dismissed EB-2 NIW Case: Software Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re: 11992658 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEP. 2, 2021 
Form I-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a software engineer, seeks second preference 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 EB-2 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 Petitioner had not 
established that a waiver of the required job offer, and thus of the labor certification, would be in the 
national interest. 
On appeal, the Petitioner asserts that he is eligible for a national interest waiver. 
In these proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit 
sought. Section 291 of the Act, 8 U.S.C. § 1361. 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. 
Section 203(b) of the Act sets out this sequential framework: 
(2) Aliens who are members of the professions holding advanced degrees or aliens of 
exceptional ability. -
(A) In general. - Visas shall be made available ... to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or 
who because of their exceptional ability in the sciences, arts, or business, will 
substantially benefit prospectively the national economy, cultural or 
educational interests, or welfare of the United States, and whose services in the 
sciences, arts, professions, or business are sought by an employer in the United 
States. 
(B) Waiver of job offer-
(i) National interest waiver. ... [T]he Attorney General may, when the Attorney 
General deems it to be in the national interest, waive the requirements of 
subparagraph (A) that an alien's services in the sciences, arts, professions, or 
business be sought by an employer in the United States. 
Furthermore, 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). 1 Dhanasar states that after a petitioner has 
established eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) 
may, as matter of discretion 2, grant a national interest waiver if the petitioner demonstrates: (1) that 
the foreign national's proposed endeavor has both substantial merit and national importance; (2) that 
the foreign national 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 impmiance, focuses on the specific endeavor that the 
foreign national 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 foreign national. To determine 
whether he or she 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; any progress towards achieving the proposed 
endeavor; and the interest of potential customers, users, investors, or other relevant entities or 
individuals. 
The third prong requires the petitioner to demonstrate 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. In performing 
this analysis, USCIS may evaluate factors such as: whether, in light of the nature of the foreign 
national's qualifications or the proposed endeavor, it would be impractical either for the foreign 
national 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 foreign 
national's contributions; and whether the national interest in the foreign national's contributions is 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 I&NDec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
2 See also Poursina v. USCJS, No. 1 7-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USC IS' decision to grant or 
deny a nationalinterestwaiverto be discretionaiy in nature). 
2 
sufficiently urgent to warrant forgoing the labor certification process. In each case, the factor(s) 
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. 3 
II. ANALYSIS 
The Director concluded 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 a labor certification, would be in the national interest 
A. Substantial Merit and National Importance of the Proposed Endeavor 
The first prong relates to substantial merit and national importance of the specific proposed endeavor. 
Dhanasar, 26 I&N Dec. at 889. At the time of filing, the Petitioner had been working as a software 
engineer at.__ ____________ _. since 2018. 4 The Director indicated that the Petitioner 
provided a letter from his employer stating his job responsibilities and concluded that he "failed to 
show that [his] proposed endeavor has both substantial merit and national importance beyond 
I I" In addition, the Director detennined that while the Petitioner submitted another 
employment letter in response to a request for evidence, he did not offer corroborating evidence that 
his "specific work has national importance that reaches beyond! I and its customers." On 
appeal, the Petitioner argues that the Director improperly equated employment with the proposed 
endeavor. 
In the cover letter submitted at the initial filing, the Petitioner asse1ied that he "proposes to continue his 
work on computer-aided design" and specifically stated that "[a]s evidence of this, we are submitting 
a letter confirming his proposed employment (Exhibit 8)." The Director evaluated the Petitioner's 
eligibility based on the initial cover letter claim and employment letter content, which the Petitioner 
precisely referenced as evidence. However, the Petitioner made additional arguments and pointed to 
other supporting evidence in his cover letter, which the Director did not address in his decision. 
Specifically, the Petitioner asserted: 
[His] work in his area is of great importance because it benefits the expansion of the 
the vast global network of interconnected electronic devices. As it .__ ______ _. 
encompasses a wide variety of electronic items that serve a plethora 
of industries, from healthcare to home design, the general.__ _____ __, market is 
massive. According to Statista, the global IoT market is currently wmih over $1.7 
trillion, up from about $1.15 trillion in 2014. Investment in [his] research in this area 
is therefore economically sound. 
