dismissed EB-2 NIW Case: Psychology

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: AUG. 26, 2024 In Re: 34162895 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a clinical and counseling psychologist, 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 Texas Service Center denied the petition, concluding that the Petitioner did not 
establish that a waiver of the required job offer, and thus of the labor certification, would be in the 
national interest. The matter is now before us on appeal pursuant to 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe , 25 I&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 de novo review, 
we will dismiss the appeal. 
I. LAW 
To qualify for the underlying EB-2 visa classification, a petitioner must establish they are an advanced 
degree professional or an individual of exceptional ability in the sciences, arts, or business. Section 
203(b )(2)(A) of the Act. If a petitioner establishes eligibility for the underlying EB-2 classification, 
they must then demonstrate 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 l&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 
1 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts (and Third 
in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver is discretionary 
in nature). 
• On balance, waiving the job offer requirement would benefit the United States. 
Id. 
II. ANALYSIS 
The Director concluded that the Petitioner qualifies as a member of the professions holding an 
advanced degree. Accordingly, the remaining issue to be determined on appeal 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. 
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. 
The second prong 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 third prong requires a 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, we may evaluate factors such as: whether, in light of the nature of the individual's 
qualifications or the proposed endeavor, it would be impractical either for them to secure a job offer 
or to obtain a labor certification; whether, even assuming that other qualified U.S. workers are 
available, the United States would still benefit from their contributions; and whether the national 
interest in their contributions is sufficiently urgent to warrant forgoing the labor certification process. 
In each case, the factor(s) considered must, taken together, establish 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. 
Id. at 890-91. 
According to the Petitioner's cover letter, she intends to continue using her expertise and knowledge 
as a clinical and counseling psychologist, contribute to the U.S. economy, and develop a business of 
early childhood education centers based in Florida. The Petitioner indicates that her business "is 
poised to revolutionize early childhood education in the United States" and will adopt "the unique 
Early Talent Development and Improvement System," addressing a "critical need for comprehensive 
and innovative educational approaches." In addition, "the presence of a full-time child psychologist 
underscores the commitment to children's mental well-being." The Petitioner also submitted a 
business plan, an expert opinion letter, recommendation letters, and industry articles and reports in 
support of her eligibility. 
The Director determined, in part, that the Petitioner's initial filing did not demonstrate the proposed 
endeavor's national importance or that the Petitioner is well positioned to advance the proposed 
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endeavor and issued a request for evidence (RFE). The Director specified that according to the U.S. 
Department of Labor, in most states practicing psychology or using the title "psychologist" requires 
licensure, and in all states and the District of Columbia, psychologists who practice independently 
must be licensed where they work. The Director notified the Petitioner that the record did not establish 
she is licensed as a psychologist in the United States or that she has met the educational requirements 
to pursue her proposed endeavor. In her RFE response, the Petitioner did not submit documentation 
to remedy this deficiency. 
The Director denied the petition, concluding that though the proposed endeavor had substantial merit 
and national importance, the record contained insufficient evidence to demonstrate the Petitioner is 
well positioned to advance the proposed endeavor under Dhanasar's second prong. The Director 
noted that the Petitioner did not provide evidence with the initial petition or the RFE response 
demonstrating she met the educational and licensing requirements to work as a clinical psychologist 
and counselor in the state of Florida, the intended location of her business. On appeal, the Petitioner 
claims that the Director erred by requiring a stricter standard of proof than preponderance of evidence, 
imposing novel substantive and evidentiary requirements, and failing to consider the submitted 
documentation. The Petitioner reiterates her educational accomplishments and professional experience 
and contends she is well positioned to advance her proposed endeavor due to her education, skills, and 
knowledge within the fields of psychology and counseling. 
With respect to the standard of proof in this matter, a petitioner must establish that they meet each 
eligibility requirement of the benefit sought by a preponderance of the evidence. Matter ofChawathe, 
25 I&N Dec. at 375-76. In other words, a petitioner must show that what they claim is "more likely 
than not" or "probably" true. To determine whether a petitioner has met their burden under the 
preponderance standard, we consider not only the quantity, but also the quality (including relevance, 
probative value, and credibility) of the evidence. Id. at 376; Matter ofE-M-, 20 I&N Dec. 77, 79-80 
(Comm'r 1989). Here, the Director thoroughly analyzed the Petitioner's documentation and weighed 
the evidence to evaluate whether she had demonstrated, by a preponderance of the evidence, that she 
meets the second prong of the Dhanasar framework. 
Upon review, the record supports the Director's determination that the Petitioner did not demonstrate, 
by a preponderance of the evidence, that she meets the second prong of the Dhanasar framework. We 
note the Petitioner states on appeal that in the United States, she "has continued to expand her expertise 
by obtaining relevant certifications and adapting to new challenges, such as providing online 
psychological counseling during the COVID-19 pandemic." However, she does not address the 
Director's concerns regarding the lack of evidence demonstrating she obtained the appropriate 
licensing and completed the educational requirements to work as a clinical psychologist and counselor 
in Florida. 
In its totality, the record does not demonstrate that the Petitioner is well positioned to advance her 
proposed endeavor to work as a clinical psychologist and counselor. Because the Petitioner has not 
established that she is well positioned to advance her endeavor as required by the second prong of the 
Dhanasar framework, she is not eligible for a national interest waiver. We decline to reach and hereby 
reserve arguments concerning her eligibility under the remaining prongs of the Dhanasar framework. 
See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (stating that "courts and agencies are not required to 
make findings on issues the decision of which is unnecessary to the results they reach"); see also 
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Matter of L-A-C-, 26 I&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach alternative issues on 
appeal where an applicant is otherwise ineligible). 
ORDER: The appeal is dismissed. 
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