dismissed EB-2 NIW Case: Computer Aided Drug Discovery

U.S. Citizenship 
and Immigration· 
Services 
MATTER OF 1-N-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 14, 2018 
PETITION: FORM 1-140,'rMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a post-doctoral researcher, 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 petition, concluding that the record did not 
establish that a waiver of the job offer requirement, and thus of the labor certification, would be in 
the national interest. 
On appeal, the Petitioner asserts that he is eligible for a national interest waiver under the Dhanasar 
framework. 
Upon de novo 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. -
Matier of 1-N-
(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. 
(8) 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 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 
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 I 998)(NYSD01). 
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Matter of 1-N-
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 wo1=1ld 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 
II. ANALYSIS 
Although not addressed in the Director's decision, the record demonstrates that the Petitioner 
qualifies as a member of the professions holding an advanced degree.3 The sole 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 was working as a Graduate Research Assistant at the 
The record indicates that shortly after filing this petition, he was offered and 
accepted a post-doctoral research fellow position at In addition, 
the Petitioner registered a company named and serves as its President and only 
employee . For the reasons discussed below, we find the Petitioner has not established eligibility for 
a national interest waiver under the analytical framework set forth in Dhanasar. 
A. Substantial Merit and National Importance of the Proposed Endeavor 
The Petitioner proposes to continue his research in the field of computer aided drug discovery, 
focusing on the application of protein intrinsic disorder (IDP) properties. He states that he will 
continue this work, which he began during his doctoral studies at the 
through his position at and his company. The Petitioner submits letters of support which 
indicate the potential for his work to lead to the development of drugs to fight cancer. For example, 
Chair of the Department of Molecular Medicine at the 
, writes that he "recognized that [the Petitioner's] novel drug discovery platform and 
discovered drug leads are important .not only for science but also for human health as traditional 
experiments depending on drug discovery are currently limited." Accordingly, we find that the 
Petitioner 's proposed research at applying computer aided drug discovery techniques has 
substantial merit. 
To satisfy the national importance requirement, the Petitioner must demonstrate ·the "potential 
prospective impact" of his work. of 
who collaborated with the Petitioner and co-authored articles published in scientific journals with 
2 See Dhanasar, 26 l&N Dec. at 888-91, for elaboration on these three prongs. 
3 The Petitioner submitted copies of two diplomas for degrees he earned at the 
Science in Medical Sciences and a Master of Science in Bioinformatics and Computational Biology. 
§ 204.5(k)(3)(i)(A) . 
3 
a Master of 
See 8 C.F.R. 
.
Maller of 1-N-
him, states that the Petitioner's "forthcoming research will facilitate better understanding of 
molecular biology proteins, which will most definitely lead to new advances in medical research." 
The record establishes that the Petitioner's research work has been disseminated to other researchers 
in the field through publication in scientific journals and presentation at conferences, and therefore 
his proposed furtherance of this research at · has broader implications for his field. 
Regarding the Petitioner's proposed activities with he submitted a business plan in 
response to the Director's request for evidence (RFE) that describes the goals of the company, its 
business model, and projections for future employees and revenue. The company "aims to discover 
intractable disease drug leads applying unique computer-aided drug discovery technique." The 
Petitioner states that "most of [the] profits will come from marketing," and 
asserts that "through research consulting, will make background revenue." He also 
asserts that the "computer-aided drug discovery market will become $7 billion, 5 years from now," 
and that target annual revenue for his company will grow to $300,000 by 2020. Further, the 
Petitioner submits a letter from an Associate Professor at the 
who notes that there have been examples of multi-million dollar licensing deals between 
universities and pharmaceutical companies in the past. While the Petitioner has not sufficiently 
documented his claims to the size of the computer aided drug discovery market, or his specific 
company's potential positive economic benefits to the United States, he has established that the 
proposed development of anti-cancer drug leads based upon the novel drug discovery platform he 
developed would potentially have wider implications in the pharmaceutical industry and for human 
health. 
Accordingly, as the Petitioner has documented the substantial merit and national importance of his 
proposed endeavor at and through ____ we find that he meets the first prong of the 
Dhanasar framework. 
B. Well Positioned to Advance the Proposed Endeavor 
The second prong shifts the focus from the proposed endeavor to the Petitioner. For the reasons 
discussed below, we find that the Petitioner does not meet this prong. 
