dismissed EB-2 NIW Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: DEC. 13, 2023 In Re: 28079336 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Worker (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. § l 153(b )(2). 
The Acting Director of the Texas Service Center denied the petition, concluding that the Petitioner did 
not establish that a waiver of the classification's job offer requirement, 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. 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. 
An advanced degree is any U.S. academic or professional degree or a foreign equivalent degree above 
that of a bachelor's degree. 1 8 C.F.R. § 204.5(k)(2). A U.S. bachelor's degree or a foreign equivalent 
degree followed by five years of progressive experience in the specialty is the equivalent of a master's 
degree. Id. 
1 Profession shall include, but not be limited to, architects, engineers, lawyers, physicians, surgeons, and teachers in 
elementary or secondary schools, colleges, academics, or seminaries. Section 10l(a)(32) 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, 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, 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. ANALYSIS 
The Acting Director determined that the Petitioner was a member of the professions holding an 
advanced degree. 3 The remaining issue to be determined is whether the Petitioner qualifies for a 
national interest waiver under the Dhanasar framework. 
The Petitioner states that he is a software engineer and developer with more than 35 years of 
experience, specializing in "logistics, financial systems, neural networks and deep learning." His 
proposed endeavor is to help "business clients execute and develop effective software development 
while providing a positive economic impact for the local, regional and national economy." He intends 
to hire and train professionals through his company,! I, to offer "specialized services as 
a software and systems development consultant to companies in many sectors, including investment 
and financial markets in the U.S.," as well as to Brazilian companies investing in the United States. 
With the initial filing the Petitioner submitted evidence of his education and experience, a personal 
statement describing his proposed endeavor and claimed eligibility for a national interest waiver, and 
a business plan. He also provided recommendation and support letters, evidence of publications and 
presentations he authored, as well as an expert opinion. He submitted industry reports and articles 
discussing shortages of technical talent, the role of software development in business growth, the 
importance of small businesses in the U.S. economy, the financial services industry, and contributions 
of immigrants to the U.S. economy. In his business plan, the Petitioner states that his proposed 
endeavor will grow his company to 24 clients and 15 employees within five years, reaching a gross 
profit of approximately $500,000. 
Following initial review, the Director issued a request for evidence (RFE), allowing the Petitioner an 
opportunity to submit additional evidence in attempt to establish his eligibility for the national interest 
waiver. The Petitioner's response to the RFE includes an updated business plan dated September 
2022, additional industry reports and articles, and evidence that attracting talent in Science, 
Technology, Engineering and Mathematics (STEM) to the United States is a national initiative. 
2 See also Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (finding USCTS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
3 The record demonstrates that the Petitioner holds the equivalent of a U.S. master's degree awarded in 1999. See 8 C.F.R. 
§ 204.5(k)(3)(i)(A). 
2 
After reviewing the Petitioner's RFE response, the Acting Director determined that the Petitioner 
submitted sufficient evidence to demonstrate that the proposed endeavor has substantial merit. 
However, she concluded that the Petitioner had not demonstrated that his proposed endeavor had 
national importance, that he was well-positioned to advance the proposed endeavor, or that, on 
balance, it would be beneficial to the United States to waive the requirements of a job offer, and thus 
of the labor certification. The Acting Director stated that the record did not demonstrate that the 
Petitioner's proposed endeavor will have a regional or national impact at a level consistent with having 
national importance, or that the Petitioner's work will have broader implications in his field of 
endeavor, going beyond his own business and clients. The Acting Director further noted that the letters 
of recommendation do not demonstrate that the Petitioner's accomplishments would have any impact 
or influence in the field of computer science beyond the local level or the Petitioner's clients. 
Additionally, the Acting Director determined that the Petitioner did not demonstrate national interest 
factors such as the impracticality of a labor certification, the benefit of his prospective contributions 
to the United States, an urgent national interest in his contributions, the potential creation of jobs, or 
that his self-employment does not adversely affect U.S. workers. 