In support of his claims, the Petitioner provided a screenshot from statista.com describing IoT as "a 
vast network of smart objects which work together in collecting and analyzing data" and indicating 
3 See Dhanasar, 26 I&NDec. at 888-91, for elaboration onthesethreeprongs. 
4 As the Petitioner is applying fora waiverofthejob of-forrequirement, it is not necessary for him to have ajobofferfiom 
a specific employer. However, we will consider information about his current position to illustrate the capacity in which 
he intends to work in ordertodetennine whether his proposedendeavormeets the requirements oftheDhanasaranalytical 
framework. 
3 
the Io T global market from 2009 - 2019. In addition, the Petitioner submitted advisory opinion letters 
froml I andl I discussing his prior work and stating that "[the Petitioner is 
currently engaged in this arena of research, having already created algorithms that.___,. _____ _. 
'------------------------' techniques and better monito_~---~ in 
applications" and "[h ]is work has already l;lrovided major benefits and continues to improve 
technologies associated with [IoT]" I, J and "[the Petitioner's] research into improving the 
is of critical global imp01iance" and "expe1is estimate that the 
~n_u_m_b_e_r_o_f_d-ev_i_c-es_c_o_nn_e_c_te_d_i_n-th_i_s~[IoT] will reach 30 billion by the year 2020"1 I 
The Petitioner further claimed: 
[His] proposed endeavor also has broad implications for the field and nation. Much of 
his research focuses on im the~~----~---------~ 
as well as services like the cloud. According 
toa2017reportbyth~--------------~---~,around 
3 .5 billion consumer electronic devices are present across 119 million American 
homes.I lof these devices totals over $16 billion annually. Furthermore, 
computers, televisions, and set-top boxes account for about 60% of the total I I 
I 1 )even though they number only 0. 7 billion of devices in American homes. 
The Petitioner submitted a document from! I indicating 2017 consumer electronics and 
~--~--~and pointed to advisory opinion letters froni I andl I who 
stated that "[h ]is work allows the United States to remain a leader in mobile computing technology, 
cloud computing, and other advanced techniques by enabling them to operate on smaller and smaller 
devices'! land his "research ... rovid es extreme! useful al orithms thathave been shown 
to substantially reduce while still performing all 
necessary tasks" I.__ __ _. 
Based on the totality of the evidence in the record, the Petitioner demonstrated that his proposed 
endeavor falls within the range of science and technology, showing substantial merit. In addition, the 
Petitioner established that his proposed endeavor has national and global implications within computer 
science, reflecting national importance. Accordingly, the Petitioner satisfied the first prong of the 
Dhanasar analytical framework. 
B. Well Positioned to Advance the Proposed Endeavor 
The second prong shifts the focus from the proposed endeavor to the petitioner in order to determine 
whether he or she is well positioned to advance the proposed endeavor. Dhanasar, 26 I&N Dec. at 
890. The record includes documentation of his curriculum vitae, academic credentials, published 
articles, funding sources, and peer review activity. He also offered evidence of articles that cited to 
his published work, information on a journal that published his work, and letters of support. Although 
the Director determined that the Petitioner satisfied the second prong, we will withdraw that decision 
because the record does not reflect that the Petitioner is well positioned to advance his endeavor. 
As it relates to the Petitioner's education, while his graduate degrees from the University! I 
.__ __ ___.I renders him eligible for the underlying EB-2 visa classification, he has not shown that his 
4 
academic accomplishments by themselves are sufficient to demonstrate that he is well positioned to 
advance his proposed endeavor. We look to a variety of factors in determining whether a petitioner is 
well positioned to advance his proposed endeavor and education is merely one factor among many 
that may contribute to such a finding. 
