dismissed EB-2 NIW Case: Software Engineering

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: APR. 15, 2024 In Re: 28540490 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a software engineer, seeks employment-based second preference (EB-2) immigrant 
classification as a member of the professions holding an advanced degree, or, in the alternative, as an 
individual of exceptional ability in the sciences, arts or business. See Immigration and Nationality Act 
(the Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2). The Petitioner also seeks anational 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 Texas Service Center denied the petition, concluding the record did not establish 
that the Petitioner qualifies for the underlying visa classification or merits a discretionary waiver of 
the job offer requirement " 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 apreponderance of the evidence. 
Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de nova. Matter a/Chri sta 's , Inc., 26 l&N Dec. 537,537 n.2 (AAO 2015). Upon de nova 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. 
An advanced degree is any U.S. academic or professional degree or aforeign equivalent degree above 
that of a bachelor's degree.1 8 C.F.R. § 204.5(k)(2). A U.S. bachelor's degree or a foreign equivalent 
1 Profession shall include, but not be limited to, architects, engineers, lawyers, physicians, surgeons, and teachers in 
elementary or secondary schools, colleges, academics, or seminaries. Section 101(a)(32) of the Act. 
degree followed by five years of progressive experience in the specialty is the equivalent of amaster's 
degree. Id. 
Exceptional ability means a degree of expertise significantly above that ordinarily encountered in the 
sciences, arts, or business. 8 C.F.R. § 204.5(k)(2). A petitioner must initially submit documentation 
that satisfies at least three of six categories of evidence: 
(A) An official academic record showing that the alien has a degree, diploma, 
certificate, or similar award from a college, university, school, or other 
institution of learning relating to the area of exceptional ability; 
(B) Evidence in the form of letter(s) from current or former employer(s) showing 
that the alien has at least ten years of full-time experience in the occupation 
for which he or she is being sought; 
(C) A license to practice the profession or certification for a particular profession 
or occupation; 
(D) Evidence that the alien has commanded a salary, or other renumeration for 
services, which demonstrates exceptional ability; 
(E) Evidence of membership in professional associations; or 
(F) Evidence of recognition for achievements and significant contributions to the 
industry or field by peers, governmental entities, or professional or business 
organizations. 
8 C.F.R. § 204.5(k)(3)(ii).2 
Where a petitioner meets these initial evidence requirements, we then consider the totality of the 
material provided in a final merits determination and assess whether the record shows that the 
petitioner is recognized as having a degree of expertise significantly above that ordinarily encountered 
in the field.3 See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) (discussing a two-part review 
where the documentation is first counted and then, if fulfilling the required number of criteria, 
considered in the context of a final merits determination): see also Visinscaia v. Beers, 4 F. Supp. 3d 
126, 131-32 (D.D.C. 2013); Rijal v. USCIS, 772 F. Supp. 2d 1339 (W.D. Wash. 2011). This two-step 
analysis is consistent with our holding that the "truth is to be determined not by the quantity of 
evidence alone but by its quality," as well as the principle that we examine "each piece of evidence 
for relevance, probative value, and credibility, both individually and within the context of the totality 
of the evidence, to determine whether the fact to be proven is probably true." Matter of Chawathe, 
25 l&N Dec. at 376. 
2 If these types of evidence do not readily apply to th e individual's occupation, a petitioner may submit comparable 
evidence to establish eligibility. 8 C.F.R. § 204.5(k)(3)(iii). 
3 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of individuals of 
exceptional ability . See generally 6 USCIS Policy Manual F.5(B)(2) , https: //www .uscis.gov/policy-manual. 
2 
Once a petitioner demonstrates eligibility as either a member of the professions holding an advanced 
degree or an individual of exceptional ability, they must then establish eligibility for 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 l&N Dec. 884 {AAO 2016), provides the framework for adjudicating national interest 
waiver petitions. Dhanasar states that USCIS may, as matter of discretion,4 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. 
Id. at 889. 
