dismissed EB-2 NIW Case: Chemistry

U.S. Citizenship 
and Immigration 
Services 
In Re: 15468431 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 12, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, an adjunct instructor, seeks second preference immigrant classification as an individual 
of exceptional ability in the sciences, arts or business, 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). 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 l&N Dec. 884 (AAO 2016). 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner had not 
established he is well positioned to advance the proposed endeavor or 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 a brief and additional evidence to assert that he 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; Matter of Chawathe, 25 l&N Dec. 369,375 (AAO 
2010). Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
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. 
Section 101 (a)(32) of the Act provides that "[t]he term 'profession' shall include but not be limited to 
architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, 
colleges, academics, or seminaries." 
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definitions: 
Advanced degree means any United States academic or professional degree or a foreign 
equivalent degree above that of baccalaureate. A United States baccalaureate degree 
or a foreign equivalent degree followed by at least five years of progressive experience 
in the specialty shall be considered the equivalent of a master's degree. If a doctoral 
degree is customarily required by the specialty, the alien must have a United States 
doctorate or a foreign equivalent degree. 
Profession means one of the occupations listed in section 101(a)(32) of the Act, as well 
as any occupation for which a United States baccalaureate degree or its foreign 
equivalent is the minimum requirement for entry in the occupation. 
Furthermore, 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 l&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) 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation. 22 I&NDec. 215 (Act. Assoc. Comm'r 1998). 
2 
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 off er 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 f actor(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 
11. ANALYSIS 
The Director concluded that the Petitioner qualifies as a member of the professions holding an advanced 
degree.4 The Director also determined that the Petitioner established that his proposed endeavor met the 
first prong set forth in the Dhanasar analytical framework. For the reasons discussed below, however, 
we must withdraw the Director's conclusion that the Petitioner met the national importance portion of 
the first prong. 
On the Form 1-140, Immigrant Petition for Alien Worker, which the Petitioner filed in July 2019, he 
provided the following information: 
2 See also Poursinav. USCIS, 936 F.3d 868, 2019 WL 4051593 (9th Cir. 2019) (finding USCIS' decision to grant or deny 
a national interest wa iverto bed iscretionary in nature). 
3 See Dhanasar, 261 &N Dec. at 888-91, for elaboration on thesethreeprongs. 
4 The Petitioner earned three foreign degrees: a bachelor's degree in chemistry; a master's degree in organic chemistty, 
and a Ph.D. degree in organic chemistry. He also earned a U.S. master's degree in integrated studies (chemist:ty and 
physics). 
3 
Part 5 - Additional Information About the Petitioner 
Section 11. Occupation: Adjunct Instructor 
Part 6 - Basic Information About the Proposed Employment 
Section 1. Job Title: Adjunct Instructor 
Section 2. SOC Code: 17-20315 
The Petitioner also stated on his Form 1-140 that his position is part-time at twenty hours per week. 
In Section 3 of Part 6, which requests the "Nontechnical Job Description," the Petitioner referred our 
attention to an attached employment verification letter. A May 2019 employment verification letter 
froml I of the Department of Mathematics and Natural Sciences within I I I luniversityl I in Missouri states that the Petitioner has been employed as an "Adjunct 
Instructor" since January 2019. The letter detailed the Petitioner's duties as "providing syllabi to 
students, instructing students in Chemistry, tracking student attendance, creating lectures, preparing 
class assignments, and measuring student performance." The Petitioner submitted a Form ETA 750 
Part B with his initial filing and it also provided "Adjunct Instructor" as the name of the Petitioner's 
job. The Petitioner stated on this form that he works twenty hours a week with the duties of 
"[t]eaching, helping students performing lab. Lab safety precautions. Grading and preparing quiz and 
midterms, and final exams. Designing some lab sessions." 
The initial filing predominantly provided details concerning the Petitioner's past research work but 
contained very little information about the Petitioner's proposed endeavor. According to the brief and 
other documents within the record, the Petitioner has been a volunteer post-doctorate research affiliate 
atl I Universit~ I since his graduation from the university in 2018. 
The Petitioner submitted an abstract of a research project that combines a research group from I I 
headed b~ lwith computational chemistry coursework tori !students. Although 
this project was described in detail, the Petitioner did not state whether it is his proposed endeavor. 
The Director issued a request for evidence (RFE) which informed the Petitioner that he "did not 
provide a detailed description of [his] proposed undertaking or venture" and that in order to determine 
whether his proposed endeavor had substantial merit and national importance, he needed to submit 
additional evidence.6 The Director also noted in the RFE that the Petitioner'sAdjunctlnstructorduties 
did not include research. 
In his RFE ~"""""".....,_,, .......... ......._.......,._,........,,......,."----"'"""'""""""'--¥'at his "proposed endeavor is to continue to conduct 
research on which is vital to identifying new ~___., ______ _ 
" Specifically, he noted that his "future research on '---------,------,---,-----1 
,...__ __ _. is "crucial to finding proper targets" and that "[t]hese targets are pivotal to 
~~ 
design computations to find potential ne ' The Petitioner stated that he intends to 
continue his work as an affiliate research scientist at and lans to ursue National Institute of 
Health (NIH) grant funding for research into the'.__ ________________ ___. 
