Date of Decision: October 5, 2023
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: Software Engineering and Information Technology
Petitioner Information
Profession: Software Engineer and Information Technology Specialist
Field: Software Engineering and Information Technology
Nationality: Not specified
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Dismissed
Evidentiary Criteria Analysis
Criteria Met:
- Educational Achievement: The petitioner was found to qualify as a member of the professions holding an advanced degree in computer systems engineering, which is relevant to his proposed endeavor.
Criteria Not Met:
- National Importance: The petitioner failed to demonstrate that his proposed endeavor of developing and commercializing digital transformation software for U.S. companies had national importance. The evidence provided did not establish that his work would have significant implications beyond his immediate business and clientele. The Director noted that while the digital transformation industry is critical, the petitioner’s role as an individual developer did not rise to the level of national importance required under the Dhanasar framework.
- Positioning to Advance the Endeavor: The petitioner did not provide sufficient evidence to show that he was uniquely positioned to advance his proposed endeavor. The documentation provided, including personal statements and a business plan, lacked detailed evidence of how his software solutions would have a broad impact on the U.S. economy or the technology sector.
Key Points from the Decision
Proposed Endeavor:
The petitioner proposed to continue his work as a software engineer and IT specialist, focusing on developing and commercializing digital transformation software for U.S. businesses. He also aimed to provide technical training and support for the adoption of these technologies. However, the Director found that the petitioner did not provide sufficient evidence to demonstrate how his specific software solutions would extend beyond his clients to have a broader impact on the U.S. technology sector or economy.
Substantial Merit and National Importance:
While the petitioner’s work in digital transformation has merit, the decision concluded that it did not meet the threshold for national importance. The Administrative Appeals Office (AAO) noted that the petitioner’s proposed endeavor did not demonstrate broader implications for the U.S. economy, job creation, or the technology industry.
On balance, it would be beneficial to the United States to waive the requirements of the Labor Certification process:
The petitioner did not meet the first prong of the Dhanasar framework, which is essential for the national interest waiver. The lack of evidence supporting the national importance of his proposed activities, coupled with the petitioner’s inability to demonstrate a broader impact on the technology sector, made it difficult to justify waiving the labor certification process.
Supporting Evidence:
The petitioner provided personal statements, a business plan, and letters of support. However, these were insufficient to establish the national importance of his proposed endeavor. The evidence focused on the general importance of digital transformation rather than the petitioner’s specific contributions.
Inconsistencies in Proposed Endeavor:
The petitioner emphasized the importance of digital transformation but did not adequately demonstrate how his specific software solutions would address this demand on a national scale. The supporting documentation did not align with the requirements to demonstrate national importance or substantial merit.
Supporting Documentation
Letters of Intent:
Not provided.
Business Plan:
Included but did not establish national importance or substantial positive economic effects.
Advisory Letter:
Not included.
Any Other Supporting Documentation:
Included personal statements and letters of support, which were insufficient to meet the national importance requirement.
Conclusion
Final Determination: The appeal was dismissed.
Reasoning: The petitioner did not meet the criteria for demonstrating that his proposed work as a software engineer and IT specialist would have a significant national impact. The evidence provided was insufficient to support claims of substantial merit and national importance.
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