dismissed EB-2 NIW Case: Analytical Chemistry

U.S. Citizenship 
and Immigration 
Services 
In Re: 11911842 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 28, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, an analytical chemist, 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 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) . 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner qualified 
for classification as a member of the professions holding an advanced degree, but that he 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 additional documentation and a brief asserting that he is eligible for 
a national interest waiver. 
In these proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit 
sought. Section 291 of the Act, 8 U.S.C. § 1361. 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) of the Act sets out this sequential framework: 
(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 ofjob 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. 
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 I&N Dec. 884 (AAO 2016). 1 Dhanasar states that after a petitioner has established 
eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) may, as matter 
of discretion 2, 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. 
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 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 
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) (NYSDOT). 
2 See also Poursina v. USC1S. No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or 
deny a national interest waiver to be discretionary in nature). 
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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. 3 
II. ANALYSIS 
The Director found that the Petitioner qualifies as a member of the professions holding an advanced 
degree. 4 The remaining issue to be determined 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. At the 
time of filing, the Petitioner was working as a research scientist ad I l7 5 He previously served in research assistant positions while attending the Universid ___ ..... 
~d the University I I from 2011 - 2017 . 
At initial filing, regarding his claim of eligibility under Dhanasar 's first prong , the Petitioner asserted: 
[He] proposes to continue his research on the development ofl I sensors, robust 
algorithms, and efficient platforms for understanding , analyzing and detecting 
chemicals in a I I environment . . . . His research in his area is of reat 
importance because it hel~s in the development ofl I based on 
I _ I for effectively deTcting
1
1 I such as----~ 
[ in the human body . is a highly sensitive technique 
that allows the detection of molecules in very low concentrations and provides rich 
structural information that not only helps in preventing various diseases but also assists 
in the development of new drugs and medical devices ... .I I are widely used in a 
variety of sectors and its capability of enhancing productivity and analytical operation 
has resulted in an increased demand in ma~or arrs of industry includin healthcare 
I I food safety testing, and development. [His] ....__...,.... __ ...., 
research helps in addressing this increased demand through the development o 
for detecting chemicals and applying! !methods to understand the ch._e_m_1_· c_a ..... l 
and physical behavior ofc==:] during their screening, development, formulation, and 
manufacturing stage. 
In support of his claims , the Petitioner pointed to a job letter fromc=]reflecting a general overview 
of the job duties for a "Research Scientist I" position and a report from,marketwatch.com regarding 
the growth of thd I market. Pertaining to the substantial merit of his proposed endeavor, he 
referenced advisory opinion letters from! landl ~ho discussed the 
3 See Dhanasar , 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
4 The Petitioner received a Ph.D. in chemistry from the University o~ I in January 2018. 
5 As the Petitioner is applying for a waiver of the job offer requirement , it is not necessary for him to have a job offer from 
a specific employer. However , we will consider information about his current position to illustrate the capacity in which 
he intends to work in order to determine whether his proposed endeavor meets the requirements of the Dhanasar analytical 
framework. 
3 
Petitioner's previous research and work with0 6 For instanceJ lindicated that the Petitioner 
"has develoP.ed a novel sensor with hei htened sensitivit and selectivity that allows for 
an increased.__ ___________ ..,-----,__ ________ ____, and "has developed 
a method more suitable in the detection of .......... __ ~.than the original gold standards." I = I 
stated that the Petitioner "has successfully developed a novel I lsensor for the 
I I detection of I I in living cells with higher sensitivity, efficiency, and 
selectivity than other sensors." In addition, the Petitioner argued that his proposed endeavor had broad 
implications in the field and presented statistics relating to.__ ___________ ~ and a 
document from the U.S. Department of Health and Human Services regarding the risk of cancer from 
exposure tq I . 
In arguing the national importance of his proposed endeavor, the Petitijner aga~n cited to the letters 
froml landl lwho discussed his past research. For example tated that "[t]hrough 
the utilization of his method, researchers are now more able to mitigate the adverse effects ofl I 
and risk of cancer," and! I indicated that "[t]hrough rigorous research, [the Petitioner. has 
developed a new I _ I strategy that plays a key role in the early diagnosis o ~-~ and 
I I monitoring, offering the United States scientific community and medical industry an 
invaluable opportunity." In general, the Petitioner's previou~ I research and findings relate 
to the second prong of the Dhanasar framework, which "shifts the focus from the proposed endeavor to 
the foreign national." Id. at 890. The issue here is whether the specific endeavor that he proposes to 
undertake has national importance under Dhanasar's first prong. In this case, the Petitioner broadlv 
claimed that he would continue his research and referenced general statistics o~ ] 
and I I and a document relating tol I The Petitioner did not differentiate his past 
research from his prospective endeavor. Furthermore, the Petitioner did not demonstrate the nexus 
between his proposed endeavor and the possible impact on .__ ___________ __, and 
I ~hat might show its national importance. 
