dismissed EB-2 NIW Case: Video Game Design

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: NOV. 07, 2023 In Re: 28805262 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a video game designer and entrepreneur, 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). 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. The Director concluded that although 
the Petitioner established eligibility for EB-2 classification as a member of the professions holding an 
advanced degree, the record did not demonstrate he 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. Section 203(b)(2)(B)(i) 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.1 8 C.F.R. § 204.5(k)(2). A U.S. bachelor's degree or aforeign equivalent 
degree followed by five years of progressive experience in the specialty is the equivalent of a master's 
degree. Id. 
Once a petitioner demonstrates eligibility for the underlying classification, the petitioner must then 
establish eligibility for a discretionary waiver of the job offer requirement "in the national interest." 
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. 
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, 889 (AAO 2016), provides the 
framework for adjudicating national interest waiver petitions. Dhanasar states that USCIS may, as 
matter of discretion2, 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. 
11. ANALYSIS 
The Director determined that the Petitioner established his eligibility as a member of the professions 
holding an advanced degree. The issue on appeal is whether the Petitioner is eligible or otherwise 
merits a waiver of the classification's job offer requirement. 
The Director concluded the Petitioner did not establish 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 proposed endeavor has substantial merit, he did not establish that the 
proposed endeavor is of national importance, as required by the first Dhanasar prong. The Director 
further found that the Petitioner did not establish 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.3 Upon de nova review, 
we agree with the Director's determination that the Petitioner did not demonstrate that a waiver of the 
labor certification would be in the national interest.4 
The first prong of the Dhanasar analytical framework, substantial merit and national importance, 
focuses on the specific endeavor that a petitioner proposes to unde1iake. The endeavor's merit may 
be demonstrated in arange of areas, such as business, entrepreneurial ism, science, technology, culture, 
health, or education. 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. 
The Petitioner proposes to establish a software development, video game design, and information 
technology consulting business,~-------~ for which he would be its chief executive 
officer. The business plan explains that the business would focus on smart phone application 
development, video game software development, and information technology consulting for web 
application factory outsourcing, mobile application factory outsourcing, web 3.0 services, web 
application integration package, mobile and web game design, and development factory outsourcing. 
The business plan further indicates the business would be established in Florida with an office in 
California, serving small businesses in historically underutilized business communities. We agree 
with the Director that the Petitioner's endeavor has substantial merit. 
2 See also Poursina v. USC1S, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
3 The Director did not make a determination whether the Petitioner is well positioned to advance the proposed endeavor 
under the second prong of the Dhanasar framework. 
4 While we may not discuss every document submitted, we have reviewed and considered each one. 
2 
Even though the Petitioner's proposed endeavor has substantial merit, the Director found that the 
record did not establish that his proposed endeavor has the potential to extend beyond his business and 
his clients to impact his field more broadly. Therefore, the Director found that the Petitioner did not 
demonstrate that his proposed endeavor is of national importance and did not meet the first prong of 
the Dhanasar framework. 
The Petitioner contends on appeal that the Director "did not apply the proper standard of proof ... , 
instead imposing a stricter standard, and e1roneously applied the law .... " (emphasis omitted). The 
Petitioner further argues that the Director "did not give due regard" to the evidence submitted, 
specifically the Petitioner's resume outlining his experience; the business plan describing his 
credentials and the projected benefits he offers the United States; letters of recommendation attesting 
to his work in the field; and industry reports and articles showing the national importance of the 
proposed endeavor. Upon de nova review, we find the record does not demonstrate that the 
Petitioner's proposed endeavor satisfies the national importance element of Dhanasar 's first prong, as 
discussed below. 
The standard of proof in this proceeding is a preponderance of the evidence, meaning that a petitioner 
must show that what is claimed is "more likely than not" or "probably" true. Matter of Chawathe, 25 
l&N Dec. at 375-76. To determine whether a petitioner has met the burden under the preponderance 
standard, we consider not only the quantity, but also the quality (including relevance, probative value, 
and credibility) of the evidence. Id.; Matter of E-M-, 20 l&N Dec. 77, 79-80 (Comm'r 1989). Here, 
the Director properly analyzed the Petitioner's documentation and weighed the evidence to evaluate 
the Petitioner's eligibility by a preponderance of the evidence. 
On appeal, the Petitioner argues that his proposed endeavor has national importance, "particularly 
because it will "generate substantial ripple effects upon key technology activities on behalf of the 
United States" and would be "a vital aspect of U.S. gaming operations and productivity - which 
contributes to a revenue-enhanced business ecosystem, and an enriched, productivity-centered 
economy." (emphasis omitted). The Petitioner stresses his eighteen years of professional experience 
as an entrepreneur in the video game design field (emphasis omitted) and his educational credentials 
to argue that his "work offers broad implications to the United States' gaming industry, specifically 
through his endeavors within key commercial segments." (emphasis omitted). 