On appeal, the Petitioner submits a brief and asserts that the Acting Director's decision contains "clear 
error of judgment and statements not based upon consideration of relevant factors and evidence on 
record and contradictions and inconsistencies" resulting in an abuse of discretion. The Petitioner 
asserts that the Acting Director ignored evidence and did not consider all the benefits of his proposed 
endeavor. In his brief on appeal, the Petitioner references evidence already in the record and states 
that this evidence demonstrates by a preponderance of the evidence that he merits a national interest 
waiver. 
A. Substantial Merit and National Importance 
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. 
Matter ofDhanasar, 26 I&N Dec. at 889. 
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 Id. In Dhanasar, we further noted that "we look for broader implications" of the 
proposed endeavor and that "[ a ]n undertaking may have national importance for example, because it 
has national or even global implications within a particular field." 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 submits articles and industry reports describing the importance of software 
development to the success of small businesses, as well as the general shortage of technical talent in 
the United States. 4 An undated article from the BoostSuite titled "22 Fascinating Florida Small 
4 While we discuss a sampling of these aiiicles and rep01is, we have reviewed and considered each one. 
3 
Business Statistics" provides data on the number and success rate of small businesses in the state. The 
Petitioner does not explain how the article demonstrates that his specific proposed endeavor is of 
national importance. Similarly, a November 2020 article from the Pew Research Center titled "The 
pace of Boomer retirements has accelerated in the past year," gives statistics on retirement rates in 
various sectors, but does not address the national importance of the Petitioner's specific proposed 
endeavor or explain the relevance of this data to software development for small businesses. An article 
from ICTSD.org dated January 2022 and titled "How Many Businesses Are Sustainable," discusses 
the importance of having a sustainability strategy in business. However, the article provides general 
information and does not focus on the Petitioner's specific proposed endeavor. 
When determining national importance, the relevant question is not the importance of the 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 Matter ofDhanasar, 26 I&N Dec. at 889. Much of the 
Petitioner's evidence relates to small businesses generally, rather than his specific proposed endeavor. 
Although we agree that STEM is important to the sustainability of small businesses' contributions to 
the U.S. economy and may be the subject of national initiatives, we conclude that this does not 
necessarily establish the national importance of the Petitioner's specific proposed endeavor. Even 
considering the articles and reports, collectively and in the totality of circumstances, the record 
contains insufficient information or evidence regarding the Petitioner's proposed endeavor to show 
broad potential implications demonstrating national importance. As noted above, the Acting Director 
determined the endeavor has substantial merit, and we agree. However, the question we are examining 
here is national importance. 
The Petitioner also submits his business plan to support the national importance of his proposed 
endeavor. As noted, to establish national importance, the Petitioner must demonstrate the proposed 
endeavor's impact. In Dhanasar, we noted that "we look for broader implications" of the proposed 
endeavor and that"[ a ]n undertaking may have national importance for example, because it has national 
or even global implications within a particular field." Id. The Petitioner states that his proposed 
endeavor "contributes to the enhancement of business organizational processes, thereby benefitting 
the U.S. economy as a whole." He provides statistics regarding the number of small businesses in 
Florida, the market for his proposed endeavor, and notes that small businesses support the U.S. 
economy and create new jobs. However, this data does not support the Petitioner's assertion that his 
proposed endeavor to improve the efficiency of small businesses in Florida will have a national-level 
impact. Additionally, the projections of the Petitioner's company's job creation and profit as stated in 
his initial and September 2022 business plans are not supported with sufficient independent, objective 
evidence. 
The Petitioner also states in his business plan that he will "target Brazilian businesses that want to 
expand their operations to the U.S. [ ... by utilizing] his reputation which is well-known in Brazil." 
However, he does not support his assertion that this aspect of his proposed endeavor will "result in the 
expansion of the U.S. economy." The evidence does not suggest that the Petitioner's skills differ from 
or improve upon those already available and in use in the United States. Nor does the evidence 
demonstrate that the use of the Petitioner's experience will reach beyond benefitting his own company 
and clients or have broader implications within the field of software development. The record does 
not establish that his proposed endeavor stands to impact the field as a whole. 
