dismissed EB-2 NIW Case: Biomedical Research

U.S. Citizenship 
and Immigration 
Services 
In Re: 9297189 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEPT. 24, 2020 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a biomedical researcher, seeks second preference immigrant classification as a member 
of the professions holding an advanced degree or an individual of exceptional ability, 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 Texas Service Center denied the petition, concluding that the Petitioner 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 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 of job 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 p1ior 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. USCIS, 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). 
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 
A. Member of the Professions Holding an Advanced Degree 
In order to show that a petitioner holds a qualifying advanced degree, the petition must be accompanied 
by "[a]n official academic record showing that the alien has a United States advanced degree or a 
foreign equivalent degree." 8 C.F.R. § 204.5(k)(3)(i)(A). Alternatively, a petitioner may present "[a]n 
official academic record showing that the alien has a United States baccalaureate degree or a foreign 
equivalent degree, and evidence in the form ofletters from current or former employer(s) showing that 
the alien has at least five years of progressive post-baccalaureate experience in the specialty." 8 C.F.R. 
§ 204.5(k)(3)(i)(B). 
The Petitioner presented two certifications from the University I !(Switzerland) stating that she 
received a "the degree of Doctor of Philosopy of Science (Ph.D.)" in July 2012, but she did not provide 
her official academic record from that university and an educational credentials evaluation to establish 
her degree's equivalency to a U.S. advanced degree. See 8 C.F.R. § 204.5(k)(3)(i)(A). Additionally, 
while the Petitioner indicated that she received a Master of Science degree in Biomedical Engineering 
froml !University (Germany) and a Bachelor of Clinical Medicine degree from I ) 
University (China), she did not submit evidence of these degrees. Nor did she present her official 
academic records froml I University or I O I University and an academic credentials 
evaluation to demonstrate her degrees' equivalency to a U.S. advanced degree. Accordingly, the 
Petitioner has not established that she qualifies as a member of the professions holding an advanced 
degree. 
B. Exceptional Ability 
The regulation at 8 C.F.R. § 204.5(k)(3)(ii) sets forth the specific evidentiary requirements for 
demonstrating eligibility as an individual of exceptional ability. A petitioner must submit 
documentation that satisfies at least three of the six categories of evidence listed at 8 C.F.R. 
§ 204.5(k)(3)(ii). The Petitioner's initial cover letter, response to the Director's request for evidence, 
and appellate submission do not address which of the regulatory criteria for exceptional ability she 
claims to meet. She has not offered arguments and evidence that she satisfies at least three of the criteria 
at 8 C.F.R. § 204.5(k)(3)(ii) and has achieved the level of expertise required for exceptional ability 
classification. 
C. National Interest Waiver 
The remaining issue is whether the Petitioner has established that a waiver of the requirement of a job 
offer, and thus a labor certification, is in the national interest. For the reasons discussed below, we 
3 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
3 
conclude the Petitioner has not demonstrated eligibility for a national interest waiver under the 
analytical framework set forth in Dhanasar. 
1. Substantial Merit and National Importance of the Proposed Endeavor 
The Petitioner indicated that she intends to continue her research related to "understanding the 
mechanisms and treatment of human diseases." 4 She asserted that her proposed work involves "genes 
and proteins which could be use~ I to characterize the molecular mechanisms of how 
genetic factors cause these diseases." In addition, the Petitioner stated that she plans to investigate 
"the underlying interactions between genes" and identify .__ _____ ~ that are involved in 
diseases" in order to develop "effective strategies for diagnosis and treatment of these diseases." For 
instance, she noted that her proposed research is aimed at "novel therapeutic targets" for pulmonary 
diseases such asl ~-
The record supports the Director's dete1mination that the Petitioner's proposed endeavor has 
substantial merit and national importance. For example, the Petitioner's evidence includes 
documentation showing that the benefit of her proposed research has broader implications, as the 
results are disseminated to others in the field through medical journals. As the Petitioner has 
documented both the substantial merit and national importance of her proposed biomedical research, 
she has established that she meets the first prong of the Dhanasar framework. 
2. Well Positioned to Advance the Proposed Endeavor 
The second prong shifts the focus from the proposed endeavor to the Petitioner. The record includes 
documentation of her curriculum vitae, Doctor of Philosopy of Science degree, published articlesj peer 
review activity, and anl !Award (2016) she received from her division atl She 
also offered evidence of articles that cited to her published work, and letters of support discussing her 
past research projects. 
The Petitioner contends on appeal that she was a team member and recipient;:.....,::;.o;:;..f...::a:;:;;:n"-"'I ========-. 
