dismissed EB-2 NIW Case: Astrophysics

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: NOV. 26, 2024 In Re: 34817033 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner 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. § 1 l 53(b )(2). 
The Director of the Texas 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. The matter is now before us on appeal. 
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 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 I&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; 
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in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver is discretionary 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). 
• The individual is well positioned to advance their proposed endeavor; and 
• On balance, waiving the job offer requirement would benefit the United States. 
Id. 
II. ANALYSIS 
The Director found that the Petitioner qualifies as a member of the professions holding an advanced 
degree. 2 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. 3 
With respect to his proposed endeavor, the Petitioner asserted that he plans to "continue investigating 
the topological features of astrophysical magnetic fields in order to provide fundamental insights into 
physical systems and plasma dynamics with applications in nuclear power, semiconductors, and 
satellite technology." He further indicated that he intended to "study renormalization group theory as 
it applies to Lagrangian particle histories and its applications for fluid mechanics, plasma physics, and 
astrophysics." The record indicates that the Petitioner worked as a post-doctoral researcher atl I 
after receiving his Ph.D. in 2018.4 He filed the Form 1-140, Immigrant 
Petition for Alien Workers, in August 2020. 
A Substantial Merit and National Importance of the Proposed Endeavor 
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. 
In his decision denying the petition, the Director determined that the Petitioner had demonstrated both 
the substantial merit and national importance of his proposed endeavor. The record supports this 
conclusion. For example, the Petitioner has submitted documentation indicating that the benefit of his 
proposed research has broader implications for the field, as the results are disseminated to others in 
the field through scientific journals and conferences. Accordingly, we agree with the Director that the 
Petitioner meets the first prong of the Dhanasar framework. 
2 The record indicates that the Petitioner received a Ph.D. in Physics and Astronomy from m 2018. 
3 The Director determined that the Petitioner did not meet the second and third prongs of the Dhanasar analytical 
framework. To establish that it would be in the national interest to waive the job offer requirement, a petitioner must go 
beyond showing their expertise in a particular field. The regulation at 8 C.F.R. § 204.5(k)(2) defines "exceptional ability" 
as "a degree of expe1iise significantly above that ordinarily encountered" in a given area of endeavor. By statute, 
individuals of exceptional ability are generally subject to the job offer/labor certification requirement; they are not exempt 
by virtue of their exceptional ability. Therefore, whether a given petitioner seeks classification as an individual of 
exceptional ability, or as a member of the professions holding an advanced degree, that individual cannot qualify for a 
waiver just by demonstrating a degree of expertise significantly above that ordinarily encountered in their field of expertise. 
See Dhanasar, 26 I&N Dec. at 886 n.3. 
4 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. 
2 
B. Well Positioned to Advance the Proposed Endeavor 
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. Dhanasar, 
26 I&N Dec. at 890. 
The record includes documentation of the Petitioner's curriculum vitae, Ph.D. degree, published and 
presented work, peer review service, and August 4, 2020 postdoctoral fellowship appointment letter 
offering him a position at The Petitioner also offered evidence of articles that cited to his 
published work, citation metrics, and letters of support discussing his graduate and postdoctoral 
research under the guidance of Dr. I research professor at and the Petitioner's 
Ph.D. advisor,5 and Dr. la professor of applied mathematics and statistics at 
We will adopt and affirm the Director's determination that the Petitioner did not demonstrate he is 
well positioned to advance the proposed endeavor. See Matter of Burbano, 20 l&N Dec. 872, 874 
(BIA 1994); see also Prado-Gonzalez v. INS, 75 F .3d 631, 632 (11th Cir. 1996) Goining "every court 
of appeals that has considered this issue" holding that an appellate body may affirm the lower court's 
decision for the reasons set forth therein); Giday v. INS, 113 F.3d 230, 234 (D.C. Cir. 1997) (noting 
the practice of adopting and affirming the decision below has been "universally accepted by every 
other circuit that has squarely confronted the issue"); Gomez-Mejia v. INS, 56 F.3d 700, 702 (5th Cir. 
