dismissed EB-2 NIW Case: Software Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re: 24844876 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAR. 30, 2023 
Form 1-140, Immigrant Petition for Alien Worker (National Interest Waiver) 
The Petitioner, a 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. 
§ 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. 
§ 1153(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 although the 
Petitioner qualified as an advanced degree professional, he 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 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. Section 203(b )(2)(B)(i) of the Act. Next, a 
petitioner must then demonstrate they merit a discretionary waiver of the job offer requirement "in the 
national interest." Section 203(b)(2)(B)(i) of the Act. Matter of Dhanasar, 26 l&N Dec. 884, 889 
(AAO 2016) provides that USCIS may, as matter of discretion, 1 grant a national interest waiver if the 
petitioner shows: 
• The proposed endeavor has both substantial merit and national importance; 
1 See also 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) . 
• 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 concluded that the Petitioner qualifies as a member of the professions holding an 
advanced degree. Accordingly, the remaining issue to be determined on appeal 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. 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
noncitizen proposes to undertake. See Dhanasar, 26 I&N Dec. at 889. 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 Petitioner initially provided a statement indicating: 
I hereby state and confirm that I seek permanent residency in order to continue working 
in my area of expertise in the field of economic decision support systems and big data 
analytics as a scientist and consultant/contractor for enterprises in startups, as well as 
launching my own IT company. I intend to apply my knowledge and expertise to 
social-economic and environmental problems via scientific research and publishing 
results from one side and to increase the value of a business for enterprise and startups 
that can benefit from using cutting edge technologies in decision support systems and data 
process mg. 
Additionally, I plan to continue my work toward building automated systems for well 
known and widely used cloud technology and platforms such as Microsoft, Amazon, 
IBM, and Google which will detect harmful malware and abusive applications as well as 
work on cloud security projects. 
The Petitioner also submitted letters from former employers as well as an expert opinion letter in support 
of his eligibility for the underlying EB-2 classification. 
The Director determined that the initial evidence was insufficient to demonstrate that that the Petitioner 
was eligible for a national interest waiver, and issued a request for evidence (RFE). In response, the 
Petitioner submitted a copy of the business plan for his compan as well as additional letters 
from former employers and an expert opinion letter from Adjunct Professor of 
Cybersecurity and Information Technology at the University of ________ With 
regard to the proposed endeavor, counsel for the Petitioner restated the claims set forth by the Petitioner 
in his personal statement, and emphasized that the Petitioner's endeavor, which included the development 
of cloud security measures, would help guard against security breaches, manage remote work, ensure 
2 
disaster recovery, comply with regulations, and eliminate weak links and build access levels in the 
business community. 
The Director determined the Petitioner demonstrated the proposed endeavor's substantial merit but not 
its national importance. On appeal, counsel for the Petitioner submits new evidence as well as a 
virtually verbatim copy of the RFE response, stating that the decision to deny the petition was in error 
and that the Petitioner is eligible for a national interest waiver. 
Preliminarily, we note that the appeal is supported by documents pertaining to the Petitioner's 
company,! I including contracts and letters of intent to invest in his company. Upon review, 
however, we note that these documents, as well as the Petitioner's previously submitted business plan 
for I reflect dates after the issuance of the Director's RFE. 2 The Petitioner must establish that 
all eligibility requirements for the immigration benefit have been satisfied from the time filing and 
continuing through adjudication. See 8 C.F.R. § 103.2(b)(l). A petition cannot be approved at a future 
date after the petitioner becomes eligible under a new set of facts. Matter of Izummi, 22 I&N Dec. 169, 
175 (Comm'r 1988); see also Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971), which 
requires that individuals seeking employment-based immigrant classification must possess the 
necessary qualifications as of the filing date of the visa petition. Moreover, the Izummi decision further 
provides, citing Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981 ), that USCIS cannot "consider facts 
that come into being only subsequent to the filing of a petition." Id. at 176. 
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 specific endeavor that the 
foreign national proposes to undertake." See Dhanasar, 26 I&N Dec. at 889. Although the Petitioner 
discussed the importance of developing cloud security practices for businesses, the Petitioner must 
demonstrate the national importance of his specific, proposed endeavor rather than the general 
importance of cloud security and data analytics technologies. In Dhanasar, we noted that "we look 
for broader implications" of the proposed endeavor and that "[aa ]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. 
We acknowledge the Petitioner's submission ofl I letter in support of his eligibility for a 
national interest waiver. I !recited the Petitioner's education and employment history, and 
provided a summary of the Petitioner's business plan. Based on this information, I I 
concluded that the Petitioner was capable of advancing the proposed endeavor and that his work 
implementing cloud-based systems and solutions will be beneficial to American businesses and 
laboratories. 
The letter, however, provides an overly vague recitation of the Petitioner's reputation and abilities, 
and does not provide a basis for I lconclusory assertions regarding the national importance 
of the Petitioner's proposed endeavor. While he commented generally on the growth potential of 
2 The business plan submitted in response to the RFE was drafted in April 2021, nearly one year after the filing of the 
petition. 
3 
cloud security solutions and big data analytics, he did not support his conclusions regarding the 
national importance of the Petitioner's proposed endeavor, and repeats much of the information the 
Petitioner already provided in his resume without adding sufficient independent analysis. As a matter 
of discretion, we may use opinion statements submitted by the Petitioner as advisory. Matter of Caron 
Int'l, 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. Here, the advisory opinion is of little probative value as it does not meaningfully 
address the details of the proposed endeavor and why it would have national importance. 
In addition, while the Petitioner emphasized his 10 years of professional experience, the Petitioner's 
experience and abilities in his field relate to the second prong of the Dhanasar framework, which 
"shifts the focus from the proposed endeavor to the foreign national." Id. at 890. The issue here is 
whether the specific endeavor that he proposes to undertake has national importance under Dhanasar' s 
first prong. 
Moreover, to evaluate whether the Petitioner's proposed endeavor satisfies the national importance 
requirement, we look to evidence documenting the "potential prospective impact" of his work. The 
Petitioner did not offer specific information and evidence to corroborate his assertions that the 
prospective impact of continuing his work as a software engineer in the field of economic decision 
support systems and big data analytics rises to the level of national importance. 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 record does 
not show through supporting documentation how the Petitioner's endeavor, either through! I 
or as a consultant/contractor for other businesses, stands to sufficiently extend beyond his own 
company or other companies conducting business with the Petitioner, to impact the industry or the 
U.S. economy more broadly at a level commensurate with national importance. 
Finally, the Petitioner did not establish that his proposed endeavor of developing cloud security 
practices has significant potential to employ U.S. workers or otherwise offers substantial positive 
economic effects for our nation. Without evidence regarding any projected U.S. economic impact or 
job creation attributable to his future work, the record does not show any benefits to the U.S. regional 
or national economy resulting from being an independent business owner would reach the level of 
"substantial positive economic effects" contemplated by Dhanasar. Id. at 890. 
Because the documentation in the record does not establish the national importance of his proposed 
endeavor as required by the first prong of the Dhanasar precedent decision, the Petitioner has not 
demonstrated eligibility for a national interest waiver. Further analysis of his eligibility under the second 
and third prongs outlined in Dhanasar, therefore, would serve no meaningful purpose. 3 
3 See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (stating that ·'courts and agencies are not required to make findings on 
issues in the decision of which is 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). 
4 
III. CONCLUSION 
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, we conclude 
that he has not demonstrated eligibility 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. 
5