A ward froml I and that this award shows "her contributions to the 
I 1"5 In addition, she asserts that the Director did not properly consider h._e_r_"_o_b-~e_c_t-iv_e_r_e_s_e-ar_c_h__. 
4 At the time of filing. the Petitioner was working "as a Visiting Fellow in the Pulmonary Branch, Division oflntramural 
Research (DIR)J O I at the.__ _________ __,, in I I 
Maryland." As the Petitioner is applying for a waiver of the job offer requirement, it is not necessary for her to have a job 
offer from a specific employer. However, we will consider inf01mation about her position to illustrate the capacity in 
which she intends to work in order to determine whether her proposed endeavor meets the requirements of the Dhanasar 
analytical framework. 
5 The Director's decision extensively quoted al I news release that announced multiple 2016 I I Award 
recipients, but did not identify the Petitioner. Based on the omission ofbe Petjtjoner's name, the Director stated that the 
information in the news release was "inconsistent" with the~er's_ I Award certificate and a June 2018 
letter of support from~------~(a biochemist at L__J mentioning the Petitioner's receipt of the award. The 
aforementioned news release listed a num r fin i i · ls who were "[a]mong the award recipients," but it does not 
appear to offer a comprehensive list of the Award winners. Furthermore, the Director's analysis did not 
consider a June 2019 letter from....-----,-..,...---' Scientific Director, DIR,! I stating that the Petitioner "was a 
team member and recipient of a-~----~Award issued byl I] in 2016 .... The award emphasizes teamwork 
that made these achievements possible. Teams should include (but are not limited to) scientists, clinicians, core facility 
4 
experience and reference letters from other researchers, in order to decide the significance of her 
original contributions to the field of endeavor." The Petitioner further argues that the reference letters 
"testify as to [her] contributions to the field in detail and how those contributions have substantially 
influenced other scientists, explaining the nature of high peer-review record as well as publication 
history." As discussed below, the record supports the Director's determination that the evidence is 
insufficient to demonstrate that the Petitioner is well positioned to advance her proposed research 
under Dhanasar's second prong. 
In letters supporting the petition, several references discussed the Petitioner's research projects relating 
tol I diseases. 6 For example..__ ______ __., a professor of medicine, pathology, and 
harmacolo at University, stated the Petitioner "investigated the role of I I 
1--------.--~--- ... in thel I activation of multiple genes involved inl I 
............ ~-----;<-a=n=d::......:,cell cycle control." He further indicated that the Petitioner "established a novel link 
between ~ ls and I I a ,----,_ __ __J molecule that can contribute to 
persisten~ I or mediate shutdown." Likewise.__ _______ _. 
associate professor at University'------~ (Ireland), asserted that the Petitioner's work revealed 
'I lreceptor stimulation can potently alter expression ofl I family members in human 
Ocells, which plays a key role in pathophysiolog..1---"'CL.J.ll.........,.......,.........,common long terml I 
disease of the Airways of the lungs." I f and did not rovide specific examples 
indicating that the Petitioner's findings have affected therapies fo..._ ____ _. diseases, have served 
as an impetus for progress or generated positive discourse in her field, or otherwise represent a record 
of success or progress rendering her well positioned to advance her proposed endeavor. 
With respect to the Petitioner's research investigating the effect o~ I on the binding ofl I 
tol = , }, J l professor of internal medicine at 
.-============"-, Israel , indicated that the Petitioner "used a novel I lcocul~re sytem 
to quantify the'-------~ effects of four I I resulting from the interaction o and 
I I She found that the standard I L aspirin and indomethacin (Indo) as well 
as the testedl ,I reduced the I I responses." While I I asserted that the 
Petitioner's "innovative coculture system well suits the needs of the exploration of novel ~ 
.__ ____ .........,I drugs," he does not explain how the Petitioner's system has been implemented, utilized, 
or applauded in the biomedical field. 
Regarding the Petitioner's work involving genetic I I of I I cells from ~I-~ 
patients,! I director of the Respiratory Unit atl tTtaly), stated 
that the Petitioner "advanced our understanding of this often fatal disease by discovering that multiple 
clones ofc=J cells may exist in different body fluids overtime. Based on her discovery on the genetic 
I I seen in circulating c=J cells, theD is being redefined as a low-grade neoplasm." 
Similarly J u I asserted that the Petitioner's research "expanded on a procedure deve)oned jn 
the laboratory for the isolation otD cells from body fluids based on surface markers." I _ I 
further indicated that this work "has largely enhanced our understanding regarding the underlying 
mechanism for I I cell I t' but the record does not include evidence showing that the 
staff technj cians, technical staff, and administrative support that contributed substantively to the work " We conclude that 
I i's letter is sufficient to resolve the Director's concern relating to the Petitioner's I !Award. 
