Can software engineers get an EB-2 NIW? What 60 AAO decisions say

Published AAO non-precedent decisions, 2019–2025 · updated 2026-10-16

Between 2019 and 2025 the AAO published 60 EB-2 NIW appeal decisions from software engineering petitioners and sustained none of them. The most common ground for dismissal: proposed endeavor not shown to have national importance (40 of the 55 merits dismissals, 73%). Second: advanced degree or exceptional ability not established (11, 20%). These are appeals of denials, not all adjudications, so the dismissal rate is not an initial-filing approval rate; it shows which arguments the AAO rejected on appeal and which it accepted.

What the decisions say

Grounds for dismissal, by frequency

  1. 40 of 55 Proposed endeavor not shown to have national importance
    “The petitioner failed to show their plan would have a broad impact beyond their own clients, thereby failing the first prong of the Dhanasar framework for a national interest waiver.” AAO, 2023
  2. 11 of 55 Advanced degree or exceptional ability not established
    “The Director found the petitioner met only two of the required three evidentiary criteria for exceptional ability, and the petitioner did not successfully challenge this finding on appeal.” AAO, 2021

No EB-2 NIW appeal from software engineering petitioners was sustained in this period. The record shows what did not work; it does not show what would.

Outcomes by Year

YearDismissedSustainedRemandedTotal
20255 (—)016
202427 (96.4%)0128
202311 (—)0112
20223 (—)003
20219 (—)0110
20191 (—)001

Criteria Breakdown

CriterionIn DismissedIn SustainedTotalDismissal Rate
Prong 1: Substantial merit and national importance5505894.8%
Prong 2: Well positioned to advance the endeavor4705094.0%
Prong 3: On balance, waiver benefits the U.S.4404793.6%
Exceptional ability2703577.1%
Advanced degree15017—

Example Decisions

Dismissed2024-07-15The appeal was dismissed because the petitioner failed to demonstrate that his proposed endeavor had national importance. While his work as a software developer for the manufacturing industry was acknowledged to have… Dismissed2024-06-13The appeal was dismissed because the petitioner failed to establish that his proposed endeavor has national importance. While the director acknowledged the project's substantial merit, the petitioner did not show how… Dismissed2024-04-15The appeal was dismissed because the petitioner failed to establish eligibility for the underlying EB-2 immigrant classification. The petitioner did not provide evidence that her foreign degree was equivalent to a U.S.… Dismissed2024-03-18The appeal was dismissed because the petitioner failed to establish that their proposed endeavor had national importance. While the AAO agreed the endeavor had substantial merit, it concluded that the petitioner's plan… Dismissed2024-01-25The appeal was dismissed because the petitioner failed to establish eligibility for the underlying EB-2 classification. The AAO found the petitioner did not demonstrate possession of a U.S. advanced degree or its…
NYSDOT-era decisions (pre-2017)

Outcomes by Year

YearDismissedSustainedRemandedTotal
20161 (—)001
20141 (—)001
20131 (—)001
20121 (—)001
20111 (—)001
20081 (—)001
20050 (—)202

Criteria Discussed

CriterionIn DismissedIn SustainedTotal
Intrinsic merit (NYSDOT)628
National in scope (NYSDOT)628
Substantially greater degree than U.S. worker (NYSDOT)628
Exceptional ability202

Sample: published AAO non-precedent decisions collected from uscis.gov. EB-2 NIW statistics reflect the Dhanasar framework era (2019–2025); the prior NYSDOT framework applied different legal standards. These are appeals, not all USCIS adjudications; approval rates here are not initial-filing approval rates. Read our full methodology.

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