dismissed EB-2 NIW Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 16150946 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 24, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, an information technology (IT) project manager, 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. 
We rejected the Petitioner's appeal as untimely filed but subsequently reopened the matter, on our 
motion, due to USCIS expanded flexibilities regarding filing deadlines due to the coronavirus 
pandemic . 1 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. 
See, USCIS Extends Flexibility for Responding to Agency Requests , available at: 
https://www.uscis.gov/news/alerts/uscis-extends-flexibility-for-responding-to-agency-requests-5 (last accessed on August 
9, 2021). 
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). 2 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 3, 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. 
2 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). 
3 See also Poursina v. USC1S. 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). 
2 
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) 
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. 4 
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 her 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 "continue using my expertise and knowledge as a Project Manager, to 
work in the fields of security, fire solutions, and Information Technology (IT), among others, in the United 
States." In addition, the Petitioner stated he seeks to "assist U.S. companies to implement improvement 
processes, contributing strongly with the increase in their operational efficiencies, and meeting the needs 
of its customers, thus adding value to these companies, and the U.S. economy." 
In his appellate brief: the Petitioner asserts that his endeavor is "to actively leverage his specialized 
knowledge - in tech-based security and fire solutions - to optimize U.S. business functions in regard to 
companies and organizations, ranging from any industry, in need of the latest technological 
advancements, and security trends." He further explains that he "will apply his knowledge, experience, 
and technical skills to support U.S. institutions in increasing their operational efficiency, and value, 
through the implementation of evolved IT solutions." The Petitioner provided evidence that he had a 
respected career as an IT project manager and received recognition from his peers regarding various 
programs he implemented 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 public safety services in the United States 
are actively using predictive policing and surveillance systems that require the development and 
installation of software and surveillance cameras. The record therefore supports the Director's 
determination that the Petitioner's proposed work as an IT program manager in the fields of security, 
fire solutions, and IT has substantial merit. 
4 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
3 
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. 5 The issue here is whether the specific endeavor that he proposes to 
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 filin the Petitioner was enrolled in an industrial engineering PhD program at the 
Universi of and also had a tentative job offer to work as a project manager for 
'--------~.__ ________ _. atD in the Office of Research and Commercialization. 
On appeal, the Petitioner argues his proposed endeavor is of national importance as it is "capable of 
producing substantially positive economic effects, due to the ripple effects of his professional activities 
within the business arena." While we acknowledge the Petitioner's claims, he has not provided 
evidence to substantiate them. With respect to the Petitioner's PhD program, he has not provided 
documentary evidence that he is conducting research in industrial engineering that would impact the 
Petitioner's IT project management field more broadly. Likewise, the Petitioner has not provided 
documentary evidence of thJ job dluties, projects, or research he would be responsible for completing 
in his proposed job offer a Accardi~ without sufficient documentary evidence of their 
broader impact, the Petitioner's activities at L_J do not meet the "national importance" element of 
the first prong of the Dhanasar framework. 
On appeal, the Petitioner contends his past work in project management and security, such as installing 
surveillance cameras and other related IT-securities, "throughout numerous locations across Brazil, 
such as airports" indicate his proposed endeavor is of national importance. Additionally, the Petitioner 
pointed to letters of recommendation from his colleagues attesting to his past IT program management 
work as evidence of his proposed endeavor's national importance. Additionally, the Petitioner argues 
the industry reports and articles regarding public safety services in the United States acquiring 
predictive policing practices are "such as those developed and installed by the Petitioner himself." 
5 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. 
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 l&N Dec. at 886 n.3. 
4 
However, while the articles indicate that United States public safety services are interested in 
predictive policing security programs they do not specifically show the government's interest in the 
Petitioner's proposed endeavor. 
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. Although he relies 
on his past work, the Petitioner has not offered sufficient info1mation and evidence to demonstrate that 
the prospecti ve impact of his propo sed 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. 
5