dismissed EB-2 NIW Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 15796476 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : WL Y 28, 2021 
Form 1-140, 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. § 1153(b )(2). 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner qualified 
for classification as a member of the professions holding an advanced degree, but that he had not 
established that a waiver of the required job offer , and thus of the labor certification, would be in the 
national interest. 
On appeal, the Petitioner submits additional documentation and a brief asserting that he is eligible for 
a national interest waiver. 
In these proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit 
sought. Section 291 of the Act, 8 U.S.C. § 1361. 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. 
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) Waiver ofjob 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 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 after a petitioner has established 
eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) may, as matter 
of discretion 1, 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 offer and thus of a labor certification. 
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 certification. In performing 
this analysis, USCIS may evaluate factors such as: whether, in light of the nature of the foreign 
national's qualifications or the proposed endeavor, it would be impractical either for the foreign 
national to secure a job offer or for the petitioner to obtain a labor certification; whether, even assuming 
that other qualified U.S. workers are available, the United States would still benefit from the foreign 
1 See also Poursina v. USC1S. No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or 
deny a national interest waiver to be discretionary in nature). 
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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 certification. 2 
II. ANALYSIS 
The Director found that the Petitioner qualifies as a member of the professions holding an advanced 
degree. The remaining issue to be determined is whether the Petitioner has established that a waiver of 
the requirement of a job offer, and thus a labor certification, would be in the national interest. For the 
reasons discussed below, we agree with the Director that the Petitioner has not sufficiently 
demonstrated the national importance of his proposed endeavor under the first prong of the Dhanasar 
analytical framework. 
Regarding his claim of eligibility under Dhanasar' s first prong, the Petitioner initially indicated that he 
intends "to continue working as a Software Developer in the information technology (IT) industry, 
analyzing, developing, engineering, and implementing tailor-made software for companies in a plethora 
of industries that help us in everyday life." He further stated that he plans to provide "technological 
services to U.S. companies that require my unique skillset to further their technological objectives and 
financial gains, therefore benefiting the economy." 
In response to the Director's request for evidence (RFE), the Petitioner asserted: "I intend to continue 
using my expertise and knowledge working as a software developer in the field ofIT in the United States, 
specifically focusing on systems development, web development, cybersecurity, and strategic planning." 
He also stated: "My overall proposed endeavor in the United states is to offer my expertise to fill the gap 
ofIT skilled professionals in the U.S. and bring innovative results to local companies, organizations and 
individuals improving both their social and monetary interests." In addition, the Petitioner indicated that 
he is currently working as a "Front-End Web Developer" forl luniversity'sl I 
Professional Education (CPE) "developing and maintaining the [CPE's] niain website as well as all 
other microsites, related sites and web services." 3 
The Petitioner response to the Director's RFE included a March 2020 letter from~I -----~ 
Director of Marketing for University's CPE, discussing the Beneficiary's job 
responsibilities.I I stated: 
As a web developer, [the Beneficiary] has been solely responsible for the development 
and maintenance of all websites in the CPE department. Currently, he takes care of the 
main website https:~ I which receives an average of 12,000 unique 
hits per month and is the website responsible for promoting all the courses offered by 
the department and also directs the online sale of the courses. He is responsible for the 
design, modification and development of web systems using advanced techniques for 
2 See Dhanasar, 26 T&N Dec. at 888-91, for elaboration on these three prongs. 
3 As the Petitioner is applying for a waiver of the job offer requirement, it is not necessary for him to have a job offer from 
a specific employer. However, we consider information about this position to illustrate the capacity in which he intends 
to work in order to determine whether his proposed endeavor meets the requirements of the Dhanasar framework. 
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implementation and problem solving . . . . He also takes care [ of] the department's 
website, which is the main entry point for new students. 