II. ANALYSIS 
The Petitioner proposes to work as a software developer for her new public emergency response 
mobile platform business. The Director found that the Petitioner did not establish eligibility for the 
underlying EB-2 immigrant classification either as an advanced degree professional or as an individual 
of exceptional ability. The Director further found that the Petitioner did not merit a discretionary 
waiver of the job offer requirement "in the national interest." Upon de nova review, the Petitioner has 
not established eligibility for the underlying EB-2 classification and therefore is not eligible for the 
discretionary waiver of the job offer requirement in the national interest. 
A. Member of Professions Holding an Advanced Degree 
The record includes a diploma indicating the Petitioner was granted a bachelor of information 
technology from in June 2000. An advanced degree is a U.S. degree or 
a foreign equivalent degree above that of a bachelor's degree. 8 C.F.R. § 204.5(k)(2). In addition, a 
petitioner who holds a U.S. bachelor's degree or a foreign equivalent degree followed by five years of 
progressive experience in the specialty has the equivalent of a master's degree. 8 C.F.R. § 204.5(k)(2). 
In this case, the Petitioner has not submitted evidence establishing that her bachelor of information 
technology is the foreign equivalent of a U.S. bachelor's degree or above that of a U.S. bachelor's 
degree. The Petitioner did not submit an official academic record or an evaluation of her foreign 
educational credentials. She has not established that her foreign diploma for abachelor of information 
technology is the equivalent of an academic or professional degree of or above a U.S. bachelor's 
degree. See 8 C.F.R. § 204.5(k)(2). 
Also, the record does not adequately document that she has five years of progressive post­
baccalaureate experience in the specialty. Evidence relating to qualifying experience should be in the 
form of letters from current or former employers and shall include the name, address and title of the 
writer, and a specific description of the duties performed by the individual. See 8 C.F.R. § 204.5(g)(I). 
The Petitioner submitted a letter from her former employer indicating she worked as a software 
4 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) Uoining the Ninth, Eleventh, and D.C. Circuit Courts (and Third 
Circuit Court in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver 
to be discretionary in nature). 
3 
engineer from September 15, 2010, to December 20, 2014. While the letter indicates her job title as a 
software engineer, the letter does not detail whether her job duty experience was in her specialty. 
Additional letters relate to the Petitioner's job offers, project assignments, and her completion of job 
probationary periods. However, the letters do not show her dates of employment or that her job duties 
were in her specialty. 
The Petitioner has not established that she has a U.S. degree or a foreign equivalent degree above that 
of a bachelor's degree, or a U.S. bachelor's degree or a foreign equivalent degree followed by five 
years of post-baccalaureate experience in her specialty. Therefore, she does not meet eligibility for 
the underlying EB-2 classification as a member of the professions possessing an advanced degree. 
B. Individual of Exceptional Ability 
The Petitioner submitted evidence to meet all six criteria of evidence for exceptional ability under 
8 C.F.R. § 204.5(k)(3)(ii). The Director concluded that the Petitioner met one criterion, academic 
record at 8 C.F.R. § 204.5(k)(3)(ii)(A). However, as discussed below, we withdraw that 
determination, because the Petitioner has not established that she meets this criterion. 
On appeal, the Petitioner reasserts being an individual of exceptional ability. After reviewing the 
evidence in the record, the Petitioner has not demonstrated satisfying at least three of the six initial 
evidentiary criteria for classification as an individual of exceptional ability and is not otherwise 
eligible for the requested benefit.5 
An official academic record showing that the individual has a degree, diploma, 
certificate, or similar award from a college, university, school, or other institution 
of learning relating to the area of exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(A). 
As discussed above, the Petitioner submitted acopy of her diploma from 
granting her degree of bachelor of information technology. However, the record does not include an 
official academic record from the university, as required under the criterion. Therefore, the Petitioner 
does not meet eligibility under the criterion. 
Evidence in the form of letter(s) from current or former employer(s) showing that 
the individual has at least ten years of full-time experience in the occupation for 
which he or she is being sought. 8 C.F.R. § 204.5(k)(3)(ii)(B). 
