dismissed EB-2 NIW Case: Computer Science

U.S. Citizenship 
and Immigration 
Services 
In Re: 26081113 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAR. 22, 2023 
Form 1-140, Immigrant Petition for Alien Worker (National Interest Waiver) 
The Petitioner, a computer science researcher and instructor, seeks employment-based second 
preference (EB-2) 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 classification. See 
Immigration and Nationality Act (the Act) section 203(b )(2), 8 U.S.C. § 1153(b )(2). 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner had 
not established that a waiver of the required job offer, and thus of the labor certification, would be in 
the national interest. We dismissed the appeal, concluding that the Petitioner has not sufficiently 
demonstrated that her proposed endeavor is of national importance. Specifically, we concluded that 
the record did not establish that the Petitioner's instructional work would impact the computer science 
field more broadly or the senor network and machine learning industries more broadly as opposed to 
being limited to her students atl !University. The matter is now before us again on 
combined motions to reopen and reconsider. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence . 
Matter ofChawathe , 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon review, we will 
dismiss the combined motions. 
I. LAW 
A motion to reopen must state new facts and be supported by affidavits or other documentary evidence. 
8 C.F.R. § 103.5(a)(2). A motion to reconsider must state the reasons for reconsideration; be 
supported by any pertinent precedent decision to establish that the decision was based on an incorrect 
application oflaw or policy; and establish that the decision was incorrect based on the evidence in the 
record at the time of the decision. 8 C.F.R. § 103.5(a)(3). 
The regulation at 8 C.F.R. § 103.5(a)(l)(i) limits our authority to reopen or reconsider to instances 
where the petitioner has shown "proper cause" for that action. Thus, to merit reopening or 
reconsideration, a petitioner must not only meet the formal filing requirements (such as submission of 
a properly completed Form 1-290B, Notice of Appeal or Motion, with the correct fee) but also show 
proper cause for granting the motion. We cannot grant a motion that does not meet applicable 
requirements. See 8 C.F.R. § 103.5(a)(4). 
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. Section 203(b )(2)(B)(i) of the Act. 
Once a petitioner demonstrates eligibility as either a member of the professions holding an advanced 
degree or an individual of exceptional ability, they must then establish that they merit a discretionary 
waiver of the job offer requirement "in the national interest." Section 203(b)(2)(B)(i) of the Act. 
While neither the statute nor the pertinent regulations define the term "national interest," Matter of 
Dhanasar, 26 I&N Dec. 884, 889 (AAO 2016), provides the framework for adjudicating national 
interest waiver petitions. Dhanasar states that U.S. Citizenship and Immigration Services (USCIS) 
may, as matter of discretion 1, grant a national interest waiver if the petitioner demonstrates that: 
• The proposed endeavor has both substantial merit and national importance; 
• The individual is well-positioned to advance their proposed endeavor; and 
• On balance, waiving the job offer requirement would benefit the United States. 
II. ANALYSIS 
We incorporate our prior decision by reference and will repeat only certain facts and evidence as 
necessary to address the Petitioner's claims on motion. While we may not address each piece of 
evidence individually, we have reviewed and considered each one. 
A. Motion to Reopen 
Initially, we note that motions for the reopening of immigration proceedings are disfavored for the 
same reasons as are petitions for rehearing and motions for a new trial based on newly discovered 
evidence. INSv. Doherty, 502 U.S. 314,323, (1992) (citingINSv. Abudu, 485 U.S. 94, 108 (1988)); 
see also Selimi v. Ashcroft, 360 F.3d 736, 739 (7th Cir. 2004). There is a strong public interest in 
bringing proceedings to a close as promptly as is consistent with giving both parties a fair opportunity 
to develop and present their respective cases. INS v. Abudu, 485 at 107. 
Based on its discretion, USCIS "has some latitude in deciding when to reopen a case" and "should 
have the right to be restrictive." Id. at 108. Granting motions too freely could permit endless delay 
when noncitizens continuously produce new facts to establish eligibility, which could result in 
needlessly wasting time attending to filing requests. See generally INS v. Abudu, 485 U.S. at 108. 
The new facts must possess such significance that, "if proceedings ... were reopened, with all the 
attendant delays, the new evidence offered would likely change the result in the case." Matter of 
Coelho, 20 I&N Dec. 464, 473 (BIA 1992); see also Maatougui v. Holder, 738 F.3d 1230, 1239-40 
(10th Cir. 2013). Therefore, a party seeking to reopen a proceeding bears a "heavy burden." INS v. 