5 The Department of Labor's (DOL) Occupational Information Network (O*NET) Summary Report for the standard 
occupational classification (SOC) code 17-2031.00 corresponds to the occupation of "Bioengineers and Biomedical 
Engineers." See https://www.onetonline.org/link/summary/17-2031.00 (last visited Aug.12, 2021). 
6 The purpose ofan RFE is to elicit information that clarifies whether eligibility for the benefit sought has been established, as 
of the time the petition is filed. See 8 C.F.R. §§ 103.2{b){1), 103.2{b){8), 103.2{b){12). 
4 
,___ ___ __,~s active sites." He stated that his research studies will focus on "how a flexible molecule 
adopts the conformation or a distinct shape," the link between molecular composition and molecular 
shape, and finding optimal ways to control the molecules such that they function for al I 
In addition to the research related to D, the Petitioner's RFE response also stated that he intends to 
"continue his] Conformational Analysis research" and that it has "significant potential to advance 
of cancerous tumors." Specifically, the proposed endeavor includes "overcom[ing] 
._1-im-i-ta-ti-on_s_i__.n cance~ Ith rough [] Conformational Analysis research. The research is focused 
on biological water and natural products ... [and] is intended to help with th~ lot cancerous 
tissue .. .__ _______ ___.techniques.7 
Based upon these descriptions, we question whether the Petitioner selected the correct occupational 
category for his field of endeavor. As mentioned, the Petitioner selected SOC code 17-2031.00, which 
corresponds to the occupation of "Bioengineers and Biomedical Engineers." Within this 
classification, O*NET's Summary Report provides a sample of reported job titles including: 
Biomedical Electronics Technician, Biomedical Engineer, Biomedical Engineering Technician, 
Biomedical Equipment Technician (BMET), Biomedical Technician, Engineer, Process Engineer, 
Research Engineer, and Research Scientist. The O*NET summary report also describes duties within 
the occupational classification as: "[a]pply knowledge of engineering, biology, chemistry, computer 
science, and biomechanical principles to the design, development, and evaluation of biological, 
agricultural, and health systems and products, such as artificial organs, prostheses, instrumentation, 
medical information systems, and health management and care delivery systems." 
Chemistry, rather than engineering or technician work, appears to be the main focus of the Petitioner's 
education and research. Therefore, we question whether SOC code 19-1021.00, corresponding to 
"Biochemists and Biophysicists," would have been a more appropriate classification.8 The summary 
of th is occupation includes the sample reported job titles of Analytical Research Chemist, Biochemist, 
Biophysics Researcher, and Scientist, along with the following occupational description: 
Study the chemical composition or physical principles of living cells and organisms, 
their electrical and mechanical energy, and related phenomena. May conduct research 
to further understanding of the complex chemical combinations and reactions involved 
in metabolism, reproduction, growth, and heredity. May determine the effects of foods, 
drugs, serums, hormones, and other substances on tissues and vital processes of living 
organisms. 
Upon collective examination of the initial filing and the RFE response, we conclude that significant 
unresolved questions exist concerning the particulars of the Petitioner's proposed endeavor. Namely, we 
question how the Petitioner intends to incorporate his Adjunct lntstructor duties into his research work, 
as well as whether the Petitioner selected the correct occupational classification for his position. 
Nevertheless, the Director found that the Petitioner sufficiently described the proposed endeavor such 
that he had established elibility under the first prong of Dhanasar, relating to the proposed endeavor's 
7 The Petitioner has not stated whether he plans to continue his part-time adjunct instructor duties while he carries out his 
proposed endeavorwork. 
8 Seehttps://www.onetonline.org/link/summary/19-1021.00for additional information (last visited Aug.12, 2021). 
5 
substantial merit and national importance. The Director determined, however, that the Petitioner was not 
well positioned to advance his proposed endeavor, in part because the evidence did not persuasively 
demonstrate that the Petitioner had a record of success in his field, nor did it show that the Petitioner had 
a research position or funding with which to advance the proposed endeavor. Furthermore, the Director 
determined that the evidence failed to show that it would be impractical to obtain a labor certification, 
that the Petitioner's contributions were sufficiently urgent, that his kn ow ledge and ski I ls d istngu ish him 
from others in his field, or that the projects he investigates could signficantly influence his field. 
Therefore, in April 2020, the Director denied the petition under the second and third prongs of the 
Dhanasar framework. 