To meet this criterion, the Petitioner maintains she worked for eight employers having obtained more 
than ten years of experience in her occupation. However, the documents submitted do not meet the 
plain language of the criterion. 
As mentioned above, a letter from her former employer confirms the Petitioner's employment as a 
software engineer from September 15, 2010, to December 20, 2014. While the letter indicates her job 
title as a software engineer, the letter does not sufficiently detail whether her job duty experience was 
in her occupation, or her work was full-time. The other letters relate to the Petitioner's job offers, 
5 While we do not discuss each piece of evidence in the record individually, we have reviewed and considered each one. 
4 
I 
project assignments, and her completion of job probationary periods. However, the letters from the 
former employers do not show her dates of employment, whether her work was full-time, or that her 
job duties were in her occupation. For instance, the record includes parts of letters offering her 
positions, including a letter from offering her a research engineer 
osition, a letter from I !offering her a research engineer position, and a letter from I 
offering her a student researcher position. Other letters from I I and 
__ indicate the Petitioner completed her probationary period and confirm her job position. 
However, the letters lack sufficient details of her dates of employment, her job duties, and whether her 
positions were full-time, as required by the criterion. Therefore, the Petitioner has not demonstrated 
she has at least ten years of full-time experience in the relevant occupation. 
A license to practice the profession or certification for a particular profession or 
occupation. 8 C.F.R. § 204.5(k)(3)(ii)(C). 
To meet this criterion, the Petitioner submitted a certificate stating she completed test requirements 
and is recognized as a Cisco certified network associate. She claims that being a Cisco certified 
network associate is "one of the most recognizable certifications in the [information technology] 
industry." She also submitted two certificates of achievement indicating she completed Microsoft 
approved courses for MS WIN 2000 network and operating system essentials and for supporting MS 
WIN 2000 professional and server. She claims these Microsoft course completions validate "the skills 
needed to run a highly efficient and modern data center, identity management, system management, 
virtualization, storage and networking." However, the record does not show that her certification as a 
Cisco certified network association, or her Microsoft course completions are required for entry into 
the Petitioner's occupation or is specifically tailored for that occupation. The Petitioner indicates in 
her statement that the trainings are recognized in her industry and aid her in carrying out her job duties, 
but she does not suggest that any of them are required for her occupation. 
The Petitioner also submitted certificates to show she completed training courses relating to her work. 
Although most of the certificates show the Petitioner completed coursework related to her work with 
information technology, they do not show that the Petitioner has a license to practice her profession 
or that she received certification for her occupation as software engineer. 
Because the Petitioner has not demonstrated that she has a license to practice the profession or 
certification for her occupation, she has not established that she meets this criterion. 
Evidence that the alien has commanded a salary, or other renumeration for 
services, which demonstrates exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(D). 
To meet this criterion, the Petitioner states that the average monthly salary for a software engineer in 
Malaysia "ranges from RM3800 to RM5500" based on a website, "Jobstreet Malaysia" and that she 
earned RM5500 in salary and RM859 in management incentives while working withl I The 
record includes a payroll receipt from June 2006 reflecting her claimed pay withI I as well as 
two letters from I I indicating her assignment as a project manager and as a project leader for 
specified projects. However, the record does not include evidence showing her pay was for services 
related to her occupation as asoftware engineer. Also, the record does not include the claimed average 
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salary range indicated on "Jobstreet Malaysia" or other evidence as comparison to show her salary in 
2006 demonstrates her exceptional ability in her occupation. 
The Petitioner also claims that while working atl I"her annual base salary was RM61200" 
and provided a pay receipt dated April 2005 indicating earnings of RM5250. We first note that the 
record does not include evidence showing her pay relates work as a software engineer. Also, as 
mentioned above, the record does not include the claimed average salary range indicated on "Jobstreet 
Malaysia" or other evidence as comparison to show her salary in 2005 demonstrates her exceptional 
ability in her occupation. 
For these reasons, the Petitioner has not shown that she meets this criterion. 
