dismissed EB-2 NIW Case: Software Quality Assurance

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: WL. 11, 2023 In Re: 27274802 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a software quality assurance engineer, seeks classification as an individual of 
exceptional ability. 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. 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 the record did not 
establish that a waiver of the job offer requirement is 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 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 I&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. 
Once a petitioner demonstrates eligibility as either a member of the professions holding an advanced 
degree or an individual of exceptional ability, the petitioner 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 statute nor the pertinent regulations define the term "national interest," Matter 
ofDhanasar, 26 I&N Dec. 884, 889 (AAO 2016), provides the framework for adjudicating national 
interest waiver petitions. Dhanasar states that USCIS may, as a matter of discretion, 1 grant a national 
interest waiver if the petitioner demonstrates that: 
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 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. 
II. ANALYSIS 
The Petitioner obtained a bachelor of engineering degree in automation from the University I....______. 
China in 2015. The Petitioner submitted a credential evaluation ~-------------~ which states that the degree is equivalent to a U.S. bachelor's degree in electronics engineering. The 
Petitioner also provided evidence of work experience in automation and software quality assurance. 2 
The Director did not make clear findings as to whether the Petitioner qualifies for the underlying EB-2 
immigrant classification or whether the Petitioner established that the proposed endeavor has 
substantial merit. 3 The Director concluded that the Petitioner did not establish that a waiver of the job 
offer requirement is in the national interest because he did not demonstrate the national importance 
element of the first prong, or the second or third prongs of the Dhanasar analytical framework. 
Because, as we discuss below, we conclude that the Petitioner has not established the national 
importance of his proposed endeavor, we need not reach the question of whether he has established 
eligibility for the EB-2 immigrant classification, the substantial merit of his endeavor, or the second 
or third prongs of the Dhanasar framework, and we reserve our opinion regarding those issues. See 
INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (stating that agencies are not required to make "purely 
advisory findings" on issues that are unnecessary to the ultimate decision); see also Matter ofL-A-C-, 
26 I&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach alternative issues on appeal where an 
applicant is otherwise ineligible). 
As to the Petitioner's proposed endeavor, the Petitioner initially provided only the general statement 
that he is "planning to use my work experience and knowledge in the field of IT [information 
technology] to continue my work as a Programmer Analyst and help improve healthcare." The 
Petitioner also provided evidence that he has created a website,! Ito provide software 
engineering consulting services, although the Petitioner did not clarify whether the proposed endeavor 
was to operate this website as a business. In response to a request for evidence (RFE), the Petitioner 
submitted a business plan, which stated that the proposed endeavor is to work as a software quality 
assurance engineer with a focus on the healthcare industry, either by providing consulting services or 
by finding employment in the United States. The business plan does not mention the Petitioner's 
website or provide another specific proposed venture within this field. The business plan also does 
not provide information related to funding, financial projections, or potential job creation. The 
Petitioner also submitted an employment letter confirming that the Petitioner is employed at an IT 
services company full-time in software quality assurance. The RFE response did not provide further 
details as to the proposed endeavor, or otherwise clarify whether the Petitioner intends to remain in 
2 The Petitioner submitted evidence claiming that he has obtained approximately two and a half years of work experience 
in automation and had obtained approximately one year of work experience in software quality assurance prior to filing 
the T-140 petition. The Petitioner did not submit evidence of at least five years of post-baccalaureate progressive 
experience in the specialty prior to filing the petition. 
3 The Director concluded that the Petitioner does not qualify as an advanced degree professional. However, the decision's 
discussion as to the Petitioner's qualification as an individual of exceptional ability is incomplete. 
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his current employment, to further develop his website, or to provide consulting services in his 
endeavor. 
As stated above, the Director concluded that the Petitioner did not establish the national importance 
of the proposed endeavor. The Director noted that the Petitioner did not clearly establish whether he 
intends to pursue an entrepreneurial venture to provide consulting services, or whether he intends to 
seek employment with a company as a software quality assurance engineer. The Director found that 
regardless of whether he intends to be an entrepreneur or to work as an employee, the Petitioner did 
not show that his proposed endeavor to work in the IT field stands to sufficiently extend beyond either 
his employer or his company to impact the field more broadly at a level commensurate with national 
importance. The Director further found that the Petitioner did not submit sufficient evidence to 
establish that his proposed endeavor may result in significant job creation or other substantial positive 
economic effects. 
