dismissed EB-2 NIW Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JUL. 15, 2024 In Re: 31477475 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a software developer, 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 that the Petitioner did not 
establish eligibility for a national interest waiver. 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 I&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 
To qualify for the underlying EB-2 visa classification, a petitioner must establish they are an advanced 
degree professional or an individual of exceptional ability in the sciences, arts, or business. Section 
203(b)(2)(A) of the Act. 
If a petitioner establishes eligibility for the underlying EB-2 classification, they must then demonstrate 
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: 
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in an unpublished decision) in concluding that USCIS ' decision to grant or deny a national interest waiver is discretionary 
in nature). 
• 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. 
Id. 
TI. ANALYSIS 
The Director concluded that the Petitioner qualifies as a member of the professions holding an 
advanced degree. 2 Accordingly, the remaining issue to be determined on appeal 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. 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
noncitizen proposes to undertake. See 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. In determining whether the proposed endeavor has national importance, we 
consider its potential prospective impact. 
According to the Petitioner's statement provided with the initial filing, he intends to utilize his 
experience as a software developer and establish a company in North Carolina. He indicates that his 
proposed endeavor "has a beneficial and national impact" with an innovative method "to contribute to 
the manufacturing industries" in the United States through his company. The Petitioner intends to 
provide a "software-specific solution for the manufacturing industries that connects industrial devices 
and machinery with MES [ manufacturing execution systems] and ERP [ enterprise resource planning] 
software, fully customizable and transparent" which "allows the owning industry to achieve the 
desired communication, without depending on any external service or supplier, thus absorbing the 
necessary financial and technical efforts." His company will focus on providing services to the textile 
manufacturing industries due to his experience in this sector. In support of his eligibility, the Petitioner 
also submitted a business plan; copies of industry articles and reports; recommendation letters; and 
the Petitioner's statement, with associated financial documents, that he will provide personal funds to 
invest in the company. 
The Director determined, in part, that the Petitioner's initial filing did not demonstrate the proposed 
endeavor's national importance and issued a request for evidence. The Petitioner's response included 
two expert opinion letters, articles with citations noting the Petitioner, information about the federal 
government's initiatives to promote advancements in science, technology, and manufacturing; and a 
value table from the Petitioner discussing how his endeavor adds "value to a significant number of 
processes." The Petitioner asserted that his endeavor is "rooted in the textile industry's advanced 
automation and optimization" and "it is the potential scalability and applicability of this initiative that 
truly underscores its significance on both a broad scale and national level." He indicates that the 
2 We note that the Director stated in the denial the Petitioner did not qualify for classification as an individual of exceptional 
ability in the sciences, arts, or business, and did not address the Petitioner's claim that he qualifies as a member of the 
professions holding an advanced degree. However, the Director acknowledged in the request for evidence that the record 
established the Petitioner qualifies as a member of the professions holding an advanced degree, and we agree with this 
determination. 
2 
methodologies and techniques he developed for the textile sector "can seamlessly transition into other 
manufacturing sectors", a streamlined and efficient manufacturing process "can lead to cost savings 
and higher margins on a national scale", optimization and automation through these methodologies 
can lead to more specialized roles for workers and "pave the way for a more skilled" workforce, and 
introducing the methodologies can lead to more environmentally sustainable industries nationwide. 
In denying the petition, the Director concluded that though his proposed endeavor as a software 
developer had substantial merit, the record contained insufficient evidence to demonstrate that the 
prospective impact of his endeavor rises to the level of national importance. The Director noted that 
while the submitted evidence emphasized the importance of software development and information 
technology in the U.S. economy, the focus of the national importance prong within the Dhanasar 
framework is the Petitioner's specific endeavor, not the entire industry or field in which they work. 
The Director indicated that the record did not establish how his proposed work will potentially have 
broader implications for the industry or substantial positive economic effects for the region or nation. 
Regarding the Petitioner's claim that the software application he assisted in developing is important 
to industries such as retail, financial services, and telecommunication companies, the Director found 
that the record did not show the impact of these software applications would extend beyond an 
organization and its clients to impact the industry or field more broadly. The Director further 
determined that while the recommendation letters discuss the Petitioner's software application 
experience, the supporting evidence is insufficient to establish that continuing to work on such 
software for particular clients would rise to the level of national importance. 
