dismissed EB-2 NIW Case: Software Engineering

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: APR. 29, 2024 In Re: 30815096 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Worker (National Interest Waiver) 
The Petitioner, a technology company, seeks employment-based second preference (EB-2) immigrant 
classification for the Beneficiary 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. § 1153(b)(2). 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish that the proposed endeavor was of national importance, that the Beneficiary was well­
positioned to advance the proposed endeavor, or that it would be beneficial to the United States to 
waive the requirements of a job offer and labor certification. 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 of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
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. 
If a petitioner demonstrates eligibility for the underlying EB-2 classification, 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, 1 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 Director found that the Beneficiary 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 a labor certification, would be in the national interest. For the 
reasons discussed below, upon a de novo review of the record, we agree with the Director that the 
Petitioner has not sufficiently demonstrated national importance of the proposed endeavor under the 
first prong of the Dhanasar analytical framework. 
A. The Proposed Endeavor 
The Beneficiary is a software engineer, working for the _______ the Petitioner, with its 
WebXT engineering systems team. The Petitioner's support statement, submitted with the initial 
application, states that the field of endeavor is advanced computing, data processing, and analysis 
techniques. Specifically, according to the support statement, the Beneficiary is an expert in Cloud 
technology and at the Petitioner's company works on migrating "large amounts of data from a legacy 
source control solution to a more well-known source control solution like Git." At the Petitioner's 
company, he also develops platforms for code changes, helps to gather engineering satisfaction data, 
develops gating solution to ensure engineers follow best software engineering practices, improves 
teams' security by standardizing authentication practices, and developed a Git filter, Git-hfs, to help 
his team migrate data. 
In responding to the Director's request for evidence (RFE), the Petitioner added that the Beneficiary 
also "built _______ a cutting-edge AI-powered application that enhances the software 
development process by providing automated and intelligent assistance to engineers." This application 
supports the entire software development lifecycle. It can automatically review code and provide 
suggestions for improvement. 
The Petitioner's initial description of his proposed endeavor did not include his work on the 
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's initial description of his proposed endeavor did not include 
his work with the only his work on data migration, Git-hfs, and engineering 
consistency and security. The inclusion of this artificial intelligence application is a distinct addition 
from the initial proposed endeavor as it significantly expands the endeavor outside the original focus 
1 See also 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 to be 
discretionary in nature). 
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on data migration. As the Dhanasar framework requires an analysis of the substantial merit and 
national importance of the specific endeavor proposed by an individual, such an addition is material 
to their eligibility for a national interest waiver. Also, a petitioner must demonstrate eligibility 
requirements for the requested benefit at the time of filing the petition. 8 C.F.R. § 103.2(b)(l). The 
Beneficiary's work with the submitted for the first time in response to the 
RFE, cannot establish eligibility as it was not presented in the original petition. Accordingly, we will 
only consider the proposed endeavor as described in the initial filing when conducting our analysis 
under the Dhanasar framework. 
B. 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. 
Dhanasar, 26 I&N Dec. at 889. 
The Director determined that the Petitioner's proposed endeavor was of substantial merit. Upon a de 
novo review of the record, we agree. 
Regarding the national importance of the proposed endeavor, the Director's decision acknowledged 
the importance of advanced computing generally but found that the Beneficiary's work primarily 
benefited the Petitioner. The Director further found that the Petitioner did not establish that the 
Beneficiary's work offered original innovations in the field of advanced computing of such 
significance as to advance the field and result in broader implications for the nation. On appeal, the 
Petitioner argues that the Director neglected to consider Dr. I I letter. The brief on 
appeal mentions that the letter from the Beneficiary's skip level manager provides specifics regarding 
his work on Git-hfs but does not further argue that his work as described in the petition's initial filing 
is of national importance. 2 
Initially, we note that in determining national importance, 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 Dhanasar, 26 I&N Dec. at 
889. 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. Here, the proposed endeavor supports the Petitioner. 
Yet, the record does not establish how the endeavor would have broader implications in the field, a 
significant potential to employ U.S. workers, or substantial positive economic effects, as contemplated 
by the first Dhanasar prong. 26 I&N Dec. at 889. 