On appeal, the Petitioner submits a brief and an expert opinion letter stating that the Petitioner has 
established eligibility for a national interest waiver. In the brief submitted on appeal, counsel for the 
Petitioner discusses of the field of software quality assurance in general and provides information and 
statistics about the U.S. healthcare industry. However, the brief does not address the deficiencies that 
Director found as to the proposed endeavor's national importance, nor attempt to clarify further 
regarding the specifics of the endeavor. We note that in determining whether a proposed endeavor 
has national importance, the relevant question is not the importance of the industry, field, or profession 
in which an individual will work; instead, to assess national importance, we focus on the potential 
prospective impact of the "specific endeavor that the [noncitizen] proposes to undertake." See Matter 
ofDhanasar, 26 I&N Dec. at 889. 
Moreover, the brief does not identify any specific legal or factual errors in the Director's finding that 
the Petitioner did not establish national importance. Other than describing the general field, counsel 
merely restates the Petitioner's intention to work in software quality assurance and asserts that, 
because healthcare is a vital industry in the U.S. economy, this will result in "saving millions of dollars 
and even contributing to improved national security via the protection of citizens' sensitive data." 
Assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 
(BIA 1988) (citing Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980)). Counsel's 
statements must be substantiated in the record with independent evidence. Here, the evidence in the 
record does not support counsel's assertions. The Petitioner provided evidence of his educational 
credentials, work experience, and submitted a business plan which does not clearly articulate the 
specifics of the Petitioner's proposed endeavor and does not provide information related to funding, 
financial projections, or potential job creation. The business plan does not establish that the 
Petitioner's endeavor would result in "saving millions" or "contributing to improved national 
security." 
The expert opinion letter submitted on appeal also does not establish the national importance of the 
proposed endeavor. In support of national importance, the letter writer provides substantively the 
same discussion of the Petitioner's background and description of the general field found elsewhere 
in the record. The writer also asserts that the endeavor has significant potential to employ U.S. workers 
because the IT field is projected to grow at a rate faster than the overall economy. It is true that an 
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endeavor that has significant potential to employ U.S. workers, particularly in an economically 
depressed area, may have national importance. Matter of Dhanasar, 26 I&N Dec. at 889. But the 
potential for job growth in the field does not, by itself: establish that the proposed endeavor has such 
potential. As stated above, in determining national importance, we focus on the "specific endeavor 
that the [noncitizen] proposes to undertake," rather than the industry or field. See id. Additionally, 
the writer asserts that the endeavor has national importance because the Petitioner works in a STEM 
(science, technology, engineering, and mathematics) and cybersecurity-related field. While USCIS 
recognizes the importance of progress in STEM fields with respect to national interest waivers, the 
evidence must demonstrate that the STEM-related endeavor has national importance, such as by 
advancing a STEM technology or area ofresearch. See generally 6 USCIS Policy Manual F.5(D)(2), 
https://www.uscis.gov/policy-manual. The Petitioner has not established the national importance of 
the proposed endeavor merely because it relates to a STEM field. Further, without clarification as to 
the Petitioner's specific endeavor, as noted by the Director in the denial and not properly addressed 
on appeal, we cannot fully assess the relevance of the letter. 
The Petitioner has not identified any specific legal or factual errors in the Director's finding as to 
national importance, nor has the Petitioner overcome the Director's finding that the record does not 
establish the proposed endeavor's national importance. Upon de novo review, we agree that the 
Petitioner has not established that the proposed endeavor has national importance, as required by the 
first Dhanasar prong. Therefore, he is not eligible for a national interest waiver. 
Since 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 the Petitioner's eligibility for EB-2 
classification, the substantial merit of the proposed endeavor, and the second and third prongs of the 
Dhanasar analytical framework. See INS v. Bagamasbad, 429 U.S. at 25 (stating that agencies are not 
required to make "purely advisory findings" on issues that are unnecessary to the ultimate decision); 
see also Matter of L-A-C-, 26 I&N Dec. at 526 n.7 (declining to reach alternative issues on appeal 
where an applicant is otherwise ineligible). 
III. CONCLUSION 
The Petitioner has not established that he meets the requisite first prong of the Dhanasar analytical 
framework regarding national importance. We therefore conclude that the Petitioner has not 
established that he is eligible for or otherwise merits a national interest waiver as a matter of discretion. 
ORDER: The appeal is dismissed. 
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