dismissed EB-2 NIW Case: Software Engineering

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: FEB. 26, 2025 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
In Re: 35821413 
The Petitioner, seeks to employ the Beneficiary as a senior 
software engineer. requests the Beneficiary's classification under the 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. § 1153(b)(2). 
The Director of the Nebraska Service Center denied the petition, concluding that although the 
Beneficiary qualified for the classification as a member of the professions holding an advanced degree, 
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 pursuant to 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 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
To qualify for the underlying EB-2 classification, a petitioner must establish a beneficiary is either a 
member of the professions holding an advanced degree or an individual of exceptional ability in the 
sciences, arts, or business. Section 203(b )(2)(B)(i) of the Act. 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. 
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 U.S. Citizenship and 
Immigration Services (USCIS) may, as matter of discretion, 1 grant a national interest waiver of the 
job offer, and thus the labor certification, to a petitioner classified in the EB-2 category if the petitioner 
1 See Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS ' decision to grant or deny a national interest waiver 
to be discretionary in nature) . 
demonstrates that (1) the noncitizen's proposed endeavor has both substantial merit and national 
importance; (2) 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. 
The second prong shifts the focus from the proposed endeavor to the noncitizen. To determine whether 
the noncitizen 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, progress towards achieving the proposed endeavor, and 
the interest of potential customers, users, investors, or other relevant entities or individuals are also 
key considerations. 
The third prong requires the petitioner to demonstrate that, on balance of applicable factors, it would 
be beneficial to the United States to waive the requirements of a job offer and thus of a labor 
certification. USCIS may evaluate factors such as whether, in light of the nature of the noncitizen' s 
qualification or the proposed endeavor, it would be impractical either for the noncitizen 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 noncitizen's contributions; 
and whether the national interest in the noncitizen's contributions is sufficiently urgent to warrant 
forgoing the labor certification process. Each of the factors 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. 
II. ANALYSIS 
The Petitioner intends to employ the Beneficiary as a senior software engineer in a foll-time, permanent 
position. The Director found that the Beneficiary qualifies for the underlying EB-2 classification. The 
remaining issue to be determined is whether the Petitioner has established that a waiver ofthe requirement 
of a job offer, and thus a labor certification, would be in the national interest. For the reasons discussed 
below, we conclude that the Petitioner has not sufficiently demonstrated the Beneficiary's proposed 
endeavor's national importance under the first prong of the Dhanasar analytical framework. While we 
do not discuss every piece of evidence individually, we have reviewed and considered each one. 
In denying the petition, the Director acknowledged that the Beneficiary's proposed endeavor has 
substantial merit and that he is well-positioned to advance it. The Director determined, however, that 
the Petitioner did not establish the national importance of the Beneficiary's proposed endeavor, and 
that, on balance, it would benefit the United States to waive the job offer requirement. On appeal, the 
Petitioner argues that the Director's decision was incorrect, stemming from a significant 
misapplication of the legal standard and a failure to consider key probative evidence supporting the 
Beneficiary's eligibility under the Dhanasar framework. 
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The Beneficiary proposes to utilize "advanced computing architecture and human-machine interface 
principles to securely expand and enhance the user interface (UI) framework and user experience (UX) 
features that support I Icloud-gaming and streaming infrastructure and services." 
The Petitioner asserts that the Beneficiary's proposed endeavor will deliver substantial benefits, 
generating billions of dollars in revenue and establishing the United States as a leader in technological 
advancements through the Beneficiary's innovative contributions. The Petitioner also highlights the 
evidence submitted in support of the petition and in response to the Director's request for evidence to 
underscore the sufficiency of the submitted evidence. The record includes an expert opinion letter, 
letters of recommendation, and industry reports and articles. 
