The Petitioner, a senior software developer, seeks second preference immigrant classification as an individual of exceptional ability in the sciences, arts, or business, and a national interest waiver of the job offer requirement attached to this EB-2 classification. See Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2).
The Director of the Texas Service Center denied the petition, concluding that the record did not establish the Petitioner's eligibility for the national interest waiver. The matter is now before us on appeal under 8 C.F.R. § 103 .3.
The Petitionerbears the burden ofproofto demonstrate eligibility by a preponderance ofthe evidence. Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter de novo. Matter ofChristo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, we will dismiss the appeal.
Law
A petitioner seeking a national interest waiver must first demonstrate qualification for the underlying EB-2 visa classification, as either an advanced degree professional or an individual of exceptional ability in the sciences, arts, or business. This classification ordinarily requires that the individual's services be sought by a U.S. employer. Section 203(b)(2)(A) of the Act. But U.S. Citizenship and Immigration Services (USCIS) may waive the job offer requirement ifthe petitioner shows the waiver tobeinthenationalinterest. Section203(b)(2)(B)(i)oftheAct.
There is no statutory or regulatory definition of the term "national interest." The precedent decision Matter o fDhanasar, 26 I&N Dec. 884 (AAO 2016), established a frameworkforadjudicatingnational interestwaiverpetitions. Underthisframework,afterapetitionerhasestablishedeligibilityforEB-2 classification, USCIS may, as a matter of discretion, grant a national interest waiver if the petitioner demonstrates: (1) that the individual's proposed endeavor has both substantial merit and national importance; (2) that the individual is well positioned to advance the proposed endeavor; and (3) that, p. 2 on balance, it would be beneficial to the United States to waive the requirements of a job offer and The first prong, regarding substantial merit and national importance, focuses on the individual's specific proposed endeavor. The endeavor may show this merit in a range of areas such as business, entrepreneurialism, science, technology, culture, health, or education. In determining whether the proposed endeavor has national importance, we consider its potential prospective impact.
Thesecondprongshiftsthefocusfromtheproposedendeavortotheforeignnational. Todetermine whether he or she is well positioned to advance the proposed endeavor, we consider factors including, but not limited to: the individual's education, skills, knowledge and record of success in related or similar efforts; a model or plan for future activities; any progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or individuals.
The third prong requires the petitioner to demonstrate that, on balance, it would be beneficial to the UnitedStatestowaivetherequirementsofajobofferandthusofalaborcertification. Inperforming this analysis, USCIS may evaluate factors such as: whether, in light of the nature of the foreign national's qualifications or the proposed endeavor, it would be impractical either for the foreign national to secure a job offer or for the petitioner toobtain a labor certification; whether, even assuming that other qualified U.S. workers are available, the United States would still benefit from the foreign national's contributions; and whether the national interest in the foreign national's contributions is sufficiently urgent to warrant forgoing the labor certification process. In each case, the factor(s) considered must, taken together, indicate that on balance, it would be beneficial to the United States The Director determined that the Petitioner qualifies as an individual of exceptional ability. The remaining issue to be determined is whether the Petitioner has established that a waiver of the requirement of a job offer, and thus a labor certification, would be in the national interest.
From 2002 to 2018, the Petitioner worked as a software developer for a company in Brazil that provided services for client companies in "diverse industries, including shipping, manufacturing, as The Director issued a request for evidence in April 2021, and a notice of intent to deny the petition in November 2021. Each notice indicated that the Petitioner had not submitted sufficient evidence regarding national importance and the third Dhanasar prong. We have considered the entire record See also Poursina v. USCIS, 936F.3d 868 (9th Cir.2019) (finding USCTS' decision to grant or deny a national interest waiverto be discretionaryin nature). thus of a labor certification. to waive the requirements of a job offer and thus of a labor ce1iification.
Analysis
well as accounting and bookkeeping." nonimmigrant. ShortlybeforehefiledthepetitioninApril2019,thePetitionerestablishedacompany F l o r i d a , where he seeks to work as a senior software developer.
He entered the United States in April 2018 as a B-2
SeeMatterofDhanasar, 26I&NDec. at 888-91, for elaboration on these three prongs.
