dismissed EB-2 NIW Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: FEB. 15, 2024 In Re: 29849309 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Worker (National Interest Waiver) 
The Petitioner, a software developer and an entrepreneur, seeks second preference immigrant 
classification (EB-2) as an individual of exceptional ability, as well as a national interest waiver of the 
job offer requirement attached to this EB-2 immigrant classification. See Immigration and Nationality 
Act (the Act) section 203(b )(2), 8 U.S.C. § l 153(b )(2). 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner qualified 
for the EB-2 classification as an individual of exceptional ability, but 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. 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 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. Section 203(b )(2)(B)(i) of the Act. 
Once a petitioner demonstrates eligibility as either a member of the professions holding an advanced 
degree or an individual of exceptional ability, 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 (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 unpublish ed 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 the proposed endeavor; and 
• On balance, waiving the requirements of a job offer and a labor certification would benefit the 
United States. 
Id. at 889. 
II. ANALYSIS 
The Director concluded that the Petitioner's endeavor has substantial merit but not national importance 
under the first prong of Dhanasar. 2 On appeal, the Petitioner asserts that the Director misapplied the 
Dhanasar analytical framework, imposed ultra vires evidentiary requirements, and was negligent or 
biased in its adjudication. Despite the Petitioner's contentions, we conclude that the Director's denial 
properly followed the Dhanasar's framework and the Petitioner's evidence as provided did not 
establish the national importance of the proposed endeavor. 
We will first address the Petitioner's claims pertaining to the substantive issues under the first prong 
of Dhanasar. 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. Id. We also stated 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. 
The Petitioner initially described his proposed endeavor as advancing his career in the United States 
"as a Software Developer/Entrepreneur contributing to direct, produce, create and make substantial 
contributions for the improvement of the Information Technology Industry in the United States" and 
stated the following: 
I will provide my expertise and skills in the market and technical aspects oflnformation 
Technology. I intend to implement agile methodologies of software analysis and 
develop strategic plans. Ultimately, I will offer intelligent and innovative solutions 
techniques aiming at supporting many U.S. businesses by optimizing processes, 
reducing costs, increasing productivity, enhancing business intelligence, and helping 
companies operate more efficiently. 
The Petitioner indicated that his company,.__ _____________ _, was "created to 
advance [his] proposed endeavor" and submitted documents regarding the operation of his company, 
such as articles of incorporation, registration documents, and business contracts. However, the 
Petitioner did not provide any further details on his methodologies or techniques in improving the 
information technology (IT) industry or supporting U.S. businesses. The Petitioner's initial 
documentation included an IT industry outlook report, an expert opinion letter, and recommendation 
2 The Director also found that the Petitioner did not meet the second or third prong of the Dhanasar's analytical framework. 
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letters, all of which did not specifically address his endeavor and its impact, but generally provided 
the background information on the industry's importance and the Petitioner's previous experiences as 
an IT consultant. 
In response to the Director's request for evidence (RFE), the Petitioner reiterated that "[t]he main 
activity of my business will be Software Development through which I will be able to contribute to 
the general growth not only of the technology industry but also to the society as a whole in the sense 
of providing innovation, technology, development, and possibilities for exlansion and growth for all 
types of businesses." The Petitioner also referenced his new project called Ito assist 
"American citizens and companies in making informed investment decisions m cryptocurrencies" but 
maintained that "it is not my proposed endeavor instead it is a pioneering tool made by developing a 
software to be used in the financial market in the benefit of consumers and government in general." 
Contrary to the Petitioner's statement that ~-----~is not his endeavor, his business plan 
submitted with the RFE discusses cryptocurrency and its investment trends. 
On appeal, the Petitioner asserts that the Dhanasar's analytical framework was intended to "make it 
easier for individuals, especially entrepreneurs, to establish that a proposed endeavor was of national 
importance." However, we note that Dhanasar intended to "provide greater clarity, apply more 
flexibly to circumstances of both petitioning employers and self-petitioning individuals, and better 
advance the purpose of the broad discretionary waiver provision to benefit the United States." Id. at 
888-89. The Petitioner has not referenced any language in Dhanasar that discusses its intention to 
ease the standards specifically for entrepreneurs. 
