dismissed EB-2 NIW Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: NOV. 01, 2024 In Re: 34836399 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a software developer, seeks employment-based second preference (EB-2) immigrant 
classification as either a member of the professions holding an advanced degree or an individual of 
exceptional ability, 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 that the Petitioner's eligibility for the requested national interest waiver. 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 qualify for the underlying EB-2 visa classification, a petitioner must establish they are an advanced 
degree professional or an individual of exceptional ability in the sciences, arts, or business. Section 
203(b)(2)(A) of the Act. 
An advanced degree is any U.S. academic or professional degree or a foreign equivalent degree above 
that of a bachelor's degree. A U.S. 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). 
If a petitioner establishes eligibility for the underlying EB-2 classification, they must then demonstrate 
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 I&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 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. 
Id. 
II. ANALYSIS 
The Director determined that the Petitioner qualifies as an advanced degree professional, but did not 
establish eligibility for a national interest waiver under the Dhanasar framework. For the reasons set 
forth below, we agree that the Petitioner has not met the Dhanasar framework and dismiss the appeal. 
The first 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. In determining 
whether the proposed endeavor has national importance, we consider its potential prospective impact. 
Matter ofDhanasar, 26 I&N Dec. at 889. 
The record reflects that the Petitioner intends to work in the United States as a software developer. In 
the initial filing of the petition, the Petitioner submitted a letter of support summarizing his experience 
in the field, and discussing the importance of software development and the technology field, which 
the Petitioner claimed, "will always be one of the priorities of any nation, [ and is] of vital importance 
for the population's life quality and economy." In the Petitioner's letter of support accompanying his 
petition he indicated several supporting documents were included within the filing, including a 
personal statement, a professional plan, and evidence of his education and experience. Notably, 
however, according to USCIS records, the supporting documents did not accompany the initial filing. 
Accordingly, the Director issued a request for evidence (RFE) informing the Petitioner that the 
supporting evidence listed in the record was not submitted with the filing. In the RFE, the Director 
listed the documentation received by USCIS, inclusive of the Petitioner's Form 1-140, Immigrant 
Petition for Alien Workers, and accompanying letter of support, but incorrectly indicated that the 
Petitioner "did not" submit the documents listed. Nonetheless, the Director's RFE did correctly inform 
the Petitioner that the supporting documents listed in the letter of support did not accompany the filing. 
In response to the Director's RFE, the Petitioner submitted the supporting documentation, which 
included his personal statement, professional plan, and recommendation letters. In his professional 
statement, the Petitioner asserted his plans "to come to the United States to increase [his] technical 
and professional skills and knowledge [on] systems development, new technologies and new 
methodologies, as well as producing new projects in large companies." And he asserted his intent to 
"offer his knowledge and expertise to a multinational IT company," and eventually pursue a Ph.D. in 
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 is discretionary 
in nature). 
2 
software development. His professional plan also included various employment statistics and general 
background information on the software development field and related professions. In support of his 
endeavor, the Petitioner also submitted an expert opinion letter and several recommendation letters 
from former colleagues and professors commending his skills in software development as well as his 
professionalism in his past positions. 2 
Upon review, the Director denied the pettt1on, concluding that the Petitioner did not establish 
eligibility for the requested national interest waiver under the Dhanasar analytical framework. 
Specifically, because the Director concluded that the Petitioner did not provide specific insight into 
his intended plans in the United States, the Director determined that the Petitioner did not establish 
the substantial merit of their endeavor. Likewise, regarding the national importance of the endeavor, 
the Director concluded that the Petitioner had not established his work would result in broader 
implications to the field, or otherwise result in a significant potential to employ U.S. workers or other 
substantially positive economic effects contemplated in Dhanasar. 
On appeal, the Petitioner dedicates significant discussion to the claimed deficiencies in the Director's 
RFE, and asserts that the Director erred in denying the petition without first issuing a second RFE 
allowing the Petitioner to address any deficiencies in the initial evidence and present new evidence. 
Specifically, the Petitioner states he "did not have a chance to explain his specific proposed endeavor 
through a [r]esponse to the RFE ... but to address that matter, the statement sent in the initial [filing] 
elucidates the particular significance and substantial merit of the petitioner's insights on a national 
level." And the Petitioner states that "essentially [his] proposed initiative is geared towards offering 
information technology solutions and services to both private and public enterprises reliant on 
computerization." 
As a preliminary matter, although the regulation at 8 C.F .R. § 103 .2(b )(8)(iii) gives USCIS the 
discretion to issue an RFE, the regulation permits the Director to deny a petition for failure to establish 
eligibility without first having to request evidence regarding the ground or grounds of ineligibility 
identified by the Director. As such, even if the Director had erred as a procedural matter in not issuing 
a second RFE after receiving the Petitioner's initial evidence, it is not clear what remedy would be 
appropriate beyond the appeal process itself, which provided the Petitioner another opportunity to 
supplement the record and establish that he is eligible for the requested national interest waiver. While 
the Petitioner submitted a brief on appeal, he did not supplement the record with new evidence.3 
Moreover, a petitioner is required to establish eligibility for the benefit sought at the time of filing. 4 
Turning to our de novo review of the record, although the Petitioner's statements in the record reflect 
his intention to generally provide software development to U.S. companies, we agree with the Director 
2 While we do not discuss each piece of evidence contained in the record individually, we have reviewed and considered 
each one. 
