dismissed EB-2 NIW Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: DEC. 04, 2023 In Re: 29095947 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a "software developer entrepreneur," seeks classification as a member of the professions 
holding an advanced degree or of exceptional ability, Immigration and Nationality Act (the Act) section 
203(b)(2), 8 U.S .C. § l 153(b)(2). The Petitioner also seeks a national interest waiver of the job offer 
requirement that is attached to this employment based second preference (EB-2) classification. See 
section 203(b)(2)(B)(i) of the Act, 8 U.S.C. § 1153(b)(2)(B)(i). U.S. Citizenship and Immigration 
Services (USCIS) may grant this discretionary waiver of the required job offer, and thus of a labor 
certification, when it is in the national interest to do so. See 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). 
The Director of the Nebraska Service Center denied the petition, concluding the record did not 
establish 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 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 l&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 petition 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. 
Whilst 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). Dhanasar states that USCIS may as a matter of discretion 
grant a national interest waiver of the job offer, and thus of the labor certification, to a petitioner 
classified in the EB-2 category if they demonstrate 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 petition 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 observed that the Petitioner was eligible for EB-2 classification as an individual who is 
a member of the professions holding an advanced degree. But the Director ultimately concluded that 
the Petitioner's proposed endeavor was not substantially meritorious and did not rise to a level of 
national importance as required by the first prong ofDhanasar. The Director also determined that the 
Petitioner was not well positioned to advance their proposed endeavor. And the Director concluded 
that on balance of applicable factors, a waiver of the requirement of a job offer, and thus a labor 
certification, would not be beneficial to the national interest. 
Although the evidentiary standard in immigration proceedings is the lowest preponderance of the 
evidence standard, the burden is on the Petitioner alone to provide material, relevant, and probative 
evidence to meet that standard. Section 291 of the Act, 8 U.S.C. § 1361. A petitioner's burden of 
proof comprises both the initial burden of production, as well as the ultimate burden of 
persuasion. Matter ofY-B-, 21 I&N Dec. 1136, 1142 n.3 (BIA 1998); see also the definition ofburden 
of proof from Black's Law Dictionary (11th ed. 2019) (reflecting the burden of proof includes both 
the burden of production and the burden of persuasion). First, a petitioner must satisfy the burden of 
production. As the term suggests, this burden requires a filing party to produce evidence in the form 
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of documents, testimony, etc. that adheres the governing statutory, regulatory, and policy provisions 
sufficient to have the issue decided on the merits. 
The evidence and argument the Petitioner introduced into the record does not help them carry their 
burden of production and persuasion. In support of their assertions of eligibility under the Dhanasar 
analytical framework, the Petitioner provided their business plan and evidence in the form of 
recommendation letters, professional certificates and memberships, numerous articles relating to 
cybersecurity and information technology,job offer letter, company registration documents, academic 
records, and resume. 1 
The Petitioner proposed to develop a "consultancy in information technology (IT), focusing on end 
user computing and project management ... regarding transformation strategies to support, expand, and 
implement remote collaboration tools" in the United States named I I The endeavor 
proposed to offer "digital strategy, software engineering, products/platform development, data 
management, artificial intelligence, agile software, and security and transformation strategies to 
support remote work." 
From the outset, the Petitioner's business plan couched their endeavor in terms of targeting their 
services to "support companies to adopt innovative technologies and become more agile, flexible and 
well prepared for the challenges created by the COVID-19 and a possible new normal that will 
transform the way we work and do business." The Petitioner intended to base their endeavor in the 
I I Georgia region. 2 The Petitioner's business plan advances their intention to "expand by 
opening branches in Texas, North Carolina, Massachusetts, California, and the District of Columbia." 
