dismissed EB-2 NIW Case: Software Engineering

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEP. 13, 2024 In Re: 33864449 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, _______________ seeks second preference immigrant 
classification (EB-2) for the Beneficiary, a senior software engineer, as a member of the professions 
holding an advanced degree. 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 classification. See section 203(b)(2)(B)(i) of the Act. 
The Director of the Nebraska Service Center denied the petition. The Director concluded that the 
Petitioner did not demonstrate that the Beneficiary 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/Christa '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 anational interest waiver, a beneficiary must first qualify 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. An advanced degree is 
any United States academic or professional degree or a foreign equivalent degree above that of a 
bachelor's degree. A U.S. 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. 
Once a petitioner demonstrates the beneficiary's eligibility or the underlying EB-2 classification, they 
must then establish that the beneficiary merits a discretionary waiver of the job offer requirement "in 
the national interest." Section 203(b)(2)(B)(i) of the Act. 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. While neither the statute nor the pertinent regulations define 
the term "national interest," Matter of Dhanasar, 26 l&N Dec. 884, 889 (AAO 2016), provides the 
framework for adjudicating national interest waiver petitions. Dhanasar states that USCIS may, as 
matter of discretion,1 grant a national interest waiver if the petitioner demonstrates that: 
• The beneficiary's proposed endeavor has both substantial merit and national importance; 
• The beneficiary is well-positioned to advance their proposed endeavor; and 
• On balance, waiving the job offer requirement would benefit the United States. 
Id. 
II. ANALYSIS 
The Director determined that the Beneficiary qualifies as a member of the professions holding an 
advanced degree. We agree with the Director's determination.2 
The remaining issue is whether the Petitioner established that a waiver of the requirement of a job 
offer, and thus a labor certification, would be in the national interest. The Director found that while 
the Petitioner demonstrated the Beneficiary's proposed endeavor has substantial merit, it did not 
establish the endeavor is of national importance, as required by the first prong of the Dhanasar 
analytical framework. The Director further found that the Petitioner did not establish that the 
Beneficiary is well-positioned to undertake the endeavor under Dhanasar's second prong, or 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 under Dhanasar's third prong. Upon de novo review, the Petitioner has not 
established that a waiver of the labor certification would be in the national interest.3 
The Beneficiary is a senior software engineer working for the Petitioner, 
The Petitioner describes 
providing 
management, security, and intelligence products for customer organizations to engage with I I 
The Beneficiary's proposed endeavor is to continue working for the Petitioner with responsibility for 
enhancing I I services by leading projects with its I I site reliability engineering team. 
The projects include customer-related incident reduction and detection to lower customers' service 
outages; data analysis and reporting to upper management of past site issues to better assess live site 
issues; and expanding features available to I !engineers handling on-call tickets from other 
software engineers running I I customer organizations. The Petitioner stresses that I I 
continued reliable functioning is absolutely essential to a plethora of national interests," including the 
United States maintaining its critical emerging cloud technologies, economic competitiveness, and 
advancement of industries such as healthcare, construction, retail, information technology, education, 
hospitality, communications, and financial services. 
1 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). 
2 To demonstrate the Beneficiary is an advanced degree professional, the Petitioner submitted the Beneficiary's diploma, 
his academic transcript, an academic evaluation, and employment letters. The record shows that the Beneficiary holds the 
foreign equivalent of a U.S. bachelor's degree followed by more than five years of progressive experience in his specialty. 
See 8 C.F.R. § 204.5(k)(3). 
3 While we may not discuss every document submitted, we have reviewed and considered each one. 
2 
The first prong of the Dhanasar analytical framework, substantial merit and national importance, 
focuses on the specific endeavor a beneficiary 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. To evaluate whether the proposed endeavor satisfies the national importance 
requirement we focus on the specific endeavor that the foreign national proposes to undertake and 
look to evidence documenting its "potential prospective impact." Id. 
The Director determined that the Beneficiary's proposed endeavor is of substantial merit. Upon a de 
novo review, we agree with the Director's determination. 
Regarding the national importance of the proposed endeavor, the Director's decision acknowledged 
the importance of the field of software engineering and that I I as a company benefits the 
nation. However, the Director determined that the Petitioner did not demonstrate the Beneficiary's 
specific proposed endeavor activities extend beyond the Petitioner to impact the field more broadly or 
has significant potential to employ U.S. workers or other substantial economic effects at a level 
commensurate with national importance. 
