dismissed EB-2 NIW Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: FEB. 13, 2024 InRe: 28112447 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a software developer, seeks classification as a member of the professions holding an 
advanced degree and as an individual of exceptional ability in the sciences, arts or business. See 
Immigration and Nationality Act (the Act) section 203(b )(2), 8 U.S.C. § 1153(b )(2). The Petitioner 
also seeks a national interest waiver of the job offer requirement that is attached to this EB-2 
immigrant classification. See section 203(b )(2)(B)(i) of the Act. 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 qualifies for the national interest waiver. 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 of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in 
this matter de nova. Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de 
nova review, we will dismiss the appeal. 
Before we discuss the merits of the appeal, below, we will address a threshold issue. A petitioner 
must sign their benefit request. See 8 C.F.R. § 103.2(a)(2). An appeal is a benefit request. See 
8 C.F.R. § 1.2. In this case, the signature on Form I-290B, Notice of Appeal or Motion, is visibly 
different from other examples of the Petitioner's signature in the record. Given this disparity, it does 
not appear that the Petitioner personally signed Form I-290B. Our dismissal of the appeal is not 
based on this apparent discrepancy. Nevertheless, if the Petitioner further pursues this matter, we 
may require additional corroboration to verify the Petitioner's signature on any future filings. 
I. LAW 
To qualify for a national interest waiver, a petitioner must first show eligibility 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. Once a petitioner 
demonstrates EB-2 eligibility, 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 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 
The Director determined that the Petitioner qualifies as a member of the professions with a 
bachelor's degree and progressive post-baccalaureate experience equivalent to a master's degree 
under 8 C.F.R. § 204.5(k)(2). We need not consider the Petitioner's parallel claim of exceptional 
ability. The remaining 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. 
The Petitioner earned a bachelor's degree in computer science in Brazil in 2013. He worked in 
software development positions for various companies in Brazil from 2007 to 2020. For most of 
2020, he served as technology director for an online gambling platform based in the United 
Kingdom. The Petitioner then resumed working in Brazil until he entered the United States in May 
2021 as a B-2 nonimmigrant visitor. He filed the petition in May 2022. 
The Petitioner described his proposed endeavor: 
My venture is the creation of an Infonnation Technology Consulting company, that 
specialize[s] in software development and will be located inl lFlorida. 
The main services offered by my company will be: 
• Software Development; 
• Systems Maintenance; 
• Analysis of user needs; 
• Execution of projects and systems development; and 
• Consulting for the implementation of software and systems. 
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. The endeavor's merit may be demonstrated in a 
range of areas such as business, entrepreneurialism, science, technology, culture, health, or 
1 See also Poursina v. USCIS, 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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education. In determining whether the proposed endeavor has national importance, we consider its 
potential prospective impact. Matter of Dhanasar, 26 I&N Dec. at 889. We look for broader 
implications. An 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 889-890. 
The Petitioner has established the substantial merit of the proposed endeavor. The Director 
concluded, without elaboration, that the Petitioner had also established the national impo1iance of 
the proposed endeavor. We disagree, as explained below. 
Initially, the Petitioner's discussion of his proposed endeavor's national importance consisted of 
statistics about "sta1iup companies founded by immigrants." These statistics focus on job creation 
by "$1 billion startup companies," which average "more than 1,200 jobs per company." The 
Petitioner has not established that his proposed endeavor involves a company of comparable size and 
economic impact. Rather, the business plan in the record anticipates investment of $199,000 over 
five years, at which time the company would employ three individuals subordinate to the Petitioner. 
The Petitioner indicated that "Industry Reports and Articles" established the national importance of 
his proposed endeavor. The submitted materials, however, deal with the general subject of 
immigration, with no specific discussion about the field of software development or the proposed 
endeavor's place within that field. 
In response to a request for evidence, the Petitioner discussed the benefits of entrepreneurship and 
the imp01iance of small businesses. But the proposed endeavor is one particular small business, 
rather than entrepreneurship in general or the aggregate economic impact of many small businesses. 
General assertions about the overall imp01iance of entrepreneurship and small businesses do not 
establish the national importance of the Petitioner's specific proposed endeavor. 
The Petitioner must establish the national importance of the specific proposed endeavor; it cannot 
suffice for the Petitioner to establish the overall importance of a particular subject, occupation, or 
field. The term "endeavor" is more specific than the general occupation; a petitioner should offer 
details not only as to what the occupation normally involves, but what types of work the person 
proposes to undertake specifically within that occupation. See, generally, 6 USCIS Policy Manual 
F.5(D)(l ), https://www.uscis.gov/policy-manual. 