3 The Petitioner's appellate brief makes mention of an updated personal statement; however, an additional statement was 
not provided with the appeal. 
4 A petition must meet the statutory and regulatory requirements for approval as of the date it was filed. Ogundipe v. Mukasey, 
541 F.3d 257,261 (4th Cir. 2008). This principle is codified in the regulation at 8 C.F.R. § 103.2(b)(l), which states in 
pertinent part that a "petitioner must establish that he or she is eligible for the requested benefit at the time offiling 
the benefit request and must continue to be eligible through adjudication." [emphasis added]. 
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that the record does not sufficiently explain the Petitioner's specific endeavor to demonstrate the 
substantial merit and national importance of his proposed endeavored. A petitioner must identify "the 
specific endeavor that [he] proposes to undertake." See Matter ofDhanasar, 26 I&N Dec. at 889; see 
generally 6 USCIS Policy Manual F.5(D)(l) ("The term 'endeavor' is more specific than the general 
occupation; a petitioner should offer details not only as to what the occupation normally involves, but 
what types of work the person proposes to undertake specifically within that occupation.") And we 
must rely on the specific proposed endeavor to determine whether it has both substantial merit and 
national importance. 
On appeal, the Petitioner asserts that his proposed endeavor of working in the software development 
field "holds paramount national importance for the United States, given its profound impact on 
technological innovation, economic growth, national security, education, global leadership, quality of 
life, and adaptability." But the Petitioner's claims on appeal primarily rely on the importance of the 
software developer occupation and related fields, rather than the prospective impact of his specific 
endeavor. 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. 
The Petitioner asserts that his expertise is "poised to contribute to the seamless operations of industries, 
the advancement of technology, and, consequently, will leave a lasting impact on the North American 
national landscape." However, generalized conclusory statements that do not identify a specific 
impact in the field have little probative value. See e.g., 1756, Inc. v. US. Att'y Gen., 745 F. Supp. 9, 
15 (D.D.C. 1990) (holding that an agency need not credit conclusory assertions in immigration benefits 
adjudications). In Dhanasar, we determined that the petitioner 's teaching activities did not rise to the 
level of having national importance because they would not impact his field more broadly. Id. at 
893. Similarly, the Petitioner's general assertions of providing services "geared toward supporting 
businesses reliant on computerization," do not establish that the Petitioner's proposed endeavor stands 
to sufficiently extend beyond his potential employer(s) and/or customers to impact the field more 
broadly at a level commensurate with national importance. 
And we agree with the Director that the Petitioner has not demonstrated that his intended employment 
as a software developer 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. Without sufficient information or evidence regarding any 
projected economic impact or job creation directly attributable to his future work (as opposed to the 
general economic impact of the software development 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. 
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The testimonial evidence in the record, including the expert op1rnon letter and the letters of 
recommendation, also provide little probative value in establishing the national importance of the 
Petitioner's endeavor. For example, in their expert opinion letter, Dr. M-H- primarily focuses on the 
Petitioner's background as well as the impact of the software development field collectively, and the 
collective benefit of software development and technological advancements, rather than the 
Petitioner's proposed work. But, beyond broad assertions that the Petitioner's experience equips him 
with the necessary knowledge to provide software development services to "drive technological 
advancements," and "introduce innovative software solutions," Dr. M-H- does not explain how these 
services provided to prospective employers and/or clients would broadly impact the field. USCIS 
may, in its discretion, use as advisory opinions statements from universities, professional 
organizations, or other sources submitted in evidence as expert testimony. Matter of Caron Int 'l, 19 
I&N Dec. 791, 795 (Comm'r. 1988). However, USCIS is ultimately responsible for making the final 
determination regarding a noncitizen's eligibility. The submission of letters from experts supporting 
the petition is not presumptive evidence of eligibility. Id., see also Matter ofD-R-, 25 I&N Dec. 445, 
460 n.13 (BIA 2011) ( discussing the varying weight that may be given expert testimony based on 
relevance, reliability, and the overall probative value). And 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. 
For the reasons discussed, the evidence does not establish the substantial merit or national importance 
of the proposed endeavor as required by the first prong of the Dhanasar precedent decision. 
III. CONCLUSION 
Because the identified reason for dismissal is dispositive of the Petitioner's appeal, we decline to reach 
and hereby reserve the Petitioner's remaining arguments concerning eligibility under Dhanasar's 
second and third prongs. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (stating that "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 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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