dismissed EB-2 NIW Case: Biochemistry And Molecular Biology

U.S. Citizenship 
and Immigration 
Services 
In Re: 12094251 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAY 20, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a biochemist and molecular biologist, 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 asserts that she 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 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: 
(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 
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 
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, 936 F.3d 868, 2019 WL 4051593 (9th Cir. 2019) (finding USCIS' decision to grant or deny 
a national interest waiver to be discretionary in nature). 
2 
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. 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 held the position of postdoctoral research fellow in the Department 
oft..___~ _ _.LI I Research at the University ofl o • _ I 
where she was "working on a research project regarding the molecular basis o~ I D diseases." The Petitioner submitted a letter dated June 6, 2019, describing her background as a 
researcher. The letter also included information regardi,g her jntentjo~ to continue her "research on 
______ I function," and "investigating the role ofl ..... ____ ....,J function in I land I I 
failure." 
The Director determined that the Petitioner had established the substantial merit and national 
importance of her proposed endeavor and we agree. The Director also concluded that the Petitioner 
had established that she was well-positioned to advance the proposed endeavor. 4 For the reasons 
discussed below, however, we withdraw the Director's determination on this issue. 
The record includes documentation such as the Petitioner's curriculum vitae, academic credentials, 
publications, citations, and letters of recommendation . The Petitioner contends that her education, 
research experience, recommendation letters from others in the field, citation record, service as a peer 
reviewer, and research funding demonstrate that she is well positioned to advance her proposed 
endeavor. 
As it relates to the Petitioner's education, while her degrees render her eligible for the underlying 
EB- 2 visa classification, she has not shown that her academic accomplishments by themselves are 
sufficient to demonstrate that she is well-positioned to advance her proposed endeavor. We look to a 
variety of factors in determining whether a petitioner is well positioned to advance the proposed 
endeavor and education is merely one factor among many that may contribute to such a finding. 
At the time of filing, the Petitioner had "21 peer-reviewed journal articles (11 of them fast-authored)" 
which had "been cited a total of 146 times." From the information in the record, however, none of the 
papers appear to highlight or otherwise distinguish the Petitioner's work from the other cited articles. 5 
Although 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 
3 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
4 Although the Director concluded that the Petitioner met the first and second prongs of the Dhanasa r analysis, on appeal, 
the Petitioner addresses the elements of each of these prongs and asserts a "review of the evidence demonstrating that this 
finding is well supported by the evidence ." 
5 For example, the Petitioner provided a number of "notable citations" of her work, none of which included the entire 
"references" section. In one article, the Petitioner's paper was one of 173 articles the authors cited. 
3 
prong was not based on his citation record. Rather, 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 funding 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. 
The Petitioner also points to her selection as a peer-reviewer for 67 publications. While she provided 
evidence of her completed review "assignments" and a few emails thanking her for her "participation 
in the review process" from one of the journals, she did not provide any documents to demonstrate the 
requirements for selection. Without more, the Petitioner has not demonstrated that the number of 
citations received by her published articles or her review of articles for publication reflects a level of 
interest in her work from relevant parties sufficient to meet Dhanasar's second prong. 
The Petitioner also submitted a number of reference letters which generally include information 
~rding her education, research and publications, including citations. 6 For example,! I 
L_J an associate professor in the Department of1 I at the University 
'7========,---------_......:.w:..:r:..:.it:..:e:..:.s:..:t=h=-at=--t=h:..:.....;e Petitioner's "discovery that applyin~ I 
.,___ __ i========ll...::i=n....::..concert wit~ ldrugs orl I treatments had an even greater 
effect a and that it "induced an increase i cells, which L------..--~-------, 
h 1 t revent the ' a research scientist at the Univysity of I 
Department o describes the Petitioner's "study of a new 
calle ~-----..----h-i_c_h_s_h_e_f_o_u_n_d_"_h_a_s al !effect on several different cell lines 
and also inhibits in mice." She further stated that the research found that I I has 
no negative effects on the body weight and white blood cell levels in test animals," and that "a 
reduction in side-ej-fects coun)ed with the effectiveness of the treatment on a variety of I lcell 
lines indicates that_ hs an effective! I agent." The Petitioner's supervisor, LJ I I Professor and Chair of the Department of Physiology and Co-Director of th~ 
I I Institute at the University ofl l states that 
the Petitioner: 
is tasked with conducting research on the molecular basis for'-----.---------,-----' and 
its role in diseases with a particular emphasis on diseases that affect thr----r-------',-.::..,...::..:..::.:;;;;:__, 
and . At resent the Petitioner] is studying the role of [the]'-- __ __. gen--~ 
in modulating'------~function and the effects of this modulation on disease. [She] is 
undoubtedly an ideal candidate for this research, which is why she was selected for this position 
from among many candidates. 
