dismissed EB-2 NIW Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: DEC. 7, 2023 In Re: 28467082 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a software developer in the information technology field, seeks employment-based 
second preference (EB-2) immigrant classification as 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). U.S. Citizenship and 
Immigration Services (USCIS) may grant this discretionary waiver of the required job offer, and thus 
of a labor certification, when it is in the national interest to do so. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner (1) qualifies for the underlying classification or (2) is eligible for or 
otherwise merits a national interest waiver as a matter of discretion. 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 ofChawathe , 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christa '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. 
Exceptional ability means a degree of expertise significantly above that ordinarily encountered in the 
sciences, arts, or business. 8 C.F.R. § 204.5(k)(2). A petitioner must initially submit documentation 
that satisfies at least three of six categories of evidence. 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). Meeting 
at least three criteria, however, does not, in and of itself, establish eligibility for this classification. If 
a petitioner does so, we will then conduct a final merits determination to decide whether the evidence 
in its totality shows that they are recognized as having a degree of expertise significantly above that 
ordinarily encountered in the field. 
Once a petitioner demonstrates eligibility for the underlying classification, the petitioner must then 
establish eligibility for 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 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. 
II. ANALYSIS 
A. The Petitioner's Endeavor 
The Petitioner proposes to work in the United States as an "IT Developer," and initially described his 
general duties on the Form 1-140 as being to research, design, develop, and test operating systems­
level software, and to analyze information to determine, recommend, and plan installation of a new 
system or modification of an existing system. With his initial filing, he described a software 
application called I I which he stated "streamline[ s] the property rental process" and 
asserted that, upon the approval of his permanent resident status, he will "partner with property 
management companies and integrate their services with well-known channels including Airbnb, 
Booking.com, VRBO, Tripadvisor, and Expedia." 
He advised that his technology allows a rental management system to: 
create . . . [a] guest profile, allowing them to communicate for the purpose of their 
arrival, which, in tum, increases safety and the owner's and property manager's ability 
to offer a personalized service. Property managers and owners utilize platforms to 
reduce manual tasks. [The Petitioner's] software will offer features such as a bulk 
payment of all utility bills that help increase automation and reduce time ... [ and] also 
offers extra services such as mid stay cleaning for guests that utilize longer stays. 
In his response to the Director's request for evidence, he stated he would: 
continue working as the Senior IT Developer for his own Florida-based IT company in 
the U.S.,I Iproviding complex, innovative IT specialized solutions 
to support small and medium property management businesses across the U.S., 
including vacation property owners and property managers, helping them overcome the 
challenges associated with the ever-evolving needs related to information technology 
while equipping them in offering non-stop service, personalized sta an "at home" 
feeling, local culture experience, and guest safety, through software 
platform. I I has already partnered with ~------~ a 
1 See also Poursina v. USCJS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
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property management company that owns over 50 vacation rental properties m 
Orlando, Florida, the biggest market for vacation rentals in the U.S. 2 
B. Substantial Merit and National Importance 
Upon de novo review, we conclude the record does not demonstrate that the Petitioner's proposed 
endeavor satisfies the national importance element of Dhanasar 's first prong. 3 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 Director concluded that even though the Petitioner's endeavor has substantial merit, the record 
did not show that the proposed endeavor is of national importance. On appeal, the Petitioner argues 
that the Director erred because the Petitioner has extensive experience in related areas such as service­
oriented architecture, enterprise implementations, and system engineering. He asserts that his 
experience will contribute to the continued growth of the software development industry, and that his 
unique set of skills will help create innovative software products which will enhance the 
competitiveness of U.S. firms globally. He describes how his knowledge of "offshore development 
operations" can help U.S. businesses "manage and collaborate with offshore development teams more 
effectively" and that his "knowledge will also reduce the cost of offshore development, while ensuring 
the quality of the end product." The Petitioner argues that the national importance of his endeavor 
hinges on his extensive experience in software development and related areas, his expertise in 
managing offshore development operations, his proven leadership and management skills, his 
commitment to continuous learning and improvement; and his potential to contribute to the cultural 
diversity of the U.S. software development market. 
Although the Petitioner's work experience and education are extensive and his commitment to 
continuous learning and improvement is admirable, his expertise and record of success in previous 
positions 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, by a preponderance of the evidence, the national importance of his proposed work. 
