Date of Decision: April 5, 2023
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: Software Development
Petitioner Information
Profession: Software Developer
Field: Software Development
Nationality: [Not specified]
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Dismissed
Evidentiary Criteria Analysis
Criteria Met:
Substantial Merit: The Petitioner’s proposed endeavor in software development has substantial merit.
Criteria Not Met:
National Importance: The Petitioner did not sufficiently demonstrate that the proposed endeavor has national importance.
Well-Positioned to Advance the Proposed Endeavor: The Petitioner did not provide sufficient evidence to establish that he is well-positioned to advance his proposed endeavor.
Key Points from the Decision
Proposed Endeavor
The Petitioner, a software developer, initially proposed to seek employment in the United States as a software developer or engineer. In response to a request for evidence (RFE), the Petitioner revised his proposed endeavor, stating that he intended to act as the CEO and founder of a new company based in the United States. This change was considered an impermissible material change to the petition.
Substantial Merit and National Importance:
While the proposed endeavor in software development has substantial merit, the evidence did not demonstrate its national importance. The documentation provided focused on the general importance of the IT industry rather than the specific national importance of the Petitioner’s services.
Supporting Evidence:
The Petitioner submitted job listings for software engineer positions and messages from recruiters. However, the Director concluded that these did not establish the national importance of the Petitioner’s specific endeavor.
Inconsistencies in Proposed Endeavor
The Petitioner initially described his proposed endeavor as seeking employment as a software developer or engineer. However, in response to a request for evidence, he presented a new endeavor as the CEO and founder of a company. These conflicting claims created inconsistencies in the record.
Supporting Documentation
Letters of Intent:
Not applicable.
Business Plan:
The business plan provided did not establish eligibility because it was presented after the petition filing date and introduced new facts.
Advisory Letter:
The advisory letters provided did not adequately demonstrate the national importance of the Petitioner’s proposed endeavor and contained general statements without independent analysis.
Any other supporting documentation:
Additional documents included job listings and messages from recruiters, which were deemed insufficient.
Conclusion
Final Determination: The appeal was dismissed due to the Petitioner not meeting the criteria for national importance and not being well-positioned to advance his proposed endeavor.
Reasoning:
The Petitioner did not provide sufficient evidence to demonstrate that his proposed endeavor would have significant national or regional implications. The documentation focused more on local and individual benefits rather than a broader national impact.