4 
The Petitioner also submits an expert opinion prepared by ~--------------~ as well as recommendation letters pra1smg the Petitioner's education, 
experience, past success, personal qualities, and the results he achieved. However, these qualities 
relate to the second prong of the Dhanasar framework, that the individual is well-positioned to 
advance their proposed endeavor, which "shifts the focus from the proposed endeavor to the foreign 
national." Matter ofDhanasar, 26 I&N Dec. at 890. The issue here is whether the Petitioner's specific 
endeavor has national importance under Dhanasar 's first prong. 
We acknowledge that the expert opinion includes an analysis of the national importance of the 
Petitioner's proposed endeavor. In his analysis I Idiscusses trends in the information 
technology industry in both the United States and Brazil. He summarizes that, based on the 
Petitioner's experience and knowledge of the business environment in Brazil, "there is no doubt that 
[the Petitioner] would work in the United States in an area of substantial merit and national 
importance." However.I I does not describe or analyze the Petitioner's specific proposed 
endeavor. As a matter of discretion, we may use opinion statements submitted by the Petitioner as 
advisory. Matter ofCaron Int'!, Inc., 19 I&NDec. 791,795 (Comm'r 1988). However, we will reject 
an opinion or give it less weight if it is not in accord with other information in the record or if it is in 
any way questionable. Id. We are ultimately responsible for making the final determination regarding 
an individual's eligibility for the benefit sought; the submission of expert opinion letters is not 
presumptive evidence of eligibility. Id. Here, the advisory opinion is of little probative value as it 
does not meaningfollf address the details of the Petitioner's proposed endeavor and why it would have 
national importance. _ Idoes not elaborate on how the Petitioner's proposed endeavor will 
have a prospective impact on the United States, including the national or global implications on mining 
operations, the potential to employ U.S. workers, or the positive economic effects. 
The Petitioner asserts that the Acting Director did not consider the evidence of the benefits of his 
proposed endeavor and states that the decision includes "contradictions and inconsistencies." The 
Petitioner does not specifically identify the statements he asserts are contradictory or inconsistent. On 
appeal, the Petitioner relies upon the evidence he previously submitted. While we acknowledge the 
Petitioner's appellate claims that the Acting Director did not duly consider certain pieces of evidence, 
we note that the decision discusses each of the claimed pieces of evidence the Petitioner's lists in his 
brief Nevertheless, we address them again herein. The Petitioner continues to rely upon the asserted 
merits of the services he will provide, his personal and professional qualities and achievements, and 
the trends in information technology. However, as set forth above, the evidence does not sufficiently 
demonstrate the proposed endeavor's national importance. Therefore, we conclude that the Petitioner 
has not met the requisite first prong of the Dhanasar framework. 
As the Petitioner has not established the national importance of his proposed endeavor as required by 
the first prong of the Dhanasar framework, he is not eligible for a national interest waiver and farther 
discussion of the balancing factors under the second and third prongs would serve no meaningful 
purpose. As noted above, we reserve the Petitioner's appellate arguments regarding the two remaining 
Dhanasar prongs. 5 See INS v. Bagamasbad, 429 U.S. at 25. 
5 Even if we had addressed the remaining issues, we still would have dismissed this appeal. As noted above, the Acting 
Director concluded that, although the proposed endeavor has substantial merit, the Petitioner did not establish its national 
5 
III. CONCLUSION 
As the Petitioner has not met all of the requisite three prongs set forth in the Dhanasar analytical 
framework, we conclude that 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. 
importance, that he was well-positioned to advance the proposed endeavor, or 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. On appeal, the Petitioner 
references the same supporting evidence submitted with the original petition and RFE response and does not provide any 
new evidence. The Acting Director fully addressed the previously submitted evidence and explained how it was deficient 
in establishing that the Petitioner met the three Dhanasar factors and would be eligible for a national interest waiver. The 
Petitioner's assertions on appeal do not establish that he meets all of the three Dhanasar prongs. 
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