'--------'I also indicates that the Petitioner "has contributed to the completion of several of our research 
objectives." I I explains that the Petitioner is "so well-suited for this position" due to her 
"documented history of producing excellent research onl I function." While all the letters 
praise the Petitioner and her research history, they do not provide specific examples indicating that the 
Petitioner's findings have affectedl I therapies or that her research has been sufficiently 
implemented, utilized, or otherwise affected her field, consistent with the Dhanasar analysis. 
6 While we may not discuss every letter submitted, we have reviewed and considered each one. 
4 
The Petitioner also asserts that her "research is fonded through~ I grant from the National 
Institutes of Health" and relies on a letter from her su ervisor and a poster presentation at a research 
retreat for her department at the University of as evidence. However, neither the poster, 
which lists the Petitioner and her supervisor,~-- ...... as presenters, nor the letter, identifies the actual 
recipient of the fonding or who was primarily responsible for securing it. In Dhanasar, the record 
established that the petitioner "initiated" or was "the primary award contact on several fonded grant 
proposals" and that he was "the only listed researcher on many of the grants." Id. at 893, n.11. Here, 
the record does not show that the Petitioner (rather than her supervisor,! I for example) was 
mainly responsible for obtaining fonding for the research projects. 
In Dhanasar, we explained that: 
Beyond his multiple graduate degrees in relevant fields, the pet1t10ner has experience 
conducting research and developing computational models that support the mission of the 
United States Department of Defense ("DOD") to develop air superiority and protection 
capabilities of U.S. military forces, and that assist in the development of platforms for Earth 
observation and interplanetary exploration. The petitioner submitted detailed expert letters 
describing U.S. Government interest and investment in his research, and the record includes 
documentation that the petitioner played a significant role in projects fonded by grants from 
the National Aeronautics and Space Administration ("NASA") and the Air Force Research 
Laboratories ("AFRL") within DOD. Thus, the significance of the petitioner's research in his 
field is corroborated by evidence of peer and government interest in his research, as well as by 
consistent government fonding of the petitioner's research projects. The 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. 
Here, the record demonstrates that the Petitioner is a very capable and respected biochemist and 
molecular biologist who has conducted, presented, and published research that is well cited, but does 
not establish that she is well positioned to advance her proposed research. While research adds 
information to the pool of knowledge in some way in order to be accepted for publication, presentation, 
fonding, or academic credit, not every individual who has performed original research will be found 
to be well positioned to advance the 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, and generation of interest among relevant 
parties supports such a finding. Id. at 890. Here, the Petitioner has not sufficiently demonstrated that 
her published and presented work has served as an impetus for progress in her field, affected diagnostic 
or treatment protocols for diseases, generated substantial positive discourse in the industry, or 
otherwise shown that it constitutes a record of success or progress in advancing research for diseases 
related to her research. As the record is insufficient to demonstrate that the Petitioner is well positioned 
to advance her proposed research endeavor, she has not established that she satisfies the second prong 
of the Dhanasar framework. 
As explained above, 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 
5 
certification. Here, the Petitioner claims that she is eligible for a waiver due to the impracticality of 
labor certification, her expertise in the field, and the importance of her research. However, as the 
Petitioner has not established that she is well positioned to advance her proposed endeavor as required 
by the second prong of the Dhanasar framework, she is not eligible for a national interest waiver and 
further discussion of the balancing factors under the third prong would serve no meaningful purpose. 
III. CONCLUSION 
As the Petitioner has not met the requisite second prong of the Dhanasar analytical framework, we 
conclude that she has not established 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, with each 
considered as an independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
6