dismissed EB-2 NIW Case: Epidemiology

.
U.S. Citizenship 
and In1n1igration 
Services 
MATTER OF T-D-O-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 12, 2019 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an epidemiologist, 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. § ll 53(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 Nebraska 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 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 combined motions to reopen and reconsider. With the motions, the Petitioner submits further 
evidence relating to her eligibility for a national interest waiver under the Dhanasar framework and 
a statement and other documents claiming that her first attorney provided ineffective assistance. 2 
She asks that we grant her motions and approve her request for a national interest waiver. For the 
reasons discussed below, we will deny the motions. 
I. LAW 
A motion to reconsider is based on an incorrect application of law or policy, and a motion to reopen 
is based on documentary evidence of new facts. The requirements of a motion to reconsider are 
1 See Matter of T-D-O-, ID# 1422412 (AAO Aug. 3, 2018). 
2 The Petitioner was initially represented in these proceedings by attorney On appeal, the Petitioner 
was represented by attorney With respect to the current motions, the Petitioner is not represented by 
counsel. 
Matter ofT-D-O-
located at 8 C.F.R. § 103.5(a)(3), and the requirements of a motion to reopen are located at 8 C.F.R. 
§ 103.5(a)(2). We may grant a motion that satisfies these requirements and demonstrates eligibility 
for the requested immigration benefit. 
The Board of Immigration Appeals (the Board) established a framework for asserting and assessing 
claims of ineffective assistance of counsel. See Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), 
aff'd, 857 F.2d 10 (1st Cir. 1988). 
First, Lozada sets forth the following threshold documentary requirements for asserting a claim of 
ineffective assistance: 
• A written affidavit of the petitioner attesting to the relevant facts. The affidavit should 
provide a detailed description of the agreement with former counsel (i.e., the specific actions 
that counsel agreed to take), the specific actions actually taken by former counsel, and any 
representations that former counsel made about his or her actions. 
• Evidence that the petitioner informed former counsel of the allegation of ineffective 
assistance and was given an opportunity to respond. Any response by prior counsel (or 
report of former counsel's failure or refusal to respond) should be submitted with the claim. 
• If the petitioner asserts that the handling of the case violated former counsel's ethical or legal 
responsibilities, evidence that the petitioner filed a complaint with the appropriate 
disciplinary authorities (e.g., with a state bar association) or an explanation why the 
petitioner did not file a complaint. 
Id at 639. These documentary requirements are designed to ensure we possess the essential 
information necessary to evaluate ineffective assistance claim and to deter meritless claims. Id. 
Allowing former counsel to present his or her version of events discourages baseless allegations, and 
the requirement of a complaint to the appropriate disciplinary authorities is intended to eliminate any 
incentive for counsel to collude with his or her client in disparaging the quality of the representation. 
We may deny a claim of ineffective assistance if any of the Lozada threshold documentary 
requirements are not met. Castillo-Perez v. INS, 212 F.3d 518, 525 (9th Cir. 2000). Second, if the 
petitioner satisfies these threshold documentary requirements, she must also show that former 
counsel's assistance was so deficient that she was prejudiced by the performance. Specifically, the 
petitioner must show that there is a reasonable probability that the outcome would have been 
different without former counsel's mistakes, 3 and that she had at least a plausible ground for relief. 4 
There is no prejudice if the adverse decision would have been issued even without former counsel's 
errors. See, e.g., Minhas v. Gonzales, 236 Fed. Appx. 981 (5th Cir. 2007). 
3 Yu Tian Li v. United States, 648 F.3d 524, 527 (7th Cir. 2011); Delhaye v. Holder, 338 Fed. Appx. 568, 570 (9th Cir. 
2009). 
4 See Martinez-Hernandez v. Holder, 778 F.3d 1086, 1088 (9th Cir. 2015). 
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Matter ofT-D-O-
11. ANALYSIS 
The Petitioner indicates that she intends "to continue working in biomedical research in the field of 
patient safety in Healthcare Associated Infections (HAI) and Antimicrobial Resistance on Center for 
Disease Control and Prevention (CDC) initiatives." In our prior decision, we determined that the 
Petitioner's proposed research has both substantial merit and national importance, but found that she 
had not sufficiently demonstrated that she is well positioned to advance her proposed endeavor. 
Accordingly, the Petitioner did not meet the second prong of the Dhanasar analytical framework. 5 
A Motion to Reconsider 
On motion, the Petitioner contends that "[t]here are many letters and proof and evidences in my file 
already," but she does contest our findings relating to any specific documentation or offer further 
arguments demonstrating that our analysis under Dhanasar' s second prong was in error. The 
Petitioner has not met the requirements for a motion to reconsider as she has not shown that we erred in 
our previous analysis based on the record before us on appeal. Further, the motion to reconsider does 
not establish that our previous findings were based on an incorrect application of the law, regulation, or 
USCIS policy. 
