dismissed EB-2 NIW Case: Special Education

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: NOV. 27, 2023 In Re: 28514279 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a special education teacher, seeks classification as a member of the professions holding 
an advanced degree. Immigration and Nationality Act (the Act) section 203(b)(2), 8 U .S.C. 
§ 1153(b )(2). The Petitioner also seeks a national interest waiver of the job offer requirement that is 
attached to this EB-2 immigration classification. Section 203(b)(2)(B)(i) of the Act, 8 U.S.C. 
§ 1153(b )(2)(B)(i). U.S. Citizenship and Immigration Services (USCIS) may grant this discretionary 
waiver of the required job offer, and thus of a labor certification, when it is in the national interest to 
do so. 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish that the Petitioner's endeavor would have national importance, that she is well-positioned to 
advance that endeavor, or that, on balance, it would benefit the United States to waive the job offer 
requirement. 1 The matter is now before us on appeal. 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 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. 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 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)(2) of the Act. 
Neither the statute nor the pertinent regulations define the term "national interest." Matter of 
Dhanasar, 26 I&N Dec. 884 (AAO 2016) states that after EB-2 eligibility has been established, USCIS 
may, as a matter of discretion, grant a national interest waiver if the petitioner demonstrates that: 
1 The Director concluded that the Petitioner 's U.S. master's degree qualifies her for the EB-2 classification as an advanced 
degree professional , which the record supports. 
(1) the noncitizen' s proposed endeavor has both substantial merit and national importance; (2) that the 
noncitizen is well-positioned to advance the proposed endeavor; and (3) that, on balance, it would 
benefit the United States to waive the requirements of a job offer and thus of a labor certification. 
II. ANALYSIS 
A. Substantial Merit and National Importance 
The first prong of the Dhanasar test, substantial merit and national importance, focuses on the specific 
endeavor the Petitioner intends to undertake. Matter of Dhanasar, 26 I&N Dec. at 889. Here, the 
Petitioner states that she will teach special education classes in U.S. public schools and support the 
growth of special education as a profession with activities including research and eventually teaching 
at the graduate level. 
The Director issued a request for evidence (RFE) requesting, among other things, further 
documentation showing the endeavor's national importance. Upon reviewing the Petitioner's 
response, the Director found that while the endeavor had substantial merit, the Petitioner had 
materially changed that endeavor in her RFE response and so could not establish its national 
importance and meet the first Dhanasar prong. On appeal, the Petitioner contends that she did not 
materially change her endeavor. We agree. However, she also has not provided sufficient 
documentation about the specifics of that endeavor or its impact to establish its national importance. 
1. The Petitioner Did Not Materially Change Her Endeavor 
A petitioner must establish eligibility for the benefit sought at the time of filing. 8 C.F.R. 
§ 103 .2(b)(1 ). Therefore, petitioners may not make material changes to a petition that has already 
been filed in an effort to make an apparently deficient petition conform to USCIS requirements. 
Matter ofIzummi, 22 I&N Dec. 169, 175 (BIA 1988) ( citing Matter ofKatigbak, 14 I&N Dec. 45, 49 
(Comm'r. 1971)). According to the Director, the Petitioner's RFE response constituted such a change 
because it changed her proposed activities from teaching public school students with special needs 
and eventually teaching at the graduate school level to the development of special education curricula 
and training other teachers "at a public organization." Upon review, we will withdraw this finding. 
In her initial filing, the Petitioner stated that her "goal is to teach special needs students in the public 
school system and to support the growth of special education, as a profession, in the United States," 
and that she will "eventually teach at the graduate level in hopes of increasing the number of educators 
in the field of early childhood special education." She further stated that she has a "special interest" 
in curriculum development for early childhood mathematics education for students who are deaf and 
hard of hearing, that she is working on a website to share her work in this area with educators and 
families of such students, and that she intends to conduct research in this area in the future. 
In her RFE response, the Petitioner provided a new statement, describing her current work as a public 
school special education teacher and stating that her "future aspiration is to work towards . . . 
developing special education curriculum and educate and train other special education teachers at a 
public organization such as at a graduate school or a school district and eventually at the California 
Department of Education or even ultimately at the U.S. Department of Education." While this new 
2 
statement emphasizes the Petitioner's future aspirations over her current public school teaching work, 
the record does not support a finding that it materially changes her endeavor. Furthermore, while we 
note that the Petitioner did not specifically mention working at a government agency in her initial 
filing, this does not constitute a material change from her previous broadly-stated goals of training 
other teachers and promoting her profession in the United States. Therefore, we will withdraw the 
Director's finding that the Petitioner materially changed her endeavor in her RFE response. However, 
it is this same lack of specific information about her future activities that renders the Petitioner 
ineligible for the first Dhanasar prong. 