The Petitioner argues that the tools developed by the Beneficiary will significantly enhance _ 
offerings and brand and "will directly translate into high volumes of sales and revenue, thereby 
continuing to sustain" the Petitioner's multibillion-dollar revenue. To evaluate whether the 
Beneficiary's proposed endeavor satisfies the national importance requirement, we look to evidence 
documenting the "potential prospective impact" of the Beneficiary's work. InDhanasar, 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. 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. Here, the record does not 
include adequate corroborating evidence, to show that the Beneficiary's specific proposed endeavor 
offers broader implications in the digital entertainment and gaming field, enhancements to U.S. 
societal welfare, or substantial positive economic effects for the country that rise to the level of 
national importance. While we acknowledge that the Beneficiary could help the Petitioner generate 
substantial revenue, the Petitioner has not sufficiently explained or demonstrated how the 
Beneficiary's employment would independently lead to economic growth or job creation nationwide. 
The Petitioner claims that the Beneficiary's endeavor will significantly contribute to the growth, 
efficiency, and innovation of the overall gaming industry. The Petitioner further claims that the 
Beneficiary's work will support the "consistent delivery of an excellent gaming experience on 
I Iplatforms, which will in turn contribute to the success of the U.S. and global economy." 
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. Here, the 
Petitioner has not demonstrated that the Beneficiary's proposed endeavor of working as a senior 
software engineer will have a significant impact beyond the company itself to benefit the regional or 
national economy, reaching the level of substantial economic effects as contemplated by Dhanasar. 
Id. at 890. 
We note that the Petitioner contends on appeal that given its user base of approximately 120 million 
monthly active users globally and an estimated 30 million monthly active users in the United States, 
the Beneficiary's proposed endeavor to "expand and enhance the UI framework and UX features for
I I gaming and streaming services is absolutely in the national interest." Nevertheless, 
the Petitioner cannot rely on its market share alone to claim the Beneficiary's work is nationally 
important. It must show how the functions and tasks carried out by the Beneficiary coalesce into a 
nationally important endeavor. 
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The Petitioner asserts that the Beneficiary's proposed endeavor aligns with national initiatives, 
particularly in advancing critical and emerging technologies such as advanced computing and human­
machine interface. The Petitioner further claims that the Beneficiary's focus on advancing systems 
administration and cybersecurity applications by leveraging artificial intelligence capabilities directly 
supports U.S. government efforts to strengthen national security. We acknowledge the importance of 
advancing critical and emerging technologies as well as cybersecurity applications, thus we agree with 
the Director's decision that the Petitioner has demonstrated the Beneficiary's proposed endeavor's 
substantial merit. However, the Petitioner has not offered sufficient information and evidence to 
demonstrate that the proposed endeavor's prospective impact will rise to the level of national 
importance. Moreover, merely working in an important field is insufficient to establish the national 
importance of the proposed endeavor. As previously mentioned, in 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." 
Id. at 889. Here, the Petitioner has not sufficiently explained how the Beneficiary's endeavor would 
have a broad impact, rising to the level of national importance. The issue here is not the broader 
implications of the Petitioner's innovations or the potential utilization of its products by the industry, 
but rather the potential prospective impact of the Beneficiary's specific proposed work as a senior 
software engineer. The Petitioner must support its assertions with relevant, probative, and credible 
evidence. See Matter of Chawathe, 25 I&N Dec. at 376. Without sufficient evidence regarding the 
projected U.S. economic impact or job creation directly attributable to the Beneficiary's future work, 
the record does not show that the benefits to the regional or national economy resulting from the 
Beneficiary's endeavor would reach the level of "substantial positive economic effects" contemplated 
by Dhanasar. See Dhanasar, 26 I&N Dec. at 890. 
For the aforementioned reasons, the Beneficiary's proposed endeavor does not meet the first prong of the 
Dhanasar framework. Because the documentation in the record does not establish the national 
importance of the Beneficiary's proposed endeavor as required by the first prong of the Dhanasar 
precedent decision, the Petitioner has not demonstrated eligibility for a national interest waiver. Since 
this issue is dispositive of the Petitioner's appeal, we decline to reach and hereby reserve the appellate 
arguments regarding its eligibility under the second and third prongs outlined in Dhanasar. 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 ofL-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 that the Petitioner is eligible for or otherwise merits a national 
interest waiver as a matter of discretion. The appeal will be dismissed for the above stated reasons. 
ORDER: The appeal is dismissed. 
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