remanded EB-2 NIW Case: Medical Software Development

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 08, 2025 In Re: 35564040 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a medical research application developer, seeks employment-based second preference 
(EB-2) immigrant classification as an individual of exceptional ability, 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 the Petitioner did not 
establish that she was an individual of exceptional ability. The Director further determined that the 
Petitioner did not demonstrate the Beneficiary's eligibility for a national interest waiver. The 
Petitioner later filed a motion that the Director dismissed. 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 of Chawathe, 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 withdraw the Director' s decision and remand the matter for entry of a new decision. 
I. EXCEPTIONAL ABILITY 
To establish eligibility for a national interest waiver, a petitioner must first demonstrate qualification 
of the beneficiary 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. 
Exceptional ability means a degree of expertise significantly above that ordinarily encountered in the 
sciences, arts, or business. 8 C.F.R. § 204.5(k)(2). A petitioner must initially submit documentation 
that satisfies at least three of six categories of evidence. 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F) . 1 Meeting 
at least three criteria, however, does not, in and of itself, establish eligibility for this classification. See 
generally 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual. If a petitioner 
does so, we will then conduct a final merits determination to decide whether the evidence in its totality 
1 If these types of evidence do not readily apply to the individual's occupation, a petitioner may submit comparable 
evidence to establish their eligibility. 8 C.F.R. § 204.5(k)(3)(iii). 
shows that they are recognized as having the requisite degree of expertise and will substantially benefit 
the national economy, cultural or educational interests, or welfare of the United States. Section 
203(b )(2)(A) of the Act. 
The Petitioner indicated that although she was a self-petitioner, she was employed by 
as a medical research application developer and responsible for 
developing and implementing software applications and data management tools tailored to the unique 
needs of medical researchers. The Petitioner asserted she was involved in the co-development of 
software and data management tools, including an application called I Iused in clinical trials 
and implemented by medical research teams at institutions across the United States. The Petitioner 
also indicated that she customized software and tools for research projects coordinated through the 
National Institute of Health (NIH). The Petitioner stated that she would continue to work in her same 
role atl !"crafting bespoke applications tailored to the unique needs of medical researchers," 
including working on a pilot project called I Ilaunched in coordination with the Center for 
Disease Control and aimed at developing "a reliable, scalable, interoperable solution for the collection 
and exchange of health data between facilities across the United States ... to modernize public health 
data infrastructure." 
The Director concluded that the Petitioner established three of six categories of evidence at 8 C.F.R. 
§ 204.5(k)(3)(ii)(A)-(F), including those related to (A) an academic record related to the area of 
exceptional ability, (E) membership in a professional association, and (F) evidence of recognition for 
achievements and significant contributions to the industry. However, the Director determined, in a 
final merits analysis, that the Petitioner did not demonstrate that she had a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business. 
On appeal, the Petitioner contends the Director erred in concluding she did not have a degree of 
expertise significantly above that ordinarily encountered in her field. The Petitioner states the 
Director's final merits reasoning that her work was "localized" and did not extend beyond her 
employer was inconsistent with its determination that she made significant contributions to her field, 
consistent with 8 C.F.R. § 204.5(k)(3)(ii)(F). The Petitioner further asserts that the Director applied 
novel evidentiary requirements, including requiring that support letters be outside her acquaintances 
and colleagues and that she be at the top of her field rather than having a degree of expertise 
significantly above those ordinarily encountered in her field. 
Upon review, we agree with the Petitioner, as she submitted sufficient evidence to establish that she 
more likely than not has a degree of expertise significantly above those ordinarily encountered in her 
field. The Petitioner provided sufficient evidence demonstrating that she co-developed an application 
that has been widely adopted by medical research institutions around the country, and likewise 
involved in other research projects working in coordination with the National Institutes of Health 
(NIH) through her position at as documented in numerous support letters and 
industry articles. The provided evidence indicates she likely has a level of expertise significantly 
above those normally encountered in the field. Therefore, the Director conclusion to the contrary is 
withdrawn as it has been sufficiently established that the Beneficiary is an individual of exceptional 
ability. 
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II. NATTONAL INTEREST W AIYER 
If a petitioner establishes the beneficiary's 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." Id. Matter ofDhanasar, 26 I&N Dec. 884, 889 (AAO 2016), provides the framework for 
adjudicating national interest waiver petitions. Dhanasar states that U.S. Citizenship and Immigration 
Services (USCIS) may, as matter of discretion,2 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. 
Id. 