The Petitioner stated he "started [his] career in 1992," but he did not provide details or evidence regarding any employment during the 1990s. p. 3 of proceeding, including the Petitioner's responses to both of these notices, in the discussion that follows. The Petitioner initially stated:
I plan to be self-employed ... as [a] Senior Software Developer. There, I plan to use my comprehensive education and extensive experience to give U.S. companies the competitive advantage of the next-generation software I have proven my capacity to develop. Throughout my career, I have developed comprehensive software solutions to meet the needs o f businesses o f all sizes, operating in all industries . . . .
I would also like . . . to serve as a mentor for other IT [information technology] professionals. . . . I would like to transform the capabilities of U.S. companies to compete in the international market through the next-generation efficiency and productivity that innovative software can provide.
The Petitioner also submitted information about some of his past projects in Brazil, focusing on enterprise resource planning (ERP) systems. The Petitioner stated: "The ERP systems I developed, modified, and installed have enabled a diverse range of companies to analyze, monitor, and manage business operations from one unified system."
The Petitioner submitted background materials about software development and ERP systems. The submitted materials provide general information about the Petitioner's industry and field ofwork, but didnotrelatespecificallytohisproposedendeavor.Proposed endeavor too vague Thematerialsalsoidentifiedvariousissuessuch as technical innovation and U.S. competitiveness in science, technology, engineering and mathematics (STEM) education, but the Petitioner did not provide specific details as to how his proposed endeavor would have national importance in these areas, rather than more limited effects such as benefit to individual clients.
The Director infonned the Petitioner that the initial submission "is not sufficient to demonstrate the national importance of any particular software developer work proposed by the beneficiary," and stated: "therelevantquestionisnottheimportanceofthefield,industry,orprofessioninwhichthe individualwillwork." Generalbackgroundinformationabouttheoverallimportanceofanoccupation or specialty does not establish the national importance ofthe work of any one worker in that occupation or specialty. The Director requested evidence to show the "potential prospective impact" of the Petitioner's work.
In response, the Petitioner submitted further information about the collective imp01iance and impact ofworkersinhisfield, butgeneralinf01mationabouthisoccupationdoesnotsufficetomeethisburden of proof and establish the national importance of his specific endeavor. Regarding his proposed endeavor, the Petitioner stated:
Through my work as the Senior Software Developer for my self-owned company, I would like to bring a competitive edge of technology solutions ... to assist small, medium, and large U.S. companies with more efficient, agile, and integrated software that . . . allows them to earn more revenue and management ofresources.
I am committed to improving my technical skills and knowledge and training other software developers and IT professionals to properly use ERP software, IT tools, and system implementation in the United States.
The Petitioner submitted a business plan, dated August 2021 and marked as having been prepared specifically for "EB-2 Visa Supporting Documentation." The Petitioner asserts that his "proposed endeavor has significant potential to employ U.S. workers." The business plan projects that the company would have ten employees by its fifth year of operations. The Petitioner does not show that this number is significant within the Dhanasar framework.
The business plan states that the Petitioner's "[c]ompany will create 142 indirect jobs by the end of year 5, according to the multipliers provided by the [Economic Policy Institute]." The plan then shows atable,showingtheaveragenumberofindirectjobscreatedwithinvariousindustries. Theplandoes not specify which figures in the table relate to the Petitioner's company, and it does not identify any industry that produces 142 indirect jobs for every 10 direct jobs. Instead, the table shows a considerably lower ratio, indicating between 122 and 958 indirect jobs for every 100 direct jobs, depending on the industry. The table does not specifically mention software development. It does indicate that "[p]rofessional, scientific and technical services" produce 418.3 indirectjobs for every 100 direct jobs, which would extrapolate to the Petitioner's 10-employee company producing about 42 indirect jobs, not 142. The Petitioner did not specify what indirect jobs his company would create or the wider economic significance ofthat level ofemployment.
The Petitioner asserted that his business plan "explained the national level impact of [his] work via his highly specialized TT business." The business plan relied on general information about the overall field of software development, without showing how the Petitioner's work, in particular, is and will be of national importance. The Petitioner's work to date in the United States has been with small, local businesses. General information about the collective, overall impmiance of small businesses doesnotshowthatthePetitioner'sworkwithasmallnumberofclientshasnationalimportance. His involvement within a much larger industry and a much larger economy does not demonstrate the national importance ofhis proposed endeavor.
