dismissed EB-2 NIW Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JUN. 18, 2024 In Re: 31494732 
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, as well as a national interest waiver of the job 
offer requirement attached to this 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 record did not 
establish the Petitioner's eligibility for EB-2 immigrant classification or the requested 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 ofChawath e, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo '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). 
Once 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." 
Section 203(b )(2)(B)(i) of the Act. While neither the statute nor the pertinent regulations define the 
term "national interest," Matter of Dhanasar, 26 l&N Dec. 884, 889 (AAO 2016), provides the 
framework for adjudicating national interest waiver petitions. Dhanasar states that U.S. Citizenship 
and Immigration Services (USCIS) may, as a matter of discretion 1, 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. 
II. ANALYSIS 
On appeal, the Petitioner continues to assert his eligibility for the requested EB-2 immigrant 
classification as an advanced degree professional by virtue of his foreign education and post­
baccalaureate experience in the specialty, in accordance with 8 C.F.R. § 204.5(k)(3)(i)(B). Upon de 
novo review, we conclude the Petitioner is not eligible for a national interest waiver under the 
Dhanasar framework, and we will therefore decline to reach and hereby reserve the issue of his 
eligibility for EB-2 immigrant classification. 2 
The first Dhanasar prong, substantial merit and national importance, focuses on the specific endeavor 
that the individual 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. Dhanasar, 26 I&N Dec. at 889. In determining whether the proposed endeavor has 
national importance, we consider its potential prospective impact. Id. 
In the initial filing, the Petitioner asserted his intention to continue working in the United States in the 
software development field stating that his "work experience, personal qualities, and education are of 
great value to the United States." Specifically, the Petitioner planned to "work as an independent 
contractor as a [s]oftware [e]ngineer in [t]est, a developer of back-end applications," and planned to 
"work in different companies, learn more about [his] field, and become the best of the best, to bring 
the maximum benefit to society and the world with [his] developments." In support of his endeavor, 
the Petitioner submitted a personal statement, various industry articles and reports providing general 
background information on the software development field, software testing positions, the shortage of 
software developers, as well as the importance of software development in business growth. 
Additionally, the Petitioner submitted several recommendation letters from former colleagues 
commending his skills in programming, software development, and testing. 
In response to the Director's request for evidence (RFE) requesting additional information and 
evidence to establish the substantial merit and national importance of his endeavor, the Petitioner 
submitted a new personal statement asserting that, as a software developer engineer in test, he has "a 
unique opportunity to contribute to the security and quality of product development." He further noted 
that in his current position he "not only designed the testing environment but also fully automated it, 
1 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). 
2 Where a case warrants a dismissal regardless of other eligibility considerations, it is unnecessary that we address those 
other considerations. Patel v. Garland, 596 U.S. 328, 332 (2022) (citing INS v. Bagamasbad , 429 U.S. 24, 25- 26 (1976) 
(finding agencies are not required to make "purely advisory findings" on issues that are unnecessary to the ultimate 
decision)). 
2 
significantly enhancing testing efficiency." The Petitioner claimed that his "primary career goal is to 
continue developing in the IT field in the United States and applying [his] skills and knowledge to 
address current societal and national issues," as he "believes that IT technologies can bring tremendous 
benefits to humanity and society as a whole, and [he aspires] to contribute to this process." Ultimately, 
the Petitioner asserted that his "skills and experience [ could] make a positive contribution to the 
development of technologies that benefit humanity and society as a whole," and his continued 
employment in the United States would have "significant potential to improve national security, 
strengthen U.S. companies [by] contributing to their growth and profits, and help fill the shortage of 
software development professionals." In response to the Director's RFE, the Petitioner also 
supplemented the record with an expert opinion letter and additional research articles addressing the 
importance of information technology in various industries, including in delivering health care in the 
United States. 
The Director concluded that the record did not establish the substantial merit or national importance 
of the proposed endeavor as the Petitioner did not provide a detailed description of his specific 
proposed endeavor, nor did he provide evidence to establish the endeavor's substantial merit or 
national importance. Regarding the national importance of the proposed endeavor, the Director noted 
that the record did not contain evidence to establish that the Petitioner's endeavor would result in 
broader implications to the industry commensurate with national importance, nor did it show that the 
endeavor had significant potential to employ U.S. workers or otherwise result in substantial economic 
benefits contemplated in Dhanasar. 
On appeal, the Petitioner generally asserts that the Director erred by not properly considering the 
evidence in the record. In particular, the Petitioner contends that the evidence establishes that his 
endeavor would lead to broader implications within his field, reduce the shortage of software 
engineers, impact a matter that the U.S. government has described as having national importance, and 
result in substantial positive economic benefits. 
Upon de novo review, we disagree with the Director's conclusion regarding the substantial merit of 
the Petitioner's endeavor and withdraw this determination. The record contains sufficient 
documentation, including industry reports establishing the importance of the software development 
and testing field as well as the impact of software development to both business operations and medical 
advances. As such, we conclude that the record supports the substantial merit of the Petitioner's 
proposed endeavor. However, while the Petitioner has established that the proposed endeavor has 
substantial merit, the record does not demonstrate its national importance. 
