dismissed EB-2 NIW Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 11052290 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JUNE 30, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner , a software developer and entrepreneur, seeks classification as a member of the 
professions holding an advanced degree or 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, 8 U.S .C. § l 153(b )(2)(B)(i) . 
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 Nebraska Service Center denied the petition, concluding that the Petitioner did not 
show that he qualifies for classification as an individual of exceptional ability or that a waiver of the 
required job offer, and thus of the labor certification, would be in the national interest. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova 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. Because this classification requires that the 
individual's services be sought by a U.S. employer, a separate showing is required to establish that a 
waiver of the job offer requirement is in the national interest. 
Section 203(b) of the Act sets out this sequential framework: 
(2) Aliens who are members of the professions holding advanced degrees or aliens of 
exceptional ability . -
(A) In general. - Visas shall be made available ... to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or 
who because of their exceptional ability in the sciences, arts, or business, will 
substantially benefit prospectively the national economy, cultural or 
educational interests, or welfare of the United States, and whose services in the 
sciences, arts, professions, or business are sought by an employer in the United 
States. 
(B) Waiver ofjob offer-
(i) National interest waiver. [T]he Attorney General may, when the 
Attorney General deems it to be in the national interest, waive the requirements 
of subparagraph (A) that an alien's services in the sciences, arts, professions, or 
business be sought by an employer in the United States. 
The regulation at 8 C.F.R. § 204.5(k)(2) defines exceptional ability in the sciences, arts, or business 
as "a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or 
business." In addition, the regulation at 8 C.F.R. § 204.5(k)(3)(ii) sets forth the specific evidentiary 
requirements for demonstrating 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). 
To qualify as a member of the professions holding an advanced degree, the Petitioner must establish 
that the occupation is a profession, i.e., one of the occupations listed in section 10l(a)(32) of the Act, 
as well as any occupation for which a United States baccalaureate degree or its foreign equivalent is 
the minimum requirement for entry into the occupation. 8 C.F.R. § 204.5(k)(2). The Petitioner must 
also submit either: 
(A) An official academic record showing that the beneficiary has a United States 
advanced degree or a foreign equivalent degree; or 
(B) An official academic record showing that the beneficiary has a United States 
baccalaureate degree or a foreign equivalent degree, and evidence in the form of 
letters from current or former employer(s) showing that the beneficiary has at least 
five years of progressive post-baccalaureate experience in the specialty. 
8 C.F.R. § 204.5(h)(3)(i). 
While neither the statute nor the pertinent regulations define the term "national interest," we set forth 
a framework for adjudicating national interest waiver petitions in the precedent decision Matter of 
Dhanasar, 26 I&N Dec. 884 (AAO 2016). Dhanasar states that after a petitioner has established 
eligibility for EB-2 classification, USCIS may, as matter of discretion, 1 grant a national interest waiver 
if the petitioner demonstrates: (1) that the foreign national's proposed endeavor has both substantial 
merit and national importance; (2) that the foreign national is well positioned to advance the proposed 
1 See also Poursina v. USC1S. 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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endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the requirements 
of a job offer and thus of a labor certification. 
The first prong, regarding 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. 
The second prong shifts the focus from the proposed endeavor to the foreign national. To determine 
whether he or she is well positioned to advance the proposed endeavor, we consider factors including, 
but not limited to: the individual's 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. 
The third prong requires the petitioner to demonstrate that, on balance, it would be beneficial to the 
United States to waive the requirements of a job offer and thus of a labor certification. In performing 
this analysis, USCIS may evaluate factors such as: whether, in light of the nature of the foreign 
national's qualifications or the proposed endeavor, it would be impractical either for the foreign 
national to secure a job offer or for the petitioner to obtain a labor certification; whether, even assuming 
that other qualified U.S. workers are available, the United States would still benefit from the foreign 
national's contributions; and whether the national interest in the foreign national's contributions is 
sufficiently urgent to warrant forgoing the labor certification process. In each case, the factor(s) 
considered must, taken together, indicate that on balance, it would be beneficial to the United States 
to waive the requirements of a job offer and thus of a labor certification. 2 
II. ANALYSIS 
The Petitioner claims eligibility both as an individual of exceptional ability and as a member of the 
professions holding an advanced degree. The Director concluded that the Petitioner had not 
established the former claim, and made no determination regarding the latter claim. For the reasons 
explained below, we conclude the Petitioner has not established eligibility for either classification. 
