workers in an economically depressed area or 
that the endeavor would offer Illinois or its population a substantial economic benefit through 
employment levels or business activity." We agree. The Petitioner's proposed endeavor appears to 
benefit his prospective clients and companies that the Petitioner plans to work with; however, it does 
not appear to have broader implications or substantial positive economic effects indicative of national 
importance. See Dhanasar, 26 l&N Dec. at 889-90. 
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Because the documentation in the record does not establish the national importance of the Petitioner's 
proposed endeavor as required by the first prong of the Dhanasar precedent decision, the Petitioner has 
not demonstrated eligibility for a national interest waiver. Since this issue is dispositive of the 
Petitioner's appeal, we decline to reach and hereby reserve the appellate arguments regarding his 
eligibility under the second and third prongs outlined in Dhanasar. 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 l&N Dec. 516, 526 n.7 (BIA 
2015) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
111. CONCLUSION 
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, we conclude 
that he has not established he is eligible for or otherwise merits a national interest waiver as a matter 
of discretion. The appeal will be dismissed for the above stated reasons, with each considered as an 
independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
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