dismissed EB-2 NIW Case: Software Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re: 26480808 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: APR. 27, 2023 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a computer software engineer, seeks classification as a member of the professions 
holding an advanced degree. See Immigration and Nationality Act (the Act) section 203(b)(2), 
8 U.S .C. § l 153(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. 
§ ll 53(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 
qualified for classification as a member of the professions holding an advanced degree but that the 
Petitioner 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 Christa'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. 
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 a matter of discretion, grant a national interest 
waiver if the petitioner demonstrates: (1) that the noncitizen's proposed endeavor has both substantial 
merit and national importance; (2) that the noncitizen is well positioned to advance the proposed 
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, substantial merit and national importance, focuses on the specific endeavor that the 
noncitizen 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. 
See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
II. ANALYSIS 
The Director found that the Petitioner qualifies as a member of the professions holding an advanced 
degree. The remaining issue to be determined is whether the Petitioner has established that a waiver 
of the requirement of a job offer, and thus of a labor certification, would be in the national interest. 
For the reasons discussed below, the Petitioner has not established that a waiver of the requirement of 
a job offer is warranted. 
Initially, the Petitioner summarized her academic and employment history, she asserted that she 
currently worked as a software quality assurance (QA) engineer, and she described the endeavor as 
follows: 
For the next years, my goals are: 
• Obtain a certification on advanced technique of automation testing provided by 
UltimateQA; 
• Get the ISTQB certification; 
• Become an instructor at and] 
• Become a Senior QA Engineer. 
In a request for evidence (RFE), the Director acknowledged the Petitioner's initial submission but 
informed her, in relevant part, that she did not provide a detailed description of the proposed endeavor 
and why it is of substantial merit and national importance. The Director further informed the Petitioner 
that the record did not satisfy any of the Dhanasar prongs and requested additional evidence that 
addresses each prong. 
In response to the Director's RFE, the Petitioner submitted, in relevant part, a letter dated July 21, 
2022, after the 2021 petition filing date. The letter includes a five-year professional plan that differs 
substantially from the Petitioner's initial description of the proposed endeavor. A summary of the 
Petitioner's five-year plan submitted in response to the RFE is as follows: 
• Year 1: Senior QA Engineer at and Instructor/Mentor at __ 
I I 
• Year 2: Certified Scrum Master 
• Year 3: Project Manager 
• Year4: MBA 
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• Year 5: Senior Director, Digital Product 
Management & Agile Delivery 
The Petitioner also stated in response to the Director's RFE, "I already achieve the first step of my 5 
years Professional becoming a Senior QA Engineer (my actual job at I and being an 
Instructor/Mentor at I Ir sic]." 
A petitioner must establish eligibility for the benefit it is seeking at the time the petition is filed. See 
8 C.F.R. § 103.2(b)(l). A visa petition may not be approved based on speculation of future eligibility 
or after a petitioner becomes eligible under a new set of facts. See Matter of Katigbak, 14 I&N 
Dec. 45, 49 (Reg'l Comm'r 1971 ). A petitioner may not make material changes to a petition in an 
effort to make a deficient petition conform to USCIS requirements. See Matter of Izummi, 22 I&N 
Dec.169, 176(Assoc.Comm'r 1998). 
The Petitioner did not initially indicate that her proposed endeavor included becoming a certified 
Scrum Master and project manager, earning a Master of Business Administration degree, and 
becoming a senior director. Instead, she stated that her endeavor entailed obtaining certain 
certifications and becoming an instructor atl I and a senior QA engineer. Because the 
Petitioner stated, for the first time in response to the RFE, that her proposed endeavor would include 
those additional pursuits, they constitute a new set of facts. That new set of facts is material to the 
first Dhanasar prong because it implicates the merit of the proposed endeavor and its potential 
prospective impact. See Dhanasar, 26 I&N Dec. at 888-90. Because the new set of facts presented 
in response to the RFE constitute a material change to the petition, they cannot and do not establish 
eligibility, and we need not address them further. See 8 C.F.R. § 103.2(b)(l); Matter of Katigbak, 
14 I&N Dec. at 49; Matter of Izummi, 22 I&N Dec. at 176. 
Setting aside the new set of facts submitted in response to the RFE that cannot establish eligibility for 
the reasons discussed above, the Petitioner asserted, in response to the RFE, that becoming "Senior 
QA Engineer atl I and Instructor/Mentor atl I has substantial merit because: 
Asl I is willing to grow in European countries, my knowledge of multiple 
European languages and habits is very helpful for the development of the software and 
the establishment of the biggest points of interest in software testing ( client 
expectations are different from country to country); deliver unmatched exposure to the 
European Market, continued innovation to drive engagement, loyalty, and results in 
new markets. 
The Petitioner further asserted in the RFE response that "it is very important for the US economy to 
have delivered in time good working applications/software and for that to happen the testing part is 
very important; this will assure that the applications/software will work as expected and that it is safe 
to use it." The Petitioner also stated in response to the RFE: 
My work will sustain the growth of this field and help to create more jobs directly and 
indirectly. Directly because the company where I work will continue to growth and so 
will need more workers and indirectly because the applications/software that we 
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develop will help other professionals to work, so to develop their business and create 
jobs [sic]. 
