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
- 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
- 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
| Year | Dismissed | Sustained | Remanded | Total |
|---|---|---|---|---|
| 2025 | 5 (—) | 0 | 1 | 6 |
| 2024 | 27 (96.4%) | 0 | 1 | 28 |
| 2023 | 11 (—) | 0 | 1 | 12 |
| 2022 | 3 (—) | 0 | 0 | 3 |
| 2021 | 9 (—) | 0 | 1 | 10 |
| 2019 | 1 (—) | 0 | 0 | 1 |
Criteria Breakdown
| Criterion | In Dismissed | In Sustained | Total | Dismissal Rate |
|---|---|---|---|---|
| Prong 1: Substantial merit and national importance | 55 | 0 | 58 | 94.8% |
| Prong 2: Well positioned to advance the endeavor | 47 | 0 | 50 | 94.0% |
| Prong 3: On balance, waiver benefits the U.S. | 44 | 0 | 47 | 93.6% |
| Exceptional ability | 27 | 0 | 35 | 77.1% |
| Advanced degree | 15 | 0 | 17 | — |
Example Decisions
NYSDOT-era decisions (pre-2017)
Outcomes by Year
| Year | Dismissed | Sustained | Remanded | Total |
|---|---|---|---|---|
| 2016 | 1 (—) | 0 | 0 | 1 |
| 2014 | 1 (—) | 0 | 0 | 1 |
| 2013 | 1 (—) | 0 | 0 | 1 |
| 2012 | 1 (—) | 0 | 0 | 1 |
| 2011 | 1 (—) | 0 | 0 | 1 |
| 2008 | 1 (—) | 0 | 0 | 1 |
| 2005 | 0 (—) | 2 | 0 | 2 |
Criteria Discussed
| Criterion | In Dismissed | In Sustained | Total |
|---|---|---|---|
| Intrinsic merit (NYSDOT) | 6 | 2 | 8 |
| National in scope (NYSDOT) | 6 | 2 | 8 |
| Substantially greater degree than U.S. worker (NYSDOT) | 6 | 2 | 8 |
| Exceptional ability | 2 | 0 | 2 |
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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