In letters supporting the petition, the references discussed the Petitioner's aduate research. 5 For 
exam le stated that the Petitioner's ro · ect 
and the Petitioner "used resource provisiolning an
1 
task scheduling to create 
two new approaches to.__ ___________ _. Although described the Petitioner's 
method as "extremely effective," he did not provide specific examples indicating that the Petitioner's 
work has been utilized in the field or otherwise constitutes a record of success in the field beyond 
being cited by others in their published works, discussed later. 
Likewise! I indicated that the Petitioner "applied stochastic computing techniques to a major 
type of deep learning system f and "found that it 
achieved! I' I l however, does not offer examples of 
how the Petitioner's research and other findings have been implemented, utilized, or applauded in the 
field beyond having "been widely cited by his peers." 
Similarl described the Petitioner's ro ·ect in 
.__ _______________ _.' and opined that groups have "benefited greatly from [ the 
Petitioner's] research and there are numerous other groups who have also used his work to their 
advantage." While he provided two articles that subsequently cited to this research,! I did not 
further elaborate and explain how this work has affected the industry or otherwise represents a level 
of success or progress rendering the Petitioner well positioned to advance his proposed endeavor. 
The record also includes 12 partial articles that cited to the Petitioner's co-authored work. Based on 
these excerpts, the authors reference the Petitioner's research as background material for their own 
findings, and these limited articles do not re resent a level of his success in the field. For instance, in 
the paper, entitled '---------------------~ (IEEE Transactions on 
Computer-Aided Desi no Inte rated Circuits and S stems , the authors identified the Petitioner's co-
I _ as one of five that reported interest in using 
au tho red ;•1 er, 
1 6 This article, however, does not distinguish or highlight the Petitioner's work from the over 
100 other papers referenced in the article. 7 
Similarly, in the article, entitled'--------------------~~-------' 
International Journal o Enoineerino and Technolo the authors indicated the Petitioner's paper, 
'-------~-----..-------~-------~----~-____.as one of 
1 7 other studies that identified.__ _____ _. in cloud. This article, however, does not differentiate 
the Petitioner's paper from the 97 other papers referenced in the article. 
5 While we discuss a sampling of these letters, we have reviewed and considered each one. 
6 Although we discuss rep re sen ta tiv e sample articles here, we have reviewed and considered each one. 
7 The partial article does not show the complete numberofreferences. 
5 
Regarding the Petitioner's overall citation record, as indicated above, several of his reference papers 
commented on his citation numbers. For ex amp le, "[the Petitioner] has been widely cited by his peers" 
I J and"[ the Petitioner's] published work has attracted a large amount of attention from other 
scientists" and "[t ]hese citations mean that other scientists have used his results in their own work an 
discussed his studies, showing widespread recognition of the significance of his work"I I 
The record also includes infonnation from Google Scholar indicating that his highest cited aiiicle 
published in ASP LOS '17 garnered 68 citations with his remaining published works receiving 27 or 
less. The Petitioner did not specify how many citations for each of these individual articles were self­
citations by him or his coauthors. 8 
Fmihermore, the Petitioner provided data from Clarivate Analytics regarding baseline citation rates 
and percentiles by year of publication for the computer science field. The Petitioner claimed that his 
various published works ranked among the "top 1 %," "top 10%," and "top 20%" based on the number 
of citations they have received since publication. The Petitioner did not indicate whether he factored 
in any self-citations in determining these percentile rankings. In addition, the Clarivate Analytics 
citation data is from February 11, 2019, and therefore does not capture citations that occurred after 
early 2019, while the Petitioner's Google Scholar citation report is dated June 11, 2019. 9 Because the 
Clarivate Analytics data is not contemporaneous with the Petitioner's Google Scholar data, he has not 
shown that the former provides a proper analysis of his citation record. Moreover, the documentation 
from Clarivate Analytics states that "[ c ]itation frequency is highly skewed, with many infrequently 
cited papers and relatively few highly cited papers. Consequently, citation rates should not be 
interpreted as representing the central tendency of the distribution." 