2 The bulk of the appeal concerns the Beneficiary's work on I I Again, the introduction of the Beneficiary's work 
on I I in response to the RFE constitutes a material change to proposed endeavor. Matter oflzummi, 
22 I&N Dec. at 176. We will only consider the proposed endeavor as described in the initial filing. 
3 
Much of the evidence in the record and the Petitioner's arguments focus on the importance of the field 
of advanced computing and the Petitioner's reach and impact on the computing world. 3 To support 
the argument for national importance in the initial filing, the Petitioner submitted various articles and 
reports discussing the critical nature and importance of advanced computing and government memos 
referencing advanced computing as a critical technology. However, nothing in this evidence mentions 
the Beneficiary's specific work with the WebXT team. The RFE response further argued that the 
Petitioner's importance as a multinational corporation informs the national importance of the 
Beneficiary's work. In support, the Petitioner submitted further articles on the importance of advanced 
computing. Nevertheless, again none of the articles reference the Beneficiary, Git-hfs, or the WebXT 
team's work. 
The Petitioner also provided a letter from Dr. I I an associate professor in computer 
information systems at I I University. It discusses the Beneficiary's skills, the general 
importance and impact of advanced computing, data migration to the Cloud, and the influence of the 
I I As a matter of discretion, we may use opinion statements submitted by a 
petitioner as advisory. Matter ofCaron Int'!, Inc., 19 I&N Dec. 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. In this letter, Dr.I ldoes not explain 
how the Beneficiary's individual work with WebXT impacts the field beyond supporting the functions 
of the Petitioner. He primarily concentrates on how someone skilled in advanced computing can make 
a significant impact on U.S. technological growth and corporations generally. He focuses on the 
Beneficiary's field and neglects to narrow in on the Beneficiary's specific endeavor to explain its 
national importance. See Dhanasar, 26 I&N Dec. at 889 (noting that the focus of prong one is not the 
importance of the field, industry, or profession but the specific endeavor the noncitizen proposes to 
undertake). 
We observe that the functions described in the petition facilitate the Petitioner's operations as they 
focus on the migration of the Petitioner's data to new platforms, the development of Git-hfs to assist 
data migration, gathering employee satisfaction data, and improving engineers' security and 
consistency. These are tasks that support the Petitioner and help it continue to operate and grow, as 
they assist in security, product quality, and data storage. However, the evidence does not sufficiently 
demonstrate how this work itself would affect the advanced computing field more broadly, 
significantly employ U.S. workers, or have substantial positive economic effects as contemplated by 
the first Dhanasar prong. See Dhanasar, 26 I&N Dec. at 889. In the same way that Dhanasar finds 
that a classroom teacher's proposed endeavor is not nationally important because it will not impact 
the field more broadly, we find that the record does not establish that his proposed endeavor will 
sufficiently extend beyond the Petitioner to affect the field of advance computing more broadly. Id. 
at 893. For the reasons given above, we conclude that the Petitioner has not established the national 
importance of the proposed endeavor, and therefore does not meet the first prong of the Dhanasar 
analytical framework. 
3 While we may not discuss every document submitted, we have reviewed and considered each one. 
4 
We acknowledge that in the RFE response the Petitioner made arguments regarding Git-hfs' potential 
national impact. However, contentions require support to underpin them, as assertions themselves do 
not constitute evidence. See, e.g., Matter ofS-M-, 22 I&N Dec. 49, 51 (BIA 1998) ("statements in a 
brief, motion, or Notice of Appeal are not evidence and thus are not entitled to any evidentiary 
weight"). The Petitioner submitted one letter discussing Git-hfs froml Ione of the 
Beneficiary's co-workers at In the letter, he discusses the Beneficiary's work and states 
that he believes Git-hfs can be used by other organizations to consolidate their data. Nevertheless, he 
provided no further detail and no examples of it being used beyond I I Moreover, the 
Petitioner presented no further evidence on Git-hfs specifically, besides this letter. Without more 
documentation supporting counsel's claims, there is not enough in the record to establish the national 
importance by a preponderance of the evidence. Matter of Chawathe, 25 I&N Dec. at 375-76. 
Accordingly, for the reasons given above, we conclude that the Petitioner has not established the 
national importance of the proposed endeavor, and therefore does not meet the first prong of the 
Dhanasar analytical framework. 
As the identified reasons for dismissal are dispositive of the Petitioner's appeal, we decline to reach 
and hereby reserve remaining arguments concerning eligibility under the Dhanasar framework. See 
INSv . Bagamasbad , 429 U.S. 24, 25 (1976) (stating that "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 find 
that they have not established that the Beneficiary is eligible for or otherwise merits a national interest 
waiver as a matter of discretion. 
ORDER: The appeal is dismissed. 
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