The Petitioner also stated that the "services, provided by [his] American company, can completely 
change the way the Information Technology Consulting market is well positioned and can expand 
wealth in the US." The Petitioner did not describe the anticipated changes or explain how his 
company's services would make those changes. 
The Petitioner did not establish that his proposed endeavor would have an economic or technological 
impact beyond the company and its customers. We therefore withdraw the Director's determination 
that the Petitioner has established the national importance of the proposed endeavor. Nevertheless, 
we are not dismissing the appeal based on this determination. Rather, our dismissal of the appeal 
rests on our agreement with the Director's determination regarding the second Dhanasar prong, 
discussed below. 
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B. Well Positioned to Advance the Proposed Endeavor 
The second Dhanasar prong shifts the focus from the proposed endeavor to the individual. To 
determine whether an individual is well positioned to advance the proposed endeavor, we consider 
factors including, but not limited to: their 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. Matter ofDhanasar, 26 I&N Dec. at 890. 
To establish that he is well positioned to advance his proposed endeavor, the Petitioner cited his "15 
years of experience" as a software developer, including "the execution of projects and systems 
development," "logical reasoning and problem-solving," and "the automation of strategic robots in 
the financial market." 
The Petitioner submitted letters from individuals who had worked with him in various capacities. 
These individuals attested to the Petitioner's experience and stated that he contributed to the success 
of past projects. We agree with the Director's determination that, while the Petitioner's experience 
and education show that he is qualified to work as a software developer, the Petitioner has not 
established that he is well positioned to advance the proposed endeavor. 
The proposed endeavor does not only involve the Petitioner's continued employment as a software 
developer. Rather, he would serve as the managing director of a company that he would establish 
himself. The Petitioner did not establish any past experience establishing and running a company in 
this way. 
The Petitioner submitted several documents under the heading "Job Offer." These documents are 
printouts of email messages that the Petitioner received from recruiters at various companies, 
inviting the Petitioner to discuss possible employment opportunities in software development. The 
messages do not mention the Petitioner's own company, which is at the heart of the proposed 
endeavor. Therefore, the messages do not establish "the interest of potential customers, users, 
investors, or other relevant entities or individuals" in the Petitioner's proposed endeavor as discussed 
in Matter ofDhanasar, 26 I&N Dec. at 890. 
In response to the request for evidence, the Petitioner submitted letters from three customers of his 
company. The customers offered general praise of the Petitioner's "strategic professional vision" 
and "ability to learn the concepts of innovation." Apart from the letters' lack of detail, the letters are 
all dated either December 2022 or January 2023, several months after the petition's May 2022 filing 
date. A petitioner must establish eligibility at the time of filing. See 8 C.F.R. § 103.2(b)(l). The 
Petitioner did not explain how these post-filing letters show that he was well positioned to advance 
the proposed endeavor at the time he filed the petition. 
The Director concluded that, while the Petitioner is qualified to work as a software developer, the 
Petitioner had not established "a record of success," as contemplated by Matter of Dhanasar, 
26 I&N Dec. at 890, in the type of work described in the proposed endeavor. 
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On appeal, the Petitioner states: "Through his education and hands-on work experience, he has 
demonstrated that he is fully capable and well-positioned to advance the proposed endeavor due to 
his record of achievements and expertise in his field, in addition to the various leading and critical 
roles for the companies in which he has worked." As noted above, the Petitioner has not explained 
how his past experience as a software developer for various employers makes him well positioned as 
an entrepreneur. Owning and running a business involves more than possessing the credentials of a 
software developer. 
In light of the above conclusions, the Petitioner has not met his burden of proof to show the national 
importance of his proposed endeavor and that he is well positioned to advance that endeavor. 
Detailed discussion of the remaining prong of the Dhanasar national interest test cannot change the 
outcome of this appeal. Therefore, we reserve argument on the third prong's balancing test.2 
III. CONCLUSION 
The Petitioner has not established that he is well positioned to advance the proposed endeavor. 
Therefore, the Petitioner has not shown eligibility for the national interest waiver, and we will 
dismiss the appeal as a matter of discretion. 
ORDER: The appeal is dismissed. 
2 See INS v. Bagamasbad, 429 U.S. 24, 25-26 ( 1976) (stating that, like courts, federal agencies are not generally required 
to make findings and decisions unnecessary to the results they reach); see also Matter olL-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). 
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