Abudu, 485 at 110. With the current motion, the Applicant has not met that burden. 
1 See also Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
2 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
individual 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. 
Dhanasar, 26 I&N Dec. at 889. 
In determining national importance, the relevant question is not the importance of the industry or 
profession in which the individual will work; instead, we focus on the "the specific endeavor that the 
foreign national proposes to undertake." See Dhanasar, 26 I&N Dec. at 889. In addition, we 
indicated that "we look for broader implications" of the proposed endeavor and that"[ a ]n undertaking 
may have national importance, for example, because it has national or even global implications within 
a particular field." Id. We also stated that "[ 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. 
The Petitioner holds a doctor of philosophy degree in computer science from 
University. According to the non-tenure track faculty contract letter, the Petitioner was an instructor 
in computer science at ______ _.University from September 2020 to June 2021. The 
Petitioner indicated that she has two proposed endeavors: (1) expanding on her already substantial 
research in the field of artificial intelligence and (2) disseminating her knowledge of machine learning 
to the next generation of American students to enable that generation to keep America competitive in 
the field of artificial intelligence. The Petitioner further stated that she has investigated in (a) utilizing 
graphs for more accurate artificial intelligence predictions, (b) developing algorithms to assist older 
people, especially those suffering from dementia, in living independent lives, and ( c) developing 
algorithms to mine COVID-19 data to uncover pattens, which could be utilized in predicting the spread 
of the virus more accurately. 
The Director determined that the Petitioner's proposed endeavor has substantial merit, but the 
Petitioner has not established that her proposed endeavor would have a broader impact or national 
importance. In our prior decision, we found that the Petitioner broadly claimed that she plans to 
advance the fields of sensor network and machine learning to produce reliable predictions but did not 
provide a specific proposed endeavor or the type of research she intends to pursue in the fields of 
sensor network and machine learning. We stated that the Petitioner indicated her previous research 
and current volunteer work without discussing her prospective endeavor. 
As the Petitioner points out on motion, the record contains her statement in which she states that she 
would like to continue her pursuit of research in technological innovation for high impact projects 
both for the United States and world-wide, such as COVID-19 spread analysis, and of building capable 
computer scientists in the United States through teaching at universities. The Petitioner's "expanding 
on her already substantial research in the field of artificial intelligence" is vague, but we find that her 
statement that she intends to research the applicability of machine learning and graph data mining to 
solve complex problems, like COVID-19 virus spread patterns, significantly improves the endeavor. 
As such, we find that the Petitioner has provided a specific proposed endeavor and the type of research 
she intends to pursue in the fields of senor network and machine learning. 
3 
On motion, the Petitioner submits an article published in The New York Times, which provides 
estimates of how University compares with its peer schools in economic 
diversity and student outcomes. The record is unclear as to whether! !University 
andl 1University2 are same school or two different schools and why an article relating 
to a different school was submitted. The Petitioner notes that the New York Times articles states that 
about 1.1 % of students at University came from a poor family but became a rich 
adult. The Petitioner contends that by teaching computer science courses to undergraduate students 
at I I University, she is producing capable and rich American computer scientists who 
will work in the industry and other sectors of the U.S. economy; therefore, her proposed endeavor 
satisfies the criteria for national interest. 
In addition, the Petitioner submits an internet article, which quotes a speech provided by a former 
Attorney General William Barr in 2020, which alerted the public the economic and technological 
dangers posed by China, suggesting that its plans for global domination could hinge on artificial 
intelligence. The Petitioner contends that artificial intelligence is an important field to the country 
both for miliary purposes and for industrial purposes. The Petitioner also submits an internet article, 
dated 2020, which states that the Naval COVID Rapid Response Team is exploring the potential of 
existing commercial or advanced prototype technologies that can be used to underpin a proximity 
tracking program. The record contains a support letter from a professor of 
electrical engineering and computer science at I I University and the Petitioner's 
doctoral thesis advisor, which states that the Petitioner has volunteered to collaborate with him on a 
project in which they are applying graph mining methods to detect patterns in the spread of the 
COVID-19 virus. Professor I further states that understanding patterns in this graph is important 
for U.S. policy decisions and disrupting the virus spread. 
