dismissed EB-2 NIW Case: Autism Education Research

U.S. Citizenship 
and Immigration 
Services 
MATTER OF C-K-D-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 22, 2017 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a teacher and autism spectrum disorder (ASD) education researcher, 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 Immigration 
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 I-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 a job offer, and thus of 
a labor certification, would be in the national interest. The Petitioner appealed the matter to us, and 
we dismissed the appeal and a subsequent motion to reconsider. 1 
The matter is now before us on a combined motion to reopen and reconsider. On motion, the 
Petitioner submits a brief stating that she is providing new facts to establish eligibility and that our 
previous motion decision was incorrect based on the previous record. 
Upon review, we will deny the motion. 
1 
In adjudicating the motion to reconsider, we noted that in December 2016, we vacated our prior precedent decision, 
Matter of New York State Department of Transportation, 22 I&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSD01) and 
set forth a new framework for adjudicating national interest waiver petitions. See Dhanasar, 26 I&N Dec. 884. 
Accordingly, in January 2017, we issued a request for evidence (RFE) asking the Petitioner to provide evidence 
satisfying the three-part framework set forth in Dhanasar. In response, the Petitioner submitted a brief and additional 
documentation, asserting that she is eligible for a national interest waiver under the Dhanasar framework. We denied 
the motion. See Matter ofC-K-D-, ID# 220146 (AAO May 2, 2017). 
Matter ofC-K-D 
I. LAW 
A motion to reopen is based on documentary evidence of new facts, and a motion to reconsider is 
based on an incorrect application of law or policy. The requirements of a motion to reopen are 
located at 8 C.F.R. § 1 03.5(a)(2), and the requirements of a motion to reconsider are located at 
8 C.F.R. § 103.5(a)(3). 
To establish eligibility for a national interest waiver, a petitioner 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. Because this classification 
requires that the individual's services be sought by a U.S. emp-loyer, a separate showing is required 
to establish that a waiver of the job offer requirement is in the national interest. See section 
203(b )(2) of the Act. While neither the statute nor the pertinent regulations define the term "national 
interest," we recently set forth a new framework for adjudicating national interest waiver 
petitions. See Dhanasar, 26 I&N Dec. 884.2 Dhanasar states that after EB-2 eligibility has been 
established, USCIS may, as a matter of discretion, grant a national interest waiver when the below 
prongs are met. 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
foreign national proposes to undertake. The endeavor's merit may be demonstrated 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. 
The second prong shifts the focus from the proposed endeavor to the foreign national. To determine 
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 
United States to waive the requirements of a job offer and thus of a labor certification. In 
performing 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 to obtain 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; 
2 In announcing this new framework, we vacated our prior precedent decision, Matter ofNew York State Department of 
Transportation, 22 I&N Dec. 215 (Act. Assoc. Comm 'r 1998) (NYSD07). 
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Matter ofC-K-D 
the factor(s) considered must, taken together, indicate 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. 3 
II. ANALYSIS 
In denying the Petitioner's previous motion, we found that she had met the first prong of the 
framework set forth in Dhanasar based on her proposed research,4 but that she had not satisfied the 
second or third prong. The Petitioner filed the current combined motion to reopen and reconsider 
contending that our previous motion decision was erroneous. She claims that the current motion 
includes new facts relevant to her application and supported by documentary evidence establishing 
that she has met the second and third prongs of the Dhanasar framework, that the we based our 
decision on an incorrect application of law or policy, and that the decision was incorrect based upon 
the evidence in the record at the time of the decision. 
A. Well Positioned to Advance the Proposed Endeavor 
Under the second prong of the Dhanasar framework, a petitioner must establish that he or she is well 
positioned to advance the proposed endeavor. The first issue before us on motion is whether the 
information and evidence provided establishes that the Petitioner has met the requirements set forth 
under this prong. We previously determined that it does not. 
