Date of Decision: December 13, 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:
- Advanced Degree: The petitioner qualifies as a member of the professions holding an advanced degree.
Criteria Not Met:
- National Importance: The petitioner did not sufficiently demonstrate that his proposed endeavor has national importance.
- Well Positioned to Advance: The petitioner did not sufficiently demonstrate that he is well positioned to advance his proposed endeavor.
Key Points from the Decision
Proposed Endeavor:
The petitioner proposed to help business clients execute and develop effective software development while providing a positive economic impact on the local, regional, and national economy. His business plan included hiring and training professionals through his company to offer specialized services as a software and systems development consultant, particularly targeting investment and financial markets in the U.S. and Brazilian companies investing in the United States.
Substantial Merit and National Importance:
While the petitioner’s work in software development has substantial merit, the evidence did not sufficiently demonstrate the national importance of his specific proposed endeavor. The petitioner provided industry reports and articles about the importance of software development and the shortage of technical talent in the U.S. However, the evidence focused on the general significance of the industry rather than the national importance of the petitioner’s specific proposed endeavor. The Director determined that the proposed endeavor, while valuable, did not demonstrate broader implications or significant potential to impact the field of software development on a national level.
Well Positioned to Advance the Proposed Endeavor:
The petitioner provided documentation of his professional experience, an expert opinion letter, a business plan, and letters of support. However, the evidence was insufficient to demonstrate that he is well positioned to advance his proposed endeavor. The Director noted that the petitioner’s accomplishments and proposed work primarily benefit his own business and clients, without broader implications for the U.S. economy or job market. The petitioner’s plans to expand his business and hire additional employees were not supported by sufficient independent, objective evidence, and the expert opinion letter did not provide a detailed analysis of how the petitioner’s specific work would have a national impact.
On balance, it would be beneficial to the United States to waive the requirements of the Labor Certification process:
The petitioner did not provide adequate justification for waiving the labor certification process. The evidence was insufficient to prove the national interest in the petitioner’s contributions. The petitioner’s business plan and letters of support did not demonstrate a clear and significant benefit to the U.S. economy or job market beyond the petitioner’s business.
Supporting Evidence:
The petitioner submitted a business plan, expert opinion letter, industry reports, and letters of support. However, these were not sufficient to demonstrate the national importance of his proposed endeavor or that he is well positioned to advance it.
Inconsistencies in Proposed Endeavor:
The petitioner’s evidence did not sufficiently demonstrate the potential broader impact of his proposed endeavor. The Director’s analysis indicated that the petitioner’s proposed endeavor was not adequately described, and there was a lack of detailed information on the specific projects and the impact of his work.
Supporting Documentation
Letters of Intent: Not provided
Business Plan: Provided but not sufficiently detailed to support the claim of national importance
Advisory Letter: Provided but not sufficiently detailed to support the claim of national importance
Other Supporting Documentation: Included a business plan, expert opinion letter, industry reports, and letters of support, which were insufficient to establish the broader national importance of the petitioner’s proposed endeavor.
Conclusion
Final Determination: The appeal was dismissed.
Reasoning: The petitioner did not establish that his proposed endeavor has national importance or that it would be beneficial to waive the labor certification process. The petitioner did not demonstrate eligibility for or merit a national interest waiver as a matter of discretion.
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