dismissed EB-2 NIW Case: Special Education

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAR. 29, 2024 In Re: 30376564 
Appeal of Texas 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. See Immigration and Nationality Act (the Act) section 203(b )(2), 8 U.S.C. 
§ l 153(b )(2). The Petitioner also seeks a national interest waiver of the job offer requirement that is 
attached to this EB-2 immigrant classification. See 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 Texas Service Center denied the petition, concluding that although the Petitioner 
qualified for classification as a member of the professions holding an advanced degree, 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 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. Section 203(b )(2)(B)(i) of the Act. 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. 
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 (AAO 2016). Dhanasar states that U.S. Citizenship and Immigration 
Services (USCIS) may, as matter of discretion 1, grant a national interest waiver of the job offer, and 
thus the labor certification, to a petitioner classified in the EB-2 category if the petitioner demonstrates 
that (1) the noncitizen's proposed endeavor has both substantial merit and national importance; (2) the 
noncitizen 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. 
The first prong, substantial merit and national importance, focuses on the specific endeavor the 
noncitizen 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 noncitizen. To determine whether 
the noncitizen 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, progress towards achieving the proposed endeavor, and 
the interest of potential customers, users, investors, or other relevant entities or individuals are also 
key considerations. 
The third prong requires the petitioner to demonstrate that, on balance of applicable factors, it would 
be beneficial to the United States to waive the requirements of a job offer and thus of a labor 
certification. USCIS may evaluate factors such as whether, in light of the nature of the noncitizen' s 
qualification or the proposed endeavor, it would be impractical either for the noncitizen to secure a 
job offer or for the petitioner to obtain a labor certification; whether, in light of the nature of the 
noncitizen's qualification or the proposed endeavor, it would be impractical either for the noncitizen 
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 noncitizen's 
contributions; and whether the national interest in the noncitizen's contributions is sufficiently urgent 
to warrant forgoing the labor certification process. Each of the factors 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. 
II. ANALYSIS 
The Petitioner, a special education teacher, seeks to open a special education support office in Florida 
where she will provide psychopedagogical support, offer consultancy on adapting materials for special 
education, and deliver lectures on education for children with special needs. 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 of a labor certification, would be in the national interest. 
For the reasons discussed below, we conclude that the Petitioner has not sufficiently demonstrated the 
national importance of her proposed endeavor under the first prong of the Dhanasar analytical 
framework. 
1 See also 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 to be 
discretionary in nature). 
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The Director issued a request for evidence (RFE) requesting, among other things, further evidence of 
how the proposed endeavor would be of national importance. In response, the Petitioner provided 
additional documents including recommendation letters, letter of intent, job offer letters, course 
curriculum, and industry reports. In denying the petition, the Director concluded that although 
Petitioner's proposed endeavor has substantial merit, the Petitioner did not establish the national 
importance of her endeavor. The Director also determined that the Petitioner did not establish her 
proposed endeavor has broader implications, has significant potential to employ U.S. workers, and 
that it would broadly enhance societal welfare or cultural or artistic enrichment. Furthermore, the 
Director found that the Petitioner did not provide sufficient evidence to confirm whether her proposed 
endeavor will have substantial positive economic effects, particularly in an economically depressed 
area as contemplated by Dhanasar. Id. at 890. 
On appeal, the Petitioner contends that the Director blatantly misinterpreted and misread her proposed 
endeavor by referencing "a systems and computer engineering" industry in the Director's decision. 
Though the Petitioner is correct, we find the error to have been a harmless one because, as will be 
discussed, the Petitioner has not sufficiently demonstrated her proposed endeavor's national 
importance under the Dhanasar analytical framework's first prong by a preponderance of the 
evidence. 
On appeal, the Petitioner maintains that her proposed endeavor is of national importance because her 
endeavor will have several positive economic and societal impacts. The Petitioner highlights the 
evidence submitted in support of the petition and in response to the RFE to underscore the sufficiency 
of the submitted evidence and maintains that she submitted evidence to demonstrate the proposed 
endeavor's national importance. The Petitioner submits letters indicating interest in investing in her 
work and company as well as job offer letters from two separate companies proposing to hire the 
Petitioner: one offering her a position as a registered behavior technician and the other offering her a 
position as a special education teacher. 