A. Exceptional Ability 
Under the regulation at 8 C.F.R. § 204.5(k)(3)(ii), a petition for an individual of exceptional ability 
must include at least three of the following types of evidence pertaining to the Beneficiary: 
• (A) A degree or similar award relating to the area of exceptional ability; 
• (B) At least 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 which demonstrates exceptional ability; 
• (E) Evidence of membership in professional associations; or 
2 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
3 
• (F) Evidence of recognition for achievements and significant contributions. 
If the above standards do not readily apply to the beneficiary's occupation, the petitioner may submit 
comparable evidence to establish the beneficiary's eligibility. 8 C.F.R. § 204.5(k)(3)(iii). 
The Petitioner claimed to satisfy the first, second, fourth, and fifth criteria listed above. The Petitioner 
also submitted certificates, articles, and other materials as comparable evidence of exceptional ability. 
The Petitioner did not explain how these materials establish exceptional ability. More fundamentally, 
the Petitioner did not establish the regulatory criteria at 8 C.F.R. § 204.5(k)(3)(ii) do not readily apply 
to his occupation, as the regulation requires. Rather, the Petitioner claimed to satisfy four of the six 
criteria, thereby acknowledging their applicability, and did not claim that the other two criteria do not 
readily apply to his occupation. 
The Director determined that the Petitioner had met only the first two criteria, relating to an academic 
degree and experience in the occupation. On appeal, the Petitioner maintains that he also meets the 
criterion relating to salary. He does not address the Director's determinations relating membership in 
professional associations and comparable evidence, and therefore we consider those claims to be 
abandoned. 3 
The Petitioner's claim of exceptional ability hinges on 8 C.F.R. § 204.5(h)(3)(ii)(D), which requires 
evidence that he has commanded a salary, or other renumeration for services, which demonstrates 
exceptional ability. 
We note that the Petitioner submits new tax and salary information on appeal. The Director was not 
able to review this evidence, but we take note of the new submissions because they contain 
discrepancies and raise other questions that affect their probative value. 
The Petitioner initially submitted a Brazilian income tax form for "fiscal year 2018" and "tax year 
2017," indicating that,__ __ ~ __ ____, paid him R$25,200 in taxable income and R$289,489 in 
non-taxable"[ e ]amings from partnership or ownership of small company." (The Petitioner owns 40% 
of that company.) The form also indicates that the Petitioner's "Main Occupation" is "Officer, 
president and director of an industrial, commercial or service provider company." 
The chief operations officer o±i I states that the company paid the Petitioner R$28,500 
per month for his work "in the roles of Software Engineer, Project Manager and Business Director" 
from January 2011 to September 2019. 
Brazilian survey data indicates the following salary rates for highly experienced employees at small 
organizations: system developer, R$4655; software developer, R$5033; business director, R$12,695; 
and entrepreneur, R$7492. 
3 See Matter of R-A-M-. 25 T&N Dec. 657. 658 n.2 (BIA 2012) (stating that when a filing party fails to appeal an issue 
addressed in an adverse decision, that issue is waived). See also Sepulveda v. U.S. At(v Gen., 401 F.3d 1226. 1228 n. 2 
(11th Cir. 2005). citing United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998); Hristov v. Roark, No. 09-
CV-27312011, 2011 WL 4711885 at *l. *9 (E.D.N.Y. Sept. 30, 2011) (plaintiffs claims were abandoned as he failed to 
raise them on appeal to the AAO). 
4 
The submitted printouts do not folly specify the context for these figures. For example, the submitted 
printouts do not specify the interval for the figures ( e.g., monthly or annual), and they do not show 
whether the figures represent the mean, the median, or some other point on the salary range. 
Furthermore, the figures relate only to small organizations. The submitted survey data shows that 
large companies may pay more than double some of the figures quoted above. 
The Director concluded that the Petitioner had provided incomplete salary information for different 
occupations, and therefore had not met his burden of proof. 
On appeal, the Petitioner's accountant states that the Petitioner earned R$321,700 in 2018 and 
$R245,872 in 2019, and that the Petitioner's "income is primarily derived from his compan~ I 
and his work as an IT/Software Developer." Brazilian tax returns show taxable income of R$21,000 
for tax year 2018 and R$25,200 for 2019. The Petitioner does not explain why these annual figures 
are lower than the R$28,500 monthly figure in the letter submitted previously. 
The Petitioner submits survey data from a different source than the other figures quoted above, 
indicating that the "Average Software Developer Salary in Brazil" is R$59,612, which is more than 
double the R$25,200 in taxable income shown on his Brazilian tax documents. 
