dismissed EB-2 NIW Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAR. 18, 2024 In Re: 30242533 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an aspiring entrepreneur in application/software development, 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. § 1153(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 
Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts 
(and Third in an unpublished decision) in concluding that USCIS' decision to grant or deny a national 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 that the Petitioner 
qualified for classification as a member of the professions holding an advanced degree, but did not 
demonstrate their eligibility for a waiver of the required job offer, and thus of the labor certification, 
in the national interest. The matter is now before us on appeal pursuant to 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 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. 
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 concluded that the Petitioner qualified as a member of the professions holding an 
advanced degree. The sole issue to be determined 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. 
At the time of filing, the Petitioner was a research assistant at 
New The Petitioner proposed to endeavor to function as an entrepreneurial softwareNew York. 
developer with an intention to "design an application that achieves human brain and computer 
symbiosis." The Petitioner's "web application to facilitate online search" would "provide visually 
engaging and interactive search results." An example of this is the Petitioner's development of 
la software application which interactively searches and displays information from GitHub. 
GitHub is an open-based, free to use code hosting platform for version control and collaboration owned 
by the Microsoft Corporation. 
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I 
For the reasons discussed below, we conclude the Petitioner's substantially meritorious proposed 
endeavor does not rise to a level of nationally importance. So we conclude that the Petitioner has not 
established eligibility for a national interest waiver under the analytical framework set forth m 
Dhanasar. 
A. Substantial Merit and National Importance 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
individual proposes to undertake. As stated above, the endeavor's merit may be demonstrated in a 
range of areas such as business, entrepreneurialism, sciences, technology, culture, health, or education. 
In determining whether the proposed endeavor has national importance, we consider its potential 
prospective impact. Dhanasar, 26 I&N Dec. at 889. 
1. Substantial Merit 
The Director concluded the Petitioner's proposed endeavor was not substantially meritorious because 
their education in biology and neuroscience did not relate to the software development field of 
endeavor. But we evaluate an individual petitioner's credentials when we evaluate a petitioner's 
eligibility under the second prong of the Dhanasar analytical framework. 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 an "entrepreneur" 
who sought to "design an application that achieves human brain and computer symbiosis." The record 
before us contains evidence of the characterization of the Petitioner's proposed endeavor as an 
"entrepreneur" which falls within the range of areas we concluded could demonstrate endeavor of 
substantial merit. So, we conclude the record supports the substantial merit of the Petitioner's 
proposed endeavor and withdraw the Director's conclusion to the contrary. 
2. National Importance 
The Director concluded the Petitioner's endeavor was not nationally important because their education 
in biology and neuroscience did not relate to the software development field of endeavor. But the first 
prong of the Dhanasar analytical framework focuses on the proposed endeavor. So, attributes such 
as the education of the individual petitioner are not relevant to an examination of whether a proposed 
endeavor rises to a level of national importance. 1 Consequently we do not agree with the Petitioner's 
rational for concluding the Petitioner's proposed endeavor was nationally important. 
Despite our disagreement with the Director's rationale, we do agree with the Director's ultimate 
conclusion that the Petitioner's proposed endeavor was not nationally important, albeit for different 
reasons. In determining national importance under Dhanasar, the relevant question is not the 
importance of the field, industry, or profession in which the individual will work; instead, we focus 
on "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 a national importance for example, because it has 
1 These matters are relevant to a demonstration of eligibility under the second prong of the Dhanasar framework. 
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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. So it is not what duties or what occupation the noncitizen will fill or perform 
but their actual plan with their occupation and duties that is examined. 
The Petitioner showcased their endeavor's potential global or national impact, any broader 
implications, and any positive economic effects stem from their spec[fic individual execution of their 
proposed endeavor based on their past work in the field. And the corpus of the evidence the Petitioner 
submitted into the record does not stray far from this core assertion. But the Petitioner's assertion 
spotlighted a fundamental misunderstanding of the Dhanasar framework's first prong. The first prong 
focuses on the proposed endeavor; not on the Petitioner's execution of that proposed endeavor. The 
Dhanasar framework is consequently unconcerned with the success of the proposed endeavor or the 
Petitioner's track record in their field of endeavor previously. 
