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: MAY 2, 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. 1 
The matter is now before us on a motion to reconsider.2 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 submits a brief and additional documentation , 
asserting that she is eligible for a national interest waiver under the Dhanasar framework. 
Upon review, we will deny the motion. 
1 See 
2 The Petitioner was initially represented on motion by attorney 
appearance in October 20 16. 
' 
withdrew her 
Matter ofC-K-D-
I. LAW 
A motion to reconsider is based on an incorrect application of law or policy. 'The requirements of a 
motion 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. 
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. employer, a separate showing is required 
to establish that a waiver of the job offer requirement is in the national interest. 
Section 203(b) ofthe Act sets out this sequential framework: 
(2) Aliens who are members of the professions holding advanced degrees or aliens of 
exceptional ability. - ~ 
(A) In general. -Visas shall be made available ... to qualified immigrants who 
are members of the professions holding advanced degrees or their equivalent or 
who because of their exceptional ability in the sciences, arts, or business, will 
substantially benefit prospectively the national economy, cultural or educational 
interests, or welfare of the United States, and whose services in the sciences, arts, 
professions, or business are sought by an employer in the United States. 
(B) Waiver of job offer-
(i) National interest waiver. ... [T]he Attorney General may, when the 
Attorney General deems it to be in the national interest, waive the 
requirements of subparagraph (A) that an alien's services in the sciences, arts, 
professions, or business be sought by an employer in the United States. 
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. 884.3 Dhanasar clarifies that, after EB-2 eligibility as an advanced degree professional or 
individual of exceptional ability has been established, USCIS may grant a national interest waiver if 
the petitioner demonstrates by a preponderance of the evidence: (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. If these 
3 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 I&N Dec. 215 (Act. Assoc. Comm 'r 1998) (NYSDOT). 
2 
Matter ofC-K-D-
three elements are satisfied, users may approve the national interest wmver as a matter of 
discretion. 
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, 
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.4 
II. ANALYSIS 
The Petitioner filed the current motion to reconsider prior to the publication of Dhanasar, 
contending that our appellate decision under the NYSDOT framework was erroneous. Specifically, 
she asserted that we erred in determining that her "proposed employment would not benefit the 
national interest of the U.S. to a substantially greater degree than a similarly qualified U.S. worker" 
and that she had "not demonstrated a past history of demonstrable achievement with some degree of 
influence on the field as a whole." The Petitioner's arguments, however, do not establish that our 
appellate findings were based on an incorrect application of the NYSDOT framework, law, 
regulation, or USCIS policy, nor does the motion demonstrate that our latest decision was incorrect 
based on the evidence before us at the time of the decision. Furthermore, as discussed below, the 
record does not show that the Petitioner meets the eligibility requirements under the Dhanasar 
framework. 
4 
See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
3 
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Matter ofC-K-D-
A. Background 
The Petitioner received a master of science degree in education from in 
2004. Accordingly, the Director found that the Petitioner qualified as a member of the professions 
holding an advanced degree. The sole 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. 
In Part 6 of the Form I-140, the Petitioner listed her job title as "teacher" and indicated that she 
sought to "develop groundbreaking treatments for autistic disorders." The record reflects that, from 
2008 until 2013, she worked as a public school teacher at 
in Florida. Subsequently, the Petitioner began working at the 
as a graduate teaching assistant and internship coordinator while pursuing a 
doctorate degree in exceptional education. Since 2013, she has been a and 
doctoral student in the exceptional education Ph.D. program at The Petitioner contends that 
she "has contributed seminal research and methodologies in the treatment of ASD" which will be 
used to teach others in the field nationally and internationally. 
B. Substantial Merit and National Importance of the Proposed Endeavor 
The Petitioner previously 
indicated that she is "an innovative teacher and educational program 
developer for students with autism spectrum disorder." She further explained that she is "using her 
expertise for the development and expansion of novel teaching and assessment methods to increase 
the knowledge base and understanding of educational approaches and curriculums that engender 
improvement in the verbal, cognitive, and behavioral skills of children along the autism spectrum." 
On motion, the Petitioner asserts that her "research on the issue of mirror intervention and self­
awareness in students with Autism is seminal and ground breaking." She further states that she is 
"contributing seminal research and methodologies in the field of endeavor that others have not 
previously cbnsidered and that has [sic] wide reaching implications." 