6 While we discuss a sampling of these letters, we have reviewed and considered each one. 
5 
Petitioner's work has affected diagnostic or treatment protocols, or otherwise reflects a record of 
success in her field. 
As it relates to the citation of the Petitioner's work, she provided July 2018 information from Google 
Scholar indicating that her three highest cited articles in Journal of Cellular and Molecular Medicine 
(2011), American Journal of Respiratory and Critical Care Medicine (2015), and Journal of Cell 
Communication and Signaling (2010) each received 47, 9, and 8 citations, respectively. 7 The 
Petitioner does not specify how many citations for each of her individual articles were self-citations 
by her or her coauthors. Nor does she offer comparative statistics showing the significance of this 
level of citation within her field. 
The record also includes examples of the articles which cited to the Petitioner's work. 8 For instance 
she rovided an article entitled 
~--------------------' (Journal of Immunology), in which,__ __ ~.,... 
and her coauthors cited to the Petitioner's paper in Journal o_f Cell Communication and Signaling. In 
her article,! I cited to two of her earlier papers and to the Petitioner's work in Journal of 
Immunology, statin[: "We~and others have shown that stimulation can otentl 
alter expression of amily members in human ._,,---------.---------.---~ 
cells. However, the transcriptional effects controlled b downstream o 
~------' 
signaling in I !cells remain unknown .... " ,__ ___ ~'s article does not distinguish or 
highlight the Petitioner's work from the 54 other papers she referenced in her article. 
Another article presented by the Petitioner, entitled 
I I (Europea._n_R_e-sp-ir-a-to-,-y-R_e_v-ie_v1_1 )-,-c-it_e_s_t_o-th_e_P_e-ti-ti_o_n-er_'_.s 
~n American Journal of Respiratory and Critical Care Medicine. In this review article, D 
L__Jand his coauthors referenced the Petitioner's work, stating: "The l I has been recently 
reported in the blood of patients with other pulmonaiy diseases, including I I and but 
not in the same populations of cells in which c=Jcells are typicallf foun( However, whether 
c=Jin body fluids could have a clinical role in the management of has yet to be determined." 
I Is article in European Respiratory Review does not differentiate the Petitioner's paper from 
the 13 7 other papers he cited to in his article. 
In regard to the Petitioner's I !Award, the record reflects that this award is presented to 
DIR staff at I I While the Petitioner provided letters from I landl I 
indicating that this award recognizes scientific achievement and teamwork within the DIR, she has not 
demonstrated the significance or level of distinction of her award in the biomedical field. 
With respect to her peer review activity, the Petitioner provided emails indicating that she reviewed 
multiple manuscripts submitted for consideration for publication in Medicine. She has not 
documented the stature of this journal or offered other documentation demonstrating that her peer 
review experience rises to the level of rendering her well positioned to advance her proposed biomedical 
research. Nor does the record show that the Petitioner's participation in the widespread peer review 
7 The Petitioner's remaining five articles were each cited five times or less. 
8 Although we discuss representative sample articles here, we have reviewed and considered each one. 
6 
process represents a record of success in her field or that it is otherwise an indication that she is well 
positioned to advance her research endeavor. 
Additionally, the Petitioner presented documentation showing that her research articles have been 
included in public scientific databases such as Semantic Scholar, PubFacts, SciCrunch, Scinapse, 
Trove, Sparrho, and Science.gov. She also offered two automated news releases from NewsRx.com 
and Science.NaturalNews.com summarizing her article in Journal of Cellular and Molecular 
Medicine. While inclusion of her articles in the aforementioned databases and news release websites 
corroborates that she has disseminated her published work, it is not sufficient to demonstrate a record of 
success of, or interest in, her research. 
The evidence indicates that the Petitioner has conducted, published, and presented research while 
working atl land University! I but she has not shown that this work renders her well 
positioned to advance her proposed biomedical research. While we recognize that research must add 
information to the pool of knowledge in some way in order 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 her 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 shown that her published 
work has served as an impetus for progress in the medical field, that it has affected diagnostic or 
treatment protocols for diseases, or that it has generated substantial positive discourse in the medical 
community. Nor does the evidence otherwise demonstrate that her work constitutes a record of success 
or progress in the healthcare or biomedical research fields. As the record is insufficient to show 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. 
3. Balancing Factors to Determine Waiver's Benefit to the United States 
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 
certification. Here, the Petitioner claims that she is eligible for a waiver due to her research experience 
and accomplishments, the importance of her field, and the impracticality of labor certification. 
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 
The Petitioner has not established that she satisfies the regulatory requirements for classification as a 
member of the professions holding degree or as an individual of exceptional ability. Furthe1more, 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. 
7 
ORDER: The appeal is dismissed. 
8