For example, the Petitioner submitted several letters of recommendation into the record. But the 
mainly described the Petitioner's competent acquittal of their assigned job duties or otherwise 
described the work they did previously. The Petitioner's past successful performance of job duties 
does not support their endeavor's national importance. It is not sufficiently evident how the 
Petitioner's past performance of their duties has global or national implications, broader implications, 
or positive economic effects. And the research achievements the writers mention in their letters are in 
fields unrelated to the application or software development field the Petitioner proposes to house their 
endeavor in. Moreover whilst some of the letters referred to the Petitioner's I I application 
development, they did not sufficiently describe how development of its application of software had 
national or even global impact or identify any broader implications emanating from its development. 
In the same vein, the Petitioner's educational credentials and professional certificates earned from 
participation in seminars or continuing professional education exercises are not sufficient to 
demonstrate the national importance of their proposed endeavor. 2 
It is not evident from the Petitioner's professional plan how their proposed endeavor rises to a level of 
national importance. Whilst the professional plan describes the scope of the services it intends to 
perform, it does not sufficiently show how those product and services extend beyond the immediate 
vicinity of the persons or entities utilizing the product or services. Or in other words, it is not 
sufficiently clear how the Petitioner's development of a software application achieving human brain 
and computer symbiosis would have global or even national implications to their field beyond the 
individuals utilizing it. Nor does the professional plan identify the broader implications of the 
proposed endeavor. The Petitioner identified as a novel method to display GitHub search 
results in an interactive way. But it is not evident how I I benefits would broadly implicate 
matters rising to a level of national importance. For example, the Petitioner identified developing a 
new method through which to interact with search results and increasing understanding of software 
development by engineers and their employers as matters addressed by I I But it is not 
2 The Petitioner's contentions about their successful past performance in the field of endeavor they propose, as well as 
evidence and information of their achievements and recognition, would better serve a demonstration of eligibility under 
the Dhanasar framework's second prong. 
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sufficiently clear in the evidence contained in the record how addressing these challenges has global 
or even national implications. Moreover, the record does not identify or adequately support any 
broader implications emanating from their proposed endeavor developing applications like I 
We said in Dhanasar 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. The Petitioner's appeal 
generally mentions the proposed endeavor's capacity for job creation and revenue generation. But the 
Petitioner's personal statement and professional plan do not identify any specific method or marker 
that sufficiently supports the employment creation or revenue generation that could be credited to their 
proposed endeavor. 
USCIS may, in its discretion, use as advisory opinion statements from universities, professional 
organizations, or other sources submitted in evidence as expert testimony. See Matter ofCaron Int 'l, 
19 I&N Dec. 791, 795 (Comm'r 1988). However, the submission ofletters or opinion statements from 
experts supporting the petition is not presumptive evidence of eligibility. Id. The Petitioner submitted 
two expert opinion statements. But the opinion statements did not illustrate how the Petitioner's 
proposed endeavor rises to a level impacting national importance. Both writer's opinion focused only 
on the Petitioner's ability and achievement when rendering their opinion. As we stated previously the 
first prong focuses on the proposed endeavor. So, a petitioner's ability and achievement are not 
relevant considerations to evaluate the national importance of the proposed endeavor. The writers do 
not venture further from their description of the Petitioner's ability and achievement to evaluate the 
Petitioner's specific endeavor and how it can have a prospective positive impact nationally or globally 
or from the broader implications of its specific contributions to the information technology field. Nor 
do the writers sufficiently describe any positive economic impacts. Or in other words, the authors do 
not convincingly articulate the potential prospective impact of the Petitioner's endeavor so that a 
meaningful evaluation of the proposed endeavor's potential prospective impact can be made to 
determine if it rises to a level of national importance. Moreover, both authors are seemingly 
unconnected to the field of application or software development within which the Petitioner's 
endeavor proposes to function. 
In sum, the record does not contain relevant, probative, or material evidence establishing the 
Petitioner's proposed endeavor has potential prospective impact either through national or even global 
implications, its broader implications to its field, or its positive economic effects. So we conclude that 
the Petitioner has not established that their proposed endeavor is of national importance. 
III. CONCLUSION 
For the aforementioned reasons, the Petitioner has not satisfied the first prong of the Dhanasar 
analytical framework. Because the evidence in the record does not establish that their proposed 
endeavor is nationally important as required by the first prong of the Dhanasar precedent decision, 
the Petitioner has not demonstrated their 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 their eligibility under the second and third prong 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 I&N 
5 
Dec. 516, 526 n.7 (BIA 2015) (declining to reach alternative issues on appeal where an applicant is 
otherwise ineligible). 
ORDER: The appeal is dismissed. 
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