dismissed EB-2 NIW Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 11028469 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 11, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner 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 had not 
established that a waiver of the required job offer, and thus of the labor certification, would be in the 
national interest. With the appeal, the Petitioner submits 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 
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 Department of 
Transportation, 22 l&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
2 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). 
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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 concluded that the Petitioner qualifies as a member of the professions holding an advanced 
degree or its equivalent. 4 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. 5 
A. Substantial Merit and National Importance of the Proposed Endeavor 
In the initial letter, the Petitioner stated that he "intends to advance his career as a [ s ]oftware 
[d]eveloper, developing information systems for businesses." 6 The Petitioner further explained that 
he has "gained extensive experience, skills, and contacts in the field of [s]oftware [d]evelopment, and 
knowledge that will allow me to help companies in the United States, more specifically U.S. 
companies doing business in Brazil." The Petitioner indicated that he will "use the knowledge I have 
acquired to work on large scale [s]oftware [d]evelopment projects, where I would define strategies, 
methodologies, and tools that will be implemented." 7 
The Director issued a request for evidence (RFE) and noted that the Petitioner's statements are vague, 
and that the Petitioner does not "articulate a plan for working in the field of software development at 
a level that is commensurate with national importance," and that the record does not demonstrate 
eligibility for a national interest waiver. 
In response to the Director's RFE, the Petitioner explained that he intends to work as a "software 
developer and IT consultant, [] in which he will keep designing, creating, and developing products 
and tools that benefit U.S. companies." He indicated that he would accomplish this by "prospecting" 
for employment opportunities with companies in the United States, and by establishing himself as a 
self-employed consultant. He also stated that he will also "evaluate the possibility of opening a 
software and game development company." 
For the reasons discussed below, we agree with the Director that the Petitioner has not sufficiently shown 
the national importance of his proposed endeavor. 
3 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
4 The Petitioner has a foreign bachelor's degree and at least five years of progressive post-baccalaureate experience. 
5 The Petitioner submitted evidence to establish his eligibility for the benefit sought in the petition. While we may not 
discuss every document submitted, we have reviewed and considered each one. 
6 To illustrate his future software development activities, the Petitioner initially provided a list of eleven bulleted job duties 
which he quoted verbatim from the Department of Labor's Occupational Information Network (O*NET) summary report 
for "Software Developers, Applications." While this type of description may be appropriate when defining the range of duties 
that may be perfmmed within an occupational category, it does not adequately convey the substantive work that the Petitioner 
will prospectively pe1iorm. See https://web.archive.org/web/20180201191102/https://www.onetonline.org/link/summary/ 
15-1132.00, (last visited August 11, 2021 ). 
7 We note that, while information about the nature of the Petitioner's proposed endeavor is necessary for us to determine 
whether he satisfies the Dhanasar framework, he need not have a job offer from a specific employer as he is applying for 
a waiver of the job offer requirement. 
3 
In Dhanasar, we held that a petitioner must identify "the specific endeavor that the foreign national 
proposes to undertake." Id. at 889. The record, however, does not include evidence of the Petitioner's 
proposed software development projects in the United States, or other information about the specific 
consulting work the Petitioner will undertake in this country. For example, he does not sufficiently 
explain or demonstrate how his future software development work stands to rise to the level of national 
importance within the information technology field. The record does not show, for instance, that the 
specific work the Petitioner proposes to undertake will offer original innovations to advance the 
industry, or that it otherwise has wider implications in his field. In denying the petition, the Director 
observed that the Petitioner documented and emphasized the general importance of the information 
technology field to the United States, but the evidence did not sufficiently articulate how his particular 
proposed endeavors would have national importance beyond his prospective employing organizations 
and their clients. We agree. 
On appeal, the Petitioner provides evidence that he incorporated an IT consulting business in July 
2020, in which he holds the chief technology officer (CTO) role for the organization. He asserts that 
his new company will "provide specialized IT services to American companies, in any sector, 
improving their business intelligence and IT tools," and notes that he intends to "hire a team of U.S. 
workers and related support staff." The Petitioner filed his petition in April 2018. Eligibility must be 
established at the time of filing. 8 C.F.R. § 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. 45, 
49 (Reg'l Comm'r 1971). A petition cannot be approved at a future date after the petitioner becomes 
eligible under a new set of facts. Matter of Izummi, 22 I&N Dec. 169, 175 (Comm'r 1998). That 
decision farther provides, citing Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981 ), that USCIS 
cannot "consider facts that come into being only subsequent to the filing of a petition." Id. at 176. 
Regardless, we note that these generalized statements are insufficient to support a finding that he meets 
the first prong under Dhanasar. To satisfy the national importance requirement, the Petitioner must 
demonstrate the "potential prospective impact" of his work. While he alludes to the economic benefits 
that will be created through his business, the record does not show that benefits to the U.S. regional or 
national economy resulting from his IT consulting firm would reach the level of "substantial positive 
economic effects" contemplated by Dhanasar. Id. at 890. As the Petitioner has not established that his 
endeavor supports a finding of national importance, he has not met the first prong of the Dhanasar 
framework. 
