dismissed EB-2 NIW Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 12469158 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 3, 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 and as an individual of exceptional ability, 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 did not 
qualify for classification as an individual of exceptional ability and had not established that a waiver 
of the required job offer, and thus of the labor certification, would be in the national interest. 
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 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) 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. 
Section 10l(a)(32) of the Act provides that "[t]he term 'profession' shall include but not be limited to 
architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, 
colleges, academics, or seminaries." 
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definitions: 
Advanced degree means any United States academic or professional degree or a foreign 
equivalent degree above that of baccalaureate. A United States baccalaureate degree 
or a foreign equivalent degree followed by at least five years of progressive experience 
in the specialty shall be considered the equivalent of a master's degree. If a doctoral 
degree is customarily required by the specialty, the alien must have a United States 
doctorate or a foreign equivalent degree. 
Exceptional ability in the sciences, arts, or business means a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business. 
In addition to the definition of "advance degree" provided at 8 C.F.R. § 204.5(k)(2), the regulation at 
8 C.F.R. § 204.5(k)(3)(i)(B) provides that a petitioner present "[a]n official academic record showing 
that the alien has a United States baccalaureate degree or a foreign equivalent degree, and evidence in 
the form ofletters from current or former employer(s) showing that the alien has at least five years of 
progressive post-baccalaureate experience in the specialty." 
To demonstrate eligibility as an individual of exceptional ability, a pet1t10ner must submit 
documentation that satisfies at least three of the six categories of evidence listed at 8 C.F.R. 
§ 204.5(k)(3)(ii). 
Furthermore, 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). 1 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 2, 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 
1 In announcing this new framework. we vacated our prior precedent decision, Matter of New York State Department of 
Transportation. 22 l&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
2 See also Poursina v. USC1S, 936 F.3d 868, 2019 WL 4051593 (9th Cir. 2019) (finding USCIS' decision to grant or deny 
a national interest waiver to be discretionary in nature). 
2 
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 he 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 
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. 3 
II. ANALYSIS 
The Petitioner claims to be a software developer, and states that he intends to "develop integral 
software for different industries wherever there may be a need for specifically designed software." As 
stated above, the first step to establishing eligibility for a national interest waiver is demonstrating 
qualification for the underlying EB-2 visa classification, as either an advanced degree professional or 
an individual of exceptional ability. 4 
A. Exceptional Ability 
The Petitioner contends that he meets at least three of the regulatory criteria for classification as an 
individual of exceptional ability. In denying the petition, the Director determined that the Petitioner 
fulfilled only the degree criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A) and the ten years of foll-time 
experience criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B). 
3 See Dhanasar, 26 T&N Dec. at 888-91, for elaboration on these three prongs. 
4 Although the Petitioner also asserted eligibility as a member of the professions holding an advanced degree, the Director 
only analyzed his eligibility as an individual of exceptional ability. We will address his eligibility under both criteria. 
3 
In the appeal brief: the Petitioner maintains that he also meets the regulatory criterion at 8 C.F.R. § 
204.5(k)(3)(ii)(D), which requires "[ e ]vidence that the alien has commanded a salary, or other 
remuneration for services, which demonstrates exceptional ability," and the recognition for 
achievements and significant contributions criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F). 5 
An official academic record showing that the alien has a degree, diploma, certificate, or 
similar award.from a college, university, school, or other institution of learning relating to the 
area of exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(A). 
The Petitioner presented copies of his diploma and transcript, with certified translations, from the 
.__ ______ __. University of1 I demonstrating that he received a bachelor of arts in 
mathematics in July 1991. We agree with the Director's determination that the Petitioner met this 
criterion. 
Evidence in the form ofletter(s)from current or former employer(s) showing that the alien 
has at least ten years offitll-time experience in the occupation for which he or she is being 
sought. 8 C.F.R. § 204.5(k)(3)(ii)(B). 