Evidence of membership in professional associations; 8 C.F.R. § 204.5(k)(3)(ii)(E). 
The Petitioner submitted a certificate from The Institute of Electrical and Electronics Engineers (IEEE) 
dated 2023 indicating she is a member in good standing through December 2023. The Director's 
decision did not mention this certificate of membership. On appeal, the Petitioner argues, "IEEE is 
the world's largest technical professional organization dedicated to the advancing technology, 
engineering, computer science and other related disciplines." 
First, this petition was filed in 2022, and the certificate from IEEE is dated in 2023, after the filing 
date. The record does not show that the Petitioner was a member of IEEE at the time she filed the 
petition, and a petitioner must establish eligibility for the benefit being sought at the time the petition 
is filed. See 8 C.F.R. § 103.2(b)(I). A visa petition may not be approved based on speculation of 
future eligibility or after a petitioner becomes eligible under anew set of facts. See Matter of Katigbak, 
14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). 
Additionally, the record does not include documentary evidence of this organization's membership 
requirements or of IEEE being a professional association under this criterion. The regulation at 
8 C.F .R. § 204.5(k)(2) defines "profession" as "any occupation for which a United States baccalaureate 
degree or its foreign equivalent is minimum requirement for entry into the occupation." Accordingly, 
a professional association is one which requires its members to be members of a profession as defined 
in the regulation. The record does not show that IEEE requires that its membership body be comprised 
of individuals who have earned a U.S. baccalaureate degree or its foreign equivalent, or that the 
organization otherwise constitutes a professional association. 
The Petitioner also states that she is a member of Professional Association of Diving Instructors 
(PADI). Although she submitted certificates from PADI indicating she was awarded the ratings of 
specialty instructor, open water scuba instructor, and divemaster, the record does not include evidence 
of her membership in PADI or that PADI is a professional association. 
For the reasons explained above, the Petitioner does not meet this criterion. 
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Evidence of recognition for achievements and significant contributions to the 
industry or field by peers, governmental entities, or professional or business 
organizations. 8 C.F.R. § 204.5(k)(3)(ii)(F). 
The Petitioner claims she meets this criterion based on her work with I I as a software engineer 
and her work with I Ion specific projects. To support her claims, she submitted a letter from 
I !indicating she "passed her probationary period" and that she "exhibited diligent performance" 
for her work with specified projects. She also provided letters from I I indicating she 
completed her probationary period, her assignment as a senior engineer, and her assignment to two 
specified projects. In addition, she included an information document related tol I 
integrated platform, the subject of the Petitioner's projects. 
The Petitioner indicates she has been successful at her software work withl land I land 
provides documents that she worked with the businesses. However, the record does not demonstrate 
that the Petitioner has been recognized for achievements and significant contributions to her industry 
or field, as required under the criterion. Therefore, the Petitioner has not demonstrated she meets this 
criterion. 
Because the Petitioner has not established that she meets at least three of the initial evidentiary criteria 
at 8 C.F.R. § 204.5(k)(3)(ii)(A) through (F), we need not conduct a final merits analysis to determine 
whether the evidence in its totality shows that she is recognized as having a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business. 8 C.F.R. 
§ 204.5(k)(2). Nevertheless, we advise that we have reviewed the record in the aggregate and conclude 
that it does not support a finding that the Petitioner has established the recognition required for 
classification as an individual of exceptional ability. 
Ill. CONCLUSION 
The Petitioner has not established her qualification for the underlying EB-2 classification either as an 
advanced degree professional or as an individual of exceptional ability in the sciences, arts, or 
business. Therefore, she is ineligible for a national interest waiver. While the Petitioner asserts on 
appeal that she meets all three of the prongs under the Dhanasar analytical framework, we reserve our 
opinion regarding these issues. See INS v. Bagamasbad, 429 U.S. at 25 (noting 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 l&N Dec. at 526 n.7 (declining to reach alternative issues 
on appeal where an applicant is otherwise ineligible). 
The appeal will be dismissed for the above stated reasons. 
ORDER: The appeal is dismissed. 
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