In response to the Director's request for evidence (RFE), the Petitioner reiterated his ast research, 
such as "[the Petitioner] has been instrumental in the development of sensors that 
effectively detect even very small concentrations o±1 I and.__ _ ___. in the human 
body," "[the Petitioner's] research provides and effective tool for monitoring importa~n_,tl __ ..--_ _. 
in the blood that provide researchers and clinicians with an improved understanding ofl I," and 
" the Petitioner's] development of this sensor provides an outstanding tool for the detection of 
.__ __ __. in the human body." 7 Moreover, the Petitioner referenced the marketwatch.com article and 
claill).ed that "ft ]he improvements that [he] has made through his development of effective and 
I _ sensors naturally benefit the market fotj I devices." Again, the Petitioner 
made arguments relating to his past research rather than how his proposed endeavor would be 
nationally important. Further, the Petitioner did not explain or demonstrate how his proposed 
endeavor would impact thd lmarket. 
In addition, the Petitioner submitted in response to the Director's RFE his personal statement listing 
three current projects: 1) comprehensive identification of the I I population present in 
6 The record contains additional recommendation letters from .... I ____ ___.I and.__ ______ ~who also 
addressed the Petitioner's priori I research and work. 
7 The Petitioner also submitted an updated employment letter that praised him for his professional accomplishments at 
I I 
4 
I !products and their manufacturing processes , 2) developin non-invasive and inno vative 
I I method to characterize thel I structure of products, and 3) 
developing non-in vasive I I method to monito _,__ ____ _.. The Petitioner's statement 
did not address the national importance of his initial claims, nor did it demons'trate the connection 
between his research projects and I I orl I In fact, the Petitioner 
discussed entirely new research relating td I ~tructure o~ I 
products, and I I Eligibility must be established at the time of filing. 8 C.F .R. 
§§ 103.2(b)(l) , (12); Matt er of Katigbak , 14 I&N Dec . 45, 49 (Reg 'l Cornm 'r 1971). A petition cannot 
be approved at a future date after the petitioner becomes eligible under a new set of facts. Matt er of 
Izummi , 22 I&N Dec. 169, 175 (Comm'r 1998). That decision further provides, citing Matter of 
Bardouill e, 18 l&N Dec. 114 (BIA 1981 ), that USCIS cannot "consider facts that come into being 
only subsequent to the filing of a petition ." Id. at 176. Regardle ss, the Petitioner submitted screenshots 
from I I and! I highlighting statistics for the overall! I market and 
I !expenditure . The Petitioner did not show the connection between these general figures 
and his revised proposed endeavors. 
the Petitioner contends his past research and findings , such as "we included statistics from 
,..........._ ________ __, pertaining to I Is disease, a condition that [his] research on 
-----.--~------ sensors was effecti ve in helping to diagnose " and his '1 I 
.....__ ..... sensor was effective in detecting! t' (ef11obasis adc;led). In addition, the Petitioner 
references the previously discussed letters froml.._ _ __,~nd .... __ ____.J"highlight[ing] the public health 
threats posed b~ I andl I respectively, thus providing additional evidence of the critical 
value of [his] research on I I detection development to national interests." 
Again , the Petitioner 's argument s relate to his previous research rather than his initial proposed 
endeavor. The Petitioner also submits a document entitled , ! I 
~----------- ' by the Congressional Research Service arguing that "this level of 
interest by itself suggests that the benefits of safer treatments are undoubtedly considered substantial." 
The document , however, pertains to the Food and Drug Administration 's approval process without 
specifically showing the government's interest in the Petitioner 's proposed research. 
To evaluate whether the Petitioner 's proposed endeavor satisfies the national importance requirement , 
we look to evidence documenting the "potential prospecti ve impact" of bis work. Althou gh he relies 
on his past research and work , the Petition er has not offered sufficient infonnation and evidence to 
demon strate that the pro spective impact of his propo sed endeavor rises to the level of national 
importance. Because the document ation in the record does not establish the national importance of his 
proposed endeavor as required by the first prong of the Dhanasa r precedent decision , the Petitioner has 
not shown eligibility for a national interest waiver. Further analysis of his eligibility under the second 
and third prongs outlined in Dhanasar, therefore , would serve no meaningful purpose. 
III. CONCLUSION 
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework , we conclude 
that he has not established his eligibility for or otherwise merits a national intere st waiver as a matter 
of discretion . The appeal will be dismissed for the above stated reasons , with each considered as an 
independent and alternate basis for the decision. 
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ORDER: The appeal is dismissed. 
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