dismissed EB-2 NIW Case: Cardiology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-S-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 30, 2019 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a physician specializing in cardiology, 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. § l 153(b)(2). After a petitioner has established 
eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) may, as matter 
of discretion, 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. 
Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). 
The Director of the Texas Service Center denied the Form 1-140, Immigrant Petition for Alien Worker, 
finding that the Petitioner qualified for classification as a member of the professions holding an 
advanced degree, but that she had not established that a waiver of the required job offer, and thus of 
the labor certification, would be in the national interest. 
The Petitioner appealed the matter to us, and we summarily dismissed the Petitioner's appeal. The 
matter is now before us on a motion to reopen. With the motion, the Petitioner submits further evidence 
and a letter from counsel asserting that she is eligible for a national interest waiver under the Dhanasar 
framework. We will deny the motion. 
I. LAW 
A motion to reopen is based on documentary evidence of new facts. The requirements of a motion to 
reopen are located at 8 C.F.R. § 103.5(a)(2). We may grant a motion that satisfies these requirements 
and demonstrates eligibility for the requested immigration benefit. 
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 
Matter of A-S-
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. 884.1 Dhanasar states that after EB-2 eligibility has been established, USCIS 
may, as a matter of discretion, grant a national interest waiver when the below prongs are met. 
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 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 I&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
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Matter of A-S-
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 
to waive the requirements of a job offer and thus of a labor certification. 2 
11. BACKGROUND 
At the time of filing her Form 1-140, the Petitioner provided a cover letter stating that, as a cardiologist, 
she intends to continue her clinical and research work aimed at treating and understanding heart 
disease. Regarding the first prong of the Dhanasar framework, the Director acknowledged that the 
benefit of the Petitioner's proposed research has broader implications, as the results are disseminated 
to others in the field through medical journals and conferences. Because the Petitioner had 
documented both the substantial merit and national importance of her proposed cardiology research, 
the Director found that she met the first prong of the Dhanasar framework. 3 
Regarding the second prong of the Dhanasar framework, the record before the Director included 
documentation of the Petitioner's curriculum vitae, academic credentials, medical certifications, 
published articles, conference presentations, and certificates of appreciation from the 
acknowledging her participation in the 
~ " The Petitioner also offered reference letters discussing 
her medical training, clinical work, and research projects. Upon review of this documentation, the 
Director determined that the evidence was not sufficient to demonstrate "a record of success or progress 
in her field, or a degree of interest in her work from relevant parties, that rise to the level of rendering her 
well positioned to advance her proposed endeavor." 
With respect to Dhanasar' s third prong, the Petitioner claimed eligibility for a waiver due to her 
clinical work, research experience and accomplishments, and based on the impracticality of labor 
certification and a shortage of cardiologists in the United States. 4 After considering the Petitioner's 
arguments and evidence, the Director concluded that she had "not established that, on balance, it would 
be beneficial to the United States to waive the requirements of a job offer and thus of a labor 
2 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
3 With respect to the Petitioner's proposed care and treatment of patients, the Director noted that while these endeavors 
have substantial merit, the record did not establish that her clinical work would impact the cardiology field and healthcare 
industry more broadly , as opposed to being limited to the patients she serves. Accordingly , the Director concluded that 
without sufficient documentary evidence of its broader impact, the Petitioner's clinical work as a cardiologist did not meet 
the "national importance" element of the first prong of the Dhanasar framework. Similarly, in Dhanasar , we determined 
that the petitioner's teaching activities did not rise to the level of having national importance because they would not impact 
his field more broadly. Id. at 893. 
4 We note that the U.S. Department of Labor addresses shortages of qualified workers through the labor certification 
process. Accordingly, a shortage alone does not demonstrate that waiving the requirement of a labor certification would 
benefit the United States. 
3 
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Matter of A-S-
certification." Accordingly, the Director denied the Form 1-140, finding that Petitioner had not met 
the second and third prongs of the Dhanasar framework necessary to qualify for a national interest 
waiver. 
The Petitioner filed an appeal, but did not provide a legal brief or additional evidence. Instead, the 
Petitioner provided a cover letter, stating in full: "We are hereby appealing the denial of [the 
Petitioner's] 1-140, as we believe the evidence already provided demonstrates that she meets the three 
prongs of Matter of Dhanasar." We summarily dismissed the appeal. 5 The matter is now before us 
on motion to reopen. 