The nature of the proposed endeavor has changed significantly over the course of this proceeding, shaped to some extent by the Petitioner's work for clients he secured after the filing date.Not eligible at the time of filing The Petitioner must meet eligibility requirements at the time of filing the petition. 8 C.F.R. § 103.2(b)(l). After-the-fact material changes to the proposed endeavor cannot establish eligibility as of the filing date. Apetitionermaynotmakematerialchangestoapetitionthathasalreadybeenfiledinaneffort to make an apparently deficient petition conform to USCIS requirements. See Matter ofIzummi, 22 I&N Dec. 169, 175 (Comm'r 1998); see also Matter o f Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r1971)(requiringbeneficiariesseekingemployment-basedimmigrantclassificationtopossess the necessary qualifications as ofthe filing date ofthe visa petition).
The Petitioner claimed a "shortage of software development experts in the U.S." The labor certification process exists specifically to address worker shortages, and the Petitioner has not p. 5 established that his proposed endeavor would address the asserted shortage at a level of national importance.Relied on a labor shortage ThePetitionersubmittedbackgroundmaterialsabouttheimportanceofSTEMeducation, buthisproposedendeavorwouldnotcontributetoSTEMeducation. Rather,thebusinessplaninthe record indicates that his company will "hire only highly qualified and experienced professionals," which will not add to the number of workers in the field. The Petitioner's documentation in insufficient to meet the requirements for a national interest waiver.
When he filed the petition, the Petitioner had just established his company and did not yet have employment authorization or clients. Later on, he undertook projects for three clients. For a swimming pool maintenance company, he developed "PoolManagement [sic] Software . . . [and] helped [the company] store important information related to the business financials, customers, and staff." For "a company that serves direct store delivery companies," the Petitioner helped to develop "software for optimizing wholesale distribution."
The Petitioner also worked for a company that "manufactures intelligent inigation systems" that conserve water by shutting off automated sprinklers in rainy weather. Water conservation features heavily in revisions to the Petitioner's proposed endeavor, but only one of his clients, the inigation company, operates in an industry relevant to water conservation. The Petitioner did not establish that theamountofwaterconservedbythiscustomer'ssystemswouldbenationallyimportant. Also,the managing director of the inigation company did not indicate that the Petitioner played any role in conceivingordevelopingthesprinklercontroltechnology. Rather,thecompanyalreadyhas"patented technology [that] integrates calibrated precipitation data, sensor data, and future weather forecast data to provide an optimized sprinkler schedule." The Petitioner's role was to "create a software solution that both streamlines [the company's] processes and ensures that [it is] operating within the highest standards of saving water and money"; "[m]aintain and develop [its] web-based software for administration, monitoring customers on the appropriate scheduling of water usage ... and usage history," and create a smartphone application to allow customers to control their systems.
In his recent work for the inigation company, the Petitioner developed a smartphone application that is widely available through app stores. The Petitioner asserts on appeal that "millions of consumers ... throughout the United States will continue to benefit from his innovative Inigation Management Mobile Application." But the application is specific to systems installed by his client, which operates only in parts of Florida, which limits the application's reach. Speculation about the company's potential future growth does not establish national impmiance at the time of filing, and does not relate to the Petitioner's proposed endeavor as originally described in 2019. The Petitioner's initial statement did not include any mention of smartphone apps. Instead, it focused on the "efficiency and productivity that innovative software can provide" to businesses.
The letters from customers establish that the Petitioner's work is important for those businesses, but theydonotshowwiderbenefitatalevelofnationalimportance. Inanefforttoshowthathis"proposed endeavor in the United States has national and even global implications within the Software Development Industry," the Petitioner submitted expe1i opinion letters from three college faculty members in fields relating to computer science. These individuals primarily described the industry in which the Petitioner intends to work, without establishing how the Petitioner's work, in particular, wouldhavenationalimportance. Thethirdandmostrecentletterincludesgeneralinformationabout IT, small businesses, inigation, and the effect of the COVID-19 pandemic (which occurredafter the p. 6 petition's filing date, and therefore did not factor into the proposed endeavor as initially described). General assertions of this kind do not establish the national importance of the Petitioner's specific proposed endeavor.
