dismissed EB-2 NIW Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAY 14, 2024 In Re: 31134829 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a software and web 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 EB-2 classification. The Director also concluded that the 
Petitioner did not establish eligibility for the national interest waiver. The matter is now before us on 
appeal under 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter afChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter a/Christa'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 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. 
An advanced degree is any United States academic or professional degree or a foreign equivalent 
degree above that of a bachelor's degree. A United States bachelor's degree or foreign equivalent 
degree followed by five years of progressive experience in the specialty is the equivalent of a master's 
degree. 8 C.F.R. § 204.5(k)(2). 
Exceptional ability means a degree of expertise significantly above that ordinarily encountered in the 
sciences, arts, or business. 8 C.F.R. § 204.5(k)(2). A petitioner must initially submit documentation 
that satisfies at least three of six categories of evidence. 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). Meeting 
at least three criteria, however, does not, in and of itself, establish eligibility for this classification. 1 
USCIS will then conduct a final merits determination to decide whether the evidence as a whole shows 
that the individual is recognized as having a degree of expertise significantly above that ordinarily 
encountered in the field. 
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,2 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. ADVANCED DEGREE PROFESSIONAL 
The Petitioner earned a bachelor's degree in computer science in Brazil in 2020. The Petitioner has 
operated as a freelance software developer since 2018. He arrived in the United States in December 
2020 as an F-1 nonimmigrant student, later changing his nonimmigrant status to that of a B-2 visitor. 
The Petitioner seeks to establish and run his own company to distribute I I which the 
Petitioner described as "an artificial intelligence system designed to detect malware." 
The Director determined that the Petitioner had not established eligibility for classification as a 
member of the professions holding an advanced degree or its defined equivalent. The Petitioner's 
only academic degree is equivalent to a U.S. baccalaureate. The Petitioner earned his bachelor's 
degree in April 2020 and filed the petition about three years later in May 2023. The Director therefore 
concluded that "it is not possible for the self-petitioner to have acquired five years of progressive, 
post-baccalaureate experience as of the date he filed Form I-140." 
On appeal, the Petitioner repeats the assertion that he holds a degree equivalent to a U.S. baccalaureate. 
The Petitioner does not overcome the determination that he held neither an advanced degree nor five 
years of progressive post-baccalaureate experience at the time he filed the petition. We agree with the 
Director that the Petitioner was not yet eligible for classification as a member of the professions 
holding an advanced degree when he filed the petition. 
III. EXCEPTIONAL ABILITY 
To establish eligibility as an individual of exceptional ability, a petitioner must submit documentation 
that satisfies at least three of the six categories of evidence listed at 8 C.F.R. § 204.5(k)(3)(ii), 
summarized below: 
1 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of individuals of 
exceptional ability. See generally 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual. 
2 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). 
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(A) An academic degree relating to the area of claimed exceptional ability; 
(B) Ten years of full-time experience in the occupation; 
(C) A license or certification for the profession or occupation; 
(D) A salary or other remuneration that demonstrates exceptional ability; 
(E) Membership in professional associations; and 
(F) Recognition for achievements and significant contributions to the industry or field. 
If the above standards do not readily apply to the individual's occupation, the petitioner may submit 
comparable evidence to establish eligibility. 8 C.F.R. § 204.5(k)(3)(iii). If an individual meets at least 
three of the regulatory criteria, we then consider the totality of the material provided in a final merits 
determination and assess whether the record shows a degree of expertise significantly above that 
ordinarily encountered in the individual's field. See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) 
( discussing a two-part review where the documentation is first counted and then, if fulfilling the 
required number of criteria, considered in the context of a final merits determination). See also, 
generally, 6 USCJS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual. 
The Petitioner claims to have submitted evidence to satisfy four of the six regulatory criteria, as 
discussed below. 
An official academic record showing that the alien has a degree, diploma, certificate, 
or similar award from a college, university, school, or other institution of learning 
relating to the area ofexceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(A). 