The Petitioner further argues his proposed endeavor will benefit the United States "by creating jobs 
and economic stability" and will "help the [United States] stay competitive by bringing competitive 
services, helping develop the country, and producing income for the U.S. economy." He relies on his 
professional background to emphasize that he "has brought numerous advantages to the organizations 
he has served" by stimulating "his served companies' economic capacities" and prioritizing "customer 
satisfaction by ensuring all clients are aligned with their actual needs, furthering customer loyalty." 
The Petitioner argues the United States "would benefit from investing in well-versed gaming 
professionals such as [the Petitioner], who are knowledgeable regarding potentially profitable markets 
for U.S. environmentally friendly organizations in regions that are economically and politically 
strategic, yet extremely complex." (emphasis omitted). He contends his "proposed endeavor will 
have multiple positive effects on the U.S. marketplace, thus enhancing business operations on behalf 
of the nation, and contributing to a streamlined economic landscape." The Petitioner asserts his 
3 
"proposed endeavor is clearly of national importance, when considering how much a professional 
with his caliber can contribute to the national interests, and to the U.S. economy, regardless of a labor 
certification." (emphasis in original). 
However, the Petitioner's reliance on his academic credentials and professional experience to establish 
the national importance of his proposed endeavor is misplaced. His academic credentials and 
professional experience relate to the second prong of the Dhanasar framework, which "shifts the focus 
from the proposed endeavor to the foreign national." Matter of Dhanasar, 26 l&N Dec. at 890. The 
issue here is whether the specific endeavor that the Petitioner proposes to undertake has national 
importance under Dhanasar ·s first prong. 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. See id. 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 the field more broadly. Id. at 893. Similarly, the 
record does not demonstrate that the Petitioner's proposed endeavor will substantially benefit the fields 
of information technology and video game and software development, as contemplated by Dhanasar: 
"[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. The evidence does not suggest that the Petitioner's software 
development, video game design, and information technology consulting business would impact the 
fields more broadly. 
With the petition, the Petitioner submitted his statement and a business plan which indicate his 
proposed endeavor has national importance based on potential economic benefits to underutilized 
business areas of Florida and California. The Petitioner states his business would generate jobs for 
U.S. workers in these underutilized areas, improve wages and working conditions for U.S. workers, 
help the local community attract investments to the region, and encourage economic development. 
The Petitioner asserts that his entrepreneurial endeavor is particularly important given its role in the 
U.S. recovery from the COVID-19 pandemic. 
However, the Petitioner has not provided corroborating evidence to support his claims that his 
business' activities stand to provide substantial economic benefits to the underutilized Florida or 
California business communities or the United States. The Petitioner's claims that his software 
development, video game design, and information technology consulting business will benefit the 
economies of the underutilized communities and of the United States have not been established 
through independent and objective evidence. The Petitioner's statements are not sufficient to 
demonstrate his endeavor has the potential to provide economic benefits to the United States. The 
Petitioner must support his assertions with relevant, probative, and credible evidence. See Matter of 
Chawathe, 25 l&N Dec. at 376. Also, without sufficient documentary evidence that his proposed job 
duties as the owner and chief executive officer of his software development, video game design, and 
information technology consulting business would impact the information technology, software 
development, and video game design industries more broadly, rather than benefiting his business and 
his proposed clients, the Petitioner has not demonstrated by a preponderance of the evidence that his 
proposed endeavor is of national importance. 
4 
The business plan projects that in five years the business will hire 21 direct employees, pay wages of 
$3.25 million, and generate over $7.59 million in revenue. However, the record does not sufficiently 
detail the basis for its financial and staffing projections, or adequately explain how these projections 
will be realized. The Petitioner has not provided corroborating evidence demonstrating that his 
business' future staffing levels and business activities stand to provide substantial economic benefits 
to the United States and the communities in the states it will serve. While the Petitioner expresses his 
desire to contribute to the United States and its underutilized business areas, he has not established 
with specific, probative evidence that his endeavor will have broader implications in his field, will 
have significant potential to employ U.S. workers, or will have other substantial positive economic 
effects in an economically underutilized business areas of Florida and California. The Petitioner must 
support his assertions with relevant, probative, and credible evidence. See id. Even if we were to 
assume everything the Petitioner claims will happen, the record lacks evidence showing that creating 
21 direct jobs, paying wages of over $3.25 million, and generating $7.59 million in revenue over a 
five-year period rises to the level of national importance. 