The Petitioner also claims that the Dhanasar decision allowed for "broad definition" of the endeavor's 
"potential prospective impact" and demonstrating that the endeavor has a national or global 
implication is "not a requirement" or "not mandatory in the determination of the national importance 
of a proposed endeavor." In support of this contention, the Petitioner cites to the Dhanasar's passage 
which states: "[a]n undertaking may have national importance for example, because it has national or 
even global implications within a particular field" (emphasis added). Id. at 889. 
We acknowledge that an endeavor's "potential prospective impact" can be broadly interpreted. We 
also agree that evaluating whether an endeavor has national or even global implications in the field is 
only a part of the analysis under the first prong, as Dhanasar also states that "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 890. Here, the Director not only considered whether the Petitioner's endeavor of 
delivering IT solutions to businesses will have any national or global implications in the field, but also 
whether it will have any significant economic effects. 
For instance, the Director reviewed the expert opinion letter ._.__ _____ __.La professor of 
computer science, information systems, and cyber security at .....~________ _.J and observed 
that the letter does not address the Petitioner's endeavor with specificity and detail to demonstrate any 
national or global implications in the field of information technology. The opinion letter generally 
addresses the value of software developers, IT modernization, and small businesses, and states that 
the endeavor "impacts a matter that a government entity, has described as having national importance 
or is the subject of national initiative." However, the letter does not include any persuasive and 
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corroborating information about the Petitioner's business and its impact rising to the level of national 
importance. Therefore, the Director correctly applied the Dhanasar' s framework to the facts of this 
case. 
The Director also reviewed the Petitioner's business plan but determined that the rest of the record 
does not sufficiently support the assertions made therein. The plan makes various staffing and 
financial projections that the Petitioner's company will purportedly achieve in five years, but the 
record did not contain corroborating evidence to explain how these sales and staffing targets will be 
realized. The Petitioner must support his assertions with relevant, probative, and credible evidence. 
See Matter of Chawathe, 25 I&N Dec. at 376. 
The record shows that the Petitioner largely relied on the industry articles and reports to support the 
endeavor's national importance, and with the appeal, the Petitioner again submits press releases 
announcing the Biden Administration's actions to attract STEM talent and pursue equity and 
excellence in the STEM field, as well as the 2022 U.S. National Science and Technology Council's 
updated list of critical and emerging technologies, claiming that his endeavor aligns with the important 
priorities of the government. Although we recognize the value of information technology and 
importance of STEM related professions, merely working in an important field is insufficient to 
establish the national importance of the proposed endeavor. We focus on the "the specific endeavor 
that the foreign national proposes to undertake" and consider the endeavor's "potential prospective 
impact." Dhanasar, 26 I&N Dec. at 889. However, none of the publications in the record discuss the 
Petitioner's proposed endeavor, or how it may have "national or even global implications within a 
particular field" or otherwise have broader implications, such as "significant potential to employ U.S. 
workers or ha[ ve] other substantial positive economic effects, particularly in an economically 
depressed area." Id. at 889-90. 
We also note that the Petitioner has not provided details of his IT solutions or methodologies or 
corroborating evidence of how they somehow differ from or improve upon those already available and 
in use in the United States, as contemplated by Dhanasar: "[a]n undertaking may have national 
importance for example, because it has national or even global implications within a particular field, 
such as those resulting from certain improved manufacturing processes or medical advances." Id. at 
889. 
The Petitioner provided various recommendation letters from his previous clients and peers, but much 
of this evidence only shows the Petitioner's accomplishments in his past engagements and projects 
and does not sufficiently address the Petitioner's specific future endeavor and its broad impact in his 
field. In addition, the Petitioner's knowledge, skills, and experience in the field 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 Petitioner also provided copies of service agreements showing that his business provides IT 
consultant work to clients, such as analysis, maintenance, and development of IT systems and 
database. The record also includes a letter of intent to invest and partner with the Petitioner in the 
cryptocurrency project. However, these documents do not corroborate the nature or numerosity of 
clients or clients' projects to support the claims that his endeavor will have substantial economic 
impact. We acknowledge that any offer of goods or services has the potential to impact the economy; 
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however, the record does not support the Petitioner's company would operate on such a large scale 
that would benefit the U.S. economy rising to the level of national importance or that his endeavor's 
specific impact will extend beyond his business and his clients to impact the field more broadly. 