We agree with the Director that the Petitioner's degree in computer science, evaluated as being equivalent 
to a degree from a regionally acredited U.S. institution, satisfies this criterion. 
A license to practice the profession or certification for a particular profession or 
occupation. 8 C.F.R. § 204.5(k)(3)(ii)(C). 
The Director determined that the Petitioner had satisfied the requirements of this criterion. We 
disagree with that conclusion. 
The Petitioner submitted translated copies of nine certificates from I I showing he had completed 
training courses on subjects such as web development, creating a virtual store, and SQL Database. 
The courses ranged in length from 3 to 70 hours. Most of the certificates are dated December 2019, 
except for one dated April 2023. The Petitioner also stated that he had completed a tenth course on 
the 3D modeling software Blender, but he did not submit evidence to corroborate this claim and did 
not provide further details. 
In a request for evidence (RFE), the Director stated that the Petitioner "did not submit any evidence 
to show that [the I I certificates] constitute a license or certification as contemplated by the 
regulation." In response, the Petitioner submitted additional copies of the certificates, but did not 
explain how they amount to certification for a particular profession or occupation. 
3 
In the denial notice, the Director stated that the Petitioner had submitted "Web Development and 
Computer design certificates," and the Director concluded without further elaboration that "the 
submitted evidence meets this criterion." The record does not support this conclusion. 
The Petitioner did not submit any evidence thatl Iis a credentialing authority that licenses or 
certifies individuals for a particular profession or occupation. The evidence of record indicates, 
instead, thatl is an online training platform. The certificates denote completion of short-term 
training courses on specific subjects such as particular uses of software platforms. 
The Petitioner has not established that he holds a license to practice any profession or certification for 
a particular profession or occupation. 
Evidence ofmembership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
The regulations define a "profession" as of the occupations listed in section 10l(a)(32) of the Act, 
8 U.S.C. § l 10l(a)(32), 3 as well as any occupation that requires at least a U.S. baccalaureate degree 
or its foreign equivalent for entry into the occupation. 8 C.F.R. § 204.5(k)(2). 
A certificate from the Association for Computing Machinery (ACM) indicates that the Petitioner was 
"admitted as a member" in February 2022, "having fulfilled the requirements for Professional 
Membership," but it does not specify what those requirements are. A printout from ACM's website 
indicates that the organization "brings together computing educators, researchers, and professionals" 
and "supports the professional growth of its members." 
In the RFE, the Director asked for "[d]ocumentary evidence which shows the requirements for 
membership" in ACM. This information could be relevant if it shows whether or not ACM 
membership, or a particular membership class, is limited to individuals who meet the regulatory 
definition of professionals. In response, the Petitioner stated that ACM "is a US-based international 
learned society for computing," but the Petitioner did not submit evidence to show ACM's 
membership requirements. 
The Director determined that the Petitioner had not established that ACM qualifies as a professional 
association because the record does not show "that the association's membership body is comprised 
of individuals who have earned a U.S. baccalaureate degree or its foreign equivalent, or that the 
association otherwise constitutes a professional association." On appeal, the Petitioner cites ACM 
materials already in the record. 
Submitted materials include several mentions of the word "professional," but the Petitioner has not 
established that ACM limits its membership to individuals who meet the regulatory definition of 
professionals. The printout from ACM's website refers to "student chapters," indicating that 
individuals can join ACM as students. The information does not specify whether ACM's student 
chapters include undergraduate students, who are not yet qualified to work in a profession. 
3 The listed occupations are architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academics, or seminaries. 
4 
The Petitioner has not met his burden of proof to establish that ACM is a professional association, and 
he does not claim membership in any other association. Therefore, the Petitioner has not established 
membership in a professional association. 
Evidence ofrecognition for achievements and significant contributions to the industry 
or field by peers, governmental entities, or professional or business organizations. 