In Dhanasar we said that, in determining national importance, the relevant question is not the 
importance of the field, industry, or profession in which a petitioner may work; instead, we focus on 
"the specific endeavor that the foreign national proposes to undertake." Dhanasar at 889. We 
therefore "look for broader implications" of the proposed endeavor, noting 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 
3 
On appeal, the Petitioner asserts that the record contains "comprehensive evidence" that the 
Petitioner's proposed endeavor would result in national or even global implications. Yet, the 
Petitioner does not provide sufficient support for these assertions. For example, the Petitioner broadly 
asserts that his work in quality assurance "contribute[ s] to the overall safety, security and reliability of 
software used worldwide," but he does not elaborate on how his work would lead to broader 
implications to the field, beyond development of his prospective employer's software. Likewise, 
while the Petitioner emphasizes his knowledge and experience in the areas of cybersecurity, global 
collaboration, and regulatory compliance, he does not elaborate on how this knowledge will result in 
broader implications to his field, beyond equipping him with the necessary knowledge to perform the 
duties of a software developer engineer in test. In Dhanasar we discussed how teaching would not 
impact the field of education broadly in a manner which rises to national importance. Dhanasar at 
893. By extension activities which only benefit the Petitioner's prospective employers, as is the case 
here, do not rise to a level of national importance. 
On appeal the Petitioner also relies on the claimed the shortage of software engineers to assert the 
national importance of his endeavor and we acknowledge the articles on record discussing the growing 
demand for software engineers and developers, and the inability for the industry to meet this demand. 
However, this misapplies the Dhanasar framework, as a shortage of qualified professionals alone does 
not render the work of an individual software developer nationally important. , but under the Dhanasar 
precedent decision. Moreover, the Petitioner has not provided evidence that his proposed endeavor 
would ameliorate the asserted shortage of software developers. Several of the Petitioner's claims of 
national importance could reasonably apply to any software developer, but Congress did not provide 
a blanket exemption for software developers with respect to the job offer and labor certification 
requirement. 3 Foreign IT professionals, including software developers and software developer 
engineers in test, are typically subject to this requirement and therefore the standard intrinsic benefit 
derived from the work of a single software developer is not presumptive grounds for waiving that 
requirement. 
Moreover, the Petitioner also asserts that his work as a software developer in test is of national 
importance because it impacts a field that a United States government entity has determined is of 
national importance, however, we disagree. On appeal, the Petitioner states that the evidence of 
"multiple government initiatives relating to [his] proposed endeavor" establishes that his endeavor is 
nationally important, however this again misapplies the Dhanasar framework. First, while we 
recognize the evidence on record reflects U.S. government interest in technological advancements, 
and technological competitiveness, the Petitioner did not sufficiently explain and support with 
evidence how his proposed endeavor would have a national impact on these broad government 
initiatives. Rather, he relies on the importance of the software development industry in general to 
support his assertions. Yet, when evaluating the national importance of a proposed endeavor, the 
industry or customer base a petitioner will serve alone is not sufficient to establish national importance, 
instead we focus on the broader implications of "the specific endeavor that the foreign national 
proposes to undertake." See Dhanasar, 26 I&N Dec. at 889. 
3 The U.S. Department of Labor addresses shortages of qualified workers through the labor certification process. A 
determination as to whether the benefits inherent in the labor certification process are outweighed by other favorable factors 
relates to the balancing analysis set forth under the third prong of the Dhanasar analytical framework. 
4 
In addition, while we have reviewed the expert opinion letter as well as the letters of recommendation 
contained in the record, we conclude that they do not establish the national importance of the 
Petitioner's proposed endeavor, as they are primarily limited to discussing his past accomplishments , 
and do not establish the potential prospective impact of his proposed endeavor. While we recognize 
that the Petitioner has contributed to the development of software for his former employers, a 
petitioner's expertise and record of success are considerations under Dhanasar' s second prong, which 
"shifts the focus from the proposed endeavor to the foreign national." Id. at 890. The issue here is 
whether the Petitioner has demonstrated the national importance of his proposed endeavor. 
Finally, we agree with the Director that the Petitioner has not demonstrated that his intended 
employment as a software developer engineer in test has significant potential to employ U.S. workers 
or otherwise offers substantial positive economic effects for our nation. While the Petitioner asserts 
on appeal that his endeavor would have substantial positive economic effects, he does not provide 
sufficient evidence to substantiate these assertions, and instead continues to rely on the potential 
economic benefits of the software development field in general. Unsupported assertions and 
speculation have no evidentiary value and are insufficient to establish a filing party has satisfied their 
burden of proof. See Matter of Mariscal-Hernandez, 28 l&N Dec. 666, 673 (BIA 2022). Without 
sufficient information or evidence regarding any projected U.S. economic impact or job creation directly 
attributable to his future work (as opposed to the general economic impact of the pharmacy industry), the 
record does not show that benefits to the U.S. regional or national economy resulting from the Petitioner's 
endeavor would reach the level of "substantial positive economic effects" contemplated by Dhanasar. 
Id. at 890. Accordingly, the Petitioner 's proposed endeavor does not meet the first prong of the 
Dhanasar framework. 
For the reasons discussed, the Petitioner has not demonstrated that his proposed endeavor would be of 
national importance, and he therefore does not meet the requirements of the first prong of the 
Dhanasar analytical framework. 
III. CONCLUSION 
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, we 
conclude that he has not established he is eligible for or otherwise merits a national interest waiver as 
a matter of discretion. Since the identified basis for denial is dispositive of the Petitioner's appeal, we 
decline to reach and hereby reserve the Petitioner 's eligibility and appellate arguments under 
Dhanasar's second and third prongs as well as a determination as to whether the Petitioner has met 
the requirements ofEB-2 classification. See INS v Bagamasbad , 429 U.S. 24, 25 ("courts and agencies 
are not required to make findings on issues the decision of which is unnecessary to the results they 
reached"); see also Matter of L-A-C- , 26 l&N 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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