dismissed EB-2 NIW Case: Special Education

MATTER OF J-M-R-P-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 5, 2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a special education teacher, seeks second preference immigrant classification as an 
individual of exceptional ability, 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 2016). 
The Acting Director of the Nebraska Service Center denied the Form I-140, Immigrant Petition for 
Alien Worker, and a subsequent motion, finding that the Petitioner did not qualify for classification 
as an individual of exceptional ability, and 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 copies of previously submitted documents and requests that we 
review and consider her "added teaching experiences and ... certification in the area of Special 
Education." 
Upon de nova 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) of the Act sets out this sequential framework: 
Matter of J-M-R-P-
(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 by an 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. 
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definition: "Exceptional 
ability in the sciences, arts, or business means a degree of expertise significantly above that 
ordinarily encountered in the sciences, arts, or business." In order to demonstrate exceptional 
ability, a petitioner must submit at least three of the types of evidence listed at 8 C.F.R. 
§ 204.5(k)(3)(ii). 
Furthermore, while neither the statute nor the pertinent regulations define the term "national 
interest," we set forth a framework for adjudicating national interest waiver petitions in the 
precedent decision Matter of Dhanasar, 26 l&N Dec. 884.1 Dhanasar states that after EB-2 
eligibility has been established, USCIS may, as a matter of discretion, grant a national interest 
waiver when the below prongs are met. 
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 
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 
1 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) (NYSD07). 
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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, USCIS 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. 2 
II. PROCEDURAL BACKGROUND 
At the time of filing her Form 1-140, the Petitioner provided a cover letter stating that she sought 
"employment second preference classification as an alien of exceptional ability performing services 
prospectively in the national interest." 3 In addition, she asserted that her supporting documentation 
demonstrated that she "satisfies the standards of an alien of exceptional ability seeking national 
interest waiver classification." 
The Director issued a request for evidence (RFE) informing the Petitioner that her evidence did not 
satisfy at least three of the regulatory criteria for exceptional ability classification set forth at 
8 C.F.R. § 204.5(k)(3)(ii). In addition, the RFE advised the Petitioner of the Dhanasar framework 
and explained why her documentation was not sufficient to demonstrate her eligibility for a national 
interest waiver. 
After evaluating the evidence the Petitioner provided in response to the RFE, the Director denied the 
Form 1-140, finding that she did not qualify for classification as an individual of exceptional ability 
and that she had not met the three prongs of the Dhanasar framework necessary to qualify for a 
national interest waiver. The Petitioner filed a subsequent motion to reopen, which the Director 
dismissed. The matter is now before us on appeal. 
2 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
3 In Part 2 of the form, she checked box 1.i. indicating that she was "[a]n alien applying for a National Interest Waiver 
(who IS a member of the professions holding an advanced degree or an alien of exceptional ability).'' With respect to her 
eligility as a member of the professions holding an advanced degree, we note that the Petitoner received her bachelor's degree 
in May 2015. As she received this degree less than five years ago, she does not have at least five years of progressive post­
baccalaureate experience in her specialty equivalent to an advanced degree. See 8 C.F.R. § 204.5(k)(2) and 8 C.F.R. 
§ 204.5(k)(3)(i)(B). 
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Matter of J-M-R-P-
III. ANALYSIS 
A. Exceptional Ability 
The Director found that the Petitioner had not established that she meets at least three of the exceptional 
ability evidentiary criteria set forth at 8 C.F.R. § 204.5(k)(3)(ii). On appeal, the Petitioner asks that we 
consider her "added teaching experiences and [ ] certification in the area of Special Education." 
With respect to her certification in special education from the the Director 
already determined that this certification satisfied the regulatory criterion at 8 C.F.R. 
§ 204.5(k)(3)(ii)(C), which requires evidence of"[ a] license to practice the profession or certification 
for a particular profession or occupation." 