With the appeal, the Petitioner submits a letter fronJ I Director of Community Programs 
forl I University's CPE, indicating that the Beneficiary "has played a central role in 
making the user experience of browsing and registering for courses as easy as possible. With a 
mandate to create an experience that even his tech-illiterate parents could use, he has developed a new 
web experience for our students atl 1-" 
The record includes information about the technology industry outlook, the effect of cloud enterprise 
resource planning on business success, the growing importance of the technology economy, factors 
contributing to a company's successful data migration, technology as a business priority, the effect of 
IT on the structure of the modem corporation, talent shortages in the technology industry, and the 
decline in science and engineering proficiency as a threat to U.S. national security. In addition, the 
Petitioner provided articles discussing technology company acquisitions, the technology industry as a 
driver of the U.S. economy, the changing role of IT in the future of business, big data opportunities 
and challenges, the influence of information systems on business performance, trends in the IT sector, 
the costs associated with IT system downtime, the effect of the technology industry on U.S. economic 
growth, and a projected shortfall of Americans trained in science and engineering. He also submitted 
information about immigrant entrepreneurship as a driver of U.S. innovation, the U.S. technology 
industry's reliance on immigrants, business transformation for the digital age, the economic effects of 
information communications technology, business expectations in the post-digital era, the costs of 
unplanned IT outages, immigrants' role in economic growth, the occupational outlook for software 
developers, and a projected global talent crunch. The record therefore supports the Director's 
determination that the Petitioner's proposed work as a software developer has substantial merit. 
In determining national importance, the relevant question is not the importance of the field, industry, 
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. In Dhanasar, we 
further 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. 
In his appeal brief: the Petitioner asserts that he "has over 12 years of progressive experience in the IT 
field" in areas such as "project planning, specification of requirements, [and] development and 
maintenance of software systems." He also points to his Master of Business Administration degree and 
bachelor's degree. The Petitioner's skills and knowledge in his field relate to the second prong of the 
Dhanasar framework, which "shifts the focus from the proposed endeavor to the foreign national." Id. 
at 890. The issue here is whether the specific endeavor that he proposes to undertake has national 
importance under Dhanasar's first prong. 
Additionally, the Petitioner argues that his proposed endeavor offers "substantially positive economic 
effects, due to the ripple effects of his professional activities within the field." He contends that his 
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undertaking helps students "advance their careers by creating a flawless user experience and 
functioning website ." The Petitioner further asserts that his proposed work "is unquestionably of 
national importance , given the significant economic impact of building new skilled workforce in the 
United States ." In addition , he indicates that "[t]he United States is presently facing a concerning 
shortage ofIT professionals , and leading trends suggest that the U.S. is fast approaching a technology 
crisis" due to our country's "IT skills gap." 4 The Petitioner also claims that his endeavor stands to 
affect the national economy by "driving results for U.S. higher education institutions ," "helping them 
to keep up with the fast-pace of technological innovations and practices ," and "enabl[ing] them to 
generate revenue and progress in meeting their educational objectives." 
To evaluate whether the Petitioner 's proposed endeavor satisfie s the national importance requirement 
we look to evidence documenting the "potential prospective impact" of his work. Although the 
Petitioner's statements reflect his intention to provide valuable software development service s for 
I I University or any other future U.S. employer , he has not offered sufficient information 
and evidence to demon strate that the prospective impact of his proposed endeavor rises to the level of 
national importance. 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. Here , we conclude the record does not show that the Petitioner's proposed endeavor stands to 
sufficiently extend beyond his employer and its IT systems' users to impact the field or the U.S. higher 
education system more broadly at a level commensurate with national importance. 
Furthermore, the Petitioner has not demonstrated that the specific endeavor he proposes to undertake 
has significant potential to employ U.S. workers or otherwise offers substantial positive economic 
effects for our nation. Without sufficient information or evidence regarding any projected U.S. economic 
impact or job creation attributable to his future work, the record does not show that benefits to the regional 
or national economy resulting from the Petitioner's software development projects would reach the level 
of "substantial positive economic effects" contemplated by Dhanasar . Id. at 890. Accordingly , the 
Petition er's proposed work does not meet the first prong of the Dhanasar framework. 
Because the documentation in the record does not establish the national importance of his proposed 
endeavor as required by the first prong of the Dhanasar precedent decision, the Petitioner has not 
demonstrated eligibility for a national interest waiver. Further analysis of his eligibility under the second 
and third prongs outlined in Dhanasar , therefore, would serve no meaningful purpose. 
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. The appeal will be dismissed for the above stated reasons , with each considered as an 
independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
4 Regarding this issue, the Petitioner states that he is "helping to fill the urgent shortage of qualified IT professional s in the 
U.S." We note that the U.S. Department of Labor addresses shortages of qualified workers through the labor certification 
process. Accordingly , a shortage alone does not demonstrate that waiving the requirement of a labor certification would 
benefit the United States. 
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