Our RFE asked the Petitioner to provide updated information and evidence regarding her current 
employment, if any, and her plans for future work in the field. In response, the Petitioner offers her 
curriculum vitae (CV) and indicates that the document provides "updated information regarding 
current employment" and research projects. While the CV lists the Petitioner's past 
accomplishments and identifies her as a current doctoral student at it does not address her 
specific plans for future work in the education field. For example, the Petitioner does not indicate 
whether she intends to work as a classroom teacher, an ASD education researcher, or both. Rather, 
the RFE response elaborates on the Petitioner's current work as both "a teacher and researcher" in 
the area of ASD. 
The Petitioner explains that her proposed endeavor furthers "the goal of improving education and 
programs for U.S. children." She states that the "goal of autism education is to help with symptoms 
4 
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Matter ojC-K-D-
of the disorder while improving the child's ability to talk, interact, play, and care for his or her own 
needs." In addition, the Petitioner indicates that one in 68 children in the U.S. has been identified 
with ASD, that the U.S. autism rate is increasing, and that the costs associated with children having 
ASD in the United States ranged from "11.5 billion- $60.9 billion in 2011." 
Whether as a teacher, researcher, or both, we find that the Petitioner's proposed work, which aims to 
improve the learning environment and self-sufficiency of ASD students, has substantial merit. In her 
letter, professor and coordinator of the special education Ph.D. program at 
contends that there is "an extreme shortage of faculty in the field of special education" and that 
our country's large population of autism students makes the Petitioner's endeavor "critical to the 
future of our country." adds that "[f]inding ways to Support this growing population of 
students to connect with humans by learning to better understand" themselves "is an area of crisis in 
education and society in general." Furthermore, the chair of the Petitioner's dissertation committee, 
notes that the Petitioner's "work contributes to the body of knowledge in the field of 
disability as a whole, particularly in the area of autism spectrum disorders." The record includes 
additional reference letters discussing how the Petitioner's research concerning ASD students will help 
them become self-aware and may decrease their problematic behaviors. 
With respect to the national importance of the Petitioner's proposed endeavor, our RFE asked for 
evidence documenting the "potential prospective impact" of her work. Specifically, we requested 
documentation demonstrating that her proposed endeavor has broader implications for her field. In 
her response, the Petitioner included information indicating that our nation faces a shortage of 
teachers in the field of autism education. The record, however, does not establish that her classroom 
instruction would impact ASD education more broadly, as opposed to being limited to the students at 
the institutions where she teaches. Accordingly, without sufficient documentary evidence of their 
broader impact, the aforementioned teaching activities do not meet the "national importance" element 
of the first prong of the Dhanasar framework. 5 
Nonetheless, to the extent that the Petitioner proposes to conduct ASD education research, we find 
the evidence sufficient to demonstrate that such research is of national importance. For example, the 
record includes letters from faculty at discussing her research concerning ASD students and its 
potential benefit to our nation's educational system. In addition, the Petitioner has submitted 
documentation indicating that the proposed benefit of her autism education research has broader 
implications, as the results are disseminated to others in the field through education journals and 
conferences. As the Petitioner has documented both the substantial merit and national importance of 
her proposed research, she meets the first prong of the Dhanasar framework. 
5 
Similarly, in Dhanasar, we determined that the petitioner's teaching activities did not rise to the level of having 
national importance because they would not impact his field more broadly. /d. at 893. 
5 
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Matter ofC-K-D-
C. Well Positioned to Advance the Proposed Endeavor 
The second prong shifts the focus from the proposed endeavor to the Petitioner's qualifications. The 
Petitioner previously submitted documentation of her published work, conference presentations, 
professional memberships, and academic credentials (master's degrees in elementary education, and 
educational organization and adiJ1inistration). She also submitted various reference letters discussing 
her educational background, teaching experience, and research projects. In response to our RFE, the 
Petitioner additionally submits her CV, documentation acknowledging her participation in 
conferences after the Form I-140 was filed, and a letter indicating that she was part of a group that 
helped revise the 
training programme" (2016). In addition, the Petitioner provides a special education 
grant of $47,347 stating that she has a "service obligation" of 64 months, peer review solicitations 
(2014- 2017), invitations to publish and present her research (2015- 2017), and the aforementioned 
letters of support from and 
As discussed below, the Petitioner has not 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.~ See Dhanasar, 26 I&N Dec. at 890. The Petitioner maintains that her graduate research is 
indicative of her "proven record of success in her field." In letters of support, her professors at 
discuss her research aimed at using "social emotional learning and knowledge of self to assist 
students with autism in learning basic social skills." For example, mentions the 
Petitioner's' in the 
(published online 2013). 
contends that the Petitioner's "research on mirrors is a seminal publication" that represents a unique 
contribution she has made to the field. Similarly,~ states that the Petitioner's work used "a 
novel and highly innovative mirror intervention to increase awareness of 'self and 'other' in 
individuals with autism" and that her research "is seminal and groundbreaking." 