On motion, the Petitioner submits another letter from Professor! lwho states that the Petitioner 
wanted to engage senior students at ______ University in research activities and to have 
experience in supervising students for research projects. Professor I !further states that he and 
the Petitioner discussed how to utilize static graph-based approaches that the Petitioner used for her 
previous studies and the project moved in an interesting direction and provides a brief description of 
two research projects currently developed by the Petitioner's students. The Petitioner also submits a 
support letter ffroml la data scientist at ________ ___,Laboratory. Doctor 
states that the Petitioner is an outstanding researcher using graph-based data for artificial 
intelligence, that the Petitioner is mentoring students for their senior research projects, and that the 
Petitioner's teaching and research efforts with senior students contribute to the national interest of the 
United States. The Petitioner also submits a letter from I I the chair of the computer 
science department at ______ University. Doctorl lstates that the Petitioner 
has been a stand-out educator for the last two years, teaching a variety of courses, and that the 
university encourages and promotes the Petitioner and her students' research, including her graph 
mining and machine learning projects. 
Furthermore, although not raised by the Petitioner in the instant case, we recognize the importance of 
progress in science, technology, engineering, or mathematics (STEM) fields and the essential role of 
2 The Petitioner holds a doctor of philosophy degree in computer science from I I University, and she was 
an instructor in computer science at I I University from September 2020 to June 2021. 
4 
persons with advanced STEM degrees in fostering this progress, especially in focused critical and 
emerging technologies, or other STEM areas important to U.S. competitiveness or national security. 3 
Volume 6, Part F, Chapter 5 of the USCIS policy manual provides specific evidentiary considerations 
for persons with advanced degrees in STEM fields and states that many proposed endeavors that aim 
to advance STEM technologies and research, whether in academic or industry settings, not only have 
substantial merit in relation to U.S. science and technology interests, but also have sufficiently broad 
potential implications to demonstrate national importance. 4 In light of the STEM policy manual 
guidance and the evidence in the record, we conclude that the Petitioner's potential research projects 
in the fields of senor network and machine learning have broad implications to demonstrate national 
importance. As such, we find that the Petitioner meets the first prong of the Dhanasar framework. 
The second prong of the Dhansar framework shifts the focus from the proposed endeavor to the 
individual. To determine whether they are well positioned to advance the proposed endeavor, we 
consider factors including, but not limited to: their 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. Id. at 890. 
The Director determined that the Petitioner has not established that she is well positioned to advance 
the proposed endeavor. We adopt and affirm the Director's decision as it pertains to the second prong 
of the Dhansar framework. See Matter of Burbano, 20 I&N Dec. 872, 874 (BIA 1994); see also Giday 
v. INS, 113 F.3d 230, 234 (D.C. Cir. 1997) (noting that the practice of adopting and affirming the 
decision below has been "universally accepted by every other circuit that has squarely confronted the 
issue"); Chen v. INS, 87 F.3d 5, 8 (1st Cir. 1996) (joining eight circuit courts in holding that appellate 
adjudicators may adopt and affirm the decision below as long as they give "individualized 
consideration" to the case). 
As the Petitioner has not met the requisite second prong of the Dhanasar framework for the reasons stated 
in the Director's decision, we find that she has not established that she is eligible for or otherwise merits 
a national interest waiver as a matter of discretion. Therefore, we conclude that the Petitioner has not 
shown proper cause for reopening the proceeding. 
B. Motion to Reconsider 
The Petitioner contends that we disregarded the preponderance of the evidence standard, disregarded 
expert opinion letters, and required evidence that is not required by the statute, regulations, or any 
controlling case law. 
Regarding the expert opinion letters, the Petitioner states that expert testimony is considered testimony 
under rule 702 of the Federal Rules of Evidence and that established precent and USCIS policy also 
require that testimonial evidence must be considered and given appropriate weight along with the rest 
of the submitted evidence. The Petitioner argues that we erred by not following these rules. The 
Petitioner claims that new evidence was submitted on appeal, but we did not consider that evidence 
3 See generally 6 USCIS Policy Manual f(5)(D)(2), https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5. 
4 Id. 
5 
without giving any reason. In our prior decision, we acknowledged that the Petitioner submitted 
additional letters but did not consider the letters because they were not presented before the Director. 
Our prior decision cited Matter of Soriano, 19 I&N Dec. 764 (BIA 1988), and Matter of Obaigbena, 
19 I&N Dec. 533 (BIA 1988) for the proposition that we will not consider evidence submitted for the 
first time on appeal when the affected party did not properly respond to a director's notices relating to 
that evidence. The record reflects that the Director issued a request for evidence (RFE). In the RFE, 
the Petitioner was requested to provide, among other things, a detailed description of the proposed 
endeavor and evidence that supports her statements and establishes the endeavor's national 
importance. It appears that in response to the RFE, the Petitioner did not submit the additional letters 
to the Director for consideration. 
