dismissed EB-2 NIW Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 20516919 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAR. 28, 2022 
Form I-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, an information technology (IT) 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 he had not 
established that a waiver of the required job offer, and thus of the labor certification, would be in the 
national interest. 
On appeal, the Petitioner submits additional documentation and a brief asserting that he is eligible for 
a national interest waiver. In these proceedings, it is the petitioner's burden to establish eligibility for 
the immigration benefit sought. 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. ... [T]he 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 matter 
of discretion 2, 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 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 l&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
2 See also Poursina v. USCIS, No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or 
deny a national interest waiver to be discretionary in nature). 
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sufficiently urgent to warrant forgoing the labor certification process. In each case, the factor(s) 
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. 3 
II. ANALYSIS 
The Director found that the Petitioner qualifies as a member of the professions holding an advanced 
degree. The remaining issue to be determined is whether the Petitioner has established that a waiver of 
the requirement of a job offer, and thus a labor certification, would be in the national interest. For the 
reasons discussed below, we agree with the Director that the Petitioner has not sufficiently 
demonstrated the national importance of his proposed endeavor under the first prong of the Dhanasar 
analytical framework. 
Regarding his claim of eligibility under Dhanasar' s first prong, the Petitioner indicated that his proposed 
endeavor in the United States is to "fill the gap ofIT skilled professionals in the U.S. and continue working 
as an IT specialist for any U.S. company that fits my field of expertise well." In addition, the Petitioner 
stated he seeks to "use my skills and knowledge to work for U.S. companies that support the LATAM 
market." The Petitioner provided evidence that he had a respected career as an IT specialist and received 
recognition from his peers regarding various projects he completed over the course of his career. 
The record includes articles about a shortage ofIT professionals in the United States. In addition, the 
Petitioner provided industry reports and articles indicating forecasts of market growth in the IT 
industry as well as the benefit of the IT industry to the U.S. economy. The record therefore supports 
the Director's determination that the Petitioner's proposed work as an IT specialist has substantial 
merit. 
In determining national importance, the relevant question is not the importance of the field 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 I&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. 
In his appellate brief: the Petitioner points to his background, education, work experience, and 
specialized training in his field. The Petitioner's knowledge, skills, and experience in his field relate to 
the second prong of the Dhanasar framework, which "shifts the focus from the proposed endeavor to the 
foreign national." Id. at 890.4 The issue here is whether the specific endeavor that he proposes to 
3 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
4 To establish that it would be in the national interest to waive the job offer requirement, a petitioner must go beyond 
showing her expertise in a particular field. The regulation at 8 C.F.R. § 204.5(k)(2) defines "exceptional ability" as "a 
degree of expertise significantly above that ordinarily encountered" in a given area of endeavor. By statute, individuals of 
exceptional ability are generally subject to the job offer/labor certification requirement; they are not exempt by virtue of 
their exceptional ability. Therefore, whether a given petitioner seeks classification as an individual of exceptional ability, 
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undertake has national importance under Dhanasar's first prong. 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. 
At the time of filing, the Petitioner was unemployed but provided two tentative job offers from _ 
I I and as a project leader and systems coordinator, respectively. 5 On 
appeal, the Petitioner argues his proposed endeavor is of national importance as "his years of 
experience working on complex IT solutions is of national importance to the U.S. and can provide 
crucial support for effective optimized business operations immediately." While we acknowledge the 
Petitioner's claims, he has not provided evidence to substantiate them. With respect to the Petitioner's 
tentative job offers, he has not provided documentary evidence that proposed job duties in project 
leadership or systems coordination would impact the Petitioner's IT specialist field more broadly 
rather than benefiting his employer or their clients. Accordingly, without sufficient documentary 
evidence of their broader impact, the Petitioner's proposed employment does not meet the "national 
importance" element of the first prong of the Dhanasar framework. 
On appeal, the Petitioner contends his past work in IT and project management "throughout numerous 
locations across Brazil" indicate his proposed endeavor is of national importance. Additionally, the 
Petitioner pointed to letters of recommendation from his colleagues attesting to his past IT specialist 
work as evidence of his proposed endeavor's national importance. While the Petitioner has a record 
of success in his career and his colleagues attest to his technical abilities and leadership skills, this 
evidence is not relevant to the consideration of whether the Petitioner's proposed endeavor has 
national importance as it does not detail the "potential prospective impact" of his work. 
Furthermore, the Petitioner argues the "modem world relies heavily on information technology" and 
the skills the Petitioner possesses "are critically needed in re-stabilizing the economic order." 
However, while articles in the record indicate that IT specialists in the U.S. kept businesses open 
during the pandemic, they do not specifically show the government's interest in the Petitioner's 
proposed endeavor. 
Finally, the Petitioner argues on appeal that his proposed endeavor will "generate GPD for the U.S. 
economy" and "stimulate the domestic job market by restoring the economy thus generating jobs for 
American workers." However, 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 as he has not submitted documentation to support his 
assertions. Without information or evidence regarding any projected U.S. economic impact or job 
creation attributable to his future work, the record does not show that benefits to the U.S. regional or 
or as a member of the professions holding an advanced degree, that individual cannot qualify for a waiver just by 
demonstrating a degree of expertise significantly above that ordinarily encountered in her field of expertise. See Dhanasar , 
26 I&N Dec. at 886 n.3. 
5 While the Petitioner provided documentation regarding being employed in response to the Director 's RFE, these dates 
of employment fell after the time of filing the Petitioner's petition and will not be considered in this case. The affected 
party has the burden of proof to establish eligibility for the requested benefit at the time of filing the benefit request and 
continuing until the final adjudication. 8 C.F.R. § 103.2(b)(l) ; see also Matter of Katigbak , 14 I&N Dec. 45, 49 (Comrn'r 
1971) (providing that "Congress did not intend that a petition that was properly denied because the beneficiary was not at 
that time qualified be subsequently approved at a future date when the beneficiary may become qualified under a new set 
of facts.") . 
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national economy resulting from the Petitioner's projects would reach the level of "substantial positive 
economic effects" contemplated by Dhanasar . Id. at 890. Accordingly, the Petitioner's proposed work 
does not meet the first prong of the Dhanasar framework. 
Although he relies on his past work, the Petition er has not offered sufficient information and evidence 
to demonstrate that the prospective impact of his propos ed endeavor rises to the level of national 
importance. Because the documentation in the record does not establish the national importance of his 
proposed endeavor as required by the first prong of the Dhanasar precedent decision, the Petitioner has 
not shown eligibility for a national interest waiver. Further analysis of his eligibility under the second 
and third prongs outlined in Dhanasar , therefore, would serve no meaningful purpose. 
III. 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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