2. National Importance 
The record does not establish that the Petitioner's endeavor will have an impact rising to the level of 
national importance. On appeal, as in her underlying case, the Petitioner emphasizes the importance 
of early childhood special education for children with special needs. However, these factors relate to 
her endeavor's merit, not its national importance, which is a separate consideration under Dhanasar. 
Matter of Dhanasar, 26 I&N Dec. at 889. The relevant question when determining national 
importance is not the importance of the industry or profession where the Petitioner will work, but the 
specific impact of that proposed endeavor. Id. at 889-90. For example, an endeavor may qualify if it 
has national implications within a particular field, such as those resulting from certain improved 
manufacturing processes or medical advances. Id. 
In Dhanasar, the Petitioner's work as a science teacher was found to have substantial merit but did 
not qualify him under the first prong because the evidence did not show how that work would impact 
the field of science education more broadly. Id. at 893. Similarly, the record here includes support 
letters written on the Petitioner's behalf by her coworkers, graduate school instructors, and parents of 
students she has taught. These letters speak very highly of the Petitioner's skill, knowledge, and 
dedication, and illustrate the impact she has had on her students and on others in her school district. 
However, the support letters and the rest of the record do not document any impact the Petitioner has 
had or will have on the broader field of special education beyond her immediate professional circle. 
The Petitioner's appeal also reiterates her petition's claim that her endeavor is nationally important 
due to the shortage of special education teachers in the United States and provides extensive materials 
documenting the need for more workers in this field. However, she has not established how her 
individual special education teaching activities will resolve this shortage or impact it on a level rising 
to national importance. 2 Furthermore, while she states she intends to teach on a graduate level in order 
to train more teachers, she does not provide any specific information about when she will do so, what 
subjects she will teach, or any other information indicating how having one more graduate instructor 
in the United States would impact the number of new special education teachers on a national level. 
The Petitioner points out that for her master's degree, she authored an early childhood mathematics 
education guidebook for the families of children who are deaf or hard of hearing, and claims in one of 
her cover letters that "it has been well utilized by parents as well as other teachers ... ". To support 
2 We further note that the Department of Labor directly addresses U.S. worker shortages through the labor certification 
process. Therefore, a shortage of qualified workers in an occupation is not sufficient, in and of itself, to establish that 
workers in that occupation should receive a waiver of the job offer requirement. See Matter ofDlzanasar, 26 l&N Dec. at 
885; see also 20 C.F.R. § 656.1. 
3 
I 
this claim, she provides support letters from others in her field. The letter from Professor A-F~~--~ 
~-----~University, one of the Petitioner's graduate school instructors, states that the 
guidebook "is truly significant as all too often families are unsure how to support emerging math 
abilities," especially in cases where children are deaf or hard of hearing. The letter from L-B- of the 
IUnified School District, one of the Petitioner's former coworkers, states that she has 
"no doubt" that the guidebook "should enhance students' language development." However, contrary 
to the Petitioner's claims, these letters do not indicate that her guidebook has actually been used by 
others in the field. There is no indication that the guidebook has been published or distributed, and 
the Petitioner does not name any specific plans to do so. It is therefore not apparent how this would 
influence the Petitioner's field on a national level. 
In her RFE response, the Petitioner also provided a letter regarding a city project to provide 
interdisciplinary training for early childhood special educators and social workers in order to address 
labor shortages in both fields. The letter states that the Petitioner reviewed the project and approves 
of it, but does not indicate that she will have any role in the project's work. It is therefore not apparent 
how the project's prospective impact would be attributable to the Petitioner's endeavor. Additionally, 
while the record indicates that the Petitioner is a member of her school district's Early Childhood 
Special Education Council, there is no documentation establishing that this group's work has an effect 
beyond that school district. The record does not document what impact the Petitioner's endeavor 
would have that would extend beyond her immediate circle of students and employers to affect the 
broader field of special education on a nationally important level. 
An endeavor may qualify under the first prong if it has significant potential to employ U.S. workers 
or have other substantial positive economic effects, particularly in an economically depressed area. 
