dismissed EB-2 NIW Case: Architecture

.
MATTER OF K-O-A-A-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 22, 2019 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECJSION 
PETITION: FORM l-140, IMMIGRANT PETITJON FOR ALIEN WORKER 
The Petitioner, an architect , seeks second preference immigrant classification as a member of the 
professions holding an advanced degree, as well as 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). After a petitioner has established eligibility for EB-2 
classification, U.S. Citizenship and lmmigration Services (USCIS) may, as matter of discretion , 
grant a national interest waiver if the petitioner demonstrates: ( 1) that the foreign national' s proposed 
endeavor has both substantial merit and national importance; (2) that the foreign national is well 
positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the 
United States to waive the requirements of a job offer and thus of a labor certification. Matter of 
Dhanasar, 26 I&N Dec. 884 (AAO 2016). 
The Director of the Texas Service Center denied the Form 1-140, Immigrant Petition for Alien 
Worker , finding that the Petitioner qualified for classification as a member of the professions 
holding an advanced degree, but that she had not established that a waiver of the required job offer , 
and thus of the labor ce11ification, would be in the national interest. 
The Petitioner appealed the matter to us, and we dismissed the appeal. 1 The matter is now before us 
on motion to reconsider. For the reasons discussed below, we will deny the motion. 
I. LAW 
A motion to reconsider is based on an incorrect application of law or policy. The requirements of a 
motion to reconsider are located at 8 C.F.R. § 103.5(a)(3). We may grant a motion that satisfies 
these requirements and demonstrates eligibility for the requested immigration benefit. 
JI. ANALYSIS 
With respect to her proposed endeavor , the Petitioner indicated that she plans to design , produce, and 
market a multi-functional bag, called ____ for retail customers, non-profits , non-
1 See Matter of K-O-A-A-. ID# 1392402 (AAO June 21, 2018). 
.
Matter of K-O-A-A-
governmental organizations, and humanitarian purposes (homeless and refugee populations). She 
asserted that she intends to introduce a "product that offers its users a multi-functional bag that can be 
available to all sectors of the market:' In addition, the Petitioner stated that she will partner "with 
organizations like the to supply them with bags and form a "worker's 
cooperative" enlisting "the homeless who want to work ... for this endeavor.'' In our prior decision, 
we determined that because the documentation in the record did not establish that the prospective 
impact of the Petitioner's endeavor was consistent with a finding of national importance as required by 
the first prong of the Dhanasar precedent decision, she had not demonstrated eligibility for a national 
interest waiver. 
On motion, the Petitioner argues that our decision "failed to address the ex post facto application of 
Matter of Dhanasar" to her case. She notes that her petition was filed in October 2016 before the 
Dhanasar precedent decision was issued. In December 2016, we set forth a framework for 
adjudicating national interest waiver petitions in the precedent decision Matter of Dhanasar, 26 I&N 
Dec. 884. In announcing this new framework, we vacated our prior precedent decision, Matter qf 
New York State Department <?f Transportation, 22 I&N Dec. 215 (Act. Assoc. Comm 'r 1998) 
(NYSDOT). Dhanasar states that after EB-2 eligibility has been established, USCIS may, as a matter 
of discretion, grant a national interest waiver when a petitioner meets the three-prong analytical 
framework identified at the outset of this decision. We note that Dhanasar does not represent a 
change in the underlying law, but rather an adoption of a clearer and more flexible framework for 
exercising the discretion granted to USCIS by already-existing law and regulations.2 
The Petitioner contends that "because her petition was filed under NYSDOT, the proper precedent 
decision to apply to her case should have been NYSDOT and not Dhanasar." She further states: "If 
the correct law had been applied in light of the evidence submitted, the Petitioner believes she would 
have prevailed and her appeal would have been sustained.'' The Petitioner does not provide support 
for her assertion that her evidence would have established eligibility under the NYSDOT framework. 
Regardless, with regard to following the national interest waiver framework set forth in Dhanasar, 
USCIS, by law, does not have the discretion to disregard binding precedent. The regulation at 
8 C.F.R. § 103.3(c) provides that precedent decisions "may be modified or overruled by later 
precedent decisions" and that "they are binding on all Service employees in the administration of the 
Act." 
In addition, we note that the Director issued an April 2017 Request for Evidence advising the 
Petitioner of the eligibility requirements under Dhanasar and asking for documentation to satisfy its 
three-part framework . See 8 C.F.R. § I 03.2(b)(8) (requests for evidence). In response, the Petitioner 
provided further evidence a nd asse rted that she was eligible for a national int eres t w aiver under the 
Dhanasar framew ork. Further , after the Director d enied the petition, the Petitioner' s a ppellate 
submi ssion presented fm1her information and argument s relating to her eligibility under Dhanasar. 
2 We explained in Dhanasar that the new framework will "provide greater clarity, apply more fl exibly to circumstances 
of both petitioning employers and self-petitioning individuals. and better advance the purpose of the broad discretionary 
waiver provision to benefit the United States.•· IJ. at 888-89. 
2 
.
Maller of K-O-A-A-
Accordingly, the Petitioner has not shown that she was deprived of due process or that we erred in 
adjudicating her appeal under the Dhanasar framework. 