The Petitioner claims that he has been a partner and owner ofl I since May 
1995, as well as a partner and owner oti I since 2006. The 
Director determined that .......,..........,..........., .... ner met this criterion, based on the submission of three letters from 
Upon review, however, these letters are testimonials 
from clients of~--------~ and I l, and not 
letters from the employers themselves. Consequently, they do not satisfy the plain language of this 
criterion. 
Though not analyzed by the Director, the record con;:.:.t::::a~in:.::::s:....:a::...:::le:,::tt::::::e::...r..::::fr~o:.:::m~I====:;-----.=========\ 
who states that he is also a partner and owner of.__ __________ _, an~ 
I I Regarding the Petitioner's experience in the occupa .... t-io_n_o_f_s_o_f_tw_ar_e_. 
developer, he states as follows: 
[The Petitioner] has over 24 years of software development experience and has been a 
partner 0~ I since 1995 and I r--ince 2006. On al daily I 
basis, [the Petitioner] is responsible for providing the strategy and direction for 
I l an<ll lwhile developing customized software solutions for 
our customers. In addition to software development, [the Petitioner] provides physical 
maintenance of microcomputers and local networks, server management for windows 
servers, IT management, demand planning, and usage monitoring, as well as local, 
remote, as well as technical support. 
This documentation falls short in demonstrating that the Petitioner has at least ten years of full-time 
experience in software development. Although the letter indicates that the Petitioner was a partner and 
owner of the two businesses noted above, the letter does not indicate that the Petitioner's experience as 
a software developer was "full-time." The letter does not indicate how the Petitioner divided time 
5 While the Petitioner maintains that he has satisfied these criteria on appeal, he does not contest the Director's adverse 
findings or provide evidence to refute those findings. 
4 
among his various business responsibilities as a partner/owner or specify the amount of time he 
devoted to working full-time as a software developer. Accordingly, the Petitioner has not established 
that he meets the requirements of this regulatory criterion. The Director's determination to the 
contrary is withdrawn. 
A license to practice the profession or cert[fication for a particular profession or 
occupation. 8 C.F.R. § 204.5(k)(3)(ii)(C). 
The Petitioner did not submit any evidence to show that a license or certification is required to practice 
his profession, or that he possesses such a license or certification. This criterion has not been met. 
Evidence that the alien has commanded a salmy, or other remuneration for services, 
which demonstrates exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(D). 
To satisfy this criterion, the evidence must show that an individual has commanded a salary or 
remuneration for services that is indicative of his claimed exceptional ability relative to others working 
in the field. The Petitioner submitted a letter from his accountant, listing his annual salary for the 
years 2014, 2015, 2016 and 2017. He also submitted printouts froml l which contained salary 
data for the occupations of system developer and software engineer in Brazil. 
The Director noted that this documentation was not persuasive, as the submitted documents were not 
representative of the median salary of the occupation of software developer, the Petitioner's claimed 
field of endeavor. On appeal, the Petitioner does not contest the Director's determination. 
Upon review, we concur with the Director's conclusion. The Petitioner has not offered documentation 
showing that his earnings are indicative of exceptional ability relative to others performing similar 
services in the field. Moreover, even if the documents froml I were deemed representative 
of others performing similar services in the field, we note that the documents are not accompanied by 
a certified English translation. 6 Any document in a foreign language must be accompanied by a full 
English language translation. 8 C.F.R. § 103.2(b)(3). The translator must certify that the English 
language translation is complete and accurate, and that the translator is competent to translate from 
the foreign language into English. Id. Because the Petitioner did not submit a properly certified 
English language translation of the documents, we cannot meaningfully determine whether the 
translated material is accurate and thus supports the Petitioner's claims. Based on the foregoing, the 
Petitioner has not demonstrated that he meets this regulatory criterion. 
Evidence of membership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
The Director found that the Petitioner had not presented evidence showing he belongs to a professional 
association. His appellate submission does not contest the Director's finding or claim that he meets 
this criterion. 
6 Although the occupation title and description is stated in English, the remainder of the document appears to be in 
Portuguese. 