The Director concluded, in relevant part, "The evidence does not establish that the [Petitioner's] 
proposed endeavor has substantial merit and national importance." The Director acknowledged the 
Petitioner's submissions in response to the RFE but noted that they are "insufficient because this 
professional plan was completed after the initial date of filing and does not indicate how the proposed 
endeavor has substantial merit." The Director further noted that "no further evidence was submitted 
to establish that [she] meets this requirement." Similarly, the Director observed that the Petitioner 
"also did not submit evidence to show how [her] endeavor would be of national importance to the 
United States," such as "an explanation or evidence of how the proposed endeavor has significant 
potential to employ U.S. workers or has other substantial positive economic effects, particular [sic] in 
an economically depressed area." 
On appeal, the Petitioner asserts, in relevant part, the following: 
The officer states that the proposed endeavor's substantial merit requirement is not 
meet because the professional plan where all those requirements are described was only 
submitted with the RFE and not at the time of first filing. But the intend of an RFE is 
to give more information and explain better the requirements. So we have here an 
erroneous conclusion on the first prong. 
The officer states that the proposed endeavor's national importance requirement is not 
meet because I didn't submit the necessary evidences. Again, we have an erroneous 
conclusion, because in my case, you can find the detailed explanation of why my work 
is of national importance and why it will create directly and indirectly new jobs even 
in economically depressed areas [sic]. 
In determining national importance, the relevant question is not the importance of the industry, field, 
or profession in which an individual will work; instead, to assess national importance, we focus on the 
"specific endeavor that the [noncitizen] proposes to undertake." See Dhanasar, 26 I&N Dec. at 889. 
Dhanasar provided examples of endeavors that may have national importance, as required by the first 
prong, having "national or even global implications within a particular field, such as those resulting 
from certain improved manufacturing processes or medical advances" and endeavors that have broader 
implications, such as "significant potential to employ U.S. workers or has other substantial positive 
economic effects, particularly in an economically depressed area." Id. at 889-90. 
The Petitioner's assertion on appeal that the Director erred by concluding that her statements made for 
the first time in response to the RFE cannot establish eligibility is misplaced. USCIS may, as a matter 
of discretion, request more information or evidence from a petitioner if "all required initial evidence 
is not submitted with the benefit request or does not demonstrate eligibility" or if "all required initial 
evidence has been submitted but the evidence does not establish eligibility." 8 C.F.R. 
§ 103 .2(b )(8)(ii)-(iii). However, "[a] benefit request shall be denied where evidence submitted in 
response to a request for evidence does not establish filing eligibility at the time the benefit request 
was filed." 8 C.F.R. § 103.2(b)(l2); see also 8 C.F.R. § 103.2(b)(l); Matter of Katigbak, 14 I&N 
Dec. at 49; Matter of Izummi, 22 I&N Dec. at 176. Although a petitioner may "give more information 
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and explain better" in response to an RFE as the Petitioner asserts on appeal, the record must 
nevertheless establish eligibility at the time of filing, not based on a new set of facts that did not exist 
at the time of filing. See id. Therefore, the Director did not err by concluding that the Petitioner's 
statements made for the first time in response to the RFE, presenting a new set of facts, cannot establish 
eligibility. See id. 
The record does not establish that the Petitioner's proposed endeavor of obtaining certain certifications 
and becoming an instructor atl I and a senior QA engineer has both substantial merit and 
national importance, as required by the first Dhanasar prong. See Dhanasar, 26 I&N Dec. at 889-90. 
The Petitioner's work-either as a QA engineer or as an instructor-appears to benefit her employers 
and clients. However, the record does not establish how the Petitioner's work as either a senior QA 
engineer or instructor will have "national or even global implications within a particular field, such as 
those resulting from certain improved manufacturing processes or medical advances" or broader 
implications, such as "significant potential to employ U.S. workers or has other substantial positive 
economic effects, particularly in an economically depressed area." Id. at 889-90. For example, the 
Petitioner generally asserted that her employer will grow "and so will need more workers" and that 
her employer's clients using the software will indirectly "create jobs." However, the Petitioner does 
not establish in the record the types of jobs she believes her endeavor will create, either directly or 
indirectly; the number of workers filling the jobs she believes her endeavor will create; the locations 
in which the workers filling the jobs she believes her endeavor will create would work; whether those 
locations are economically depressed areas; and other details that may establish whether the proposed 
endeavor has "significant potential to employ U.S. workers or has other substantial positive economic 
effects, particularly in an economically depressed area." Id. Similarly, although the Petitioner 
generally states that her "knowledge of multiple European languages and habits is very helpful for the 
development of the software and the establishment of the biggest points of interest in software testing," 
the record does not establish how her cultural knowledge will have "national or even global 
implications within a particular field, such as those resulting from certain improved manufacturing 
processes or medical advances," rather than merely benefitting her employer and its clients for 
particular projects. Id. 
In summation, the Petitioner has not established that the proposed endeavor has both substantial merit 
and national importance, as required by the first Dhanasar prong; therefore, she is not eligible for a 
national interest waiver. We reserve our opinion regarding whether the record satisfies the second or 
third Dhanasar prong. See INS v. Bagamasbad, 429 U.S. 24, 25 ( 1976) ("courts and agencies are not 
required to make findings on issues the decision of which is unnecessary to the results they reach"); 
see also 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, we 
conclude that the Petitioner has not established eligibility for, or otherwise merits, a national interest 
waiver as a matter of discretion. 
ORDER: The appeal is dismissed. 
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