1995). 
The Director 's decision gave individualized consideration to the evidence the Petitioner submitted 
with the initial petition and in response to the Director's request for evidence (RFE). 6 We agree with 
the Director's well-reasoned decision that the Petitioner does not qualify for a national interest waiver. 
As the Director correctly concluded, the evidence in the record did not sufficiently demonstrate 
whether the Petitioner's progress towards achieving the goals of the proposed research, his record of 
success in similar efforts, or generation of interest among relevant parties supported his positioning to 
advance the proposed endeavor. 
The Petitioner contends on appeal that the Director did not properly evaluate evidence in the record, 
and that this evidence establishes he is well positioned to advance the proposed endeavor. The 
Petitioner further contends that the Director did not properly analyze his published and presented work, 
citation evidence, letters of support, education, and peer review service. 
Additionally, the Petitioner argues that the Director erred in not considering evidence that post-dates 
the filing of the petition. Eligibility, however, must be established at the time of filing. The regulation 
at 8 C.F.R. § 103.2(b)(l) states that a petitioner must establish that they are "eligible for the requested 
benefit at the time of filing the benefit request." In addition, the regulation at 8 C.F.R. § 103.2(b)(12) 
5 The Petitioner 's four most-cited research articles were coauthored with Dr. ---
6 While we may not discuss every document submitted, we have reviewed and considered each one. 
3 
provides that "[a] benefit request shall be denied where evidence submitted in response to a request 
for evidence does not establish filing eligibility at the time the benefit request was filed." See also 
Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). A petition cannot be approved at a 
future date after the petitioner becomes eligible under a new set of facts. Matter ofIzummi, 22 I&N 
Dec. 169, 175 (Comm'r 1998). That decision further provides, citing Matter ofBardouille, 18 I&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. 
The Petitioner asserts that the text of Dhanasar requires USCIS "to look forward into the future" to 
evaluate if they are well positioned to advance their proposed endeavor under the second prong of the 
Dhanasar analytical framework. A proposed endeavor's potential prospective, or future impact is a 
consideration under Dhanasar 's first prong, not the second prong at issue here. See Dhanasar, 26 
I&N Dec. at 889. The second prong of Dhanasar shifts the focus from the proposed endeavor to a 
petitioner's qualifications rendering them well positioned to advance the prospective proposed 
endeavor. Id. at 890. The Petitioner must establish his eligibility under these factors contained in 
Dhanasar 's second prong 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 at the time of filing. See 8 C.F.R. § 103.2(b)(l), (12). 
For the reasons discussed below, the record supports the Director's determination that the evidence is 
insufficient to demonstrate that the Petitioner is well positioned to advance his proposed endeavor 
under the second prong of the Dhanasar analytical framework. 
In letters supporting the petition, the Petitioner's references discussed his research projects at 
involving stochastic magnetic reconnection in plasmas. The Director's decision provided a thorough 
discussion of these letters of support. The Petitioner asserts on appeal that the Director decision 
disregarded information in the letter from Dr. I I professor at the I I 
I Iwho stated: 
[The Petitioner] offered a theoretical perspective that is important to the study of jet 
formations. Based on current theories of jet formation, [the Petitioner] found that 
cataclysmic variables should be unlikely to launch astrophysical jets. Yet, recent 
observations found that cataclysmic variables do indeed launch jets. Therefore, [the 
Petitioner's] perspective is vital because it challenges current theories ofjet formation. 
We thus highlighted his research and reiterated his argument that established theories 
must be revised to accommodate recent observations regarding cataclysmic variables. 
While the Petitioner's work involving cataclysmic variables and jet formations has contributed 
knowledge to an active field of research, he has not sufficiently demonstrated that his findings 
constitute a record of success or progress rendering him well positioned to advance his proposed 
endeavor. 