8 C.F.R. § 204.5(k)(3)(ii)(F). 
At the time of filing, the Petitioner stated that he satisfied this criterion through letters and information 
about various projects he has pursued. We agree with the Director's conclusion that the Petitioner has 
not met the regulatory requirements to satisfy this criterion. 
The language of the regulation calls for "evidence of recognition for achievements and significant 
contributions to the industry or field." As such, materials that identify an individual's achievements 
but not significant contributions to the industry or field cannot suffice to satisfy the regulatory 
requirements. See Matter of Echeverria, 25 T&N Dec. 512, 518 (BIA 2011) (holding that "[t]he use 
of the conjunction 'and'" in a series of regulatory requirements "constitutes a clear indication that 
[one] must satisfy each of the [listed] requirements"). 
The Petitioner submitted letters from individuals who have taught or supervised him, primarily praising 
I I The record, however, does not indicate thatl Iexisted when the Petitioner filed 
the petition. This is significant because a petitioner must meet eligibility requirements at the time of filing 
the petition. See 8 C.F.R. § 103.2(b)(l). 
The letter writers consistently referred to its development as ongoing, discussing the advantages ofc=]
I lin the future tense. One of the writers, who taught the Petitioner at college, speculated about 
I I potential future impact and stated that its "development . . . will require a highly skilled 
workforce." Another writer named the programming languages that "are being used to accomplish the 
I I project," and stated that "a highly qualified crew" would be needed "[t]o create ... the 
system." A business plan for I I described a four-phase plan for future activities. The plan 
indicated that, in phase 2, "[t]he system's infrastructure will be developed and improved" over "four to 
five months," and that "[t]he final design will be fine-tuned and tested throughout" phase 3. 
Without evidence thatl lwas an existing product when the Petitioner filed the petition, the 
Petitioner has not met his burden of proof to establish that I I was an achievement or a 
significant contribution to the industry or field at that time. 
One of the submitted letters indicates that the Petitioner was part of a student group that developed "an 
application ... to help animal shelters and animals that live on the streets." The application was also 
described in Revista Economia Criativa do Iwhich appears to be a local 
publication describing economic ventures in the Brazilian city ofl IThe article 
briefly describes the application and names the students who developed it, including the Petitioner, 
but the article does not state that, or explain how, the application is a significant contribution to the 
industry or field. 
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The Petitioner submitted a printout of a social media post congratulating the Petitioner and others, 
stating "we won the robotics championship." The post does not identify the competition and the 
Petitioner did not submit first-hand documentary evidence to establish his role in the project and the 
nature of the recognition received. The post is from late 2011, when the Petitioner was 13 years old. 
In early 2015, at age 16, the Petitioner received a "Certificate of Merit" from an information 
technology company, praising the "excellence" of unspecified "services provided to this Business 
Group" and wishing the Petitioner "success in [his] journey in higher education." The certificate does 
not identify any specific achievement or contribution to the industry or field. 
The Petitioner submitted information about other applications and games he developed, but he did not 
claim that these projects received recognition of the kind required by the regulations. 
In the RFE, the Director stated that the evidence submitted with the petition "does not show [the 
Petitioner] was recognized for any particular achievements and significant contributions to the industry 
or field." The Director asked for evidence to show that the Petitioner's "achievements and significant 
contributions have provided widespread commentary" and have been "implemented by others." 
In response, the Petitioner discussed previously submitted evidence but did not explain how any of those 
materials showed recognition for achievements and significant contributions to the industry or field. 
In the denial notice, the Director determined that the Petitioner had not submitted evidence of 
qualifying recognition as described in the regulations. On appeal, the Petitioner maintains that he had 
previously submitted sufficient evidence to satisfy the criterion. 