Specifically, we examined whether the Petitioner demonstrated a record of success or progress in her 
field, or a degree of interest in her work from relevant parties, that rises to the level of rendering her 
well positioned to advance her proposed research endeavor of developing and expanding novel 
instructional and assessment methods to improve the verbal, cognitive, and behavioral skills of ASD 
students.5 See Dhanasar, 26 I&N Dec. at 890. The Petitioner provided letters of support from her 
professors at discussing her research in autism education. She also provided evidence of her 
authorship of journal articles and conference presentations; however, they were all published or 
presented after the filing date of the Form I-140. See 8 C.F.R. § 103.2(b)(l), (12). We noted that the 
Petitioner has not shown that her research has been frequently cited by independent educational 
scholars or otherwise served as an impetus for progress in the field, or that it has generated 
substantial positive discourse in the broader academic community. Nor does the record indicate that 
her findings have been implemented as part of ASD education initiatives, or that her work has 
affected special education practices. 
3 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
4 We noted that the record includes evidence that the Petitioner may work as a classroom teacher, an ASD education 
researcher, or both. We also determined that her proposed teaching activities would not satisfy the first prong of 
Dhanasar. Nonetheless, to the extent that she proposes to conduct ASD education research, we found the evidence 
sufficient to demonstrate that such research is of national importance because the Petitioner documented both the 
substantial merit and national importance of such research. . 
5 
Because the Petitioner's proposed teaching activities do not meet the "national importance" element of the Dhanasar 
framework's first prong, we will limit our analysis under this prong to her proposed research. 
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Matter ofC-K-D 
We further found that her advisory role in revising the 
in 2016, peer review solicitations (2014- 2017), and invitations to publish and present 
her research (2015- 2017) also post-date the filing ofthe Form I-140 and that, even ifwe were to 
consider this evidence, she has not shown that advising regarding its training program and 
receiving requests to perform peer review and to publish and present her work make her well 
positioned to advance her proposed research. 
While the Petitioner states in the introductory portion of her brief that she is providing "new facts 
relevant to her application and 
supported by documentary evidence," she does not identify the new 
facts being asserted or provide any additional documentation. Rather, the remainder of the brief 
includes assertions as to how the previously submitted evidence establishes her eligibility. 
Accordingly, she has not demonstrated through her motion to reopen that she satisfies this prong. 
In her motion to reconsider, the Petitioner asserts that our conclusion was based on an incorrect 
application of law or policy. However, she does not identify the law or policy she claims was 
incorrectly applied or provide evidence to support her assertion. She also contends that our previous 
decision was incorrect "based on the evidence in the record of proceedings at the time of the 
decision," and that the invitation for her to participate in the 
is "solid evidence" that she is well position to advance her research endeavors. She 
claims that her work with the program indicates that "her work has served as an impetus 
for progress in the field and that it has generated substantial positive discourse in the broader 
academic community." The Petitioner does not provide evidence in support of this claim, nor does 
she address our findings that her participation in this program post-dates the filing of the Form I-140 
and therefore, does not establish her eligibility under the second prong. 
For purposes of a motion to reconsider, the question is whether our decision was correct based on the 
record that existed at the time of adjudication. Here, arguments the Petitioner offers on motion do 
not establish that our previous findings were based on an incorrect application of the law, regulation, 
or USCIS policy, nor does the motion demonstrate that our latest decision was erroneous based on 
the evidence before us at the time of the decision. While the evidence relating to the 
program, the peer review solicitations, and the invitations to publish and present her research were 
contained in the record at the time of our decision, they post-dated the date of filing. As stated 
before, eligibility must be established at the time of filing. 8 C.F.R. § 103.2(b)(l), (12). Therefore, 
the motion to reconsider is denied. 
B. Balancing Factors to Determine Waiver's Benefit to the United States 
As explained above, the third prong requires the petitioner to demonstrate that, on balance, it would 
be beneficial to th~ United States to waive the requirements of a job offer and thus of a labor 
certification. Here, the Petitioner contends that we erred in finding that she had not shown an urgent 
national interest in her research, or demonstrated that she offers contributions of such value that, over 
all, they would benefit the nation even if other qualified U.S. workers were available. She does not, 
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Matter ofC-K-D 
however, provide evidence. or information to support her claim that our previous determination was 
erroneous, nor did she identify new facts establishing her eligibility under this prong. 
III. CONCLUSION 
The Petitioner has not offered new facts demonstrating her eligibility for the benefit sought, nor has she 
established that our previous decision was incorrect. As the Petitioner has not met the requisite three 
prongs set forth in the Dhanasar analytical framework, we find that she has not established eligibility 
for or otherwise merits a national interest waiver as a matter of discretion. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter ofC-K-D-, ID# 687588 (AAO Aug. 22, 2017) 
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