On appeal, the Petitioner argues the Director erred in its review of the evidence by misstating facts 
and relying on these misstatements for erroneous conclusions of law. Specifically, the Petitioner 
claims that the Director misidentified the Beneficiary's endeavor by stating he proposes "to work as a 
[s]oftware [e]ngineer," which it claims ignores the detailed endeavor and the evidence supporting the 
national importance of the endeavor. The Petitioner stresses that letters from its executives detail the 
specific three projects to be carried out by the Beneficiary to secure the rel iabi I ity of I I as well as 
his "leading, critical, and indispensable role in advancing the endeavor." Because the Director did not 
reference the specific projects as set out in the recommendation letters, the Petitioner argues that the 
Director erroneously concluded that the proposed endeavor is not of national importance. 
We disagree with the Petitioner's claims that the Director mischaracterized the Beneficiary's proposed 
endeavor and therefore did not properly analyze the evidence supp01iing the Petitioner's claims of 
national importance. In the petition and throughout statements supporting the petition, the Petitioner 
indicates that the Beneficiary will work as a software engineer and that his field of expertise is in 
software engineering. Moreover, contrary to the Petitioner's assertions, the Director specifically 
references the recommendation letters from the Petitioner's executives by quoting the letters to explain 
the Beneficiary's indicated role, knowledge, and experience with the projects. Although the Director 
does not explain in detail the three projects being undertaken by the Beneficiary, the Director quotes 
a portion of a letter from the Petitioner's executive explaining the Beneficiary's work with one specific 
project, the customer-reported incidents. In addition, the Director quotes asecond executive's letter 
which explains that the Beneficiary's work would be with "key projects to enhance the reliability" of
I The Director points out that while the letters "discuss the [B]eneficiary's achievement and 
successes at I I and how his work benefits I I they do not show that his role as a 
software engineer with the Petitioner would extend beyond the Petitioner and its clients to impact the 
Beneficiary's field more broadly. 
The Petitioner maintains that the executives' letters demonstrate how the Beneficiary's endeavor 
would advance the secure reliability ofl Ia platf01m "thousands of American public and private 
organizations - including most Fortune 500 companies and numerous U.S. federal and state 
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government agencies - heavily rely upon every day in order to safely and successfully operate." The 
Petitioner stresses that the Beneficiary 's software engineering expertise and his "unique I 
specific skills" make him irreplaceable "to support the endeavor's continued timely advancement and 
long-term success." Having worked with since 2020, the Beneficiary 's I specific 
software engineering skillset makes him a rare expert who has become frankly irreplaceable to 
ensuring the platform's continued, uninterrupted reliability, impacting thousands upon thousands of 
organizations, and tens or even hundreds of millions of American citizens daily." 
A letter from a principal software engineering manager with explains the 
Beneficiary 's role in the three projects while stressing that the Beneficiary 's I !experience, 
knowledge, and skills are invaluable for each project's success. The letter points out that the 
Beneficiary has "made multiple significant innovations to the platform while demonstrating uncanny 
insight into how to continuously improve our front end services in order to best support our public and 
private client organizations." However, the Petitioner has not provided evidence detailing the 
Beneficiary's "significant innovations." For instance, the letter explains that the project with data 
analysis for past live site issues involves analysis of pastl Icustomer issues so that engineers can 
relate new and prior incidents to help customers quickly resolve outages. The letter states that the 
Petitioner relies on the Beneficiary 's "unparalleled, experience-based, specific knowledge, 
skills and leadership" to advance the project which is needed to protect the reliability of I lfor its 
client companies and organizations. In explaining the Beneficiary's role for the other two projects, 
the letter similarly explains the Beneficiary's role in identifying issues and leveraging his knowledge 
and skills to address the issues. A second letter from the Petitioner's principal software engineering 
manager withl !Machine Leaming explains the Beneficiary's software engineering 
knowledge and his contributions to enhancing the reliability and performance of machine 
learning specialized tools. 
Both letters attest to the Beneficiary's technical knowledge and his work with specific! !projects. 
However, the content of these letters mainly relates to the second prong of the Dhanasar framework, 
instead of speaking to the national importance of the Beneficiary's proposed endeavor. The letters 
attest to his technical competencies and professionalism which help the Petitioner and its 
customers. They also describe the Beneficiary's role for certain successful projects for the Petitioner. 
