dismissed EB-2 NIW Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re : 20604521 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JUL. 27, 2022 
Form I-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a software developer, 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. § l 153(b)(2). 
The Director of the Texas Service Center denied the petition, concluding that although the record 
shows that the Petitioner's proposed endeavor has substantial merit and he is well positioned to 
advance that endeavor, it did not establish that his proposed endeavor was of national importance or 
that, on balance , it would be beneficial to the United States to waive the requirement of a job offer, 
and thus a labor certification , in the Petitioner's case. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit 
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)Waiverofjob 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 tenn "national interest," we set forth 
a framework for adjudicating national interest waiver petitions in the precedent decision Matter of 
Dhanasar, 26 I&N Dec. 8 84. 1 Dhanasar states that after EB-2 eligibility has been established, users 
may, as a matter of discretion, 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 off er and thus of a labor 
certification. 2 
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 ce1iification. In performing 
this analysis, users may evaluate factors such as: whether, in light of the nature of the foreign 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 I&NDec. 215 (Act. Assoc. Comm'r 1998) (NYSD01). 
2 To establish that it would be in the national interest to waive thejobofferrequirement, a petitionermustgo beyond 
showing their 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 subjectto 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, they must go beyond demonstmting a degree of expertise 
significantly above that ordinarily encountered in their field of expertise to establish eligibility for a national interest 
waiver.SeeDhanasar, 26 I&NDec. at 886n.3. 
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national's qualifications or the proposed endeavor, it would be impractical either for the foreign 
national to secure a job offerorforthepetitionerto 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 ce1iification. 3 
II. ANALYSIS 
The Petitioner is a software developer. Although not discussed by the Director in his decision, the 
record shows that he qualifies as a member of the professions with an advanced degree or equivalent 4 
He initially indicated his intent to work as a software developer for a U.S. company, but in response 
to the Director's request for evidence (RFE) he stated that he would establish an information 
technology consulting firm to serve large companies and government agencies. 
In his decision, the Director concluded that while the evidence established the substantial merit of the 
Petitioner's proposed endeavor, it did not show that it would be of national interest. Therefore, the 
Petitioner did not meet the first prong of the Dhanasarframework. In addition, the Director concluded 
that the Petitioner's experience working forl I in Brazil made him well-positioned to 
advance his proposed endeavor. However, in his analysis of the third prong in the Dhansar 
framework, the Director determined that the Petitioner's assertions regarding occupational shortages 
in the IT industry are best addressed through the labor certification process, and thus did not show any 
national interest factors that would outweigh the benefits inherent in that process. Because he 
concluded that the Petitioner did not meet the first and third prongs of the Dhanasar analysis, the 
Director found that the Petitioner did not merit a national interest waiver as a matter of discretion. 
On appeal, the Petitioner asserts that his proposed endeavor would have substantial economic impact 
in helping to build a skilled workforce in an industry with a shortage of talent. He also asserts that 
these economic benefits and supply of talent to the workforce that would result from his endeavor 
would, on balance, outweigh the national interest in the protection of the domestic workforce through 
the labor certification process. After reviewing the record, we agree with the Director's conclusion 
that the Petitioner does not merit a national interest waiver. 
A. Substantial Merit and National Importance of the Proposed Endeavor 
The Petitioner initially indicated that he planned to work for a U.S. company as a software developer, 
but in response to the Director's RFE he stated that he would start his own IT consulting firm, and 
included a business plan with that response. This business plan includes projections that the 
Petitioner's business will have nine employees, including himself, by it's fifth year, and will be earning 
3 
SccDhanasar, 26l&NDec. at 888-91, for elaboration on these three prongs. 
4 The record includes a copyofa "Titulo deLicenciado" diploma from[ [University in Brazil, and a "Latu 
Sensu" diploma from the as well as transcripts from both institutions which show that 
he completed a four-year "complete" program in Ma thematics. In addition, employment letters verify his progressive 
work experience in programmer and systems analyst positions for more than five years after completing his four-year 
degree. 
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revenues of more than $1.3 million at that point. Based upon these projections, the Petitioner asserts 
on appeal that his proposed endeavor will have a significant economic impact by "building [a] new 
skilled workforce and creatingjobs," and will therefore be of national importance. He also refers to 
industry reports of a shortage of workers in the IT industry in the United States, and asserts that his 
knowledge and skills will "fill a void in the U.S. market." 
As noted above, in the first prong we focus on the specific endeavor proposed by a petitioner. Here, 
based upon our review of the record, we agree with the Director's conclusion that the Petitioner's 
proposed endeavor as a consultant and entrepreneur in the IT industry is of substantial merit in the 
area of business. 