The Petitioner also points to a letter from Dr. I I professor at _______ who 
indicated that the Petitioner "and his colleagues . . . outlined important advancements in turbulent 
plasmas in astrophysics and laboratory plasmas." Dr.Ofurther stated that "[t]heir line ofresearch is 
4 
notable for introducing novel concepts like stochastic flux freezing while challenging classical studies 
like the Alfven theorem in magnetohydrodynamics," but the Petitioner has not shown that his work 
shows success or progress at a level that renders him well positioned to advance his proposed 
endeavor. 
In addition, the Petitioner mentions a letter from Dr] I, an astrophysicist at 
_________ who stated that the Petitioner developed "a statistical formalism to analyze 
random behavior of magnetic fields and fluid motions in astrophysical environments. This research 
is notable because astrophysical magnetic fields are known for their complexity, for example, due to 
turbulence which is ubiquitous in astrophysics." While Dr.I !describes the Petitioner's work 
as notable, the Petitioner has not shown that his level of research success is sufficient to demonstrate 
he is well positioned. 
The Petitioner contends that his coauthored research articles were "featured in top journals in the field" 
such as Astrophysical Journal, Physics of Plasmas, Journal of Applied Physics, Journal of 
Mathematical Physics, and Physical Review E. That a publication bears a high journal ranking or 
impact factor is reflective of the publication's overall citation rate. It does not, however, show the 
influence of any particular author or otherwise demonstrate how an individual's research represents a 
record of success in their field. 
As it relates to the citation of the Petitioner's work, the Petitioner provided his Google Scholar profile 
from August 2020. The August 2020 information from Google Scholar indicates that his four highest 
cited articles, entitled 
(2020), 1 1(201 8), 
I I (2018), andI . 
(2019) each received 19, 15, 14, and 13 citations, respectively. 7 The Petitioner does not specify how 
many citations for each of these individual articles were self-citations by him or his coauthors. In 
response to the Director's RFE, the Petitioner provided a December 2023 Google Scholar profile 
listing additional citations his published articles received that post-date the August 12, 2020 filing of 
the petition. 8 These later citations provided in response to the RFE do not establish his eligibility at 
the time of filing. See 8 C.F.R. § 103.2(b)(l), (12). 
The Petitioner also provided January 2020 data from Clarivate Analytics (InCites Essential Science 
Indicators) regarding baseline citation rates and percentiles by year of publication for the physics 
research field. The Petitioner contends on appeal that his highest cited paper ( coauthored with Dr. 
I I Dr. I I and four others and published in 2020), entitled 
ranked "among the top 0.01 % of the most-cited papers 
in Physics in 2020." The Petitioner did not indicate whether he factored in any self-citations in 
determining this percentile ranking. In addition, because the Petitioner has not shown that the January 
2020 Clarivate Analytics data is contemporaneous with the Petitioner's August 2020 Google Scholar 
information, he has demonstrated that the former provides a proper analysis of his citation record. 9 
7 None of the Petitioner's remaining articles were cited to more than eight times as of August 2020. 
8 For example, the citation counts for his four highest cited articles as of December 2023 had increased to 147, 19, 17, and 
16 citations. None of the Petitioner's remaining articles were cited to more than ten times as of December 2023. 
9 A January 10, 2020 webpage accompanying the Clarivate Analytics information states that its citation "data is updated 
six times a year" (every two months). 
5 
Moreover, the documentation from Clarivate Analytics states that "[c ]itation frequency is highly 
skewed, with many infrequently cited papers and relatively few highly cited papers. Consequently, 
citation rates should not be interpreted as representing the central tendency of the distribution." 
Regardless, the Petitioner has not established that his co-authorship of one highly cited paper with his 
research supervisors automatically demonstrates his record of research success or otherwise renders 
him well positioned. 