The Petitioner also submits a letter of intent from a rofessor in the de artments of ediatrics and 
cellular & molecular medicine at the The 
professor expresses the interest of a nonprofit laboratory at the department of 
pediatrics, in partnering with the Petitioner in pursuit of her proposed endeavor. The professor 
explains that he supports the Petitioner's application as a special education teacher and business owner. 
However, the letter does not specify the types of services that the Petitioner will provide to the 
nonprofit as a special education teacher and business owner. 
The author of the expert opinion letter submitted by the Petitioner in support of her petition emphasizes 
the Petitioner's extensive experience as an educator and underscores the significance of education, 
particularly for children with special needs. The author proclaims that the Petitioner's proposed 
endeavor will generate direct job opportunities and is a matter that a government entity has described 
as having national importance. In addition, the record includes various industry reports including 
articles discussing special education services in the United States, the challenges students with autism 
face in classrooms, and government initiatives aimed at enhancing services for children with 
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intellectual disabilities. The record therefore demonstrates that the Petitioner's proposed endeavor 
aimed at teaching students with special needs has substantial merit. 
To evaluate whether the Petitioner's proposed endeavor satisfies the national importance requirement, 
we look to evidence documenting the "potential prospective impact" of the Petitioner's work. While 
the Petitioner's business plan reflects her intention to operate a business that aims to provide special 
education services, the Petitioner has not offered sufficient information and evidence to demonstrate 
that the prospective impact of her proposed endeavor rises to the level of national importance. 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. Here, the 
record does not include adequate corroborating evidence, to show that the Petitioner's specific 
proposed work as a special educator offers broader implications in her field, enhancements to U.S. 
societal welfare, or substantial positive economic effects for the country that rise to the level of 
national importance. 
Though we acknowledge the Petitioner's assertions and the evidence she submitted in support of her 
petition, we conclude that the Petitioner has not shown her proposed endeavor stands to sufficiently 
extend its benefits beyond her immediate students and customers to enhance societal welfare on a 
broader scale indicative of national importance. 
The first prong focuses on the proposed endeavor itself: not the petitioner. Id. The Petitioner must 
establish that her specific endeavor has national importance under Dhanasar 's first prong. The 
Petitioner has not shown that the specific endeavor she proposes to undertake has significant potential 
to employ U.S. workers or otherwise offers substantial positive economic effects for the United States. 
While the Petitioner projects that her proposed endeavor will offer 610 jobs per year for special education 
teachers and gamer a net revenue of $260,201.60 in year one and $413,936 in year five, she has not 
presented evidence indicating that the benefits to the regional or national economies resulting from her 
undertaking would reach the level of"substantial positive economic effects" contemplated by Dhanasar. 
Id. at 890. 
While the Petitioner also asserts that her company will generate job opportunities across various 
sectors, thereby contributing to the country's economy, she has not demonstrated that her undertaking 
has implications beyond the students under her tutelage and her customers. Nor has the Petitioner 
shown that her proposed endeavor has significant potential to employ U.S. workers or otherwise offers 
substantial positive economic effects for the country. Without sufficient information or evidence 
regarding any projected U.S. economic impact or job creation attributable to her future work, the 
record does not indicate that the benefits to the regional or national economy resulting from the 
Petitioner's teaching activities would reach the level of "substantial positive economic effects" 
contemplated by Dhanasar. Id. at 890. 
It is insufficient to claim an endeavor has national importance or will create a broad impact without 
providing evidence to corroborate such claims. The Petitioner must support her assertions with 
relevant, probative, and credible evidence. See Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 
2010). 
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For the aforementioned reasons, the Petitioner's proposed work does not meet the first prong of the 
Dhanasar framework. 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. Since this issue is dispositive 
of the Petitioner's appeal, we decline to reach and hereby reserve the appellate arguments regarding 
her eligibility under the second and third prongs outlined in Dhanasar. See INS v. Bagamasbad, 429 
U.S. 24, 25 (1976) ("courts and agencies are not required to make findings on issues the decision of 
which is unnecessary to the results they reach"); 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 is otherwise ineligible). 
III. CONCLUSION 
As the Petitioner has not met the Dhanasar analytical framework's requisite first prong, we conclude 
that she has not established 
that she is eligible for or otherwise merits a national interest waiver as a 
matter of discretion. The appeal will be dismissed for the above stated reasons. 
ORDER: The appeal is dismissed. 
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