The Petitioner provided two opinion letters, which assert that his endeavor carries national importance 
because of the potential economic impact it would have on the tourism industry. While we recognize 
the importance of the tourism industry to the national economy, the opinions lack objectivity and do 
not provide the details or measurements used to support their assertions. For example, one opinion 
asserts that the software industry in the United States is growing, however, that fact does not relate to 
2 The record contains a letter dated September 2, 2022, from '-----------------+'-'-"-------.J 
Florida-based company explaining that in 2019, the company hired the Petitioner's company to implement.__ _____. 
software. Public source information shows that I lis a company registered to the Petitioner. See 
https://www.bbb.org/us/t1/orlando/profild I. Although our decision 
does not rest on this information, we point it out so that any future petitions filed by the Petitioner can address the business 
relationship between the Petitioner's company andl I. 
3 While we may not discuss every document submitted, we have reviewed and considered each one. 
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how the Petitioner's endeavor is of national importance. The same opinion explains that his property 
management software has the potential to improve the efficiency and overall operational capabilities 
of companies operating in the vacation rental industry, however the opinion fails to provide specific 
evidence to explain how the Petitioner's specific endeavor has national importance apart from 
providing his potential customers with technology. In general, assertions must be supported by 
evidence pointing to where the truth lies. Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Similarly, the Petitioner provides reports from a variety of sources, such as Forbes, the Department of 
Labor's Bureau of Labor Statistics, BSA The Software Alliance, and the Software and Information 
Industry Association to explain how the software development industry is growing and vital to the 
U.S. economy, however none of these reports or documents explain how the Petitioner's specific 
endeavor of providing software technology to small and medium sized rental property management 
companies is of national importance. 
Here, 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 evidence regarding any projected U.S. economic impact or job creation directly 
attributable to his future work, the record does not show that benefits to the 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. 
While we acknowledge that he is an active member of the Institute of Electrical and Electronics 
Engineers (a professional association), neither his membership nor his continued educational pursuits 
establish the national importance of his proposed endeavor because it does not, for example, speak to 
the broader implications that his endeavor may have on the information technology field as a whole 
or establish any economic impact it may have. Id. 
The Petitioner asserts that his knowledge of how offshore software development activities take place 
will help U.S. firms in "managing and collaborating with offshore development teams more 
effectively." However, his claims that his ability to assist U.S. firms wishing to engage in offshore 
software development operations is not congruent or consistent with his stated endeavor, and is not 
supported by independent, objective evidence. See Matter of Chawathe, 25 I&N Dec. at 376. 
Similarly, his claim that his endeavor will "contribute to the cultural diversity of the U.S. software 
development market" is not supported by any objective evidence. Id. Thus, the Petitioner has not 
established how his endeavor would advance the national interest because there is an overall lack of 
relevant, objective, and probative evidence to support his claims. 
When determining national importance, the relevant question is not the importance of the industry or 
profession in which the individual will work; instead, we focus on "the specific endeavor that the 
foreign national proposes to undertake." Matter ofDhanasar, 26 I&N Dec. at 889. The Petitioner's 
stated endeavor relates to how his company will create technology and assist small and medium rental 
companies operating within the tourism sector. However, the record lacks evidence to document the 
potential impact of his specific proposed endeavor on U.S. advancement in the field of information 
technology. Even considering the descriptions of the Petitioner's ongoing projects and letters of work 
experience from companies he claims to have engaged in business, the evidence collectively and in 
the totality of circumstances, does not support a conclusion that his specific proposed endeavor has 
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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 that the record does not show that the Petitioner's proposed endeavor stands 
to sufficiently extend beyond his clients to impact the information technology or tourism industries 
more broadly at a level commensurate with national importance. As required by Dhanasar, and as set 
forth above, the Petitioner has not submitted sufficient evidence to establish the broader implications 
of his work or that his proposed endeavor has significant potential to employ U.S. workers or otherwise 
offers substantial positive economic effects for the nation. 
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. We also 
reserve a determination on the Petitioner's eligibility for the underlying immigrant classification as an 
individual of exceptional ability. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("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). 
III. CONCLUSION 
As the Petitioner has not established his endeavor meets the first prong as set forth in Dhanasar 's 
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. 
ORDER: The appeal is dismissed. 
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