To satisfy the first prong under the Dhanasar analytical framework, the Petitioner must demonstrate 
that their proposed endeavor has both substantial merit and national importance. The first prong 
focuses on the specific endeavor that the individual proposes to undertake. An endeavor's merit may 
be demonstrated in a range of areas such as business, entrepreneurialism, science, technology, culture, 
health, or education. Dhanasar at 889. The Petitioner described their endeavor as a "software 
developer entrepreneur." The record before us contains evidence of the characterization of the 
Petitioner's proposed endeavor as a "software developer entrepreneur" which falls within the range of 
areas we concluded could demonstrate endeavor of substantial merit. So the record supports the 
substantial merit of the Petitioner's proposed endeavor and we will withdraw the Director's conclusion 
to the contrary. 
Nevertheless, the Petitioner's substantially meritorious proposed endeavor lacks the requite national 
importance when evaluated under the first prong of the Dhanasar analytical framework. The 
Petitioner proposed their endeavor would have "national impact" by helping "companies to adopt 
innovative technologies and become more agile, flexible and well prepared for the challenges created 
by the COVID-19 and a possible new normal that will transform the way we work and do business" 
thereby generating tax revenue and creating jobs. The Petitioner grounds their "unique value 
1 While we may not discuss every document submitted, we have reviewed and considered each one. 
2 On appeal, the Petitioner's counsel states the Petitioner will "establish [their] company in the state otj !Florida." 
As there is no evidence or documentation supporting the assertion of the Petitioner's counsel, we will disregard it. See 
INS v. Phinpathiya, 464 U.S. 183, 188-89 n.6 (1984)(the unsupported assertions of counsel on appeal or in a motion are 
not evidence). 
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proposition" in the changes companies made in response to the COVID-19 pandemic making remote 
work increasingly more common. The Petitioner identifies this transition to remote work as a "key 
for [a] business to keep its operation and for growing." The Petitioner anticipates their endeavor would 
"solve a specific market problem where digital transformation is key for every company to survive." 
The record contains numerous documents in the form of articles and industry corresponding to the 
importance of information technology and entrepreneurship. But these relate more to the substantiality 
of the proposed endeavor's merit than its national importance. In determining national importance, 
the focus is not on the importance of the industry in which the petitioner will work or even their past 
success. The focus is on "the specific endeavor that the foreign national proposes to undertake." See 
Dhanasar, 26 I&N Dec.at 889. 
In Dhanasar we said that "we look for broader implications." And it is here that the Petitioner's 
proposed endeavor's deficiencies are revealed. The record does not adequately describe how the 
Petitioner's information technology consulting services would broadly implicate the field of 
information technology rising to a level of national importance. That is not to say that the broader 
implications of the Petitioner's information technology consulting services for companies seeking to 
introduce or incorporate remote working paradigms are evaluated from a geographic perspective. 
Broader implications are not necessarily geographically evaluated; implications within a field which 
demonstrate a national or even international influence of broader scale can rise to a level of national 
importance. But the record as it is presently constituted does not sufficiently describe how the 
information technology consulting services the Petitioner will provide will influence the adoption, 
expansion, or efficient implementation of remote work technology and paradigms in the "companies" 
that may engage the service of the Petitioner's proposed endeavor. 
The Petitioner's employment verification and employment letters did not reflect how the proposed 
endeavor implicates national importance because the letters focused on the Petitioner's past work. 
When evaluating the national importance of a proposed endeavor under the first prong of Dhanasar, 
we are concerned with its potential prospective or future impact. The Petitioner's demonstration of 
prior similar work does not have an influence on the proposed endeavor's potential prospective impact 
based on its national importance. 
And whilst the Petitioner anticipates increasing gross income, a hiring spree increasing their head 
count, and increasing their expenditures on salary, it is not clear from the record how this job creation 
for the proposed endeavor itself would have a substantial prospective positive economic effect 
commensurate with national importance. The Petitioner's aspirations did not demonstrate the national 
importance of the endeavor because they, whether realized or not, would not extend beyond the 
endeavor itself to have an impact on a level of national importance. The record also did not contain 
sufficient probative, material, or relevant evidence showing how the endeavor's hiring plan would 
influence the area's unemployment rate or how the endeavor's operations and revenue rose to a level 
of national importance. 
