dismissed EB-2 NIW Case: Software Quality Assurance

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 17, 2025 In Re: 32125426 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a software quality assurance analyst and tester, seeks employment-based second 
preference (EB-2) 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 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 record does not 
establish that the Petitioner is eligible for a national interest waiver as a matter of discretion. The 
matter is now before us on appeal pursuant to 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 I&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 qualify for the underlying EB-2 visa classification, a petitioner must establish they are an advanced 
degree professional or an individual of exceptional ability in the sciences, arts, or business. Section 
203(b)(2)(A) of the Act. 
An advanced degree is any U.S. 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. 
8 C.F.R. § 204.5(k)(2). 
If a petitioner establishes eligibility for the underlying EB-2 classification, they must then demonstrate 
that they merit a discretionary waiver of the job offer requirement "in the national interest." 
Section 203(b )(2)(B)(i) of the ActMatter ofDhanasar, 26 l&N Dec. 884, 889 (AAO 2016) provides 
the framework for adjudicating national interest waiver petitions. Dhanasar states that U.S. 
Citizenship and Immigration Services (USCTS) may, as matter of discretion, 1 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. 
Dhanasar, 26 I&N Dec. at 889. 
TT. ANALYSTS 
The Petitioner is a software quality assurance analyst and tester whose proposed endeavor is to work 
in this field in the United States. The Director determined that the Petitioner established his eligibility 
for the EB-2 classification as a member of the professions holding an advanced degree. However, the 
Director concluded that the Petitioner did not establish eligibility for a national interest waiver. On 
appeal, the Petitioner contends that the Director erred in this finding. We conclude the record does 
not establish the Petitioner's proposed endeavor is of national importance and therefore he is not 
eligible for a national interest waiver as a matter of discretion. 
A. EB-2 Classification 
The Petitioner submitted a diploma and transcripts for his foreign degree in electrical engineering 
along with an academic evaluation that states his degree is equivalent to a U.S. bachelor of science 
degree in electrical engineering. In addition, the Petitioner submitted employment letters that establish 
five years of progressive experience in the specialty. The Director concluded that the Petitioner 
qualifies as a member of the professions holding an advanced degree and we agree. 
B. National Interest Wavier 
1. Substantial Merit 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
individual 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. Id. The Petitioner 
states his proposed endeavor is to continue working as a software quality assurance analyst and tester 
in the United States. The record includes industry reports and articles on the importance of software 
quality assurance and testing, and the current state of this field and its impact. We conclude that the 
Petitioner's work has substantial merit. 
1 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts in concluding 
that USCIS' decision to grant or deny a national interest waiver is discretionary in nature). 
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2. National Importance 
In determining whether the proposed endeavor has national importance, we consider its potential 
prospective impact. Dhanasar, 26 I&N Dec. at 889. Before we discuss potential prospective impact, 
we note that the Petitioner did not describe the proposed endeavor in sufficient detail when he filed 
the petition. In the initial filing, the Petitioner stated that his proposed endeavor is "to continue 
development as an excellent analyst and software quality tester" in the United States as an independent 
contractor, and generally described the duties of the position while adding that he had two offers from 
U.S. employers. In response to the request for evidence (RFE), the Petitioner stated that he accepted 
one of the offers as a senior testing development engineer and he is working on his employer's 
emergency alert system project, along with other projects. On appeal, the Petitioner states that his 
proposed endeavor is to "continue developing emergency alert systems." However, developing an 
emergency alert system is a project associated with the Petitioner's new employer, and the Petitioner's 
endeavor did not include this project at the time of filing. Therefore, to characterize this project as his 
proposed endeavor in response to the RFE and on appeal would be material change in his proposed 
endeavor. A petitioner may not make material changes to a petition that has already been filed in an 
effort to make a deficient petition conform to USCIS requirements. Matter ofIzummi, 22 I&N Dec. 
169, 175 (Assoc. Comm'r 1998). However, since the Petitioner was not previously notified that we 
would consider this as a material change and did not have an opportunity to brief this issue, we will 
discuss this project as part of the overall proposed endeavor as a software quality assurance analyst 
and tester. 
On appeal, the Petitioner contends that the Director erred in finding his proposed endeavor lacks 
national importance. He first states that his proposed endeavor has national or even global implications 
as he is working on an emergency alert system for which his employer has partnered with the U.S. 
government. According to Dhanasar, an 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. Dhanasar, 26 I&N Dec. at 889. 
The record is unclear as to how much of this project's impact is attributable to the Petitioner or his 
employer. For example, it is unclear how much impact his specific contributions will have on the 
system and if his work has broader implications for his field. The record establishes he is working on 
this project and has made contributions to the project, however without more information about what 
his role is in implementation of the project, we cannot determine his prospective impact. Therefore, 
even if the project's impact could have national or global implications, the record does not establish 
that the Petitioner's specific role would have national or global implications. 
The Petitioner discusses another project through his employer- the android automation operating 
system. The Petitioner points to his "deep knowledge of this system" and uses as an example from 
his past experience; working on software used in cars to prevent accidents. In determining whether 
the proposed endeavor has national importance, we consider its potential prospective impact. Id. 
