dismissed EB-2 NIW Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re : 11244547 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : AUG . 10, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner 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 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 asserts that the Director erred in denying the petition. 
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. 
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 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 
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) 
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. 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). 
2 
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 
Although not addressed in the Director's decision, the record demonstrates that the Petitioner qualifies 
as a member of the professions holding an advanced degree or its equivalent. 4 The sole 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. 5 The Petitioner indicates his proposed 
endeavor is to: 
[C]ontinue my career in the U.S., leveraging my expertise as a [s]oftware [d]eveloper to 
serve companies, organizations, and individuals, in any industry, that need a creative mind 
to improve and create their computer programs .... My current and past endeavors will 
allow me to plan, direct, and coordinate technical activities in cross-platform mobile 
projects, to improve the standards, and exceed customer expectations for companies and 
clients in the United States. 6 
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. 7 
To evaluate whether the Petitioner's proposed endeavor satisfies the national importance requirement 
we look to evidence documenting the "potentia l prospective impact" of his work. Although the 
Petitioner's statements reflect his intention to provide valuable consulting services for his employer 
and its clients, he has not offered sufficient information and evidence to demonstrate that the 
prospective impact of his proposed endeavor rises to the level of national importance. 8 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 find the record 
does not show that the Petitioner's proposed endeavor stands to sufficiently extend beyond his 
employer and clientele to impact his field or the nation more broadly at a level commensurate with 
national importance. 
3 See Dhanasar , 26 I&N Dec. at 888-91, for elaboration on these three prongs . 
4 The Petitioner presents copies of his diploma and transcripts for his bachelor of computer engineering degree from 
I I University ! I in Brazil, and other evidence documenting at least five years of post-baccalaureate 
progressive work experience in the specialty. See 8 C.F.R. § 204.5(k)(3)(i)(B) . 
5 The Petitioner submitted evidence to support the petition. While we may not discuss every document submitted, we have 
reviewed and considered each one. 
6 We note that, while information about the nature of the Petitioner's proposed endeavor is necessary for us to determine 
whether he satisfies the Dhanasar framework , he need not have a job offer from a specific employer as he is applying for 
a waiver of the job offer requirement. 
7 We acknowledge the articles and opinion pieces provided by the Petitioner that highlight the importance of the 
information technology field in the United States. We also agree with the Director that the Petitioner's endeavor has 
substantial merit. 
8 On appeal the Petitioner asserts that he will also prospect "employment opportunities in diverse U.S. companies [as] a 
self-employed professional (IT Consultant) in the field." But, he has not sufficiently articulated or documented how his 
independent consultant activities would impact his field, beyond providing services to his own clients . 
3 
For instance, the Petitioner has been providing software development services through his employment 
withl I [ A-] since 2014, and provided copies of his recent work product, to include product 
demonstration materials developed for A-'s in-house and client projects, and a tutorial guide prepared 
for A-, entitled I t While A-'s in-house development 
staff and its clients may have found these materials to be instructive, the record does not substantiate 
that this documentation has or will engender wider interest or use within the IT field. 
Additionally, the Petitioner provided reference letters, including one from D-W-, who is president and 
partner in banking for A-, who explained: 
[The Petitioner] was assigned to A-I I where he [has] played key roles in our 
[projects]. .. [The] areas that [the Petitioner] has worked on in the past few years have put 
him in position to be the most knowledgeable and proficient developer, second to none, 
in A~ I for A-'s proprietary solution; all of the other product developers for 
A-'s proprietary solutions reside in Europe, making [the Petitioner] the single point of 
contact for development requirements and defects that need to be resolved during our U.S. 
client's work day. 
D-W- and the other A- colleagues who provide letters of reference favorably comment on the 
Petitioner's contributions to its projects, and emphasize that he "[h ]olds significant specialized 
knowledge related to A-'s proprietary software programs ."9 However, considering the record in its 
entirety, we conclude that the Petitioner does not adequately describe or demonstrate how his future 
software development work stands to rise to the level of having national importance within the 
information technology (IT) field. 10 The record does not show, for instance, that the specific work the 
Petitioner proposes to undertake will offer original innovations to advance the aforementioned 
industry, or that it otherwise has wider implications in his field. As discussed, the evidence did not 
sufficiently articulate how his particular proposed endeavors would have national importance beyond 
his prospective employers and their clients. 
On appeal, the Petitioner asserts that "his endeavor is not in any way limited to one particular 
corporation and their clients, but has a much broader scope and breadth. His unique expertise can be 
applied to the modernization of any corporation , banking or finance institution, in a multitude of 
industries." Throughout this proceeding , the Petitioner points to his education, IT skills - including 
his knowledge of software development languages and possession of software development 
certifications , project management abilities, and his years of experience working in the IT field. The 
Petitioner's knowledge, skills, and consulting experience, however, 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 under the first prong is whether the Petitioner has demonstrated the national 
importance of his proposed work. 
9 See, for instance, the letter of reference from K-L-, _____________ at A-. 
10 It is the Petitioner 's burden to prove by a preponderance of evidenc e that it is qualified for the benefit sought. Matt er of 
Chawath e, 25 I&N Dec. 369, 376 (AAO 2010) . In evaluating the evidence , eligibility is to be determined not by the 
quantity of evidence alone but by its quality . Id. 
4 
Furthermore, while the Petitioner asserts there is a "looming shortage ofIT talent" in the United States, 
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 U.S. regional or 
national economy resulting from the Petitioner's projects would reach the level of "substantial positive 
economic effects" contemplated by Dhanasar. Id. at 890. Accordingly , the Petitioner's proposed work 
does not meet the fust 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 find 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 
5