Additionally, on motion, the Petitioner quotes a few sentences in the Dhanasar decision, which 
provides discussion on the national importance determination, and contends that by not quoting the 
exact sentences or not reprinting the exact sentences in our prior decision but by briefly summarizing 
them, we tried to have the reader believe that every rule that old pre-Dhanasar EB-2 requirements is 
still in effect. However, on pages 2 and 3 of our prior decision, we provided three prongs of the 
Dhansar analytical framework and explained in detail how the Petitioner can satisfy the national 
interest waiver requirements under the Dhansar framework. 
Moreover, the Petitioner's attorney claims that he had a previous case, motions to reopen and 
reconsider, which he won and that the issues between that case and the instant case are very similar 
with regard to the errors made by the Director. The Petitioner's attorney also contends that he won 
cases similar to the instant case in a federal district court, that the keystone case on this subject is in 
Rubin v. Miller, 19-cv-4320 (S.D.N.Y. Aug. 13, 2020), and that the court in Rubin has labeled all these 
errors as abuse of discretion. The Petitioner's attorney adds that this case will likely be sent to the 
Office of Inspector General and the Office of Citizenship and Immigration Services Ombudsman. 
In contrast to the broad precedential authority of the case law of a U.S. circuit court, we are not bound 
to follow the published decision of a U.S. district court in cases arising within the same district. See 
Matter of K-S-, 20 I&N Dec. 715 (BIA 1993). The reasoning underlying a district judge's decision 
will be given due consideration when it is properly before the AAO; however, the analysis does not 
have to be followed as a matter of law. Id. at 719. First, the Rubin case is a district court case, not a 
circuit court case. Second, the Rubin case was decided in the Southern District of New York, which 
is not the same district as the instant case. Third, the petitioner in the Rubin case sought an immigrant 
visa classification as an individual of extraordinary ability (EB-1 ), which is different from an 
immigrant visa classification as an advanced degree professional or an individual of exceptional ability 
(EB-2) sought by the Petitioner in the instant case. Fourth, since we do not have the record of 
proceeding for the Rubin case, we are unable to examine the reasoning underlying the district judge's 
decision. Fifth, without documentary evidence to support the claim, the assertions of counsel will not 
satisfy the petitioner's burden of proof The unsupported assertions of counsel do not constitute 
evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988); Matter of Laureano, 19 I&N 
Dec. 1,3 n.2 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Lastly, we 
must decide each case on its own facts regarding the sufficiency of the evidence presented. Matter of 
Frentescu, 18 I&N Dec. 244,246 (BIA 1982); Matter of Serna, 16 I&N Dec. 643,645 (BIA 1978). 
As we do not have facts in other cases represented by the Petitioner's attorney, we cannot compare the 
prior cases with the instant case and conclude that we made errors in our prior decision. 
6 
As indicated above, to have established merit for reconsideration of our latest decision, a petitioner 
must both state the reasons why he or she believes the most recent decision was based on an incorrect 
application of law or policy; and specifically cite laws, regulations, precedent decisions, or binding 
policies that the petitioner believed we misapplied in that prior decision. Thus, to prevail in her motion 
to reconsider, the Petitioner cannot merely disagree with our conclusions but rather must demonstrate 
how we erred as a matter of law or policy in that immediate prior decision. See Matter of O-S-G-, 24 
I&N Dec. 56, 58 (BIA 2006) (finding that a motion to reconsider is not a process by which the party 
may submit, in essence, the same brief and seek reconsideration by generally alleging error in the prior 
decision.) Here, although we acknowledge that the Petitioner submits a brief and additional evidence, 
we determine that she does not provide proper reasons for reconsideration of those conclusions. 
Likewise, the brief in support of the current motions lacks any cogent argument as to how we 
misapplied the law or USCIS policy in dismissing the appeal. 
The Petitioner has not shown that our prior decision contained errors of law or policy or that the 
decision was incorrect based on the record at the time of that decision. Therefore, the instant motion 
does not meet the requirements of a motion to reconsider. 
III. CONCLUSION 
The Petitioner's motion to reconsider has not shown that our prior decision was based on an incorrect 
application of law or USCIS policy. Although the evidence provided in support of the motion to 
reopen may overcome the grounds underlying our prior decision, the record remains insufficient to 
demonstrate that the Petitioner is eligible or otherwise merits a national interest waiver as a matter of 
discretion. Therefore, we will dismiss the combined motions for the reasons stated above. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
7