Survey data shows that the average U.S. software developer earns $71,446 per year. On his U.S. tax 
return for 2019, the Petitioner reported $93,000 in income, but more than two-thirds of that amount 
came from dividends. The return attributes less than $6300 to "wages from Brazil," and less than 
$24,350 to income from his U.S. company~------~ The Petitioner does not indicate that 
any of this U.S. business income was in the form of salary or remuneration for services as a software 
developer. 
The figures the Petitioner provide are inconsistent and combine income from two different sources: 
salary as a software engineer, and profits he collected as part owner of a business. The Petitioner has 
not provided any valid basis for comparison between his earnings and those of others with comparable 
responsibilities. The Petitioner's dividends and profits from owning businesses do not amount to 
salary paid to a software developer, and it is not accurate to compare his total earnings to the average 
salary of software developers. 
In the absence of reliable, consistent information comparing the Petitioner's salary and remuneration 
to that of others similarly situated, the Petitioner has not established that his salary and remuneration 
demonstrate exceptional ability. 
B. Member of the Professions Holding an Advanced Degree 
Initially, although the Petitioner relied primarily on his claim of exceptional ability, he also claimed, 
in the alternative, to qualify as a member of the professions holding an advanced degree. The 
Petitioner did not farther pursue this claim in its response to the request for evidence; therefore, the 
Director did not address that claim in the denial decision. Because the Petitioner revives the claim on 
appeal, we will address it here. For the reasons discussed below, we conclude that the Petitioner has 
not established eligibility as a member of the professions holding an advanced degree. 
5 
From 2006 to 2008, the Petitioner earned a degree, evaluated as equivalent to a U.S. associate degree, 
in systems analysis and development from the I I University ofl I Brazil From 2019 to 
2011, the Petitioner took "a specialization course in project management" atl and 
received a "postgraduate lato-sensu certificate of specialization" ( certifzcado de especializac;ao). 
The Petitioner has submitted two evaluations, contending that the associate degree and certificate of 
specialization, taken together, are equivalent to a bachelor's degree. USCIS uses such evaluations as 
advisory opinions only. Where an evaluation is not in accord with previous equivalencies or is in any 
way questionable, it may be discounted or given less weight. Matter of Sea, Inc., 19 I&N Dec. 81 7 
(Comm'r 1988). The first evaluation cites no sources regarding Brazil's education system, and 
includes the erroneous statement that "an associate degree and [sic] followed by more than five years 
of foll-time work experience in the field of information technology is equivalent to a Master of Science 
in Information Systems." The evaluation submitted on appeal cites the website of AACRAO EDGE 
among its sources. That site states that "Cursos de Especializac;Zio (specialization programs) ... are 
considered lato sensus (wide sense graduate-level programs) . . . . Such programs lead toward 
professional certificates, not graduate degrees" ( emphasis added). 4 The Petitioner has not established 
that his certificate of specialization is an academic degree rather than a certificate of occupational 
training. 
The regulations allow for the substitution of a bachelor's degree plus experience in place of a master's 
degree. There is no farther provision for combining lesser degrees and certificates into the equivalent 
of a master's degree. The Petitioner has not established that he holds any degree that is equivalent to 
a U.S. baccalaureate degree. Therefore, he has not shown that he qualifies for classification as a 
member of the professions holding an advanced degree or its defined equivalent. 
In light of the above conclusions, the Petitioner has not established eligibility for the underlying 
immigrant classification. Detailed discussion of the national interest waiver cannot change the 
outcome of this appeal. Therefore, we reserve this issue. 5 
III. CONCLUSION 
For the reasons discussed above, the Petitioner has not established eligibility for classification as a 
member of the professions holding an advanced degree or as an individual with exceptional ability in 
the sciences, arts, or business. Therefore, we will dismiss the appeal. 
ORDER: The appeal is dismissed. 
4 Source: https://www.aacrao.org/edge/country/brazil (last visited June 15, 2021). We consider EDGE to be a reliable 
source of information about foreign credential equivalencies. See Confluence Intern .. Inc. v. Holder, Civil No. 08-2665 
(DSD-JJG), 2009 WL 825793 (D. Minn. Mar. 27, 2009); Tisco Group, Inc. v. Napolitano, No. 09-cv-10072, 2010 WL 
3464314 (E.D. Mich. Aug. 30, 201 0); Sunshine Rehab Services, Inc. No. 09-13605, 2010 WL 3325442 (E.D. Mich. Aug. 
20, 2010). See also Viraj, LLC v. Holder, No. 2: 12-CV-00127-RWS, 2013 WL 1943431 (N.D. Ga. May 18, 2013). 
5 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 of L-A-C-, 26 l&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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