dismissed EB-2 NIW Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: NOV. 27, 2023 In Re: 28433697 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner seeks employment-based second preference (EB-2) immigrant classification as a 
member of the professions holding an advanced degree or an individual of exceptional ability. See 
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 EB-2 immigrant 
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. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish the Petitioner's eligibility for the EB-2 classification or for a national interest waiver. 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 Christa 's, Inc. , 26 I&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. Section 203(b )(2)(B)(i) of the Act. 
An advanced degree is any United States academic or professional degree or a foreign equivalent 
degree above that of a bachelor's degree. A United States bachelor's degree or foreign equivalent 
degree followed by five years of progressive experience in the specialty is the equivalent of a master 's 
degree. 8 C.F.R. § 204.5(k)(2). 
Profession is defined as one of the occupations listed in section 10l(a)(32) of the Act, as well as any 
occupation for which a United States baccalaureate degree or its foreign equivalent is the minimum 
requirement for entry into the occupation. 1 8 C.F.R. § 204.5(k)(3). 
Exceptional ability means a degree of expertise significantly above that ordinarily encountered in the 
sciences, arts, or business. 8 C.F.R. § 204.5(k)(2). A petitioner must initially submit documentation 
that satisfies at least three of six categories of evidence. 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). 2 Meeting 
at least three criteria, however, does not, in and of itself: establish eligibility for this classification. 3 If 
a petitioner does so, we will then conduct a final merits determination to decide whether the evidence 
in its totality shows that they are recognized as having a degree of expertise significantly above that 
ordinarily encountered in the field. 
If a petitioner demonstrates eligibility for the underlying EB-2 classification, they must then establish 
that they merit a discretionary waiver of the job offer requirement "in the national interest." Id. While 
neither the statute nor the pertinent regulations define the term "national interest," Matter ofDhanasar, 
26 I&N Dec. 884, 889 (AAO 2016), provides the framework for adjudicating national interest waiver 
petitions. Dhanasar states that USCIS may, as matter of discretion, 4 grant a national interest waiver 
if the petitioner demonstrates that: 
• The proposed endeavor has both substantial merit and national importance; 
• The individual is well-positioned to advance their proposed endeavor; and 
• On balance, waiving the job offer requirement would benefit the United States. 5 
II. ANALYSIS 
The Petitioner asserts that he is both a member of the professions holding an advanced degree and an 
individual of exceptional ability. The Director concluded that the Petitioner did not establish that he meets 
the EB-2 eligibility requirements. Upon review of the record, we conclude that the Petitioner has not 
demonstrated his qualifications as an advanced degree professional, nor has he demonstrated that he 
qualifies as an individual of exceptional ability. 
A. Eligibility as a Member of the Professions Holding an Advanced Degree 
The Petitioner refers to his vocation alternately as an industrial automation developer and a software 
developer. The Petitioner intends to continue his work developing software for heating, ventilation, 
and air conditioning (HV AC) systems, as well as refrigeration equipment. The record includes a 
certificate from a technical school in Brazil for a year-long training course in industrial automation 
1 Profession shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in 
elementary or secondary schools, colleges, academics, or seminaries. Section 101 (a)(32) of the Act. 
2 If these types of evidence do not readily apply to the individual's occupation, a petitioner may submit comparable 
evidence to establish their eligibility. 8 C.F.R. § 204.5(k)(3)(iii). 
3 USCTS has previously confirmed the applicability of this two-palt adjudicative approach in the context of aliens of 
exceptional ability. 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual/volume-6-palt-f-chapter-5. 
4 See also Poursina v. USC1S, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
5 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
2 
and several certificates for the completion of other shorter training programs in the Petitioner's field. 
On appeal, the Petitioner asserts that the Brazilian institution is "well-known" and "recognized by the 
UN as one of the three most important actors in technical and vocational education in the Southern 
Hemisphere." The record, however, does not contain evidence to show that the program the Petitioner 
completed with this institution is the foreign equivalent of either a U.S. bachelor's degree6 or advanced 
degree. The Petitioner also asserts that an expert opinion letter and an education evaluation previously 
submitted establish that the Petitioner has received "the equivalent of a US degree of Bachelor in 
Science in Information Technology ." The letter and evaluation do not provide explanations of how 
the Petitioner's vocational coursework and work experience in Brazil equate to the receipt of a U.S. 
bachelor's degree. Although the letters discuss the relevance of the Petitioner's work experience in 
evaluating whether he has attained the foreign equivalent of a bachelor's degree, the regulation at 
8 C.F.R. § 204.5(k)(2) does not provide for a substitution of vocational training and experience to be 
considered as the equivalent of a bachelor's degree; both the Act7 and the regulations contemplate 
only a single degree, not a combination of education and experience claimed as the equivalent, in 
aggregate, of a degree. We also note that the evaluation uses an argument to equate the Petitioner's 
work experience that does not apply to immigrant petitions, but to certain nonimmigrant petitions. 
