dismissed EB-2 NIW Case: Education

U.S. Citizenship 
and Immigration 
Services 
MATTER OF C-M-S-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 16, 2017 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a high school mathematics teacher, 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 20 16). 
The Director of the Texas Service Center denied the Form I-140, Immigrant Petition for Alien 
Worker, finding that the Petitioner did not qualify for classification as a member of the professions 
holding an advanced degree, and 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. With the motion, the Petitioner submits a 
brief and contends that she is eligible for a national interest waiver. In March 2017, we issued a 
request for evidence (RFE) asking the Petitioner to provide evidence satisfying the three-part 
framework set forth in Dhanasar. The Petitioner did not respond to our request. 
Upon review, 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 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. 
1 See Matter ofC-M-S-, ID# 18274 (AAO Sept. 20, 2016). 
Matter ofC-M-S-
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) of the 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 byjan 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. 884.2 Dhanasar clarifies that, after EB-2 eligibility as an advanced degree professional or 
individual of exceptional ability has been established, users 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 
three elements are satisfied, users may approve the national interest waiver 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 
2 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 l&N Dec. 215 (Act. Assoc. Comm 'r 1998) (NYSDOT). 
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Matter ofC-M-S-
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, USC IS 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. 3 
II. ANALYSIS 
The record reflects that the Petitioner holds the foreign equivalent of a U.S. baccalaureate degree in 
education and has progressive post-baccalaureate experience in that specialty equivalent to an 
advanced degree under the regulation at 8 C.F.R. § 204.5(k)(3)(i)(B). Accordingly, in our appellate 
decision, we found that the Petitioner qualified as a member of the professions holding an advanced 
degree, and withdrew the Director's determination on that issue. The sole issue to be considered on 
motion 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. 
A. Motion Abanqoned 
We may deny a motion if the Petitioner does not respond to our RFE. The regulation provides, in 
pertinent part: 
If the petitioner or applicant fails to respond to a request for evidence or to a notice of 
intent to deny by the required date, the benefit request may be summarily denied as 
abandoned, denied based on the record, or denied for both reasons. 
3 
See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
3 
.
Matter ofC-M-S-
8 C.F.R. § 103.2(b)(13)(i). Our RFE specifically informed the Petitioner that we may deny her 
motion "if we do not receive your response to this RFE within 48 days of the date on the cover 
letter. This time period includes 3 days added for service by mail." (Emphasis in original.) To 
date, more than 48 days have lapsed, and we have yet to receive a response from the Petitioner on 
issues we discussed in the RFE. As such, we will deny the motion as abandoned pursuant to 
8 C.F.R. § 103.2(b)(13)(i). 
B. Eligibility for a National Interest Waiver 
In the alternative, for the reasons discussed below, we find that the Petitioner has not established 
eligibility for a 
national interest waiver. 
1. Motion to Reconsider 
The Petitioner filed the current motion to reconsider prior to the publication of Dhanasar, stating 
that our appellate decision under the NYSDOT framework was erroneous. While she contends that 
USCIS "should set a more appropriate, reasonable and fitting threshold in adjudicating National 
Interest Waiver Petitions by educators teachers," she does not specifically identify any findings or 
statements of fact in our appellate decision that were in error. The Petitioner's assertion that the 
NYSDOT framework is "best directed to applications filed by engineers rather than 
educators/teachers" is not indicative that our findings constituted an error of law or policy. The 
NYSDOT guidelines required the Petitioner to establish that the benefits of her work are national in 
scope and that she will serve the national interest to a substantially greater degree than would an 
available U.S. worker having the same minimum qualifications, and she has not done so in this matter. 
See NYSDOT, 22 I&N Dec. at 217-18. With regard to following the guidelines set forth in NYSDOT, 
USCIS, by law, does not have the discretion to ignore binding precedent. See 8 C.F.R. § 103.3(c). 
The Petitioner's arguments on motion do not establish thatour previous 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. 
2. Dhanasar Framework 
Finally, we find that the Petitioner has not demonstrated that she satisfies the requirements set forth 
in Dhanasar. At the time of filing the Form 1-140, the Petitioner had been employed as a 
mathematics teacher at Jr. High School, 
since August 2006, Previously, she taught high school mathematics in New York for two years and 
the Philippines for 28 years. She stated that her professional action plan and objective are: 
To have a safe and rigorous classroom which is conducive to learning and relevant for 
all scholars to prepare them with a college ready perspective, motivate scholars to be 
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Matter ofC-M-S-
mindful of global competitiveness, create their own way of self-sustaining livelihood 
and even go beyond to discover new techniques to contribute to the national 
advancement of the country in terms of technology, engineering[,] science and of 
course mathematics. 
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. As the Petitioner did not 
respond to our request, she has not demonstrated that she is eligible for a national interest waiver. 
Specifically, the record does not show that her classroom instruction would impact the field of 
education or mathematics more broadly, as opposed to being limited to the students at the school 
where she teaches. Accordingly, without sufficient documentation of their broader impact, her 
teaching activities do not meet the "national importance" element of the first prong of the Dhanasar 
framework.4 Furthermore, without additional information and evidence, the Petitioner has not 
established that she is well positioned to advance her proposed endeavor and 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. 
III. CONCLUSION 
As the Petitioner did not respond to our RFE seeking evidence to establish eligibility, the motion is 
considered abandoned. In addition, the Petitioner has not demonstrated that our previous decision was 
in error. Finally, as she has not met the requisite three prongs set forth in the Dhanasar analytical 
framework, we find that the Petitioner 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-M-S-, ID# 304770 (AAO May 16, 2017) 
4 
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