Ill ANALYSIS 
On motion, the Petitioner asserts that she "noted in the appeal that the evidence already provided met 
all three prongs" set forth in the Dhanasar precedent decision. In addition, she contends: "We were 
requesting a de novo review of the materials submitted and an assessment of the arguments already 
made in the original filing and the response to the Request for Evidence. This de novo review was not 
conducted .... " 
The Petitioner's motion has not identified new facts supported by documentary evidence that 
overcome our basis for summarily dismissing her appeal. As noted in our prior decision, the 
Petitioner's appeal did not identify any erroneous conclusion of law or fact in the Director's decision. 
Her submission did not specifically challenge any of the Director's findings or point to specific errors 
in the Director's analyses or conclusions that she had not met the second and third prongs of the 
Dhanasar analytical framework. As stated in 8 C.F.R. § 103.3(a)(l)(v), an appeal shall be summarily 
dismissed if the party concerned fails to identify specifically any erroneous conclusion of law or 
statement of fact for the appeal. 
Regardless, as discussed below, the evidence the Petitioner presents on motion does not show that she 
meets prongs two and three of the Dhanasar framework and therefore does not establish eligibility for 
the benefit sought. She submits a certificate of appreciation from 
) thanking her for service as Chief Fellow in the 
from July 2017 until June 2018; a December 2017 letter and certificate from the National Board of 
Echocardiography stating that she passed the "Examination of Special Competence in Adult 
Echocardiography"; and a July 2018 certificate of appreciation from the 
In addition, she offers a June 2018 certificate from stating that 
she "satisfactorily completed postdoctoral education" as a "Fellow in Cardiovascular Disease"; a 
September 2018 article she coauthored in ; and 
PowerPoint presentations she gave in 2018 for the and 
This evidence, however, post-dates the filing of the petition and does not demonstrate her 
eligibility for a national interest waiver under the framework set forth in Dhanasar . Eligibility must 
be established at the time of filing. See 8 C.F .R. § 103 .2(b )(1 ). 
5 The regulation at 8 C.F.R. § 103.3(a)(l)(v) states than "[a]n officer to whom an appeal is taken shall summarily dismiss 
any appeal when the party concerned fails to identify specifically any conclusion oflaw or statemen t of fact for the appeal." 
4 
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Matter of A-S-
With the motion, the Petitioner also provides an October 2018 letter from , professor of 
medicine at discussing her clinical work and cardiology research presentations. He describes 
the Petitioner's proficiency in reading and interpreting echocardiograms, her utilization of an 
intracoronary ultrasound technique to place a stent6, and her application of specialized training in 
interventional cardiology to save patients' lives. As previously noted, the Petitioner's clinical duties 
do not meet the first prong of the Dhanasar framework, therefore our analysis under prong two focuses 
on whether she is well positioned to advance her proposed cardiology research. With respect to the 
Petitioner's research, indicates that she "recently presented some of her work this year at a 
. ' but this conference post-dates the filing of 
the Form 1-140. Regardless, while t mentions that the Petitioner has participated in various 
medical conferences, he does not identify the research topics she presented or discuss the significance 
of her findings. 
The record demonstrates that the Petitioner has conducted, published, and presented research during 
her medical career. 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 
his or her proposed research. 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 has not shown that her published and presented work has been 
frequently cited by independent researchers or otherwise served as an impetus for progress in the field, 
that it has affected clinical practice, or that it has generated substantial positive discourse in the broader 
medical community. Nor does the evidence otherwise demonstrate that her work constitutes a record 
of success or progress in cardiology 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, Dhanasar' s 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 evidence that post-dates the filing of the petition and information from . 
are not sufficient to render the Petitioner eligible under the third prong of the Dhanasar 
framework. 
IV. CONCLUSION 
The evidence provided in support of the motion to reopen does not overcome the grounds underlying our 
previous decision summarily dismissing her appeal. Furthermore, as the Petitioner has not met the 
requisite three prongs set forth in the Dhanasar analytical framework, we find that she has not 
established she is eligible for or otherwise merits a national interest waiver as a matter of discretion. 
In visa petition 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; Matter of Skirball Cultural Ctr., 25 I&N 
Dec. 799, 806 (AAO 2012). Here, that burden has not been met. 
6 t notes that this technique was first developed by an "operator at Columbi a University, but [the Petitioner] was 
the first to use it ir 
5 
Matter of A-S-
ORDER: The motion to reopen is denied. 
Cite as Matter of A-S-, ID# 2963665 (AAO Apr. 30, 2019)