Additionally, the Petitioner presented an article in Scientometrics written by Lutz Bornmann and 
Werner Marx, entitled "How to evaluate individual researchers working in the natural and life sciences 
meaningfully? A proposal of methods based on percentiles of citations." This article presents 
recommendations for "how to evaluate individual researchers in the natural and life sciences" for 
purposes of funding and promotion or hiring decisions. The authors state that "publications which are 
among the 10% most cited publications in their subject area are as a rule called highly cited or 
excellent" and that "the top 10% based excellence indicator" should be given "the highest weight when 
comparing the scientific performance of single researchers." While the authors offer proposed 
methods for bibliometric analysis of research performance, the record does not indicate that their 
methods have been accepted and implemented by the academic community. Moreover, with respect 
to citation information from Google Scholar, the authors advise against "using Google Scholar (GS) 
as a basis for bibliometric analysis. Several studies have pointed out that GS has numerous 
deficiencies for research evaluation." 
Furthermore, the Petitioner's RFE response included OpenAlex author metrics which he claims 
compares his citation impact to that of other physics researchers. This information lists the "Years 
Covered" as "2013-2023" and "Date of Collection" as "2022-05-0 l" and therefore it does not establish 
the Petitioner's eligibility at the time of filing. See 8 C.F.R. § 103.2(b)(l), (12). Moreover, regarding 
the Petitioner's citation metrics from both OpenAlex and Clarivate Analytics, he relies on citation 
information concerning the larger field of physics and compares his citation frequency in theoretical 
physics to that of the larger field. While the Petitioner correctly points out that theoretical physics is 
part of the larger field of physics, he did not submit sufficient evidence confirming that information 
extrapolated from the larger field applies equally to each subfield within physics, including theoretical 
physics. 10 Thus, the Petitioner's comparison of his Google Scholar citation data in his field with 
information regarding citation in the larger field of physics does not sufficiently establish the level of 
his impact or research success in the field of theoretical physics. 
Regardless, citation frequency which is quantitative in nature does not reveal the reasons for the 
citations, which involve a qualitative analysis. In other words, a high citation number might show that 
others in the field have noticed the Petitioner's work, but it does not confirm that his work has impacted 
or advanced the field of theoretical physis in such a way that renders him well positioned. Further, 
the Petitioner has not demonstrated that the number of citations received by his published articles at 
the time of filing reflects a level of interest in his work from relevant parties sufficient to meet 
Dhanasar 's second prong. 
10 The appellate submission includes "Scope Notes" from Clarivate Analytics stating: "Physics includes journals covering 
articles from all areas of physics and the following subfields: mathematical physics, particle nuclear physics, physics of 
fluids and plasmas, quantum physics, theoretical physics, chemical physics, applied physics, condensed matter physics. 
physics of materials, and optics and acoustics." 
6 
The Petitioner argues on appeal that he has a stronger citation record than Dr. Dhanasar, the petitioner 
in our Dhanasar precedent decision. While we listed Dr. Dhanasar's "publications and other 
published materials that cite his work" among the documents he presented, our determination that he 
was well positioned under the second prong was not based on his citation record. Rather, in our 
precedent decision we found "[t]he petitioner's education, experience, and expertise in his field, the 
significance of his role in research projects, as well as the sustained interest of and fonding from 
government entities such as NASA and AFRL, position him well to continue to advance his proposed 
endeavor of hypersonic technology research." Id. at 893. 
Moreover, as it relates to the Petitioner's education, while his Ph.D. degree renders him eligible for 
the underlying EB-2 visa classification, he has not shown that his academic accomplishments by 
themselves are sufficient to demonstrate that he is well positioned to advance his proposed endeavor. 11 
In Dhanasar, the record established that the petitioner held multiple graduate degrees including "two 
master of science degrees, in mechanical engineering and applied physics, as well as a Ph.D. in 
engineering." Id. at 891. We look to a variety of factors in determining whether a petitioner is well 
positioned to advance his proposed endeavor and education is merely one factor among many that may 
contribute to such a finding. 
Regarding the Petitioner's plan for future activities, he stated: 
I am currently in the job market and searching for an academic position in the U.S .... 