B. Motion to Reopen 
1. Well Positioned to Advance the Proposed Endeavor 
In support of the motion to reopen, the Petitioner presents an August 2018 email from the editor-in­
chief of New England Journal of Medicine indicating that she coauthored an article recently 
accepted for publication. 6 In addition, she provides an August 2018 email from the African Journal 
of Emergency Medicine acknowledging that her article, entitled 
has been submitted for publication. Her evidence 
also includes an article she coauthored in Prehospital Emergency Care in · 2018. This 
evidence post-dates the filing of the petition and therefore does not show her eligibility under the 
second prong of the Dhanasar framework at the time of filing. See 8 C.F.R. § 103.2(b)(l). 
Regardless, the record does not show that that aforementioned research findings render her well 
positioned to advance her proposed endeavor. 
In further support of the motion, the Petitioner provides the 
Manual for 
Administration (August 2015) in which its authors thank the Petitioner and two others in the 
5 We noted that, as the Petitioner had not met the second prong, discussion of the third prong would serve no meaningful 
purpose 
6 This article, entitled ________________________ had more than 
thirty coauthors. 
3 
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Matter ofT-D-O-
"Acknowledgements" section for contributing "to the revisions of the instruments and the 
information in this manual." Additionally, the Petitioner offers a Google Scholar citation report 
indicating that her body of published work has been cited by others a total of four times. The record, 
however, does not include comparative statistics indicating how often other epidemiology 
researchers are cited, nor has she otherwise demonstrated that her published and presented research 
constitutes a record of success or a level of interest in her work from relevant parties sufficient to 
meet Dhanasar' s second prong. 
The Petitioner resubmits letters from and but the information in 
their letters was addressed in our appellate decision. We previously explained that the information 
they provided was not sufficient to demonstrate that the Petitioner's work has served as an impetus 
for progress or generated positive discourse in the field, or otherwise represents a record of success 
or progress rendering her well positioned to advance her proposed research. Furthermore, the 
Petitioner offers various articles discussing projected shortages of physicians and physician­
scientists in the United States. 7 This information about U.S. worker shortages, however, does not 
relate to her eligibility under Dhanasar's second prong. As the Petitioner has not established that 
she is well positioned to advance her proposed endeavor, she has not met the second prong of the 
Dhanasar analytical framework. 
In addition, the Petitioner presents documentation relating to her involvement as a v1ct1m in a 
2018 car accident, the injuries she suffered, and her medical treatment. She also submits 
an email indicating that her laptop computer broke in September 2017 and a receipt showing that she 
purchased a new laptop in November 2017. Finally, she offers documents to support her claim that 
USCIS' January 2018 decision regarding her Form 1-485, Application to Register Permanent 
Residence or Adjust Status, was mailed to the wrong address. These issues, however, are not 
relevant to determining whether the Petitioner satisfies the requirements set forth in the Dhanasar 
analytical framework, and thus that a national interest waiver is warranted. 
2. Ineffective Assistance of Counsel Claim 
The motion includes a statement from the Petitioner asserting that she "suffered significantly" 
because of the actions of her initial attorney, She states: "He hardly communicated with 
me, and I had little information of what is going on. It was an abusive relationship . . . ." 
Furthermore, the Petitioner offers email communications with her former attorneys relating to 
preparation of the Form 1-140, her response to the Director's request for evidence, and the appeal. 
The Petitioner, however, has not provided documents meeting the three evidentiary requirements set 
forth in Lozada . Moreover, she has not shown that her initial attorney' s actions prejudiced the 
outcome of the proceedings. Specifically, the record does not show that the outcome of this matter 
would have been different if he had been more responsive to the Petitioner ' s communications, as the 
7 We note that the U.S. Department of Labor addresses shortages of qualified workers through the labor certification 
process. Accordingly, a shortage alone does not demonstrate that waiving the requirement of a labor certification would 
benefit the United States. 
4 
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Matter ofT-D-O-
submitted documentation, including that provided on appeal and on motion, does not demonstrate 
eligibility. 8 
III. CONCLUSION 
The Petitioner's motion does not show that our previous decision was based on an incorrect 
application of law or policy and does not include new information or evidence that overcomes the 
grounds underlying our previous decision. As the Petitioner has not met the second prong set forth in 
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. 
ORDER: The motion to reconsider is denied. 
FURTHER ORDER: The motion to reopen is denied. 
Cite as Matter ofT-D-O-, ID# 2288335 (AAO Mar. 12, 2019) 
8 We note that a different attorney, represented the Petitioner on appeal. The Petitioner 's current motion 
does not allege that provided ineffective assistance. Thus, the Petitioner has had opportunities on appeal 
and motion to remedy or address any deficiencies in the information and evidence that provided to USC IS. 
5