Furthermore, the Petitioner's intention to base their company in a Small Business Administration 
(SBA) HUBZone is unpersuasive. The HUBZone program's goal is to promote business growth in 
underutilized business zones with the goal of awarding 3% of federal contract dollars to companies 
that are HUBZone certified. Joining the HUBZone program makes a business eligible to compete for 
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certain federal contracts in the "set-aside" category. There are several required qualifications to 
participate in the program, but the most dispositive requirement for purposes of our analysis is that the 
business seeking to participate in the HUBZone program must be at least 51 % owned by U.S. citizens, 
a community development corporation, an agricultural cooperative, an Alaska Native corporation, a 
Native Hawaiian organization, or an Indian tribe. Whilst it is unknown and the record is silent about 
what if any federal programs exist in the "set-aside" category for residential and commercial cleaning 
services like the one proposed by the Petitioner, the record is crystal clear that the Petitioner's proposed 
endeavor would be wholly owned and controlled by the Petitioner and that the Petitioner is not a U.S. 
citizen, a community development corporation, an agricultural cooperative, an Alaska Native 
corporation, a Native Hawaiian organization, or an Indian tribe. And to the extent the Petitioner asserts 
that they would base their company in a SBA HubZone designated underutilized business zone, the 
record does not adequately establish that increased employment in these designated underutilized 
business zones would have positive economic effects commensurate with national importance. So the 
fact that the Petitioner' proposed endeavor may be in a HUBZone is wholly irrelevant to whether the 
Petitioner's endeavor rose to a level of national importance. 
The Petitioner's appeal highlights their "over fifteen (15) years of work experience" as a software and 
system developer and stresses that it is their execution of their proposed endeavor which elevates it to 
a level of national importance. But the Petitioner's argument spotlights a fundamental 
misunderstanding of the first prong of the Dhanasar framework. The first prong of the Dhanasar 
framework focuses on the proposed endeavor; not on the Petitioner's execution of that proposed 
endeavor. The Dhanasar framework is consequently unconcerned with the likelihood of the success 
of the proposed endeavor. The Petitioner's contentions about their successful past performance in the 
endeavor they propose, as well as evidence and information of their achievements and recognition 
would better serve a demonstration of eligibility under the second prong of the Dhanasar framework. 
The Petitioner also asserts at appeal that a "looming shortage ofIT talent ... highlights the urgency, and 
national importance" of their proposed endeavor. But the national interest waiver does not exist to 
address labor shortages. The U.S. Department of Labor (DOL) addresses shortages of qualified 
workers through the labor certification process. And the impracticality of immigration options 
designed to address labor shortages, like the labor certification process, to support the discretionary 
grant of a national interest waiver are evaluated under the third prong of the Dhanasar analytical 
framework, not the first prong we evaluate here. 
The relevant inquiry for evaluation of an endeavor's national importance is whether the prospective 
positive impact judged by the endeavor's broader implications or positive economic effects apply 
beyond just narrowly conferring the proposed endeavor's benefit. The Petitioner here has not 
demonstrated how conferring the benefit to the "mid-size to large enterprises" they intend to solicit 
have any implication or benefit rising to a level beyond them and touching matters of national 
importance. 
III. CONCLUSION 
The Petitioner has not met the requisite first prong of the Dhanasar analytical framework. Because 
this issue is dispositive of the Petitioner's appeal, we decline to reach and hereby reserve the remaining 
arguments concerning eligibility under the remaining Dhanasar prongs. See INS v. Bagamasbad, 429 
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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 ofL-A-C-1, 26 I&N Dec. 216, 526n.7 
(BIA 2015) (declining to reach alternate issues on appeal where an applicant is otherwise eligible). 
So we conclude the Petitioner has not established that they are eligible for or otherwise merit a national 
interest waiver of the job offer requirement, and thus of a labor certification. Accordingly, the appeal 
will be dismissed. 
ORDER: The appeal is dismissed. 
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