The Director concluded that the Petitioner did not meet any of the three prongs of Dhanasar, but did 
acknowledge that her proposed endeavor had substantial merit. As discussed, the Petitioner submitted 
evidence reflecting that she co-developed an application adopted by medical research institutions 
around the country and that she was involved in other medical research projects working in 
coordination with the National Institutes of Health (NIH), as reflected in numerous support letters and 
other documentary evidence. As such, the Petitioner demonstrated with sufficient evidence that she 
is well positioned to advance her proposed endeavor to develop another application related to the 
collection and exchange of health data between facilities across the United States. Id. at 890. The 
Director's determination to the contrary is withdrawn. Therefore, the remaining issues are whether 
the Petitioner established that her proposed endeavor has national importance and whether, on balance, 
waiving the job offer requirement would benefit the United States. 
A. National Importance 
The first prong relating 
national importance focuses on the specific endeavor that the individual 
proposes to undertake. Matter ofDhanasar, 26 I&N Dec. at 889. In determining whether the proposed 
endeavor has national importance, we consider its potential prospective impact. Id. 
In determining that the Petitioner did not establish the national importance of her proposed endeavor, 
the Director concluded that the provided evidence did not demonstrate its potential prospective impact 
at a national or global level. The Director emphasized that the Petitioner did not establish the economic 
implications of her proposed endeavor and stated that its impact appeared to be localized to her 
employer. The Director further reasoned that there was not documentation or detailed evidence 
showing the Petitioner's proposed plans and indicated that they did not establish that the endeavor 
would potentially employ U.S. workers or otherwise offer substantial economic benefits for the United 
States in the field of research. In addition, the Director stated that provided reports and articles were 
overly broad and did not reflect the national importance of the Petitioner's proposed endeavor. 
2 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Third, Ninth, Eleventh, and D.C. Circuit Courts of 
Appeals in concluding that USCIS' decision to grant or deny a national interest waiver is discretionary in nature). 
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On appeal, the Petitioner contends the Director overemphasized the potential prospective economic 
impact of her proposed endeavor and did not sufficiently consider its potential to broadly enhance 
societal welfare and to contribute to the advancement of valuable technology. 
Upon review, we agree that the Director overemphasized whether the Petitioner's proposed endeavor 
would have substantial positive economic benefits on the U.S. economy and did not sufficiently consider 
whether it could have national importance based on its potential prospective impact on science, 
technology, health, education, or critical and emerging STEM technologies. On remand, the Director 
will consider all evidence in light of these other bases for eligibility with respect to national 
importance. See 6 USCIS Policy Manual F.5(D)(l) and (2). 
B. Whether on Balance a Waiver is Beneficial 
In the denial decision, the Director also concluded that the Petitioner did not demonstrate it would be 
beneficial to waive the requirement of the job offer, and thus of the labor certification, consistent with the 
third prong of Dhanasar. 
The third prong requires a 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. Matter of 
Dhanasar, 26 I&N Dec. at 890-91. In performing this analysis, we may evaluate factors such as: 
whether, in light of the nature of the individual's qualifications or the proposed endeavor, it would be 
impractical either for them to secure a job offer or to obtain a labor certification; whether, even 
assuming that other qualified U.S. workers are available, the United States would still benefit from 
their contributions; and whether the national interest in their contributions is sufficiently urgent to 
warrant forgoing the labor certification process. Id. In each case, the factor( s) considered must, taken 
together, 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. Id. at 891. 
On remand, the Director will also reconsider the third prong of Dhanasar, as necessary, based on their 
determination with respect to the first prong requirement of national importance, taking into account the 
potential prospective impact on science, technology, health, education, or critical and emerging STEM 
technologies 3 and whether it would be beneficial to the United States to waive the requirements of a 
3 See 6 USCIS Policy Manual F.5(D)(2). We also note that the USCIS policy manual outlines specific evidentiary 
considerations relating to STEM degrees and fields, including with respect to evaluating eligibility under the third prong. 
When evaluating the third prong and whether the United States may benefit from the person's entry, regardless of whether 
other U.S. workers are available, the USCIS policy manual instructs us to consider the following combination of facts 
contained in a record as a strong positive factor: 
• The person possesses an advanced STEM degree, particularly a Ph.D.; 
• The person will be engaged in work furthering a critical and emerging technology or other STEM area important 
to U.S. competitiveness; and 
• The person is well positioned to advance the proposed STEM endeavor of national importance. 
The benefit to the United States is considered especially weighty where the endeavor has the potential to support U.S. 
national security or enhance U.S. economic competitiveness, or when the petition is supp01ied by letters from interested 
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job offer and thus of a labor certification. The Director may request any additional evidence 
considered pertinent to the new determinations and any other issues. As such, we express no opinion 
regarding the ultimate resolution of this case on remand. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
U.S. government agencies. Id. 
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