The business plan further explains that the business' focus on smartphone application development, 
video game software development, and information technology consulting will help support the 
growing demand for these services in the United States. (emphasis omitted). The business plan also 
explains the Petitioner's experience and investment in the business and the business' projected 
marketing strategy, staffing, and financial calculations. However, the record does not sufficiently 
document the potential prospective impact, including the asserted economic benefits to the United 
States and the areas it intends to serve. The growth and importance of an industry is not sufficient to 
meet the national importance requirement under the Dhanasar framework. 
The Petitioner further claims the national importance of his proposed endeavor is evidenced in industry 
reports and articles. The record includes industry reports and articles relating to the expected growth 
of the video game software developer industry; effects of COVID-19 pandemic on the video gaming 
industry; the video game design industry and the benefits to hiring video game developers; starting a 
video game company; the salary of video game designers; the web design industry; benefits of 
immigrants on small businesses; promoting legal immigration and integration of immigrants; and the 
economic benefits of immigrants and entrepreneurship. We recognize the importance of the video 
game design industry and related careers, and the significant contributions from immigrants who have 
become successful entrepreneurs; however, merely working in the video game software development 
field or starting a software development, video game design, and information technology consulting 
business is insufficient to establish the national importance of the proposed endeavor. Instead, of 
focusing on the importance of an industry or the need for workers in a specific industry, we focus on 
the "the specific endeavor that the foreign national proposes to undertake." See Matter of Dhanasar, 
26 l&N Dec. at 889. 
In Dhanasar, we 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. The industry reports and articles submitted do not discuss any projected U.S. economic impact 
or job creation specifically attributable to the Petitioner's proposed endeavor. 
5 
To further su art the national importance of his proposed endeavor, the record includes an opinion 
from professor of computer science, information systems, and cyber security at 
._____....,University in Oregon. However, the opinion claims that the Petitioner would be working 
in an area of national importance, instead of focusing on the Petitioner's proposed endeavor. It 
describes how the United States will continue to have a major shortage of information technology 
workers based on growth in the industry and the demand for talent continues to exceed supply. The 
opinion focuses on the need for information technology professionals and how the Petitioner's 
experience makes him well positioned to fill the need, instead of focusing on the Petitioner's specific 
endeavor having a prospective impact in the fields of the information technology, software 
development, and video game design. 
The opinion further explains that the Petitioner's endeavor has national importance based on Brazil's 
large market opportunities for U.S. businesses. The opinion indicates that while U.S. companies have 
many market challenges when looking to do business in Brazil, the Petitioner's extensive experience 
in the Brazilian market make him well positioned to advise U.S. companies on information technology 
projects planning to operate in Brazil. The opinion also notes that the Petitioner can contribute to 
improving and facilitating cross-border transactions between the United States and Latin America; 
assist U.S. corporations and U.S. investors interested in making investments and developing 
commercial relationships in the Brazilian market; and increasing foreign direct investment in the U.S. 
economy by supporting Latin American investors to invest in information technology projects in the 
United States. 
However, the record does not indicate that the Petitioner's proposed endeavor includes collaborative 
works between U.S. companies and Latin America companies, or that he is actively targeting U.S. 
companies that do business, or plan to do business in Latin America or Brazil. Where an opinion is 
not in accord with other information or is in any way questionable, USCIS is not required to accept it 
or may give it less weight. See Matter of Sea, Inc., 19 l&N Dec. 817 (Comm'r 1988). The submission 
of letters from experts supporting the petition is not presumptive evidence of eligibility. Matter of 
Caron Int 'I, 19 l&N Dec. 791, 795 (Comm'r. 1988); see also Matter of D-R-, 25 l&N Dec. 445, 460 
n.13 (BIA 2011) (discussing the varying weight that may be given expert testimony based on 
relevance, reliability, and the overall probative value). Stating that the Petitioner's professional 
experience would support an important industry is not sufficient to meet the "national importance" 
requirement under the Dhanasar framework. 
The Petitioner does not demonstrate that his proposed endeavor extends beyond his business and his 
future 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, he has not demonstrated that the 
work he proposes to undertake as the owner and chief executive officer of his proposed software 
development, video game design, and information technology consulting business offers original 
innovations that contribute to advancements in his industry or otherwise has broader implications for 
his field. The economic benefits that the Petitioner claims depend on numerous factors, and the 
Petitioner did not offer a sufficiently direct evidentiary tie between his proposed business' software 
development, video game design, and information technology consulting work and the claimed 
economic results. 
6 
Because the documentation in the record does not sufficiently establish the national importance of the 
Petitioner's proposed endeavor as required by the first prong of the Dhanasar precedent decision, he 
has not demonstrated eligibility 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 eligibility 
and appellate arguments regarding the second and third prongs under the Dhanasar framework. See 
INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("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). 
111. CONCLUSION 
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, we find 
that the Petitioner has not established eligibility for a national interest waiver as amatter of discretion. 
The appeal will be dismissed for the above stated reasons. 
ORDER: The appeal is dismissed. 
7