On appeal, the Petitioner claims the Director erred by making determinations that did not appear to be 
based on the submitted evidence. He asserts that the record, including his business plan, establishes 
the national importance of his proposed endeavor to work as a software developer and create a 
company which will provide a low-cost Middleware 3 software layer specially designed for 
manufacturing industries. He indicates his company will "connect directly towards obtaining and 
sending of data among industrial devices" and MES 4 systems they hold, and it will benefit 
manufacturing companies with the application of digital concepts such as "IoT (Internet of 
Things)/Industry 4.0" 5 which will be essential for software applications related to the acquisition of a 
huge volume of data. 
Upon review, we acknowledge the denial incorrectly included some references to evidence not 
relevant to the instant petition, such as indicating the Petitioner was represented by counsel, referring 
to a prospective employer though the Petitioner intends to be self-employed through his prospective 
company, and noting the submission of a professional plan instead of a business plan. However, we 
agree with the Director's ultimate determination that the Petitioner's documentation did not 
demonstrate, by a preponderance of the evidence, that he meets the first prong of the Dhanasar 
framework. 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 
3 The Petitioner states that "Middleware is software that provides common services and capabilities to applications outside 
of what's offered by the operating system." 
4 The Petitioner refers to MES as "computerized systems used in manufacturing to track and document the transformation 
of raw materials to finished goods." 
5According to the Petitioner, "Industry 4.0 is revolutionizing the way companies manufacture, improve and distribute their 
products." 
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endeavor that the foreign national proposes to undertake." See Dhanasar, 26 I&N Dec. at 889. 
Generally, we look to evidence documenting the "potential prospective impact" of a petitioner's work. 
We noted in Dhanasar that "we look for broader implications" of the proposed endeavor and 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. Although the Petitioner discusses the value and importance 
of software development, especially within the manufacturing sectors, and its impact on the nation as 
a whole and the U.S. economy, Dhanasar requires us to focus on the "the specific endeavor that the 
foreign national proposes to undertake," not the importance of the field, industry, or profession in 
which the individual will work. Id. at 889. 
We note the Petitioner's assertions that his company is "poised to revolutionize the national 
manufacturing scene", his company offers a solution tailored to small and large scale industry and the 
"autonomous, customizable nature of the software means it can adapt to diverse industrial protocols, 
making it inherently scalable" as well as "universally applicable" across regions and replicable, due 
to the "modular nature ofthe software, combined with its adaptability to various" industries. However, 
the record lacks sufficient evidence to show the claimed prospective impact of his proposed company. 
While the submitted articles, reports, and expert opinion and recommendation letters reflect the 
Petitioner's skills and contributions to software development projects and research, the evidence does 
not demonstrate that the work the Petitioner intends to perform through his company would result in 
a significant impact that rises to the level of national importance. 
Further, the Petitioner did not demonstrate that his company's operations would provide substantial 
economic benefits to the region or nation at a level commensurate with national importance, nor did 
he demonstrate that his company's activities would substantially impact job creation and economic 
growth, either regionally or nationally. For instance, the Petitioner's business plan projects that his 
company will have four total employees by the fifth year of operation. Further, the record does not 
sufficiently show how the business will pay salaries, which are projected to exceed $194,000 by the 
fifth year, in addition to other business expenses. The business plan indicates the Petitioner will 
provide his personal money to fund the company and refers to his bank accounts and personal assets 
in Brazil and Portugal totaling the equivalent of approximately $112,000. However, the record lacks 
evidence showing investment funds from individuals or companies beyond the Petitioner or other 
contractual commitments to work with the proposed company. Therefore, the Petitioner has not 
demonstrated that his company has significant potential to employ U.S. workers or otherwise offer 
substantial positive economic effects. 
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, we conclude 
that he has not demonstrated eligibility for a national interest waiver, as a matter of discretion. Further 
analysis of his eligibility under the second and third prongs outlined in Dhanasar, therefore, would 
serve no meaningful purpose. See INS v. Bagamasbad, 429 U.S. 24, 25 ( 1976) (stating that agencies 
are not required to make findings on issues that are unnecessary to the ultimate decision); see also 
Matter ofL-A-C-, 26 I&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach alternate issues on appeal 
where an applicant is otherwise ineligible). 
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ORDER: The appeal is dismissed. 
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