dismissed EB-2 NIW Case: Bioethics

U.S. Citizenship 
and Immigration 
Services 
In Re: 17291590 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : SEPT . 3, 2021 
Form I-140 , Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a bioethicist, 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 
employment based "EB-2" immigrant classification. See section 203(b )(2)(B)(i) of the Act. 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 the Petitioner qualifies 
for classification as an individual of exceptional ability, 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. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
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). Dhanasar states that after a petitioner has established 
eligibility for EB-2 classification, USCIS may, as a matter of discretion, 1 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, regarding 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 
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 
1 See also Poursina v. USC1S. 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
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to waive the requirements of a job offer and thus of a labor certification. See Dhanasar, 26 I&N Dec. 
at 888-91, for elaboration on these three prongs. 
II. ANALYSIS 
The record demonstrates that the Petitioner qualifies as a member of the professions holding an 
advanced degree. His occupation qualifies as a profession, and he holds a foreign degree equivalent 
to a U.S. Ph.D. in biomedical sciences fro~ IUniversityc=]in Belgium. Therefore, we 
need not consider the alternative claim of exceptional ability. 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. 
After working as a pharmacist for several years, the Petitioner attended graduate school to study 
bioethics, earning a master's degree atl I University in Sweden and a doctorate at D The 
Petitioner trained atl V, first as a doctoral student and then 
as a postdoctoral fellow, until 2016. He then entered the United States to work as a postdoctoral 
researcher at the University,__ __ ~----- He still held that position when he filed the 
petition in December 2018. In 2019, he began working as a clinical ethics fellow and adjunct professor 
at the I I at I ts University c::=\ I I 
On appeal, the Petitioner asserts that he divides his time between theLJ and a research 
,__as-s-is-t-an-t-sh_i_p~for th~ !center for Ethics atl I University. 
As outlined below, we agree with the Director that the Petitioner has not sufficiently demonstrated 
eligibility for a national interest waiver under the Dhanasar analytical framework. 
In a statement submitted with the initial filing of the petition, the Petitioner states that his "main areas 
ofresearch interest and focus are .... ethics of global health research and clinical or healthcare ethics." 
In this initial statement, the Petitioner indicates that, upon completion of his postdoctoral fellowship 
atl ~ he will soon begin a clinical ethics fellowship at the I I Cancer Center in 
I ;exas, which will involve "practical training in clinical ethics and conflict resolution in the 
hospital." The Petitioner states that he looks forward to "the opportunity of working as an ethics 
consultant after the fellowship and contributing to patient care in hospital settings." He does not 
specify whether he intends to continue working "in hospital settings" after completing the fellowship. 
He asserts that his "career goal is to be a faculty [member] in a university involved in teaching, research 
and ethics consultation." 
The Director concluded that the Petitioner met the first prong of the Dhanasar framework, regarding 
intrinsic merit and national importance. We need not revisit this issue in detail because other 
deficiencies prevent approval of the petition. 
A. Well Positioned to Advance the Proposed Endeavor 
The Petitioner must meet all eligibility requirements at the time of filing the petition. 8 C.F.R. 
§ 103.2(b)(l). The Petitioner must therefore show that, at the time he filed the petition in December 
2018, he was well positioned to work as an ethics consultant and as a university faculty member. 
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The Petitioner possesses education consistent with the proposed endeavor, but his training was still 
incomplete when he filed the petition. The Petitioner indicated that his fellowship in Texas would add 
to his preparation and give him hospital experience, but the record shows that the Petitioner never 
undertook that fellowship. The Petitioner has not provided specific information to establish that, at 
the time of filing, he was well positioned for work in a hospital setting as initially stated. 
In a supplemental statement, submitted in response to a request for evidence, the Petitioner states: "at 
thel Ir am the head ofresearch projects .... My teaching responsibility 
as an Adjunct Professor has also given me the expertise and skills to advancl my rreer in the field of 
bioethics and global health." The Petitioner describes his work at the ate=] including 
responsibilities that appear to be specific to his temporary position there. He states that he is "the head 
ofresearch projects overseeing and coordinating the student fellows' projects and organizing monthly 
research club meetings where fellows present and discuss their research work." 
Any training and experience that the Petitioner received at~ cannot show that he was well 
positioned to advance the proposed endeavor as of the petition's filing date, because his work atD 
occurred after that date. The submitted materials show that, ate=] the Petitioner supervised research 
projects by undergraduate students and fellows, but in terms of his own research, he remained under 
the supervision of a mentor atl I This continuing oversight does not establish that, at the time 
of filing the petition, the Petitioner was well positioned to undertake independent research. He was 
still undergoing training which, as described on appeal, continued for at least another two years. 