Turning to national importance, we note thatthe relevant question is not the importance of the industty 
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. Here, the Petitioner 
must demonstrate the national importance of his work in the IT industry, rather than the national 
importance of the industry overall. In Dhanasar, we 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. 
We will first consider the Petitioner's assertion that his creation of a new business will have significant 
potential to employ U.S. workers. While his business plan projects the employment of eight additional 
workers within five years of creation, the record is absent of documentary evidence to show that the 
proposed business has significant potential to do so. More importantly, the evidence does not 
demonstrate that even if the business was able to employ eight workers in five years, this would have 
substantial positive economic effects. Although the business plan doesn't mention a specific location 
for the proposed company, it includes a comparison to IT consulting companies in the Florida 
area. But the record lacks evidence thatl lis an economically depressed area, the example 
provided inDhanasar, orthatthe employment of eight workers ata projected median salary of$61,800 
would otherwise have substantial positive economic effects for the region. 
The Petitioner also places great emphasis on the shortage of IT workers in the United States, 
particularly in the area of in which he specializes, and asserts that both his work 
and the work of the employees thathewill train will help to address this shortage. The record includes 
media and government reports which support the shortage of IT workers in general. However, as 
noted above, the first prong of the Dhanasar framework focuses on the Petitioner's specific proposed 
endeavor. The evidence does not show that the proposed employment of eight IT workers would have 
broader implications in the IT industry. 
Upon review, we agree with the Director that the Petitioner has not established that his proposed 
endeavor of starting an IT consulting firm is of national importance, and that he therefore has not met 
the first prong of the Dhanasar framework. 
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B. Well Positioned to Advance the Proposed Endeavor 
In the second prong of the Dhanasar framework, we shift our focus from the proposed endeavor to 
the petitioner. The Director determined, based primarily on his review of two letters from the 
Petitioner's former colleagues atl lbank in Brazil, that the Petitioner's experience in 
software development projects for that employer made him well positioned to advance his proposed 
endeavor. 
However, we note that the bulk of the proposed endeavor focuses not on the Petitioner's own software 
development activities, but upon his creation of a new company with employees engaged in that work. 
While we agree that his credentials and experience as a software developer are sufficient to allow him 
to continue to be employed in that field in the United States, which was the essence of his initial 
proposed endeavor, the record does not demonstrate that he is well-positioned to advance as an 
entrepreneur. 
As noted above, the Dhanasar decision spelled out several factors which can be considered in 
determining whether a petitioner is well-positioned to advance their proposed endeavor, including 
several which are pertinent to entrepreneurial endeavors. These include a record of success in similar 
eff orts, any progress towards achieving the proposed endeavor, and the interest of potential customers, 
users, investors, or other relevant entities or individuals. In this case, the record lacks evidence which 
supports any of these factors. Specifically, although the evidence includes the Petitioner's resume and 
several experience letters from former employers, there is no evidence that he has previously attempted 
or succeeded in starting a new business. In addition, the record lacks documentation of any progress 
towards achieving this endeavor, which might include the establishment of the business as a legal 
entity, registration of the business, securing any necessary funding, renting or purchasing physical 
space for the business, and the hiring of employees and contractors. Further, there is no indication in 
the record that the Petitioner has successfully gathered interest from potential investors or customers. 
While "we do not ... require petitioners to demonstrate that their endeavors are more likely than not 
to ultimately succeed," Dhanasar at 890, here the record does not show that the Petitioner has made 
any preparations for starting his new business beyond writing a business plan which includes more 
information about his achievements as a software developer than about the prospects of his proposed 
business. Accordingly, we disagree with the Director and conclude that the Petitioner has not 
established that he meets the second prong of the Dhanasar framework. 
C. Whether on Balance it Would be in the National Interest to Grant a Waiver 
As discussed above, we conclude that the Petitioner has not met the first and second prongs of the 
Dhanasar framework, and he has therefore not established that he should be granted a national interest 
waiver as a matter of discretion. We therefore need not determine under the third prong whether on 
balance it would be in the national interest to grant a waiver of the job offer requirement of the 
requested classification. However, we will briefly note that the Petitioner's argument based upon the 
labor shortage in the IT industry are not persuasive, as the purpose of the labor certification process is 
to identify jobs where there are no qualified, willing and available U.S. workers. Further, although 
the Petitioner argues that the labor certification process is lengthy and can cost companies money in 
terms of delays in hiring, he has not demonstrated that there is an urgent need for his services. 
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III. CONCLUSION 
The Petitioner has established his eligibility as a member of the professions holding an advanced 
degree or equivalent. However, he has not shown that he is eligible for or otherwise merits a national 
interest waiver of the job offer requirement as a matter of discretion. 
ORDER: The appeal is dismissed. 
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