The Petitioner then filed a motion to reopen and reconsider the Director's decision, and within his motion, 
he included two letters f roml la Professor in the Department of Chemistry atl I 
One of the letters was an em,..P.!Q.Y.,ment letter that offered the Petitioner a full-time, paid postdoctoral 
student researcher position atl__Jto begin on or after July 1, 2020. The other letter was in support of 
the Petitioner's national interest waiver petition and offered additional details on the research that he 
would perform in his new position with I latl I The letters described new research topics 
that differ from the Petitioner's previously-articulated research focus. The Petitioner did not submit a 
new or updated proposed endeavor or any information explaining how he would maintain focus on both 
his proposed endeavor research topics and his adjunct instructor duties. As articulated b~ I 
the Petitioner will now "build upon his prior research by designing.,....._ _________ ____, 
I J lot biologically important molecules using computational organic chemistry and machine 
learning, which is vital to the synthesis o~~------~t In addition! l's description 
of the new research included the following verbatim duties for the Petitioner: 
• [G]enerate new in silica catalyst libraries and calculate and validate features for different 
optimization problems; 
• [l]dentify potential ideal targets using certain chemical reaction optimization problems; 
• [P]erformtheseoptimizations based on either regression analysis or machine learning algorithms; 
• [M]odify or design new workflows to minimize synthetic effort; 
• [U]s[e] 3D convolutional neural networks to model alignment independent structural analysis; 
• [D]evelop 2D convolutional networks which do not require the 3Dstructure to make models; and 
• [G]enerate 3D point-cloud representations of molecules using 2D-graphs and apply it to obtain 
optimized new catalysts fo~ !relevant targets. 
,___ ___ __.I stated that their catalyst design research will benefit the medical community as a whole, but 
patients suffering from cancer or other infectious disease in particular. Specifically, he stated that their 
research "will also benefit U.S. hospitals and clincial sites by designing and synthesizing ne~ I I I, which will reduce costs by introducing more affordable and more reliabh~ I 
The Director denied both motions, concluding that the Petitioner's new job offer and start date arose 
subsequent to the filing of the petition and that USCIS would not consider evidence that came into being 
only subsequent to a petition filing. Moreover, the Director noted that the Petitioner must establish 
eligibility atthe time offiling. 8 C.F.R. § 103.2(b)(12); Matter of Katigbak, 14 l&NDec.45, 49(Comm'r 
1971). Although we need not consider this evidence, the contents of the evidence raise additional 
concerns that undermine the Director's previous determination of the Petitioner's eligibility under the 
first Dhanasar prong. 
6 
On appeal, the Petitioner relies primarily upon the evidence he previously submitted but contends that 
the research he will perform withl I builds upon and is a continuation of his prior research. 
However, the Petitioner offers little su~poryor this assertion. It is not well explained whether the 
Petitioner intends to end his research o or the computation analysis performed to advance! I I I If he intends to continue it, he has not explained how it will be incorporated into his new 
catalyst design, machine learning, and modeling work, or how much time will be spent on each 
research topic. If the research topics on motion are similar to those described in the proposed endeavor 
such that they do not represent a significant change in focus, the Petitioner has not explained how this 
is so. Nor can we ascertain whether the Petitioner will maintain his duties as an adjunct instructor as 
originally articulated on the Form 1-140, via the employment verification letter, and on the Form ETA 
750 Part B. In Dhanasar, we held that a petitioner must identify "the specific endeavorthatthe foreign 
national proposes to undertake." Id. at 889. Here, the information provided by the Petitioner on 
motion did not clarify or provide more specificity to the proposed endeavor as initially described, but 
rather changed its focus. 
The motion presented a new set of facts regarding the proposed endeavor, which is material to 
eligibility for a national interest waiver. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg'l 
Comm'r 1978); see also Dhanasar, 26 l&N Dec. at 889-90. It appears as though the Petitioner sought 
to address the Director's concerns regarding his lack of a research position and funding, but in so 
doing, he has significantly changed his proposed endeavor. A petitioner may not make material 
changes to a petition in an effort to make a deficient petition conform to USCIS requirements. See 
Matter of lzummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). If significant, material changes are 
made to the initial request for approval, a petitioner must file a new petition rather than seek approval 
of a petition that is not supported by the facts in the record. 
In determining whether an individual qualifies for a national interest waiver, we must rely on the 
specific proposed endeavor to determine whether (1) it has both substantial merit and national 
importance and (2) the foreign national is well positioned to advance it under the Dhanasar analysis. 
Because the Petitioner has not provided consistent information regarding his proposed endeavor, we 
cannot conclude that he meets either the first or second prong, or that he has established eligibility for 
a national interest waiver.9 Accordinaly, we must withdraw the Director's conclusion that the 
Petitioner met the first prong of the Dhanasar framework. 
Ill. CONCLUSION 
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. 
9 Because the identified reasons for dismissal are dispositive of the Petitioner's appeal, we decline to reach andhe1eby 
reserve the Petitioner's remaining appellate arguments concerning his eligibility under the Dhanasarframework. See INS 
v. Bagamasbad, 429 U.S. 24, 25 (1976) ("courts and agencies are not required to make findings on issues the decision of 
which is unnecessary to the results they reach"); see also Matter of L-A-C-, 26 l&N Dec. 516,526 n.7 (BIA 2015) 
(declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
7