Credential evaluations are reviewed for advisory purposes only; if questionable in any way, USCIS 
may give them less weight. Matter of Caron Int 'l, 19 I&N Dec. 791 (Comm 'r) 1988). Further, the 
record does not include evidence to demonstrate that the Petitioner's intended occupation is a 
profession requiring the attainment of at least a bachelor's degree for entry. See 8 C.F.R. § 204.5(k)(3 ). 
The Petitioner has not established eligibility for the EB-2 classification as a member of the professions 
holding an advanced degree. 
B. Eligibility as an Individual of Exceptional Ability 
As noted above, to demonstrate eligibility as an individual of exceptional ability, a petitioner must 
initially submit documentation that satisfies at least three of six categories of evidence at 8 C.F.R. 
§ 204.5(k)(3)(ii)(A)-(F). The Director determined that the Petitioner met the criterion at 8 C.F.R. 
§ 204.5(k)(3)(ii)(A) but did not meet the remaining criteria at 8 C.F.R. § 204.5(k)(3)(ii)(B)-(F). 
An official academic record showing that the alien has a degree, diploma, certificate, 
or similar award from a college, university, school, or other institution oflearning 
relating to the area ofexceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(A). 
The record shows that the Petitioner has earned certificates relating to his claimed area of exceptional 
ability. We agree with the Director that the record satisfies this criterion. 
Evidence in the form ofletter(s) from current or former employer(s) showing that 
the alien has at least ten years offull-time experience in the occupation for which he 
or she is being sought. 8 C.F.R. § 204.5(k)(3)(ii)(B) . 
6 Even if the record established that the Petitioner holds the foreign equivalent of a U.S. bachelor's degree, which it does 
not, the record does not demonstrate that the Petitioner has at least five years of progressive , post-baccalaureate experience 
in his specialty. 8 C.F.R. § 204.5(k)(2). 
7 See section 203(b)(2)(A) of the Act. 
3 
The record includes letters from previous clients attesting to their experience with the Petitioner 's 
services. 8 Most of these letters, however, reference only general dates of services received between 
2010 and 2021. One letter from an HVAC company states that the Petitioner has worked for the 
company in various capacities for eleven years; however, the letter does not specify whether the 
Petitioner was employed full- or part-time, provide specific dates of employment, or describe the 
Petitioner's duties in his positions with the company. The letters do not serve as evidence of a 
continuous timeline of full-time employment over a period of at least ten years. 9 We agree with the 
Director that the record does not satisfy this criterion. 
A license to practice the profession or certification for a particular profession or 
occupation. 8 C.F.R. § 204.5(k)(3)(ii)(C) . 
The Director detennined that the Petitioner's certifications are not licenses to practice a profession or 
occupation. However, the Director overlooked the fact that the record includes credible evidence of 
certifications that the Petitioner has received for his occupation. Thus, we disagree with the Director's 
determination with regard to the Petitioner 's eligibility under this criterion. The record satisfies this 
criterion because the Petitioner has a certification for his particular occupation. We therefore withdraw 
the Director's determination regarding this criterion. 
Evidence that the alien has commanded a salary, or other renumeration for services, 
which demonstrates exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(D). 
The record includes paychecks and invoices that alternately refer to the Petitioner as a developer and 
a refrigeration technician. The record also includes a printout from a salary comparison website 
showing the average salary of an entry-level software developer in Brazil in 2023. Because the 
Petitioner's tax returns are from 2019, 2020, and 2021, it is not clear whether the Petitioner's income 
during those years may have been higher than the average income for a software developer; the record 
does not contain salary comparisons for those years. In addition, the record does not contain credible 
evidence demonstrating that the Petitioner's income during those years or any other year was a result 
of his purported exceptional ability. We note that a letter from one HV AC company states the 
following (quoted as written): 
[The Petitioner] is always looking to expand his knowledge and that is why he become 
a fundamental part of our company on these 11 years working together here at our 
business, also because of that he always had an better income than average 
programmers and developers in this market. . . . [The Petitioner] had an special annual 
income above the average because of his special skills developing business solutions 
and software to our partners and customers, so he turned in an exceptional person and 
necessary for the whole country after develop many solutions around the world. 
