dismissed EB-2 NIW Case: Software Programming

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-A-A-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 1, 2019 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a software programmer, seeks second preference immigrant classification as a member 
of the professions holding an advanced degree or as an individual of exceptional ability, 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). After a petitioner 
has established eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) 
may, as matter of discretion, 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. Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016) . 
The Director of the Nebraska Service Center denied the Form I-140, Immigrant Petition for Alien 
Worker, 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. 
The Petitioner appealed the matter to us, and we dismissed the appeal. The matter is now before us 
on motion to reconsider. With the motion, the Petitioner submits a brief challenging our dismissal and 
asserting that he is eligible for the EB-2 classification and for a national interest waiver. 
Upon review, we will grant the motion and dismiss the appeal. 
I. LAW 
A motion to reconsider is based on an incorrect application of law or policy. The requirements of a 
motion to reconsider are located at 8 C.F.R. § 103.5(a)(3). 
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. 
Matter of A-A-A-
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 ofjob 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. 
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definition: 
Advanced degree means any United States academic or professional degree or a foreign 
equivalent degree above that of baccalaureate. A United States baccalaureate degree 
or a foreign equivalent degree followed by at least five years of progressive experience 
in the specialty shall be considered the equivalent of a master's degree. If a doctoral 
degree is customarily required by the specialty, the alien must have a United States 
doctorate or a foreign equivalent degree. 
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. 1 Dhanasar states that after EB-2 eligibility has been 
established, USCIS may, as a matter of discretion, grant a national interest waiver when the below 
prongs are met. See also Poursina v. USCIS, No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) 
(finding USCIS' decision to grant or deny a national interest waiver to be discretionary in nature). 
The first prong, substantial merit and national importance, 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. 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 l&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
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Matter of A-A-A-
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 
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. 2 
II. ANALYSIS 
A Motion to Reconsider 
The record reflects that we dismissed the Petitioner's appeal because his Form I-290B, Notice of Appeal 
or Motion, was not properly signed. On motion, he contends that this form was properly signed and that 
we erred in dismissing his appeal on that basis. In addition, he points to the regulation at 8 C.F.R. 
§ 103.2(a)(2) and the Form 1-290B instructions. Upon review of this information, we will grant the 
motion to reconsider. 
B. EB-2 Classification as a Member of the Professions Holding an Advanced Degree 
The Petitioner presented his degree (Februa:2007) from I I University in Indonesia and an 
academic credentials evaluation from I ~ I indicating that the 
aforementioned degree is the foreign equivalent of a bachelor of science degree in computer science from 
an accredited institution of higher education in the United States. He also provided letters from employers 
demonstrating that he least five years of progressive post-baccalaureate experience in software 
programming and development to constitute the equivalent to an advanced degree in that specialty. 
See 8 C.F.R. § 204.5(k)(2) and 8 C.F.R. § 204.5(k)(3)(i)(B). Accordingly, the Petitoner has established 
that he qualifies for classification as a member of the professions holding an advanced degree. 3 
2 See Dhanasar, 26 T&N Dec. at 888-91, for elaboration on these three prongs. 
3 Because the Petitioner qualifies for the underlying visa classification as a member of the professions holding an advanced 
degree, we need not consider whether the record establishes his eligibility as an individual of exceptional ability. 
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Matter of A-A-A-
C. National Interest Waiver 
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. For the 
reasons discussed below, he has not sufficiently demonstrated the national importance of his proposed 
endeavor under the first prong of the Dhanasar analytical framework. 
The Petitioner indicated that he intends to continue his work as a software programmer and that his 
proposed endeavor is aimed at "developing software" that helps companies "run their businesses in a 
more efficient and profitable manner." He farther explained that he specializes in Enterprise Resource 
Planning (ERP) software and programming and that his proposed work involves assisting businesses 
as they manage "complex projects through the application of ERP software." In addition, the 
Petitioner provided a June 2018 employment contract with~--------~ a software 
solutions company, offering him a position as a SAP HANA software specialist. 4 Furthermore, the 
record includes a July 2018 job offer letter fromD for the position of Senior SAP Advanced 
Business Application rrogymming (ABAP) Developer. This letter indicated that the Petitioner's 
prospective work for would encompass designing and building software solutions for that 
company's clients. He also submitted emails relating to his recruitment for various software 
programming and consulting positions. 5 
The record contains information about computer programmers, the demand for workers in that 
industry, the duties and responsibilities of ERP software developers, and how companies rely on 
computers and software to conduct business. The Petitioner also offered internet links to various 
websites relating to ERP, SAP, and ABAP. While the aforementioned documentation helps show the 
merit of his endeavor, this information is not sufficient to demonstrate the national importance of any 
particular software programming work proposed by the Petitioner. 
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." See Dhanasar, 26 I&N Dec. at 889. In Dhanasar, we farther 
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. 
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. Although the 
Petitioner's statements reflect his intention to provide valuable software programming services to his 
potential employers and their clients, he has not offered sufficient information and evidence to 
4 SAP HANA is a database management system developed and marketed by SAP, a German multinational software 
corporation. 
5 As the Petitioner is applying for a waiver of the job offer requirement, it is not necessary for him to have a job offer from 
a specific employer. However, we consider information about his prospective positions to illustrate the capacity in which 
he intends to work. 
4 
Matter of A-A-A-
demonstrate that the prospective impact of his proposed endeavor 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, we find that the record does not show that the Petitioner's proposed endeavor stands to 
sufficiently extend beyond his prospective employers and the clients they serve to impact his industry 
more broadly at a level commensurate with national importance. Nor has he shown that his particular 
work would have broader implications for the field of software programming and development. 
Furthermore, the Petitioner has not demonstrated that the specific endeavor he proposes to undertake 
has significant potential to employ U.S. workers or otherwise offers substantial positive economic 
effects for our nation. Without sufficient information or evidence regarding any projected U.S. economic 
impact or job creation attributable to his future software programming work, the record does not show 
that benefits to the regional or national economy resulting from the Petitioner's projects would reach the 
level of "substantial positive economic effects" contemplated by Dhanasar. Id. at 890. Accordingly, 
the Petitioner's proposed work does not meet the first prong of the Dhanasar framework. 
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. 
III. CONCLUSION 
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, we find that 
he has not established 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. In visa petition 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; Matter of Skirball Cultural Ctr., 25 I&N Dec. 799,806 (AAO 2012). Here, that burden has 
not been met. 
ORDER: The motion to reconsider is granted and the appeal is dismissed. 
Cite as Matter of A-A-A-, ID# 4838360 (AAO Oct. 1, 2019) 
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