Regarding her teaching experience, the regulatory criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B) requires 
"[e]vidence in the form of letter(s) from current or former employer(s) showing that the alien has at 
least ten years of full-time experience in the occupation for which he or she is being sought." The 
record, however, indicates that the Petitioner did not begin working as a special education teacher 
until May 2015. As she has not demonstrated ten years of full-time experience in her occupation at 
the time this petition was filed, she does not meet this criterion. 
The Petitioner's appellate submission does not contest the Director's stated reasons for denial or point 
to specific errors in the Director's analysis of the remaining regulatory criteria. Accordingly, she has 
not established that she meets at least three of the six regulatory criteria at 8 C.F.R. § 204.5(k)(3)(ii) and 
that she has achieved the level of expertise required for exceptional ability classification. 
B. National Interest Waiver 
The Director determined that the Petitioner had not met any of the three prongs of the Dhanasar 
framework and she does not specifically challenge those findings on appeal. With respect to the 
substantial merit and national importance of the proposed endeavor, the Petitioner indicates that she 
intends to continue her work as a special education teacher.4 With regard to her future plans, she 
states: "[M]y 5-year plan is to finish my master's degree at in the next 
two years and continue to teach in the -------------~------ in the 
next five years." 
The record includes a letter from , principal of 
stating that the Petitioner's "math-based special education position ensures that our scholars with 
4 At the time of filing, the Petitioner was employed as a special education teacher at 
in From August 2017 until the present, she has worked as a mathematics teacher and special 
education case manager at ___ in As the Petitioner is applying for a 
waiver of the job offer requirement , it is not necessary for her to have a job offer from a specific employer. However, 
USCIS will consider information about her current and prospective positions to illustrate the capacity in which she 
intends to work in order to determine whether her proposed endeavor meets the requirements of the first prong of the 
Dhanasar framework. 
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special needs receive the support they need to be successful in school, and thus become productive 
citizens in society. She currently teaches Probability and Statistics to our seniors, and manages 10 
cases for students with individualized education plans" (IEPs). We find that the Petitioner's proposed 
work teaching mathematics and managing students' IEPs has substantial merit as it imparts valuable 
educational benefits and life skills to her pupils, and seeks to improve their academic performance. 
To evaluate whether the Petitioner's work satisfies the national importance requirement we look to 
evidence documenting the "potential prospective impact" of her work. The relevant question is not 
the importance of the field or profession in which the individual will work; instead we focus on the 
"the specific endeavor that the foreign national proposes to undertake." See Dhanasar, 26 I&N Dec. 
at 889. In Dhanasar, we further noted that "we look for broader implications" of the proposed 
endeavor. Id. 
In the present matter, the Petitioner's evidence does not show that her proposed work has broader 
implications for her field, as opposed to being limited to the students at the school where she intends 
to teach. While the Petitioner asserts that the United States faces a shortage of special education 
teachers, this reported shortage does not render the work of an individual teacher nationally important 
under the Dhanasar framework.5 In general, the value of qualified teachers to U.S. national educational 
initiatives is collective, and the Petitioner has not shown that her proposed work stands to have wider 
implications in the field of special education. 
The Petitioner's documentation is not sufficient to demonstrate that her proposed endeavor is of 
national importance. While we acknowledge the merits of her work to create a positive learning 
environment and improve her students' academic proficiency, the record does not demonstrate that 
the Petitioner's instructional and case management activities offer benefits that extend beyond her 
school to impact the field of special education more broadly.6 
Because the documentation in the record does not establish the national importance of her proposed 
endeavor as required by the first prong of the Dhanasar precedent decision, the Petitioner has not 
demonstrated eligibility for a national interest waiver. Further analysis of her eligibility under the 
second and third prongs outlined in Dhanasar, therefore, would serve no meaningful purpose. 
IV. CONCLUSION 
The Petitioner has not established eligibility for EB-2 classification as an individual of exceptional 
ability. Furthermore, as she has not met the requisite first prong of the Dhanasar analytical framework, 
5 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. 
6 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. Id. at 893. 
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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 appeal is dismissed. 
Cite as Matter of J-M-R-P-, ID# 1728093 (AAO Nov. 5, 2018) 
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