Id. at 889. The Petitioner claims that her endeavor will aid the U.S. economy, noting, among other 
things, that a lack of affordable childcare impacts worker productivity, that the availability of early 
childhood education increases local property prices, and that early childhood education leads to better 
educational outcomes which save money for school districts. As noted above, an endeavor's national 
importance is determined by the impact that is specifically attributable to that endeavor, not the 
collective impact of the entire field that endeavor is in. Id. The Petitioner has provided no 
documentation quantifying any specific economic impact her individual endeavor will have. As such, 
she has not established that the endeavor will have the kinds of"substantial positive economic effects" 
contemplated by Dhanasar. Id. 
The record does not establish that the Petitioner's endeavor will have national importance. While the 
Petitioner's ineligibility under the first Dhanasar prong would normally be dispositive of the case, we 
have withdrawn the portion of the Director's decision regarding a material change in the Petitioner's 
proposed endeavor. As such, we will analyze the Petitioner's qualifications for the second Dhanasar 
prong, as well. 
B. Well-Positioned to Advance the Proposed Endeavor 
The second prong of the Dhanasar test examines the noncitizen's ability to advance their proposed 
endeavor by considering "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 
4 
progress towards achieving the proposed endeavor; and the interest of potential customers, users, 
investors, or other relevant entities or individuals." Matter ofDhanasar, 26 I&N Dec. at 890. 
The Director concluded that while the Petitioner is a capable and dedicated teacher with the education, 
skills, and knowledge to advance her endeavor, the evidence did not establish the presence of any 
other favorable factors, such as a record of success in related or similar efforts or a plan for future 
activities. On appeal, the Petitioner states that her educational credentials and work experience make 
her well-positioned to advance her proposed endeavor, and that this is evidenced by the various letters 
of support submitted on her behalf Upon review, the Petitioner has not overcome the Director's denial 
grounds. 
As noted by the Director, the Petitioner lacks a plan or model for future activities. She states that she 
would like to train other teachers at some unspecified future point, but does not provide any timeline 
for beginning this activity or any information about what kind of training she will give. Furthermore, 
beyond the decision of the Director, we note that while the Petitioner states that she will teach at the 
graduate school level, postsecondary teachers are typically required to have a doctoral degree in their 
fields, a credential that the Petitioner lacks. 3 The Petitioner does not mention this issue or state any 
plan to earn a doctoral degree. 
Similarly, while we acknowledge the Petitioner's success performing the pedagogical, curricular, and 
mentoring duties of a special education teacher, she has not demonstrated a record of success in 
curriculum development, instructing other teachers, conducting research, or related activities on a 
scale extending beyond one classroom or school district. Beyond stating in her RFE response that she 
would like to work for the California or U.S. Department of Education at an unspecified time, the 
Petitioner also does not state any specific plan for such activities or provide any evidence that these 
government agencies are interested in her endeavor. Matter of Chawathe, 19 I&N Dec. at 376 
( explaining that the preponderance of the evidence standard requires petitioners to submit relevant, 
probative, and credible evidence to show the fact to be proven is "probably" true). 
While the Petitioner is prepared to continue working as a public school special education teacher, the 
record does not establish that she has planned for or made any progress towards the other activities 
she names as part of her endeavor. Nor does it establish that she has a record of past success in similar 
activities or that she has solicited interest in the endeavor from relevant entities. As such, she has not 
established her eligibility under the second Dhanasar prong. Id. 
III. CONCLUSION 
Because the Petitioner has not met the requisite first or second prong of the Dhanasar test, we need 
not address her eligibility under the third prong and hereby reserve this issue. See INS v. Bagamasbad, 
429 U.S. 24, 25 (1976) (stating that agencies are not required to make "purely advisory findings" on 
issues that are unnecessary to the ultimate decision); see also Matter ofL-A-C-, 26 I&N Dec. 516, 526 
n. 7 (BIA 2015) ( declining to reach alternative issues on appeal where an applicant did not otherwise 
meet their burden of proof). 
3 Bureau of Labor Statistics. U.S. Dep't of Labor, Occupational Outlook Handbook, Postsecondary Teachers (Sept. 06, 
2023), https://www.bls.gov/ooh/education-training-and-library/postsecondary-teachers.htm#tab-4. 
5 
The Petitioner has not established that she is eligible for or otherwise merits a national interest waiver 
as a matter of discretion. The petition will remain denied. 
ORDER: The appeal is dismissed. 
6