The Petitioner states that "the Brazilian Minister of Science and Technology ... expressed support for 
[the] project" described in Revista Economia Criativa do ________ The publication 
includes a quotation from the Minister, translated as: "Innovative ventures help our economy and 
generate innovation in the country, every penny we invest in science returns to society in jobs and 
development." This is a general statement about the value of scientific innovation. The Petitioner has 
not shown that the Minister made any statement specifically about the application that the Petitioner 
helped to develop, and the Petitioner has not shown that the project's inclusion in the publication was, 
itself, recognition that the project amounted to a significant contribution to the industry or field. The 
Petitioner submitted only a few pages from the publication, and the submitted portions do not explain 
how projects were selected for inclusion except to state that the publication highlights "creative talents 
[located] in the municipality of ________ symbolizing the creative culture of 
enterprises that innovate and reinvent themselves to create new possibilities for business 
opportunities." The Minister's involvement with the publication is not sufficient to establish that the 
Petitioner's mention in that publication constitutes qualifying recognition under the regulations. 
The Petitioner has not met his burden of proof to show recognition for achievements and significant 
contributions to the industry or field. For the reasons set forth above, the evidence does not establish 
that the Petitioner satisfies at least three of the exceptional ability criteria at 8 C.F.R. § 204.5(k)(3)(ii). 
The Director stated that, because the Petitioner had not satisfied at least three of the initial criteria for 
exceptional ability, "USCTS would typically not conduct a final merits determination to determine 
6 
whether [the Petitioner is] recognized as an individual of exceptional ability. However, we will do so 
in this case." 
In the final merits determination, the Director acknowledged the Petitioner's bachelor's degree and 
his further training in various systems. But the Director also noted the Petitioner's lack of "significant 
working experience in the field," and the Director concluded that the Petitioner had not identified "any 
significant contributions to the field" that would distinguish the Petitioner from "any licensed Software 
and Web Developer." The Director therefore concluded that the Petitioner had not established "a 
degree of expertise significantly above that ordinarily encountered in" his field. The Petitioner does 
not address the final merits determination on appeal. 
Because the Petitioner did not meet at least three initial criteria, and has not addressed the final merits 
determination on appeal, we need not discuss the issue at length, but we briefly add that the Petitioner 
has not established that a bachelor's degree in computer science is a relatively uncommon credential 
in his field. If all or most software and web developers have bachelor's degrees, then the Petitioner's 
degree does not indicate a degree of expertise significantly above that ordinarily encountered in his 
field. The Petitioner also did not establish that his short-term training certificates show such expertise, 
rather than more routine subject matter knowledge. 
Likewise, the Petitioner has not shown that his membership in ACM indicates such expertise. The 
record contains a printout from ACM's website, calling ACM "the world's largest computing society" 
with "more than l 00,000 members" worldwide. The organization's large size does not tend to indicate 
restrictive requirements that favor individuals with exceptional ability. Because the Petitioner did not 
submit ACM' s membership requirements when asked to do so, the Petitioner has not established that 
his ACM membership has significant weight in this proceeding. 
The Petitioner asserts that I Iwill be a powerful tool with national impact, addressing the 
critical issue of cybersecurity. But, as shown above, the Petitioner has not shown that the product is 
fully developed and in use; he has described it only in general terms while indicating that development 
and testing have not yet occurred. The Petitioner's intention to develop such software in the future is 
not a viable basis for a finding of exceptional ability. 
The Petitioner's evidence shows that he has been involved in programming from a very young age, 
and has been active both as a student and as a freelance developer. But the evidence in the record is 
not sufficient to establish that he possesses a degree of expertise significantly above that ordinarily 
encountered in his field. 
In light of the above conclusions, the Petitioner has not met hid burden of proof to show that he is 
eligible for EB-2 classification, either as a member of the professions holding an advanced degree or 
as an individual of exceptional ability in the sciences, arts, or business. Because an individual must 
qualify for EB-2 classification in order to be eligible for the national interest waiver, we decline to 
reach, and hereby reserve, the Petitioner's appellate arguments regarding that waiver. 4 
4 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 unnecessmy to the results they reach); see also Matter ofL-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). 
7 
IV. CONCLUSION 
The Petitioner has not established eligibility for the classification sought. Therefore, we will dismiss 
the appeal. 
ORDER: The appeal is dismissed. 
8