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RemandedNational Interest Waiver · Appeal

Entrepreneur in the field of cybersecurity

Computing, AI & data · decided 2023-11-27 · TSC · NOV272023_02B5203

Official PDF on uscis.gov

How each part of the test was decided

Read from the appeals office's own sentences by fixed rules, not from the Director's findings or the petitioner's arguments. Each result shows the sentence it came from. The official PDF controls.

  • Step 0Eligible for EB-2Not decided

    No finding on this in the appeals office's own words.

  • Prong 1Merit and national importanceNot decided

    No finding on this in the appeals office's own words.

  • Prong 2Well positioned to advance itNot met
    Why
    For instance, the Director incorporated her analysis ofthe evidence regarding the proposed endeavor's national importance within her discussion examining why the Petitioner had not established that he is well-positioned to advance the endeavor. p. 2
  • Prong 3Worth waiving the job offerNot decided

    No finding on this in the appeals office's own words.

The decision in brief

Sentences picked out of the text automatically. Read them in context below; the official PDF controls.

Summary sentence

Upon de novo review, we will withdraw the Director's decision and remand the matter for entry of a new decision consistent with the following analysis. See in text

What the AAO decided

  • Because the Director's decision did not adequately address the shortcomings and deficiencies in the evidence submitted with the petition, we will remand the matter. See in text
  • ORDER: The Director's decision is withdrawn. See in text
  • The matter is remanded for the entry of a new decision consistent with the foregoing analysis. See in text

Main reasons given

  • Regarding the second prong, although we agree with the Director's determination, her reasoning is confusing. See in text
  • For instance, the Director incorporated her analysis ofthe evidence regarding the proposed endeavor's national importance within her discussion examining why the Petitioner had not established that he is well-positioned to advance the endeavor. See in text
  • While we may agree with the Director's conclusion that the Petitioner has not established that a waiver of the required job offer would be in the national interest, an officer must fully explain the reasons for denying a petition in order to allow a petitioner a fair opportunity to contest the decision and to allow us an opportunity for meaningful appellate review. See in text
Read the full decision (2 pages)

Objections found (0)

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No catalog objection was detected in the analysis section.

    Full decision

    OCR text from the official PDF, reformatted for reading. Scan errors carry over; the PDF controls.

    Highlighted: Outcome (4) AAO finding (3)Matter of X citation
    Decision header
    U.S. Citizenship and Immigration Services · Non-Precedent Decision of the Administrative Appeals Office · Date: NOV. 27, 2023 · In Re: 28425290 · Appeal of Texas Service Center Decision · Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver)

    The Petitioner, an entrepreneur in the field of cybersecurity, seeks second preference immigrant classification as a member ofthe professions holding an advanced degree, as well as a national interest waiver of the job offer requirement attached to this EB-2 classification. 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 although the Petitioner qualified as an advanced degree professional, he had not established that a waiver of the required job offer, and thus of the labor certification, would be in the national interest. 1 The matter is now before us on appeal. 8 C.F.R. § 103.3.

    The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. Matter afChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter de novo. Matter a/Christa's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, we will withdraw the Director's decision and remand the matter for entry of a new decision consistent with the following analysis.

    The Petitioner proposes to provide "enterprise-grade cybersecurity solutions" to "average U.S. consumers" via his cybersecurity company, Simius Technologies, Inc.

    Although the Director listed the evidence submitted in support of the proposed endeavor's substantial merit, she did not make a determination as to whether the Petitioner met this portion of the first prong of the Dhanasar analysis. Turning to the national importance of the endeavor, the Director concluded that the Petitioner established that the proposed endeavor has national importance without any analysis. However, the record does not appear to support this conclusion.

    For instance, we reviewed the Petitioner's business plan, including its revenue and employment projections and note that he did not sufficiently describe the origin or basis for these projections.2 Similarly, the letters of support from colleagues in the field of cybersecurity praise the Petitioner's products and services in the field, but lack persuasive detail concerning the impact of the Petitioner's proposed endeavor or how such impact would extend beyond his customers to impact the cybersecurity industry more broadly at a level commensurate with national importance.

    Regarding the second prong, although we agree with the Director's determination, her reasoning is confusing. For instance, the Director incorporated her analysis ofthe evidence regarding the proposed endeavor's national importance within her discussion examining why the Petitioner had not established that he is well-positioned to advance the endeavor. In doing so, the Director came to conclusions that appear to conflate the evidentiary requirements for the distinct prongs within the Dhanasar framework. Moreover, the Director primarily refers to the Petitioner by "she/her" pronouns, but the petition and supporting evidence clearly indicate that male pronouns are appropriate. ~ note that although the Petitioner submitted an August 25, 2022 "Letter oflntent for Purchase otL__J ~------~from~----------~ the signature page of the contract is not signed by the Petitioner.

    As to the third prong of Dhanasar, the Director stated the law and the relevant considerations in performing the analysis but did not discuss the evidence weighed in balancing those considerations or address the Petitioner's specific claims.

    While we may agree with the Director's conclusion that the Petitioner has not established that a waiver of the required job offer would be in the national interest, an officer must fully explain the reasons for denying a petition in order to allow a petitioner a fair opportunity to contest the decision and to allow us an opportunity for meaningful appellate review. See 8 C.F.R. § 103.3(a)(l)(i); see also Matter ofMP-, 20 I&N Dec. 786 (BIA 1994) (finding that a decision must fully explain the reasons for denial to allow the respondent a meaningful opportunity to challenge the determination on appeal). Because the Director's decision did not adequately address the shortcomings and deficiencies in the evidence submitted with the petition, we will remand the matter.

    ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new decision consistent with the foregoing analysis.