The Petitioner submitted evidence of interest from potential employers, including a major online retailer. ThesecompaniesinquiredaboutthePetitioner'sinterestinapplyingforemployment,rather thancontractingtheservicesofthePetitioner'scompanyforspecificprojects. IfthePetitionerwere to abandon his own newly-formed company in favor of employment with one of these companies, then that would represent another major departure from his proposed endeavor. And if he does not intend to work for those companies, then the inquiries are not relevant to the proposed endeavor.
The Director denied the petition, concluding that the Petitioner had established the substantial merit of the proposed endeavor, and that he is well-positioned to advance it, but not its national importance or that, on balance, a waiver of the job offer requirement would benefit the United States.Did not show the waiver outweighs labor certification
Regardingnationalimportance,theDirectorstated: "theevidencesubmitteddoesnot...[showthat the] proposed endeavor stands to have national or even global implications in the field, or . . . has significant potential to employ U.S. workers or otherwise offers substantial positive economic effects contemplated by Dhanasar."
On appeal, the Petitioner asserts that he "has already delivered his specialized services to four (4) companies throughout the U.S.," but the Petitioner names only three clients, all based within 40 miles of his residence inl IFlorida. He also names two prospective clients in the same area. The Petitioner cites statistics relating to all small businesses and all software developers, without explaining the national importance of his work as a software developer, serving a limited number of small business clients.
The appellate brief consists mostly of quotations from record exhibits, such as letters and the 2021 business plan for the Petitioner's company. The Petitioner asserts that the Director "disregarded the probative and credible opinion [letters from] IT Industry Experts," but the Director discussed and quoted from the letters. In denying the petition, the Director did not disregard the letters and other materials, but rather found those materials to be insufficient to establish eligibility. The Petitioner's quotations from materials that the Director already considered does not establish error in the decision, or overcome any ofthe deficiencies that the Director identified.
ThePetitioneralsocontendsthattheDirectordidnotconsiderprecedentdecisionshehadcited. Apart from Matter o fDhanasar, the cases that the Petitioner cited are unpublished appellate decisions that havenoauthorityasprecedent. Eventhen,theDirectoracknowledgedthePetitioner'srelianceontwo of the unpublished decisions, and explained why they did not apply to this proceeding.
The Director also noted that the Petitioner's description of the proposed endeavor has changed significantly after the filing date, and cited regulations and case law requiring the Petitioner to establish eligibility at the time of filing. The Petitioner addresses this issue, but only in the context of his eligibilityfortheunderlyingEB-2classification. ThePetitionerassertsthathisbusinessinformation from2021 wasnotintended"toestablish[his]eligibilityasanAlienofExceptionalAbilityinSoftware Development- which was vastly established at the time of filing on April 4, 2019." The Petitioner, p. 7 however, must meet all eligibility requirements at the time of filing. 8 C.F.R. § 103 .2(b)(1). The appeal relies heavily on the Petitioner's business plan, drafted two years after the filing date, and on circumstances that did not exist until after the filing of the petition. Assertions about water conservation, for instance, derive from a contract that the Petitioner did not secure until more than two years after he filed the petition.
In Matter ofDhanasar, we determined that the petitioner's teaching activities did not rise to the level ofhavingnationalimportancebecausetheywouldnotimpacthisfieldmorebroadly. Id. at893. Here, the Petitioner has not shown thathis proposed endeavorwill significantly extendbeyondhis customers to impact the industry more broadly at a level indicating national importance. He has not shown that the particular work he proposes to undertake offers original innovations that contribute to advancements throughout the industry, or otherwise has broader implications for his field.No broader implications shown For all these reasons, the Petitioner's proposed work does not meet the first prong of the Dhanasar framework.
Because the record does not establish the national importance ofhis proposed endeavor, the Petitioner has not demonstrated eligibility for a national interest waiver. Because this issue determines the outcome of the Petitioner's appeal, we reserve the appellate arguments regarding the thirdDhanasar
Conclusion
Because the Petitionerhas notmetthe "nationalimportance" elementofthe firstprongoftheDhanasar analytical framework, we conclude as a matter of discretion that he has not established eligibility for a nationalinterestwaiver. Wewillthereforedismisstheappeal.
ORDER: The appeal is dismissed. prong.
See INS v. Bagamasbad, 429 U.S. 24, 25 (197 6) ("courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach"); see also Matter ofL-A-C-, 26 I&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible).