dismissed EB-2 NIW Case: Mental Health Therapy

U.S. Citizenship 
and Immigration 
Services 
MATTER OF .1-S-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 11,2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a mental health therapist and registered nurse, 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 otTer 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: (I) 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 beneflcial 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 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, 
On appeal, the Petitioner submits a brief and contends that she is eligible for a national interest 
waiver under the Dhanasar ti-amework. In addition, she contends that the Director imposed an 
overly high standard of proof. With respect to the standard of proof in this matter, a petitioner must 
establish that she meets each eligibility requirement of the bene lit sought by a preponderance of the 
evidence. },Jatter o{Chuwuthe, 25 I& N Dec. 369,375-76 (AAO 2010). In other words, a petitioner 
must show that what she claims is "more likely than not" or "probably" true. To determine whether 
a petitioner has met her burden under the preponderance standard, we consider not only the quantity, 
but also the quality (including relevance, probative value, and credibility) of the evidence. !d. at 
376: Mutter ofE-M-, 20 I&N Dec. 77, 79-80 (Comm'r 1989). 
Upon de novo review, we will dismiss the appeal. 
l. LAW 
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 
Moller o/.1-S-
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 arc members of the professions holding advanced degrees or aliens of 
exceptional ability.-
(A) In general. - Visas shall be made available ... to qualified immigrants who 
arc 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 benelit 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. 
(13) Waiver ofjob offer-
(i) National interest waiver. ... [T]he Attorney General may, wheri 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 tenn "national interest," we set forth 
a lramework for adjudicating national interest waiver petitions in the precedent decision lv!atter of 
Dhwwsar, 26 l&N Dec. 884.
1 
Dhanasar states that atier EB-2 eligibility has been established, 
USC IS may, as a matter of discretion, grant a national interest waiver when the below prongs are 
met. 
The lirst 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 shitis the focus li·mn 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 
1 
In announcing this framework. \Ve vacated our prior precedent decision, l'Watter of New York Stale Deparrment of 
Tra11.1portotion, 22 I&N Dec. 2 I 5 (Act. Assoc. Comm 'r I 998) (NYSDOT). 
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Maller of.J-S-
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 otTer and thus of a labor certification. In 
performing this analysis, USCJS may evaluate factors such as: whether, in light of the nature of the 
foreign national's qualification s 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 sufticientl y 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 \Vaive the requirements of a job otTer and thus of a labor certification. 2 
II. ANALYSIS 
The Director found that the Petitoner qualities as a member of the professions holding an advanced 
degree, and the record supports that tlnding.3 In addition, the regulation at 8 C.F.R. § 204.5(k)(4)(ii) 
states, in pertinent part, "[t]o apply for the [national interest] exemption the petitioner must submit 
Form ETA-750B, Statement of Qualifications of Alien, in duplicate." The denial decision stated that 
"since the petitioner did not submit this required evidence, USCIS must deny the Form 1-140." With 
the appeal, however, the Petitioner offers a properly signed and fully executed Form ETA-750B. 
Therefore, the Director's tinding on this issue is withdrawn. 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 
ccrti fication, would be in the national interest. 
At the time of filing, the Pctitoner was working as a mental health therapist and registered nurse with 
providing therapy "to clients with substance dependency, severe trauma, and co­
occurring psychiatric diagnosis." In addition, she was employed as a "professional clinical counselor 
intern" tor working 
with patients with liver disease, addiction, and 
substance dependency issues. 
A. Substanti al Merit and National Importance of the Proposed Endeavor 
The Petitioner indicates that she seeks to conduct research focusing on how psychological therapies 
can assist patients' compliance in taking hepatitis C medication. She also intends to investigate 
whether a time-limited and solution-focused therapy model can improve patient outcomes for newly 
2 See Dhanasor, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
'The Petitioner received a master of science degree in therapeutic counseling from the University of in in 
November 2013. The record includes an academic credentials evaluation indicating that this degree is the equivalent of a 
master of science degree from an accredited U.S. college or university. See 8 C.F.R. § 204.5(k)(J)(i)( A). 
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diagnosed liver patients. In addition, the Petitioner states that she will provide clinical se rvices as a 
therapist and consulting regi stered nurse, develop a training prog ram for liver nurses, and offer a 
biweekly support group for liver diseas e patient s in The record inclu des various 
articles about alcohol abuse and alcohol-related liver disease in the United States. These articles 
highlight the aforementioned publi c health problems and demon strate the value of providing 
effective treatments and coun seling to substance abuse patients. The Petitioner also submit s letters 
of support from medical profe ssionals discussing the public health benefits associated with 
improving therapies for liver disease and hepatiti s patients. We find that the Petitioner 's proposed 
work as a researcher, therapi st, nurse, and health care educator has substantial merit. 
To satisf·y the national importa nce requirement , the Petitioner must demonstrate the "potential 
prospectiv e impact " of her propo sed work. Her evidence includes letters of support from colleagues 
discussing the potential benelits of her research in the psychotherap y field and hea lthcar e indus try. 
For instance , a licens ed psychotherapist and director ·or the 
asserts that the Petitioner's "resea rch in therapy to treat depres sion and amiety in 
liver/hepatitis patients ... has the potential to help a large number of patients who currently have few 
viable treatment options ." In addition, the Petitioner submits doc umentation indicatin g tha t the 
benetit of her proposed research has broader implication s, as the results are d issemin ated t o others in 
the field through psychology journal s. To the extent that the Petition er proposes to perform research 
on psychological therapies for liver patients, we find that she meet s the first prong of the Dhanasar 
framework . 4 
B. Well Positioned to Advance the Proposed Endeavor 
The second prong shifts the focus from the propo sed endeavor to the Petiti oner's qualific ations . The 
Petitioner submitted docum entation of her publi shed article s, licen ses, train ing certifications, a 
promotion al flyer for her patient support group, and a webpage identifying her as a board member of 
the charity. She also offered refer ence letters discussing her medical 
training, clinical work, and resea rch projects. 5 
The Petiti oner maintains that her clinical cxpet1ise both as a psychotherapist and as a nu rse 
specializing in treating liver disease, and her medical training prog ram development work render her 
well position ed to advance her endeavor. Becau se the Petitioner' s prop ose d clinical duties and nurse 
training development work do not meet the tirst prong of the Dhanasar framework, our analysis 
'
1 
With respect to the Petitioner·s proposed counseling and treatment of patients and training program for liver nurses, while 
these endeavors have substantial merit. we agree with the Director that the record does not establish that her clinical and 
educational work would impact her field and the healthcare industry more broadly, as opposed to being limited to the patients 
she serves a nd her nurse trainees. Accordingly. without sufficient documentary evidence of their broader impact, the 
Petitioner's clinical duties as a therapist and nurse, and training program development work do not by themselves meet the 
"national importance" element of the first prong of the Dhanasar framework. Similarly, in Dhanasar, we detenn ined 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 We discuss only a sampling of these letters, but have reviewed and considered each one. 
4 
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under thi s prong will focu s on whether she is well pos itioned to adva nce her proposed research. 
Here, the Petit ioner has not demonstrate d a record of success or progress in her field, or a degree of 
interest in her work from relevant parties , that rise to the level of rendering her well pos itioned to 
adva nce her propo sed endeavo r. 
The Petiti oner asse rts that her publi shed research on psychoth erapy for live r p atients demonstrate s 
that she is well positioned to 
advance her end eavo r. In letter s s upporting the petition, several 
medical profess iona ls discussed the Petitioner' s resea rch aimed at imp rov ing the care and treatment 
of patients s uffering from liver disease . For examp le, , a consultant physician at 
and states that the Petitione r's "research on the benefits of group 
therapy on de pression and anxie ty leve ls of liver and hepatitis patients will very short ly be pub lished 
in a major peer reviewed journal." The record include s a research article she authored in 
but doe s not document what, if any , influence or interest it 
generated. Further , we note that the article was not published until Jul y 2016 and therefore doe s not 
establish her eligibilit y at the time of filing.- See s·c.F.R. § 103.2(b)(1), (12). 6 
a cons ultant psychiatrist and med ical direct or for 
indicates that he "as ked' [the Petitioner] to assist me drafting a formal clinica l and research prop osa l 
for establi shing a extension branch at fm1her 
notes that although the Petiti oner "possessed the personal experience and knowledge of the Clinic as 
well as the necessary clinic al expe 11ise," "the rea lities of the business and financial issues prevented 
our propo sal from ever going thro ugh, and the project was she lved for a later date." In additio n, 
a 
professor and d irector at the in states that the 
Petitioner "coo rdinated a resea rch project for the Institute ," but does not discuss this projec t's 
finding s or the implications of her research . Finally, while asser ts that the Petitione r' s 
"work can be put to use by count less therap y practicing institutions throughout the country," the 
record does not 
show that her research finding s have had such an effect. 
The record demo nstrates that the Petitioner has co nducted and published resea rch dur ing her career. 
While we recog nize that resea rch must add informatio n to the pool of know ledge in some way in 
order to be accep ted for pub lication , presentation, funding , or acade mic cred it, not eve ry i ndividua l 
who has performed origin al researc h will . be found to be well positioned to advance his or her 
proposed resea rch. Rather, we exa mine the factor s set forth in Dhana sar to determ ine w hether, for 
instance, the individual's progr ess towards achieving the goals s,f the propose d researc h, record of 
·s uccess in s imilar efforts, or gene ration of interest among relevant parties supports such a finding. 
Jd. at 890. The Petitioner has not s hown that her researc h has been freque ntly cited by other medical 
profess ionals or otherwise served as an impetus for progress in the field, that it has affected clini cal 
practice , o r that it has gene rated substantial positive discourse in the broade r medi cal commu nity. 
6 
The Petitioner also submits an anicle she wrote for magazine entitled 
but this article reports results from other investigators' studies 
and does not present findings from her own research projects. 
5 
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Nor does 'the evidence otherwise demonstrate that her work constitutes a record of success or 
progress in her area of research. 
As the record is insufficient to demonstrate that the Petitioner is well positioned to advance her 
proposed endeavor, she has not established that she satisfies the second prong of the Dhanasar 
framework. Accordingly, we aflirm the Director's determination on this issue. 
C. 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 the United States to waive the requirements of a job otTer and thus of a labor 
certification. Here, the Petitioner claims that she is eligible for a waiver due to her research and 
clinical skills and accomplishments, and because "[t]he United States health care industry is 
currently struggling to till positions of need" based on "high demand and not enough United States 
workers to till such positions." 7 However, as the Petitioner has not established that she is well 
positioned to advance her proposed endeavor as required by the second prong of the Dhanasar 
framework, she is not eligible for a national interest waiver and further discussion of the balancing 
factors under the third prong would serve no meaningful purpose. 
Ill. 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 tor or otherwise merits a national interest waiver as a 
matter of discretion. 
ORDER: The appeal is dismissed. 
Cite as Maller o(.J-S-, ID# 1156595 (AAO May II, 20 18) 
7 We note that the U.S. Dcpat1ment 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. 
6