5 
Evidence of recognition 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 Petitioner submitted support letters from clients, as well as an expert opinion letter, which discuss 
his career accomplishments and future plans . The Director determined that these letters did not 
demonstrate that he has received "recognition for achievements and significant contributions to the 
industry or field," and the Petitioner does not contest the Director 's finding on appeal. We agree with 
the Director 's determination that the Petitioner has not met the plain language requirements of 8 C.F.R. 
§ 204.5(k)(3)(ii)(F), as the record is insufficient to demonstrate that he received recognition for 
achievements and significant contributions to the industry or field by peers, governmental entities, or 
professional or business organizations . 
Accordingly, the Petitioner has not shown that he satisfies at least three of the criteria at 8 C.F.R. 
§ 204.5(k)(3)(ii) and has achieved the level of expertise required for exceptional ability classification. 
B. Member of the Professions Holding an Advanced Degree 
The Director's decision did not address the Petitioner's qualifications as an advanced degree 
professional. On appeal, the Petitioner asserts that he meets this classification by virtue of his "Master 
of Administration degree, and over 10 years of experience in his respective field." 
In order to show an individual is a professional holding an advanced degree, the petition must be 
accompanied by "[a]n official academic record showing that the alien has a United States advanced 
degree or a foreign equivalent degree ." 8 C.F.R . § 204.5(k)(3)(i)(A). Alternatively, the Petitioner 
may present "[a]n official academic record showing that the alien has a United States baccalaureate 
degree or a foreign equivalent degree, and evidence in the form of letters from current or former 
employer(s) showing that the alien has at least five years of progressive post-baccalaureate experience 
in the specialty." 8 C.F.R. § 204.5(k)(3)(i)(B). 
The Petitioner submitted a copy of his diploma and transcript, with certified translations, from the 
I I University of1 I demonstrating that he received a bachelor of arts in 
mathematics in July 1991. The Petitioner also submitted a certificate indicating that he completed a 
specialization course in analysis, project, and systems management at the same university in 1996. 
The record also contains an "Eva luation of Education and Career Experience" from I I l which concludes that the Petitioner holds the equivalent of a U.S. master's d .... e_g-re_e_i_n_s-oft_w_a-re..., 
engineering "based upon a combination of Academics and a minimum 5 years Professional 
experience, as per USCIS." For the reasons outlined below, we are not persuaded by the evaluator's 
conclusions. 
First, the evaluation does not establish that the Petitioner's education alone meets the regulation at 
8 C.F.R. § 204.5(k)(3)(i)(A). Although it appears that the Petitioner holds the equivalent of a U.S. 
bachelor's degree based on his foreign diploma in mathematics and the evaluator's detailed analysis 
of the accompanying transcript and relevant coursework, the evaluation is insufficient to establish that 
that the Petitioner holds a foreign master 's degree, or its U.S. equivalent. 
6 
As noted above, the record contains a certificate indicating that the Petitioner completed a 
specialization course in analysis, project, and systems management. The "Certificado" is accompanied 
by a certified translation, which states that the Petitioner "successfully completed the Specialization 
Course in ANALYSIS, PROJECT AND SYSTEM MANAGEMENT at the Lato-Sensu Graduate 
level." (Emphasis in original). Although the evaluator concluded that the Petitioner "was awarded a 
Master's Degree in Analysis, Projects and Systems Management in 1996," the certificate does not 
indicate that the Petitioner completed a master's program, and the evaluator provides no analysis or 
explanation regarding how he determined that the Petitioner's completion of this course represents a 
foreign master's degree or its U.S. equivalent. 7 The evaluator does not compare the requirements of 
the specialization course to a U.S. master's degree program, nor does he analyze or discuss the actual 
coursework completed by the Petitioner. As a matter of discretion, we may use opinion statements 
submitted by the Petitioner as advisory. Matter of Caron Int'l, Inc., 19 I&N Dec. 791, 795 (Comm'r 
1988). However, we will reject an opinion or give it less weight if it is not in accord with other 
information in the record or if it is in any way questionable. Id. The lack of evidence supporting the 
evaluator's conclusions undermines the credibility of the evaluation. 
