dismissed EB-2 NIW Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JULY 2, 2024 In Re: 31569887 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a software developer and information technology professional, 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 the Petitioner qualified for 
EB-2 classification as a member of the professions holding an advanced degree, but had not established 
that a waiver of the required job offer, and thus of the labor certification, would be in the national 
interest. 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 l&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 
If 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 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 
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 unpublish ed decision) in concluding that USCIS ' decision to grant or deny a national interest waiver is discretionary 
in nature). 
• On balance, waiving the job offer requirement would benefit the United States. 
Id. 
II. ANALYSIS 
The Petitioner submitted evidence that she holds the equivalent of a United States master's degree. 
The Director determined the Petitioner qualified for EB-2 classification as a member of the professions 
holding an advanced degree. We agree. The only issue on appeal is whether she qualifies for and 
merits a waiver of the job offer requirement in the national interest. 
In her autobiographical statement submitted initially, the Petitioner states she would like to become a 
successful business owner and information technology professional in the United States engaged in 
software development and quality assurance analysis and testing. In her business plan submitted in 
response to the Director's request for evidence, the Petitioner described her intention to form I 
I I a limited liability company (LLC) which would provide technological solutions tailored to the 
interior design industry and of which she would be the Chief Executive Officer (CEO). According to 
the business plan, the company would provide digital interior design consulting, three-dimensional 
visualization and modeling, virtual reality tours, design implementation assistance, and training and 
support. The business plan states the company would be based in New York and would serve a diverse 
clientele including individual homeowners, small businesses, large corporations, and construction 
compames. 
In response to the Director's RFE, the Petitioner submitted evidence that the Articles of Organization 
of her company were filed with the New York Department of State, and letters from businesses 
interested in investing in and collaborating with her company. These documents are dated in July 
2023 after her petition was filed in March 2023. Eligibility must be established at the time of filing. 
8 C.F.R. § 103.2(b)(l); see also Matter ofKatigbak, 14 I&N Dec. 45, 49 (Comm'r 1971) (providing 
that "Congress did not intend that a petition that was properly denied because the beneficiary was not 
at that time qualified be subsequently approved at a future date when the beneficiary may become 
qualified under a new set of facts."). Consequently, the Articles of Organization and the business 
letters submitted in response to the RFE cannot be considered in our assessment of the Petitioner's 
eligibility for a national interest waiver. 
A. Substantial Merit and National Importance 
The first Dhanasar prong, substantial merit and national importance, focuses on the specific endeavor 
that the individual proposes to undertake. Dhanasar, 26 I&N Dec. at 889. The endeavor's merit may 
be demonstrated in a range of areas such as business, entrepreneurialism, science, technology, culture, 
health, or education. Id. The Director determined the Petitioner's proposed endeavor has substantial 
merit. We agree. 
The Director concluded, however, that the Petitioner did not establish the national importance of her 
proposed endeavor. In determining whether the proposed endeavor has national importance, we 
consider its potential prospective impact. Id. This consideration may include whether the proposed 
endeavor has significant potential to employ U.S. workers (particularly in an economically depressed 
2 
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area), has other substantial positive economic effects, has national or even global implications within 
the field, or has other broader implications indicating national importance. Id. at 889-90. The Director 
determined the Petitioner did not establish that her work would sufficiently extend beyond her clients 
to impact her field more broadly at a level commensurate with national importance. 
On appeal, the Petitioner asserts her company will have national importance because "[ s ]oftware 
developers, as transformative agents in the technology sector, play a crucial role in driving innovation 
and change." The Petitioner claims the rapid growth of the software development industry shows "the 
economic impact of software developer startups is significant." The Petitioner submits articles 
discussing research on software development statistics and how software developer startups drive 
change. These articles address the importance of software development, but do not mention the 
Petitioner or her proposed endeavor. Our assessment of national importance does not focus on the 
importance of a field or occupation in general, but instead "focuses on the specific endeavor that the 
foreign national proposes to undertake." Id. at 889. 
The Petitioner also claims her company is "poised for significant market impact" because it will tap 
into the global construction and design software market which was valued at 9.6 billion dollars in 
2021. The Petitioner further asserts her company will generate significant employment opportunities 
for United States workers and contribute to broader economic development. The record does not 
support these claims. In her business plan, the Petitioner stated her company would employ six other 
individuals by its fifth year of operation. The Petitioner projected net income of $87,520 the first year, 
increasing to $350,630 in the fifth year of operation. The business plan does not state how these 
projections were made and the Petitioner did not submit evidence that this level of income and the 
employment of six people would have a substantial positive economic effect in New York. 
The Petitioner also claims her proposed endeavor has national importance because it will offer 
advanced technologies at the forefront of industry trends. The Petitioner's business plan states the 
company will provide design software, a construction pro design suite, virtual reality headsets, a 
mobile application, and custom software solutions. The business plan does not discuss how these tools 
are innovative or will otherwise have national or even global implications in her field. See id. 
( discussing improved manufacturing processes or medical advances as examples of national or even 
global implications within a particular field). 
On appeal, the Petitioner submits a recommendation letter from H-D-2, her former employer at 
I H-D- praises the Petitioner's work for his company and states 
she was rapidly promoted shortly after joining his team. H-D- states the Petitioner's "skills, academic 
qualifications and expertise make her an outstanding candidate who will undoubtedly make significant 
contributions to the well-being of the IT companies in the United States." The Petitioner also submits 
a letter from R-Y-, the CEO of and the Petitioner's current employer. R-Y- praises 
the Petitioner's work for his company and describes her as "one of the most exceptional members of 
[his] exclusive team." He also states that professionals like the Petitioner "are able to impact our 
economy positively contributing and reinforcing positive economic externalities." Like the authors of 
the support letters the Petitioner submitted initially, H-D- and R-Y- praise the Petitioner's past work 
and qualifications and express their confidence in her ability to succeed in the future, but they do not 
2 We use initials to protect the privacy of individuals referenced in this decision. 
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address her specific proposed endeavor. Cf id. at 892 ( stating Dhanasar submitted probative expert 
letters describing the importance of his specific research as it related to U.S. strategic interests). 
On appeal, the Petitioner also submits a letter from B-D-W-, Professor of Computer Science, 
Information Systems and Cyber Security at ____________ Oregon expressing 
his opinion that the Petitioner qualifies for a national interest waiver. Professor W- states that through 
focusing on environmental responsibility, innovation and technological advancements, talent 
development and retention, and strategic expansion, the Petitioner's company "is poised for 
continuous prosperity in the competitive arena of digital interior design" and is "a vital addition to the 
U.S. market." Professor W- discusses the growth and value of the construction and design software 
market within North America and the Asia Pacific region, but he does not specify how the Petitioner's 
specific proposed endeavor will impact her field beyond her individual clientele. 
Professor W- also asserts the Petitioner's proposed endeavor will broadly enhance societal welfare by 
"reshaping the way we interact with and within our spaces, cultivating an environment that supports 
well-being, efficiency, and the democratization of design." He does not, however, specify how the 
Petitioner's company would provide these enhancements in a manner that would extend beyond her 
individual clientele to impact her field more broadly. See id. at 889 ( explaining "we look for broader 
implications"). 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, the Petitioner has not established that her proposed endeavor would sufficiently extend beyond 
her individual clientele to impact her field more broadly at a level commensurate with national 
importance. 
Professor W- further claims the Petitioner's proposed endeavor has national importance because it 
"intersects with national matters of significance," such as the federal government's strategic plan for 
advancing Building Information Modeling, fostering a skilled workforce as outlined in the American 
Innovation and Competitiveness Act, and focusing on sustainable development through the Executive 
Order on Tackling the Climate Crisis at Home and Abroad. The Petitioner did not submit evidence of 
these national initiatives and our assessment of national importance does not rest on the importance of 
national issues in general, but "focuses on the specific endeavor that the foreign national proposes to 
undertake." Id. at 889. While Professor W- references the Petitioner's company's commitment to 
environmental sustainability and "technologically forward" practices, he does not discuss how her 
company would impact these national initiatives through her work with individual clients on a level 
commensurate with national importance. Cf id. at 892 ( citing media articles and other evidence 
documenting Congressional interest in Dhanasar's research). 
Although the relevant evidence establishes the substantial merit of the Petitioner's proposed endeavor, 
it does not demonstrate the Petitioner's proposed endeavor would have significant potential to employ 
U.S. workers, other substantial positive economic effects, national or even global implications within 
the field, or other broader implications indicating national importance. Consequently, the Petitioner 
does not meet the first Dhanasar prong. 
The Petitioner asserts that Matter of Dhanasar should not bind our decision because its analytical 
framework is not contained in the statute at section 203(b )(2)(B)(i) of the Act, which does not limit 
our discretion to grant a national interest waiver. The Petitioner is mistaken. We are bound to follow 
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Matter ofDhanasar because it is a precedent decision. See 8 C.F.R. § 103.lO(b) (precedent decisions 
of the Attorney General and Secretary of Homeland Security bind all officers of the Department of 
Homeland Security in all proceedings involving the same issue(s)). 
B. The Remaining Dhanasar Prongs 
The Petitioner has not established 
the national importance of her specific proposed endeavor and she 
does not meet the first prong of the Dhanasar framework. As this issue is dispositive of the 
Petitioner's appeal, we decline to reach and hereby reserve determination of her eligibility under the 
second and third prongs of the Dhanasar framework. 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). 
III. CONCLUSION 
The 
Petitioner has not established the national importance of her proposed endeavor and does not meet 
the first prong of the Dhanasar analytical framework. Consequently, she has not demonstrated that 
she is eligible for or merits a waiver of the job offer requirement in the national interest as a matter of 
discretion. 
ORDER: The appeal is dismissed. 
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