Specifically, the Petitioner's appeal includes a description of part-time research duties forl I 
( while the Petitioner remains in I I rather than I b. A I I professor 
involved in the research states that the Petitioner's "work and experience on this project coupled with 
his role as a Clinical Ethics Fellow/Adjunct Professor atl I has ... set him up 
well to advance his career." As noted, all of this experience occurred after the filing date and cannot 
establish the Petitioner's eligibility as of December 2018. See Matter of Katigbak, 14 I&N Dec. 45, 
49 (Reg'l Comm'r 1971). Also, the purpose of an appeal is to identify, specifically, erroneous 
conclusions oflaw or statements of fact. See 8 C.F.R. § 103.3(a)(l)(v). Because the record contained no 
information about this position prior to the filing of the appeal, the Director cannot have made an 
erroneous conclusion regarding the position. 
The record shows that the Petitioner has continued to pursue training and accumulate experience that 
could eventually result in qualification for a university faculty position, but he was not yet well 
positioned for such employment at the time he filed the petition. 
B. Balancing Factors to Determine Waiver's Benefit to the United States 
Dhanasar lists three examples of factors to consider for the third prong: (1) impracticality of labor 
certification; (2) benefit to the United States from the individual's contributions; and (3) urgency of 
the national interest in those contributions. Although this is not an exhaustive list of factors that we 
may consider, the Petitioner does not propose any alternative measures. 
In the denial notice, the Director stated that the Petitioner did not show "a track record of successful 
research and the significance of [his] proposed work." The Director also concluded that "the petitioner 
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has not presented evidence that [his] knowledge or skills are not easily articulated m a labor 
certification." The Petitioner does not address the latter conclusion. 
The Petitioner asserts, on appeal, that "[h ]is specialty pertains to issues critical to US national interest 
in the medical and public health area affecting all US citizens. And one which is presently in critical 
need by all Americans." The Petitioner does not elaborate as to the "critical need" or produce 
documentary evidence of the urgency of the national interest in the work ofbioethicists in his particular 
research specialty. General statements about the overall importance of the "specialty" cannot establish 
eligibility for the waiver, because Dhanasar does not establish blanket waivers for any specialty. 
The Petitioner states: "Aliens who work in their area of exceptional ability will generally substantially 
benefit [the] national interests of the United States per se." The Petitioner cites no source for this 
assertion on appeal, but it appears to relate to an earlier statement that cited various sources concerning 
other immigrant classifications, which are neither binding on, nor relevant to, adjudications under the 
classification the Petitioner seeks in this case. By statute, noncitizens of exceptional ability are 
presumed to be subject to the job offer requirement, with that requirement to be waived on a 
discretionary, case-by-case basis. This statutory language refutes, on its face, the Petitioner's assertion 
that exceptional ability is, or should be, an automatic basis for granting the waiver. 2 
To establish prior success in his field, the Petitioner states, on a eal, that he "has secured em lo ment 
by a US employer, the prestigious '------.-----..,........,---r------------' as a 
Clinical Ethics Fellow - a major accomplishment which is awarded to a select few by merit." The 
Petitioner does not support this claim about the importance of his fellowship at~ but even then, 
the Petitioner was not yet a fellow atD when he filed the petition, nor did the initial submission 
show any indication that he intended to be one; the initial submission instead described plans for a 
fellowship inl I that did not come to fruition. 
The Petitioner had previously submitted letters from faculty members at universities where he studied 
and trained, but no objective evidence to show that his research has had a wider impact or benefited 
the United States to a greater extent than the intrinsic value of all such research. Because researchers 
are not presumptively exempt from the job offer requirement, establishing the existence of such 
research is not sufficient under Dhanasar. The Petitioner submits citation figures for some of his 
published work, but does not correlate the citations to any articulated benefit to the national interest. 
In his own articles, the Petitioner cited the work of other researchers, but he does not claim to have 
done so based in the importance of that work rather than its relevance to his own research. 
The Petitioner has not established that, on balance, a waiver of the job offer requirement would be 
beneficial to the United States. 
2 The regulation at 8 C.F.R. § 204.5(k)(2) defines "exceptional ability" as "a degree of expertise 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. 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 his field. See Dhanasar, 26 I&N Dec. at 886 n.3. 
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III. CONCLUSION 
Because the Petitioner has not met the required second and third prongs of the Dhanasar analytical 
framework, we conclude that he has not established eligibility for 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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