remanded EB-2 NIW Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 16227048 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : AUG . 24, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a software developer, seeks second preference immigrant classification 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 oJDhanasar, 26 I&N Dec. 884 (AAO 2016). 
The Director of the Nebraska Service Center concluded that the Petitioner qualified for classification 
as an individual of exceptional ability and that his proposed endeavor had substantial merit. However, 
the Director concluded that the evidence did not establish that the Petitioner is well positioned to 
advance the endeavor, or that a waiver of the required job offer, and thus of the labor certification, 
would be in the national interest. 
On appeal, the Petitioner submits additional documentation and a brief asserting that he is eligible for 
a national interest waiver. 
In these 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. Upon de nova review, we will withdraw the 
Director's decision and remand the matter for further review of the record and issuance of a new 
decision. 
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 . 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. 
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. 
Section 101(a)(32) of the Act provides that "[t]he term 'profession' shall include but not be limited to 
architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, 
colleges, academics, or seminaries." 
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definitions: 
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. 
Exceptional ability in the sciences, arts, or business means a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business. 
Profession means one of the occupations listed in section 10l(a)(32) of the Act, as well 
as any occupation for which a United States baccalaureate degree or its foreign 
equivalent is the minimum requirement for entry in the occupation. 
In addition to the definition of "advanced degree" provided at 8 C.F.R. § 204.5(k)(2), the regulation 
at 8 C.F.R. § 204.5(k)(3)(i)(B) provides that a petitioner present "[a]n official academic record 
showing that the alien has a United States baccalaureate degree or a foreign equivalent degree, and 
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evidence in the form of letters from current or former employer( s) showing that the alien has at least 
five years of progressive post-baccalaureate experience in the specialty." 
To demonstrate eligibility as an individual of exceptional ability, a pet1t10ner must submit 
documentation that satisfies at least three of the six categories of evidence listed at 8 C.F.R. 
§ 204.5(k)(3)(ii). 
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 (AAO 2016). 1 Dhanasar states that after a petitioner has 
established eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) 
may, as matter of discretion 2, 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. 
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. 
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. 3 
1 In announcing this new framework. we vacated our prior precedent decision, Matter of New York State Department of 
Transportation. 22 T&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSD01). 
2 See also Poursina v. USC1S. 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). 
3 See Dhanasar, 26 I&N Dec. at 888-91. for elaboration on these three prongs. 
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II. ANALYSIS 
As stated above, the first step to establishing eligibility for a national interest waiver is demonstrating 
qualification for the underlying EB-2 visa classification, as either an advanced degree professional or 
an individual of exceptional ability. At initial filing, the Petitioner indicated in his cover letter that he 
is filing for EB-2 classification based upon his advanced degree in software development and 
exceptional abilities in the information technology sector. The Petitioner indicated his proposed 
endeavor is to "work for companies, in any sector, that are in need of his expertise to improve and 
grow their businesses" and "will use his skills to develop IT teams and systems, which will improve 
U.S. business productivity by allowing small, medium, and large-sized companies to succeed in a 
highly competitive global environment, where technology is a necessity, and IT is linked to economic 
output and development." He asserts his work will include "improving a company's software 
development department by implementing efficient practices and updated tools designed to boost the 
performance of the companies which he serves." 
The Petitioner also discussed and submitted documentation relating to his claims of eligibility relating 
to an advanced degree professional and an individual of exceptional ability. The Director's decision, 
however, does not reflect that he made a determination whether the Petitioner qualified as an advanced 
degree professional. Instead, the Director only addressed his eligibility as it pertained to an individual 
of exceptional ability in the sciences, arts, or business. 
A. Member of the Professions Holding an Advanced Degree 
In order to qualify as a member of the professions, an individual must meet "one of the occupations 
listed in section 10l(a)(32) of the Act, as well as any occupation for which a United States 
baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the 
occupation." 8 C.F.R. 204.5(k)(2). 4 Further, in order to show an individual holds an advanced degree, 
the petition must be accompanied by"[ a ]n official academic record showing that the alien has a United 
States advanced degree or a foreign equivalent degree." 8 C.F.R. § 204.5(k)(3)(i)(A). Alternatively, 
the Petitioner may present "[ a ]n official academic record showing that the alien has a United States 
baccalaureate degree or a foreign equivalent degree, and evidence in the form of letters from current 
or former employer( s) showing that the alien has at least five years of progressive post-baccalaureate 
experience in the specialty." 8 C.F.R. § 204.5(k)(3)(i)(B). 