We will also address the Petitioner's contention that the Director imposed "novel" requirements. The 
Petitioner states "the Director is substantiating its conclusion on ultra vires requirements as requesting 
that Applicant proves 'any evidence of his intention to purchase or lease office space at a particular 
location' is beyond regulations requirements." The Director's statements referenced here is in the 
context of analyzing whether the endeavor or the Petitioner's business will be in an economically 
depressed area, or "in a[n] opportunity zone/and or a Hubzone" as provided in the business plan. The 
specific questions raised by the Director pertain to the location and operation of the Petitioner's 
business, such as whether the Petitioner intended to lease or purchase a building, whether he will 
operate the business out of his house inl IFlorida, or how it will expand to the city ofl I 
at large or to Nevada, as claimed in his business plan. 
We conclude that these questions fall within the parameters of the Dhanasar as they relate to the 
viability of the business, the plans for business growth, and its potential to offer substantial positive 
economic effects within a certain region or on a national level. Given that the Petitioner's various 
assertions in the business plan remain unsupported by corroborative and independent evidence, the 
Director raised these questions to assess the endeavor's economic impact in an economically depressed 
area and did not impose "novel" requirements as the Petitioner claimed. 
Finally, we tum to the Petitioner's remaining claims of deficiencies in the Director's decision. On 
appeal, the Petitioner explains that his former counsel misfiled the initial petition under the EB- I visa 
classification by checking a wrong category on Form 1-140, Immigrant Petition for Alien Workers, 
and caused the filing to result in two different receipts, one for the EB-1 visa classification and one 
for the EB-2 national interest waiver, as well as two different RFEs and decisions. The Petitioner 
asserts that he had to "manage two requests for evidence and petitions simultaneously, which has 
negatively affected the case," but he does not allege any specific error on the part of the Director. 
Therefore, the Petitioner's claim is unavailing. 
The Petitioner further asserts that the Director was "negligent and biased" in adjudicating the case 
because of different treatments of the same filing in two resulting RFEs, as well as some typographical 
errors made in two subsequent decisions. The first assertion is unpersuasive because each case before 
USCIS receives independent review even with identical documents, and national interest waiver cases 
are discretionary in nature. See Flores v. Garland, 72 F.4th at 88. In addition, the typographical errors 
referenced by the Petitioner that purportedly show negligence appear to be harmless error. 3 See 
generally Matter of O-R-E-, 28 I&N Dec. 330,350 n.5 (BIA 2021) (citing cases regarding harmless 
or scrivener's errors). The Petitioner has not shown on appeal that the claimed typographical errors 
prejudiced the outcome of the decision. 
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. Similarly, 
despite the Petitioner's assertions that his endeavor will contribute value to "all businesses" or "society 
3 The typographical errors in the decision consist of 'exception ability' instead of 'exceptional ability' and 'the principle 
address' instead of 'the principal address.' 
5 
as a whole," the record lacks sufficient evidence regarding any national impact in the field or projected 
U.S. economic impact attributable to his future work, and the endeavor's impact is likely limited to 
the individuals or clients that his business will serve. Accordingly, the Petitioner has not established 
his proposed work is of national importance. 
Because the Petitioner has not met the first prong of the Dhanasar's analytical framework, we decline 
to reach whether he meets the remainder of the second and third prongs under the Dhanasar 
framework, and further reserve our opinion regarding whether the Petitioner satisfies the second­
preference eligibility criteria.4 See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (noting that "courts 
and agencies are not required to make findings on issues the decision of which is unnecessary to the 
results they reach"); Matter of L-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). 
III. CONCLUSION 
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, 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. 
4 The Director concluded that the Petitioner qualifies as an individual of exceptional ability without providing analysis on 
the issue. Contrary to such determination, the Director's RFE discussed how the totality of evidence did not demonstrate 
that the Petitioner possesses a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or 
business despite that he met three out of the six required criteria at 8 C.F.R. § 204.5(k)(3)(ii). Because the record does not 
establish that the Petitioner merits a national interest waiver, we will reserve the issue for future consideration should the 
need arise. See INS v. Bagamasbad, 429 U.S. at 25. 
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