I have continued to conduct research as a postdoctoral fellow and also supervise 
undergraduate and graduate students, publishing original research papers in top ranking 
journals. Thus, I have high prospects for getting hired as a professor/lecturer. I have 
already applied for several such positions. The hiring process in academia usually takes 
place in the late fall/early winter and I hope I will soon hear from some of my job 
applications which are still under review. 
An example of my job applications, currently under review, is the tenure-track position 
at the Assistant Professor rank in Theoretical Astrophysics at the Department of 
Physics, I. . . . All in all, this position at the Physics 
Department at I I is ideal to advance my proposed endeavor due to the 
department's focus on at least two major research areas of physics in both of which I 
am an expert. 
With respect to the Petitioner obtaining a future professor/lecturer position at a U.S. university or 
research institution, he did not provide documentation from any such organization showing their 
communications or identifying the specific research projects he intends to pursue on the organization's 
11 "USCIS considers an advanced degree, particularly a Doctor of Philosophy (Ph.D.), in a STEM field tied to the proposed 
endeavor and related to work fmihering a critical and emerging technology or other STEM area important to U.S. 
competitive or national security, an especially positive factor to be considered along with other evidence for purposes of 
the assessment under the second prong." See generally 6 USCIS Policy Manual, F.5(D)(2), https://www.uscis.gov/policy­
manual. A degree in and of itself: however, is not the only factor we consider in determining if a person is well positioned 
to advance their proposed endeavor. Id. 
7 
behalf. Without sufficient evidence demonstrating the means or financial support to undertake his 
proposed research in the United States, the Petitioner has not demonstrated that his plan for future 
activities renders him well positioned to advance the proposed endeavor. 12 
Regarding his peer review activity, the Petitioner provided letters of support indicating that he 
reviewed papers for the Midwest Magnetic Fields Workshop, journals of the American Astronomical 
Society, and Physics of Plasmas. The Petitioner, however, has not demonstrated that his occasional 
participation in the widespread peer review process represents a record of success in his field or that it is 
otherwise an indication that he is well positioned to advance his research endeavor. 
The record demonstrates that the Petitioner has conducted, published, and presented research during 
his graduate studies and postdoctoral training, but he has not shown that this work renders him well 
positioned to advance his proposed research. While we recognize that research must add information 
to the pool of knowledge in some way to be accepted for publication, presentation, funding, or 
academic credit, not every individual who has performed original research will be found to be well 
positioned to advance their proposed endeavor. Rather, we examine the factors set forth in Dhanasar 
to determine whether, for instance, the individual's progress towards achieving the goals of the 
proposed research, record of success in similar efforts, or generation of interest among relevant parties 
supports such a finding. Id. at 890. The Petitioner, however, has not sufficiently demonstrated that 
his graduate and postdoctoral work constitutes a record of success or progress in theoretical physics 
research rendering him well positioned to advance his proposed endeavor. As the Petitioner has not 
demonstrated that is well positioned to advance his proposed research endeavor, he has not established 
that he satisfies the second prong of the Dhanasar framework. 
III. CONCLUSION 
Because the documentation in the record does not establish that the Petitioner is well positioned to 
advance the proposed endeavor as required by the second prong of the Dhanasar precedent decision, he 
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 his 
eligibility under the third prong outlined inDhanasar. 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 of L-A-C-, 26 I&N Dec. 516, 526 n.7 (BIA 
2015) (declining to reach alternative issues on appeal where the applicant did not otherwise meet their 
burden of proof). 
As the Petitioner has not met the requisite second prong of the Dhanasar analytical framework, we 
conclude that he has not established he 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, with each considered 
as an independent and alternate basis for the decision. 
12 For example, the Petitioner did not offer evidence showing that he has received funding for his research proposals or 
future projects. In Dhanasar, the record established that the petitioner "initiated" or was "the primary award contact on 
several funded grant proposals"and that he was "the only listed researcher on many of the grants." Id. at 893, n.11. 
Regarding his work at the record does not show that the Petitioner (rather than Dr. _ or Dr.c=] was mainly 
responsible for obtaining funding for their research projects. 
8 
ORDER: The appeal is dismissed. 
9