In addition, the Petitioner asserts that we erred in not considering her chair designed 
for senior citizens to facilitate their movement in the house and to make it easier for them to help 
themselves in the kitchen. " Regarding her proposed endeavor, the Petitioner previously presented a 
and 
She did not identify development of the chair as her proposed endeavor or present 
sufficient plans for its development. For example, her concept paper states that her company ' s 
"vision is to create a multi-functional bag that will become known globally for revolutionizing bow 
many people think of the tote bag of today." Accordingly, the Petitioner has not demonstrated error 
in our identification or analysis of her proposed endeavor based on the record before us.3 
Furthermore, regarding her eligibility under the first prong of the Dhanasar framework, the Petitioner 
contends that we erred in concluding that the record did not indicate the "potential prospective impact'" 
of her proposed work relating to She maintains that was conceived as a tool 
to enable the homeless to get back on their feet" and that that this product "will be used globally for 
revolutionizing emergency preparedness tools for victims" and ·'will mitigate disaster casualties and 
response times." The Petitioner further indicates that offers broader implications for 
health and emergency preparedness, border control and immigration, defense, and domestic security. 
In addition, the Petitioner identifies as the company she "will be incorporating to 
manufacture and distribute this home-in-a-bag.'' With regard to job creation. the Petitioner asserts: 
"The initial project team of 5 would be supported by twenty workers operating in various capacities . 
It is envisaged that the direct work force would grow to 200 in a projected four locations .... " 
The Petitioner asserts that the record demonstrates her eligibility under the first prong and she 
provides a statement "elaborat[ing] on the evidence in the record that supports the potential 
prospective impact of her work." However, she has not identified errors in our previous decision or 
cited to pertinent precedent decisions to establish that these determinations were based on an 
incorrect application of law or policy. 
In Dhanasar , we noted that "[a]n undertaking may have national importance for example, because it 
has national or even global implications within a particular field.'' We also stated that "l_a]n 
endeavor that has significant potential to employ U.S. workers or has other substantial positive 
economic effects, particularly in an economically depressed area , for instance, may well be 
understood to have national importance." Id. at 890. We found in our previous decision that, 
although the Petitioner had asserted that the product itself will offer benefits to vulnerable 
populations, she had not shown that her proposed endeavor stands to impact those populations at a level 
3 The record reflected that the Petitioner designed this leaning chair as part of her 2013 architectural coursework at the 
We further note that. even if the Petitioner had identified development of the 
chair as her specific proposed endeavor, which she did not, the record does not include sufficient information and 
evidence to demonstrate the national importance of this work. 
,, 
.
Matter of K-O-A-A-
consistent with having national importance. Although Petitioner states on motion that 
offers "an innovative way to provide relief to a category of victims flexibly and efficiently,'' she has not 
shown error in our previous determination that she had not sufficiently described or documented plans 
for this product to be widely distributed or made available to them. As noted in our prior decision, the 
record does not include sufficient infom1ation or evidence regarding the number of individuals her 
product stands to impact, nor has the Petitioner adequately shown the prospective broader implications 
of her endeavor for the populations she proposes to help. 
In addition, with respect to her assertions of job creation, the Petitioner's motion to reconsider does 
not explain how her work force metrics demonstrate that her endeavor will offer substantial 
economic benefits to the region in the United States where her product will be assembled or to the 
nation. Our previous decision explained that while the financial forecasts for indicate that 
the Petitioner's project has growth potential, they do not show that benefits to the regional or national 
economy would reach the level of "substantial positive economic etlects'' contemplated by Dhanasar.4 
Moreover, although the Petitioner claims that would ensure the recruiting of a 
significant population of homeless individuals in the area as necessary manpower, 
this statement does not overcome our finding that the record lacks sufficient evidence that this area is 
economically depressed, that she would employ a significant number of homeless individuals in this 
area, or that her proposed undertaking would offer the region or its population a substantial 
economic benefit through either its employment levels or product sales. 
Finally, the Petitioner argues that we "failed to evaluate the proper factors in determining whether 
[she] warrants forgoing the labor certification process." Her appeal brief cites to the specific factors 
that Dhanasar identified as examples of relevant considerations under the third prong. 5 In our 
appellate decision, we explained that because the Petitioner had not met the requisite first prong of 
the framework, she had not demonstrated her eligibility for a national interest waiver and further 
analysis of her eligibility under the second and third prongs outlined in Dhanasar, therefore, would 
have served no meaningful purpose. 
Ill. CONCLUSION 
The Petitioner has not met the requirements for a motion to reconsider as she has not demonstrated that 
we erred in our previous analysis based on the record before us on appeal. Further, the motion to 
reconsider does establish that our previous findings were based on an incorrect application of the law, 
regulation, or USCIS policy. As the Petitioner has not met the requisite first prong of the Dhanasar 
analytical framework , we find that she has not established she is eligible for or otherwise merits a 
national interest waiver as a matter of discretion. 
4 We further note that the Petitioner does not adequately explain how her fi nancial forecasts were calculated. 
5 See Id. at 890-91. 
4 
Matter of K-O-A-A-
ORDER: The motion to reconsider is denied. 
Cite as Matter of K-O-A-A-, ID# 1925478 (AAO Jan. 22, 2019)