Regardless, the Petitioner has not demonstrated that the number of citations received by his published 
articles and conference papers reflect a level of interest in his work from relevant parties sufficient to 
meetDhanasar's second prong. In fact,I I indicated that it "is especially noteworthy when one 
considers the fast-pacednature of the field of computer science, which places much less of an emphasis 
on citation than many other scientific disciplines." 
The Petitioner also provided a screenshot from Google Scholar highlighting the h5-index and h5-
median for IEEE Transactions on Computer-Aided Design of Integrated Circuits and Systems. That 
a publication bears a high journal ranking or impact factor is reflective of the publication's overall 
citation rate. It does not, however, show the influence of any particular author or otherwise 
demonstrate how an individual's research represents a record of success in the field. 
In addition, the Petitioner submitted "Acknowledgements" sections of his published articles noting 
that the work was supported by various entities, such as the U.S. National Science Foundation (NSC) 
and the Defense Advanced Research Projects Agency (DARPA). Further, the reference letter from 
.___~~~~-_.claimed that the Petitioner's "work has been supported by such diverse groups as 
[NSC], [DARPA], the Natural Science Foundation of China, and the European Regional Development 
Fund," and "[t]hese agencies all have extremely diverse goals ranging from economic and social 
8 The Petitioner only provided partial copies of his articles withoutthe reference pages. 
9 A web page accompanying the Clarivate Analytics information states that its citation "data is updated six times a year' 
(every two months). 
6 
cohesion in the European Union to improving the national security of the United States." The record, 
however, does not include copies of the research grants. In Dhanasar, the record established that the 
petitioner "initiated" or was "the primary award contact on several funded grant proposals" and that 
he was "the only listed researcher on many of the grants." Id. at 893, n.11. Here, the record does not 
show that the Petitioner was mainly responsible for obtaining funding for the research projects. 
As it relates to his peer review activity, the Petitioner provided documentation evidencing his review 
of manuscripts for journals, such as IEEE Transactions on Neural Networks and Learning Systems 
and Transactions on Computer-Aided Design of Integrated Circuits and Systems, as well as papers for 
conferences, such as the Design Automation Conference and theD International Conference on 
Advanced Electronic Science and Technology. The Petitioner, however, did not explain the 
significance of his review experience or demonstrate that his participation in the widespread peer review 
process represents a record of success in his field or that it is otherwise an indication that he is well 
positioned to advance his endeavor. 
The record demonstrates that the Petitioner has conducted and published research while at the 
University.__ _______ ___. but he has not shown that this work renders him well positioned to 
advance his proposed research. While we recognize that research must add information to the pool of 
knowledge in some way in order to be accepted for publication, presentation, funding, or academic 
credit, not every individual who has performed original research will be found to be well positioned 
to advance his proposed endeavor. Rather, we examine the factors set forth in Dhanasar to determine 
whether, for instance, the individual's progress towards achieving the goals of the proposed research, 
record of success in similar efforts, or generation of interest among relevant parties supports such a 
finding. Id. at 890. The Petitioner, however, has not sufficiently demonstrated that his published work 
has served as an impetus for progress in the field or that it has generated substantial positive discourse 
in the industry. Nor does the evidence otherwise show that his work constitutes a record of success or 
progress in advancing research relating to computer science or software engineering. 
As the record is insufficient to demonstrate that the Petitioner is well positioned to advance his 
proposed endeavor, he has not established that he satisfies the second prong of the Dhanasar 
framework. As such, we withdraw the Director's finding for the second prong. Accordingly, the 
Petitioner has not demonstrated eligibility for a national interest waiver. Further analysis of his 
eligibility under the third prong outlined in Dhanasar, therefore, would serve no meaningful purpose. 
III. CONCLUSION 
As the Petitioner has not met the requisite second prong of the Dhanasar analytical framework, we 
conclude that he has not demonstrated that he 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, with each 
considered as an independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
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