While this HV AC company claims that the Petitioner received a higher-than-average salary for his 
work, we do not consider this to be credible evidence to demonstrate the Petitioner's eligibility under 
8 While we have not listed each piece of evidence separately, we have reviewed the entirety of the record. 
9 See 8 C.F.R. § 204.S(g)(l) (stating that evidence relating to qualifying experience shall be in the fonn of letters from 
current or former employers and shall include the name, address, and title of the writer, and a specific description of the 
duties). 
4 
this criterion for several reasons. The company has not provided dates or positions in which the 
Petitioner received a higher salary for his purported exceptional ability in a particular field. The 
company also does not provide the Petitioner's salaries at a given time or in a given position. Although 
several pay statements from the company show that the Petitioner worked as a refrigeration technician, 
the record does not contain evidence of the average salaries of refrigeration technicians during the 
time of the Petitioner's employment in that position. Further, the company's claim that the Petitioner's 
income has been based on his "special skills" is not supported by probative evidence from customers 
or other parties with knowledge of his work to demonstrate his exceptional ability. 10 Moreover, a 
statement from the Petitioner indicates that he was self-employed during a portion of his time with 
this HV AC company; it is not clear how the Petitioner's income was affected by his self-employment 
during his time with the HV AC company. Notably, his tax returns may reflect higher income amounts 
unrelated to his purported exceptional ability. We agree with the Director that the record does not 
satisfy this criterion . 
Evidence ofmembership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
The Petitioner has submitted evidence to show that he has been a member of the American Society of 
Heating, Refrigerating, and Air-Conditioning Engineers (ASHRAE) since November 1, 2022. As this 
membership post-dates the filing date of his petition, we will not consider this evidence. 11 Eligibility 
must be established at the time of filing. 8 C.F.R. § 103 .2(b)(1 ). We agree with the Director that the 
record does not satisfy this criterion. 
Evidence ofrecognition for achievements and significant contributions to the industry 
or field by peers, governmental entities, or professional or business organizations. 
8 C.F.R. § 204.5(k)(3)(ii)(F). 
The record contains numerous letters from clients and previous employers attesting to the Petitioner's 
past success in fulfilling their needs. While some of these letters discuss specific projects carried out 
by the Petitioner, they do not reference any formal recognition of achievements or contributions to the 
HV AC industry or the field of software development. The record does not otherwise contain 
documentation related to any impact of the Petitioner's work on the industry or field. We agree with 
the Director that the record does not satisfy this criterion. 
The Petitioner has not established that he meets three of the six evidentiary criteria under 
8 C.F.R. 204.5(k)(3)(ii), and so he has not met the initial requirement to demonstrate his eligibility as 
an individual of exceptional ability. Thus, we need not conduct a final merits determination of whether 
he is recognized as having a degree of expertise significantly above that ordinarily encountered in the 
field. 
In sum, the Petitioner has not established eligibility for the EB-2 classification as a member of the 
professions holding an advanced degree or, alternatively, as an individual with exceptional ability. 
Therefore, he is ineligible for a national interest waiver. Because the identified reasons for dismissal 
10 The Petitioner must support assertions with relevant, probative, and credible evidence. See Matter ofChawathe, 25 I&N 
Dec. 369 at 376. 
11 See Matter of Izummi, 22 I&N Dec. at 175 (stating that a petition cannot be approved at a future date after the self­
petitioner becomes eligible under a new set of facts). 
5 
are dispositive of the Petitioner's appeal, we decline to reach and hereby reserve remaining arguments 
concerning eligibility under the Dhanasar framework. See INS v. Bagamasbad, 429 U.S. 24, 25 
(1976) (stating that agencies are not required to make "purely advisory findings" on issues that are 
unnecessary to the ultimate decision); see also Matter of L-A-C-, 26 I&N Dec. 516, 526 n.7 (BIA 
2015) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
III. CONCLUSION 
The Petitioner has not established 
that he meets the requirements of EB-2 classification. His petition 
will remain denied. 
ORDER: The appeal is dismissed. 
6