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: 31491329 
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 although the Petitioner 
qualified for classification as a member of the professions holding an advanced degree, he 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 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 l&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 I&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; 
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in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver is discretionary 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 individual is well-positioned to advance their proposed endeavor; and 
• On balance, waiving the job offer requirement would benefit the United States. 
Id. 
II. ANALYSIS 
The Director concluded that the Petitioner qualifies as a member of the professions holding an 
advanced degree. 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 
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. 
Dhanasar, 26 I&N Dec. at 889. 
According to the Petitioner's statement provided with the initial filing, he intends to "create an IT 
(information technology) company[;] find a team of professional developers, designers, and marketers 
to build a strong team[;] create a product or service that is competitive and attractive to consumers[;] 
find partners and customers to expand" the customer base and increase profits; and "continuously 
improve products and services, monitor industry changes, and adapt to new trends." The Petitioner 
stated that his professional background as a software developer as well as his business experience in 
the IT field, has "significant advantages and national significance for the United States." He plans to 
open his own hosting company in Wyoming and "continue to create websites" and hire and train new 
employees. The Petitioner also submitted a business plan, copies of industry articles, and letters of 
recommendation in support of his eligibility. 
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. In response, the Petitioner 
submitted additional documentation, to include an expert opinion letter discussing the Petitioner's 
professional skills and his company's prospective contributions to the United States, documents 
discussing U.S. government initiatives to promote digital technologies and innovation, and an updated 
personal statement. The Petitioner indicated that the main focus of his company will be the "creation 
of websites and the strategic implementation of SEO (search engine optimization) technologies in 
order to provide customized marketing services to client companies that contribute to their successful 
development in the online environment." He noted that the company will consist of web development, 
internet marketing, search engine optimization, technical support, and sales customer service 
departments, and he will initially hire four employees and add five employees annually. The Petitioner 
contended that his SEO and digital advertising company will play an important role in "strengthening 
employment and workforce development, promoting innovation and technology, contributing to the 
economy, promoting business growth, engaging with the local community, improving working 
conditions and reducing income inequality" in the United States, and "helping minorities and 
disadvantaged groups in society." 
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In denying the petition, the Director concluded that though the proposed endeavor had substantial 
merit, the record contained insufficient evidence to demonstrate the importance of the Petitioner's 
endeavor on a national scale. The Director noted that the Petitioner indicated his endeavor relates to 
the STEM (science, technology, engineering, and math) field and the submitted evidence reflected his 
professional accomplishments. However, the record did not demonstrate that the potential prospective 
impact of his endeavor would extend beyond his company and future clients. In addition, the Director 
found that the evidence did not establish the Petitioner's endeavor has significant potential to employ 
U.S. workers or otherwise offers substantial positive economic effects for our nation. The Petitioner 
did not show that benefits to the regional or national economy resulting from his proposed endeavor 
would reach the level of "substantial positive economic effects" contemplated by Dhanasar. Id. at 
890. 
On appeal, the Petitioner claims that the Director failed to give due weight to the submitted evidence. 
He asserts that the record, including the articles, reports, presidential fact sheet, expert opinion letter, 
and business plan, demonstrates his proposed endeavor of establishing an internet marketing company 
based in Wyoming will "impact the industry or field more broadly", "reduce shortages of software 
developers", impact "a matter that a government entity has described as having national importance 
or is the subject of national initiatives", and will have "substantial positive economic benefits for the 
U.S." 
Upon review, the Director thoroughly analyzed the Petitioner's documentation and weighed the 
evidence to evaluate whether he had demonstrated, 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 endeavor that the foreign national proposes to undertake." See Dhanasar, 
Id. at 889. Generally, we look to evidence documenting the "potential prospective impact" of a 
petitioner's work. The Petitioner submitted articles and reports addressing the importance of software 
and web development and its impact on the U.S. economy, and provided recommendation letters and 
an expert opinion letter, describing his professional experience and accomplishments. However, the 
Petitioner's skills, expertise, and abilities relate to the second prong of the Dhanasar framework, 
which "shifts the focus from the proposed endeavor to the foreign national." Id. at 890. The issue 
here is whether the specific endeavor he proposes to undertake has national importance under 
Dhanasar's first prong. Additionally, the articles, reports, and letters failed to establish that the 
Petitioner's specific endeavor has national implications, significant potential to employ U.S. workers, 
or otherwise offers substantial positive economic effects for the United States. 
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 digital marketing, web development, and assisting businesses in improving their online visibility 
and reach, 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. 
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Further, the Petitioner did not demonstrate that his company's operations would provide substantial 
economic benefits to Wyoming, the region, or the U.S. economy more broadly 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 example, the 
Petitioner's business plan projects that his company will have 24 foll-time employees during the first 
five years. In addition, the record does not sufficiently show how the company will pay salaries and 
other business expenses. The business plan indicates that the "total investment costs of the project" 
are $39,000 and "the project is expected to be financed both from the own funds of the project's 
initiator" and borrowed capital. The business plan lacks evidence showing investment funds from 
individuals or companies beyond the Petitioner or 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). 
ORDER: The appeal is dismissed. 
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