While we acknowledge his experience and the positive outcomes resulting from his past work, this 
does not establish the national importance of his work as it does not speak to the prospective impact 
of a proposed endeavor. While past experience can be persuasive for prong two analysis, whether the 
Petitioner is well-positioned to advance the proposed endeavor, it does not sufficiently establish claim 
of national importance. 
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The Petitioner contends that his proposed endeavor would broadly enhance societal welfare. He 
emphasizes his work on the emergency alert system project which he states, "contributes to national 
security, saves lives and reduces material losses." He also states that his employer has partnerships 
with nearly every auto manufacturer and is the primary satellite radio provider for 7 5% of new vehicles 
sold in the U.S., which speaks to the broadness of its audience. In addition, he states that his employer 
offers channels to its customers that have "a positive impact on the mental health of Americans." This 
focuses on the impact the Petitioner's employer has on its clients but does not establish an impact 
directly attributable to the Petitioner or his specific proposed contributions. Even if we were to directly 
attribute this impact to the Petitioner, the record itself does not contain sufficient evidence to support 
these statements. His statements alone are not enough as a petitioner must support assertions with 
relevant, probative, and credible evidence. See Matter ofChawathe, 25 I&N Dec. at 376. 
The Petitioner asserts that his proposed endeavor would reduce a national shortage of IT engineers 
and submits articles on the shortage of workers in the IT industry. The Petitioner states he will address 
this shortage by training and mentoring younger IT professionals and university students, helping 
increase the pipeline of software professionals available for the U.S. labor market. In addition, he 
proposes to volunteer by offering free courses in this field. 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. Dhanasar, 26 I&N Dec. at 893. Therefore, we cannot 
conclude that his teaching activities reach the level of national importance. In addition, a shortage of 
qualified professionals does not render the work of an individual nationally important under the 
Dhanasar decision. Here, the Petitioner has not established that his specific contribution stands to 
broadly impact or significantly reduce the claimed national shortage. Moreover, shortages of qualified 
workers are directly addressed by the U.S. Department of Labor through the labor certification process. 
The Petitioner states that his proposed endeavor impacts a matter that a government entity has 
described as having national importance by highlighting the partnership his employer has with the 
U.S. government and the emergency alert system he is working on. As stated above, it is unclear how 
much of this project encompasses the Petitioner's proposed endeavor and how much of its impact 
would be directly attributable to the Petitioner. In addition, this partnership is with his employer, and 
not with him or his specific proposed endeavor, of which this project is just a part of. In addition, the 
Petitioner emphasizes that his proposed endeavor is in the STEM field. Although the Petitioner's 
work may be in the STEM field, the Petitioner must still establish his proposed endeavor has national 
importance as it is presented in the Dhanasar framework. While his work may fall into this category, 
that alone does not mean it rises to the level of national importance. The proposed endeavor itself 
must still meet the level of prospective impact set forth in Dhanasar. 
Finally, the Petitioner contends that the Director, "failed to give due weight to the expert opinion 
letter." As a matter of discretion, we may use opinion statements submitted by a petitioner as advisory. 
Matter ofCaron Int 'l, Inc., 19 I&N Dec. at 795. However, we are ultimately responsible for making 
the final determination regarding an individual's eligibility for the benefit sought; the submission of 
expert opinion letters is not presumptive evidence of eligibility. Id.; see also Matter of V-K-, 24 I&N 
Dec. 500, 502 n.2 (BIA 2008) ("[E]xpert opinion testimony, while undoubtedly a form of evidence, 
does not purport to be evidence as to 'fact' but rather is admissible only if it will assist the trier of fact 
to understand the evidence or to determine a fact in issue."). The expert opinion letter reiterates many 
of the points we have addressed above. While the author of the expert opinion letter states that the 
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Petitioner's proposed endeavor has potential to, "improve national security, generate jobs and tax 
revenue, strengthen U.S. companies ... and to transfer knowledge and skills," the letter and the record 
itself do not establish this without relevant, probative, and credible evidence to support these 
assertions. See Matter of Chawathe, 25 I&N Dec. at 376. The expert opinion letter also highlights 
the Petitioner's experience in the field and discusses the IT field in general and its importance to 
companies and the economy. This does not address the Petitioner' specific work or its potential 
prospective impact as it speaks to the importance of the IT field and not the Petitioner's proposed 
endeavor. Lastly, the letter discusses the shortage of workers in the field, which we have addressed 
above. 
While we do not discuss each piece of evidence individually, we have reviewed and considered the 
record in its entirety. As the Petitioner's proposed work does not meet the first prong of the Dhanasar 
framework, the Petitioner has not demonstrated eligibility for a national interest waiver. Because the 
Applicant/Petitioner is ineligible for a national interest waiver, we need not reach, and therefore 
reserve, remaining Dhanasar prongs. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (per curiam) 
(holding that agencies are not required to make "purely advisory findings" on issues that are 
unnecessary to the ultimate decision). 
III. CONCLUSION 
The Petitioner has not met the requisite first prong of the Dhanasar analytical framework. We 
therefore conclude that the Petitioner has not established by a preponderance of the evidence 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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