Moreover, while the evaluator states that the "evaluation relies upon the copies of the original 
documents of the diplomas, transcripts, and resume provided by" the Petitioner, there is no indication 
that he reviewed any employment letters to establish the Petitioner's work histo or experience. 8 As 
noted above, the Petitioner submitted a letter from his partner and 
co-owner ofl I and.__ ______________ ____,, which stated 
that the Petitioner "is responsible for providing the strategy and direction" for the companies "while 
developing customized software solutions for our customers." It also indicated that he "provides physical 
maintenance of microcomputers and local networks, server management for windows servers, IT 
management, demand planning, and usage monitoring, as well as local, remote, as well as technical 
support." This letter, however, is not sufficiently detailed to establish that the Petitioner's entire course 
of work experience with the aforementioned companies. Other than identifying his job title as "partner," 
the letter does not confirm his job titles, describe his job duties, or provide the dates of employment for 
each position he may have held aside from "partner" during the course of his claimed employment with 
the companies. The information in the aforementioned letter, therefore, is not sufficient to demonstrate 
that the Petitioner has at least five years of progressive post-baccalaureate experience in software 
development. 
7 We note that the translated certificate indicates that the completed course was at the "Lato-Sensu" level. According to 
the American Association of Collegiate Registrars and Admissions Officers' Electronic Database for Global Education 
(EDGE), graduate level programs in Brazil "are divided into Cursos de Aperfei9oamento (professional development 
programs), Cursos de Especializar;ao (specialization programs), Mestrado Profissional (professional masters), Cursos de 
Mestrado (masters degree programs) and Cursos de Doutorado (doctoral programs). Professional development and 
specialization programs are considered lato sensus (wide sense graduate-level programs) and follow independent 
legislation. Such programs lead toward professional certificates, not graduate degrees. They require either 1 to 2- or 1- to 
3- years of study." See https://www.aacrao.org/edge/country/brazil (last visited Jul. 15, 2021 ). We consider EDGE to be 
a reliable source of information about foreign credential equivalencies. Sec Confluence Intern., Inc. v. Holder, Civil No. 
08-2665 (DSD-JJG), 2009 WL 825793 (D. Minn. Mar. 27, 2009); Tisco Group, Inc. v. Napolitano, No. 09-cv- l 0072, 2010 
WL 3464314 (E.D. Mich. Aug. 30, 201 O); Sunshine Rehab Services, Inc. No. 09-13605, 2010 WL 3325442 (E.D. Mich. 
Aug. 20, 2010). See also Viraj. LLCv. Holder, No. 2:12-CV-00127-RWS, 2013 WL 1943431 (N.D. Ga. May 18, 2013). 
8 The job duties listed in the "professional experience" section of the evaluation are taken directly from the Petitioner's 
resume. 
7 
Although the record contains certificates demonstrating that the Petitioner completed two professional 
certifications in his field, these certificates alone are not sufficient to establish he has the requisite five 
years of post-baccalaureate experience required by the regulations. One certificate indicates that the 
petitioner completed a course in BASIC in July of 1986, six years prior to obtaining his undergraduate 
degree. The duration of this course is not specified. The record also includes a certificate indicating 
that he completed a 35-hour course in Interbase in July 2001. Upon review, however, these two 
certificates, one of which was obtained prior to his undergraduate degree and commencement of his 
claimed employment, are insufficient to demonstrate five years of progressive post-baccalaureate 
experience in the field of software development. 
C. National Interest Waiver 
The remaining issue is whether the Petitioner has established that a waiver of the requirement of a job 
offer, and thus a labor certification, is in the national interest. As previously outlined, in order to qualify 
for a national interest waiver, the Petitioner must first show that he qualifies for classification under 
section 203(b )(2)(A) of the Act as either an advanced degree professional or an individual of 
exceptional ability. As the Petitioner has not established eligibility for the underlying immigrant 
classification, the issue of the national interest waiver is moot. 
III. CONCLUSION 
The Petitioner has not established that he satisfies the regulatory requirements for classification as an 
advanced degree professional or as an individual of exceptional ability. 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. 
8