We acknowledge that the Beneficiary has provided valuable software engineering services for the 
Petitioner and its customers, but the Petitioner has not offered sufficient information and evidence 
based on these recommendation letters to demonstrate the prospective impact of the Beneficiary's 
proposed endeavor rises to the level of national importance. The Petitioner's statements characterize 
the Beneficiary's work as valuable for maintaining the reliability of however, they do not 
sufficiently detail how his endeavor would be different from work typically performed by software 
engineers. For instance, the Petitioner has not detailed or established his plans to introduce novel 
technologies or software engineering advancements that may be disseminated to or adopted by others 
operating in the field or industry, or otherwise articulated how he will contribute to development of 
our nation's software engineering industry. Instead, the Petitioner emphasizes the Beneficiary 
leveraging hisl !experience and knowledge to positively impact its customers' reliance and use 
of Without further evidence, the Petitioner has not demonstrated his work as a software 
engineer for the Petitioner and its I !platform has the potential to impact his field more broadly 
rising to the level of national importance . 
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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." Matter of Dhanasar, 26 l&N Dec. at 889 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. We explained that "[a]n 
undertaking may have national importance for example, because it has national or even global 
implications within a particular field, such as those resulting from certain improved manufacturing 
processes or medical advances." Id. at 889. Here, the proposed endeavor supports the Petitioner. The 
evidence mainly focuses on the Beneficiary's performance of his job responsibilities as a software 
engineer for the Petitioner and its I I platform and does not demonstrate that the Beneficiary's 
proposed endeavor will have the claimed national or global implications in the fields of software 
engineering, machine learning, or cloud computing. 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. Id. at 889-90. 
Much of the evidence in the record and the Petitioner's arguments focus on the importance of the fields 
of software development, data engineering, and machine learning, and the Petitioner's reach and 
impact on cloud computing with itsI I platform. To support the argument for national importance, 
the Petitioner submitted various articles and reports discussing the use of artificial intelligence for 
cybersecurity; the need to strengthen artificial intelligence and its workforce; the importance of 
cybersecurity to various industries and government agencies; and the Petitioner's I !platform and 
its growth and use by companies and government agencies. However, this evidence does not mention 
the Beneficiary's specific work with I I and its site reliability engineering team. 
The Petitioner also provided an analysis and advisory evaluation from Dr. I I Ph.D., a 
professor of computer science and information systems at Iin New York. The 
evaluation discusses how software engineering, as aprofession, has both substantial merit and national 
importance. The evaluation mainly describes the profession of software engineering, including the 
role of software engineers in developing and improving the sustainability and security of cloud-based 
technologies and in improving cybersecurity for the healthcare and financial industries. Based on the 
expertise of software engineers and the significant potential for economic impact, the evaluation 
concludes that "software engineering is a professional endeavor that holds both substantial merit and 
is indeed in the national interest of the United States." 
However, the evaluation's focus on the importance and need for software engineers does not 
demonstrate that the instant specific endeavor would have a prospective impact in the field. The 
opinion neither references nor focuses on the Beneficiary's specific endeavor or its potential 
prospective impact on the U.S. economy or in the field of software engineering. Stating that the 
profession of software engineering is of importance, or that the profession of software engineering 
supports important industries such as cloud computing, healthcare, and finance, is not sufficient to 
meet the "national importance" requirement under the Dhanasar framework since it fails to address 
the potential prospective impact of the Beneficiary's specific endeavor. 
The Petitioner does not demonstrate that the Beneficiary's proposed endeavor extends beyond its 
business and its clients to impact the field or any other industries or the U.S. economy more broadly 
at a level commensurate with national importance. Beyond general assertions, the Petitioner has not 
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demonstrated that the work the Beneficiary proposes to undertake as asenior software engineer leading 
projects for its I Ireliance team offers original innovations that contribute to advancements 
in the software engineering, machine learning, and cloud computing industries or otherwise has 
broader implications for the software engineering field. The economic benefits that the Petitioner 
claims are supported by the Beneficiary's endeavor depend on numerous factors and the Petitioner did 
not offer a sufficiently direct evidentiary tie between the Beneficiary's proposed software engineering 
work for its I I platform and the claimed economic results. 
Because the Petitioner has not established the Beneficiary's proposed endeavor is of national 
importance as required by the first prong of the Dhanasar precedent decision, the Beneficiary is not 
eligible for anational interest waiver. As the identified basis for denial is dispositive of the Petitioner's 
appeal, we decline to reach and hereby reserve the Petitioner's appellate arguments regarding 
eligibility under the second and third Dhanasar prongs. See INS v. Bagamasbad, 429 U.S. 24, 25 
(1976) (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. 516, 526 n.7 
(BIA 2015) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
Ill. CONCLUSION 
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, it has not 
established the Beneficiary's eligibility for 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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