B. Well Positioned to Advance the Proposed Endeavor 
The second prong shifts the focus from the proposed endeavor to the Petitioner. The Director 
determined in his denial that the Petitioner is well positioned to advance the proposed endeavor. For 
the reasons discussed below, we withdraw the Director's determination in this regard, as the evidence 
is insufficient to demonstrate that the Petitioner is well positioned to advance his software 
development endeavor under the second prong. 
The record includes the Petitioner's resume, academic credentials, information technology training 
certifications, and letters from his former work colleagues and employers. The evidence demonstrates 
that the Petitioner has obtained education and training in information technology, and has over ten 
years of experience as a software developer, but he has not shown that he has experienced a record of 
success within the information technology field; a tangible model or plan for future activities; 
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demonstrated progress towards achieving the proposed endeavor; or that potential customers, users, 
investors, or other relevant entities or individuals are interested in his work. 
On appeal, the Petitioner asserts that he "has led several IT projects for major companies, which in 
tum have significantly contributed to the economy." However, the significance of these projects, their 
economic impacts, and his role therein have not substantiated by the evidence ofrecord. 8 For instance, 
the Petitioner highlights his work for al I company, V-, discussing his involvement in a project 
of "high-level complexity, consistent in high rates of stock rupture and lack of controls for non-coded 
items," noting that he held a key role "in building a solution that became a world reference for all large 
companies with the SAP system, which received high recognition by [V-]." Mr. P-, an IT specialist 
and project manager for V-, notes in his letter that the Petitioner "did an excellent job while working 
on a project messaging output to create a panel in the SAP Cloud Platform (SCP) that purchasers 
would use to monitor whether suppliers were receiving messages from [V-] about our bidding 
processes and/or purchase orders." Mr. P- states that the Petitioner also worked on a tracking project, 
"which consisted of creating a portal in the [SCP] so [V- users can] monitor the delivery status of 
material. .. " While Mr. P- was complimentary of the Petitioner's work, he made no mention of the 
Petitioner's development of "a solution that became a world reference for all large companies with the 
SAP system," nor did he indicate that the Petitioner led IT projects for V- during his tenure there. 
Here, the record lacks evidence establishing the Petitioner's assertions. 9 
The Petitioner further asserts on appeal that during his work at [P-], "a world known company in the 
~---~!industry - the Petitioner was responsible for the development of automation in the process 
of opening and documenting newl I' Ms. V-, indicates in her letter that she was 
employed by P- as an SAP FICO consultant, and worked with the Petitioner who was responsible for 
"developing the solution and creating the technical specifications" for projects that she was involved 
in. The Petitioner describes the duties he performed during this assignment, which included the 
"creation of technical specification (TS) based on the functional specification," "support internal ticket 
correction," "correction of Z programs," "interacting with functional team to solve the issues in the 
given object," and "answering calls from users requesting adjustments and debugging of programs." 
While these duties reflect commonly performed information technology tasks, they do not establish 
the asserted significance of the Petitioner's role within P-'s software development projects. 10 
We examine the factors set forth in Dhanasar to determine whether, for instance, the individual's 
progress towards achieving the goals of the proposed endeavor, a record of success in similar efforts, 
or generation of interest among relevant parties supports a finding that he or she is well positioned to 
advance the proposed endeavor. Id. at 890. Considering the totality of the record, we conclude that 
the Petitioner is a competent software developer. However, the submitted evidence is insufficient to 
demonstrate that he has achieved a level of past success or progress that would render him well 
positioned to advance his proposed endeavor. Therefore, he has not established that he satisfies the 
second prong of the Dhanasar framework. 
8 Tt is the Petitioner's burden to prove by a preponderance of evidence that it is qualified for the benefit sought. Matter of 
Chawathe, 25 T&N Dec. 369, 376 (AAO 2010). In evaluating the evidence, eligibility is to be determined not by the 
quantity of evidence alone but by its quality. Id. 
9 The Petitioner must resolve these inconsistencies with independent, objective evidence pointing to where the truth lies. 
Matter of Ho, 19 l&N Dec. 582, 591-92 (BIA 1988). 
10 Id. 
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C. Balancing Factors to Determine Waiver's Benefit to the United States 
As explained above, 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. Because the Petitioner has not established the national importance of his proposed 
endeavor and that he is well positioned to advance his endeavor as required by the first and second 
prongs of the Dhanasar framework, he is not eligible for a national interest waiver. Accordingly, 
discussion of the balancing factors under the third prong would serve no meaningful purpose. 
III. CONCLUSION 
As the Petitioner has not met the requisite three prongs set forth in the Dhanasar analytical framework, 
we find 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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