The Director's decision does not determine whether the Petitioner's occupation, software developer, 
qualifies as a member of the professions. In addition, the Director does not conclude whether the 
Petitioner's "Informatics Technologist" degree frottj lis a foreign 
equivalent of a baccalaureate degree followed by at least five years of progressive experience in the 
specialty. 
In light of the above, the Director should first determine whether the Petitioner's occupation as a 
software developer is a member of the professions. If so, the Director should consider whether the 
Petitioner's "Informatics Technology" degree meets the foreign equivalent of a baccalaureate degree 
4 Section 101 (a)(32) of the Act states "[t]he term 'profession' shall include but not limited to architects, engineers, lawyers, 
physicians, surgeons, and teachers in elementary or secondary schools, colleges, academics, or seminaries." 
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followed by at least five years of progressive experience in the specialty. If the Director concludes that 
the Petitioner is not an advanced degree professional, he should then determine whether the Petitioner 
qualifies as an individual of exceptional ability, discussed below. 
B. Exceptional Ability 
The Petitioner asserted eligibility and submitted documentation for five of the regulatory criteria under 
8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). 5 While the Director found the Petitioner met three of the five 
regulatory criteria, he did not specify which ones or evaluate each type of evidence to determine if it 
meets the plain language of the evidentiary criteria and also did not make a final merits determination 
regarding the level of expertise for the immigrant visa classification. 6 
On remand, the Director should review the Petitioner's arguments made on appeal and determine if the 
Petitioner has met the above regulatory criteria. If so, the Director should then conduct a final merits 
determination to conclude whether the Petitioner has achieved the level of expertise significantly above 
that ordinarily encountered for exceptional ability classification. 
C. National Interest Waiver 
The Director did determine that, although the Petitioner did not meet the second and third prongs of 
Dhanasar, he had met the first prong. However, as the Director's determination appears to be based, 
at least in part, on the Petitioner's education, we must also withdraw the Director's conclusion that the 
Petitioner's proposed endeavor has substantial merit and national importance. In addition, the Director 
did not sufficiently conduct an analysis of the third prong. Instead, the Director stated that since the 
Petitioner had not met the second prong, "further discussion of the balancing factors under this prong 
will serve no meaningful purpose." 
The Director should conduct a proper Dhanasar analysis under all three prongs, including the 
arguments made on appeal. 
III. CONCLUSION 
To meet the requirements for a national interest waiver, an individual must first qualify for the 
underlying EB-2 visa classification. We are therefore remanding the petition for the Director to 
consider whether the Petitioner has satisfied the eligibility requirements for classification as a member 
of the professions holding an advanced degree or as an individual of exceptional ability. In addition, 
the Director should properly apply all three prongs of the Dhanasar analytical framework to make a 
determination as to 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. As such, we will remand the 
matter for further consideration of the record, including claims on appeal, and entry of a new decision. 7 
5 The Petitioner did not claim eligibility for the license criterion under 8 C.F.R. § 204.5(k)(3)(ii)(C). 
6 See, USCIS Policy Memorandum PM-602-0005.1, Evaluation of Evidence Submitted with Certain Form 1-140 Petitions; 
Revisions to the Adjudicator's Field Manual (AFM) Chapter 22.2, AFM Update AD 11-14 (Dec. 22. 2010). 
https://www.uscis.gov/policymanual/HTML/PolicyManual.html. 
7 We have the authority to withdraw a decision and remand the case for further action, with an order that it be certified 
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ORDER: The decision of the Director is withdrawn. The matter is remanded for farther 
proceedings consistent with the foregoing opinion and for the entry of a new decision which, if 
adverse, shall be certified to us for review. 
back to us if the new decision is adverse to the affected party. 1 USC1S Policy Manual F, 
https://www.uscis.gov/policymanual. This order is not meant to compel approval of the remanded case, but is designed to 
preserve the affected party's ability to seek appellate review without payment of a second appeal fee. Id. 
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