With regard to the Petitioner's journal articles and conference presentations, we note that they were 
all published or presented after the filing date of the Form I-140, and therefore do not establish her 
eligibility at the time of filing. 8 C.F.R. § 103.2(b)(l), (12); Matter ofKatigbak, 14 I&N Dec. 45,49 
(Reg'l Comm'r 1971). Regardless, the Petitioner has not shown, for instance, 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. 
6 
As noted above, the Petitioner has not demonstrated that her proposed teaching activities meet the "national 
importance" element of the Dhanasar framework's first prong. Accordingly, we will limit our analysis under this prong 
to her proposed research. 
6 
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Matter ofC-K-D-
Furthermore, the remaining evidence is not sufficient to show that the Petitioner is well positioned to 
advance her endeavor. We note that her advisory role in revising the 
training programme" in 2016, peer review solicitations (2014 - 20 17), and invitations to 
publish and present her research (2015- 2017) also post-date the filing of the Form 1-140. As such, 
the aforementioned documentation does not render her well positioned at the time of filing. The 
Petitioner has also failed to establish 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. 
Finally, the Petitioner provided evidence relating to her experience as a high school special 
education teacher and as a teaching assistant at The Petitioner offered reference letters 
discussing her experience as special education teacher at For 
insti;}nce, a genera~ education lead instructor at the 
noted that the Petitioner provided an "excellent classroom 
environment for her students" with ASD by introducing a pet therapy program, and by obtaining 
grants for a and 10 cameras. In 
addition, a colleague of 
the Petitioner's, stated that she "provided resources and collaborated with special education and 
general education teachers at and across The record 
also reflects that the Petitioner served as a teaching assistant at for three courses entitled 
"Introduction to Behavior Management," "Critical Issues in Exceptional Education," and "Teaching 
Exceptional Students." We note that all three courses commenced after the Form 1-140 was filed. 
Nonetheless , the evidence does not establish that the Petitioner's high school special education 
experience with and her work as a "teaching assistant " at render her well positioned to 
advance ASD education research. 
The evidence discussed above is insufficient to demonstrate a record of success or progress, a degree 
of interest from relevant parties, or another factor that renders the Petitioner well positioned to 
advance her proposed endeavor. Accordingly, she has not established that she satisfies the second 
prong of the Dhanasar framework. 
D. Balancing Factors to Determine Waiver 's Benefit to the United States 
The Petitioner asserts that "[ e ]ffective ASD education and methodologies take more than a certain 
degree and a set number of years of experience" and that she possesses "intangible qualities that could 
not be adequately stated or demonstrated through the labor certification process."8 She also contends 
that it is "very unlikely that an available U.S. applicant would meet even the minimum acceptable 
stated that he became acquainted with the Petitioner through a relative who worked with per at 
• The labor certification process is designed to certify that a foreign worker will not displace nor adversely affect the 
wages and working conditions of U.S. workers who are similarly employed . Job requirements must adhere to what is 
customarily required for the occupation in the United States and may not be tailored to the foreign worker's 
qualifications or unduly restrictive , unless adequately documented as arising from operational necessity. 
7 
Matter ofC-K-D-
criteria. "9 The Petitioner further maintains that "the extremely significant benefits of [her] work 
clearly outweigh the national interest in having her participate in the labor certification process." 
While we acknowledge the likelihood that some of the Petitioner's knowledge and experience may 
exceed the minimum requirements for her occupation and therefore could not be easily articulated on 
an application for labor certification, she has not demonstrated, as claimed, that she presents benefits 
to the United States through her proposed endeavor that outweigh those inherent in the labor 
certification process. With respect to development and expansion of novel teaching and assessment 
methods that improve ASD students' learning environment and social functioning, the Petitioner has 
not shown an urgent national interest iii her own efforts to achieve this aim, nor has she 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. In sum, the Petitioner has not demonstrated 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. The Petitioner therefore has not established that she meets the third prong of the 
Dhanasar framework. 
III. CONCLUSION 
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 reconsider is denied. 
Cite as Matter ofC-K-D-, ID# 220146 (AAO May 2, 2017) 
9 
This argument, however, undermines the claim that it would be impractical to obtain a labor certification. The U.S. 
Department of Labor addresses shortages of qualified workers through the labor certification process. 
8