With regard to the Petitioner's proposed work with his business, he submits the 
previously mentioned business plan, as well as South Korean patent applications for both the drug 
discovery platform the company will use, and for two chemical compounds which are potential anti­
cancer drug leads.4 The record also includes evidence of the Petitioner's experience in conducting 
research, specifically in the area of intrinsic protein disorder, in the form of papers published in 
scientific journals and reference letters. However, this evidence does not show that his past 
experience as a researcher renders him well positioned to advance his proposed endeavor of starting, • 
leading and growing a drug development company. 
4 The Petitioner also submitted South Korean registrations for patents that are unrelated to his proposed endeavor. 
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Matter of 1-N-
In addition, the record does not demonstrate sufficient interest in the Petitioner's company or its 
products from investors, customers or others in the pharmaceutical industry to support a finding that 
he is well positioned to advance his business endeavor. The record includes a letter from 
which indicates that he used the Petitioner's services as 
a "research consultant" through states that, in addition to building a 
website for his business, the Petitioner "advised me [ of the] biological meanings of cosmetics 
ingredients." This letter does not indicate that the Petitioner used his knowledge and experience in 
intrinsic disorder proteins or computer aided drug discovery in providing services to this client, and 
therefore does not help to establish that the Petitioner is well-positioned to advance his proposed 
endeavor, which is focused in those areas. Also, while letter states that the Petitioner 
attended the 20 I 7 held by the 
it does not indicate whether the Petitioner 
successfully attracted funding for his company at this event. Further, the Petitioner submitted a copy 
of messages he sent and received from an individual representing the 2017 
but there is no evidence that the Petitioner attended this event or received funding for his 
company. Accordingly, the Petitioner has not established that he is well-positioned to advance his 
proposed drug discovery business. · 
Turning to the Petitioner's research position at in addition to the previously mentioned 
evidence regarding his education and experience in research in computer aided drug discovery and 
intrinsic disorder proteins, the record includes a signed offer letter and other materials relating to his 
position as a post-doctoral research fellow in the hospital's 
The evidence indicates that through this position, the Petitioner will continue his research 
in developing a framework for drug discovery based upon IDPs. In describing the Petitioner's 
development of the drug discovery platform, notes that this research was presented at 
the 2016 conference, and led to the filing of the three previously 
mentioned South Korean patent applications. also notes that the Petitioner's research 
"has provided the field with newfound information that will aid in the development of new drugs for 
a variety of diseases." In his letter, Group Leader at the 
in Belgium, writes that the Petitioner "will be able to add to the field's base of 
knowledge and generate progress in extending this line of research toward developing novel medical 
treatments based on IDPs." of states 
that the Petitioner's "forthcoming research will facilitate better understanding of [the] molecular 
biology of proteins, which will most definitely lead to new advances in medical research." 
However, while all of these letters are complimentary of the Petitioner's previous work, and predict 
that his future work will add further knowledge to his field, they do not establish_ that his prior work 
constitutes a record of success in this area of research. 
On appeal, the Petitioner asserts that his research activity, including the publication of nine articles 
in scientific journals and the presentation of three papers at conferences, as well as the citation to 
that work by other researchers, stands as further evidence of his record of success. 5 The record 
5 The Petitioner submitted evidence from in response to the Director's RFE which shows that his work 
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Matter of 1-N-
demonstrates that the Petitioner has conducted, published, and presented research in his field. 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 or coauthored patents 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 his research has been frequently cited by 
independent researchers or otherwise served as an impetus for progress in the field, or that it has 
otherwise generated substantial positive discourse in the broader medical science or pharmaceutical 
communities. 
In his appeal brief, the Petitioner refers to a 2002 AAO non-precedent decision concerning a 
researcher in the field of liquid crystals who provided evidence of 16 independent citations to his 
work. However, we note that the referenced decision was adjudicated under a prior framework and 
the Petitioner has not explained the relevance of the number of citations of a researcher in a different 
field from his own, more than 15 years ago, in analyzing his own record of success. Moreover, this 
decision was not published as a precedent and therefore does not bind USCIS officers in future 
adjudications. See 8 C.F.R. § 103.3(c). Non-precedent decisions apply existing law and policy to 
the specific facts of the individual case, and may be distinguishable (as is the case here) based on the 
evidence in the record of proceedings, the issues considered, and applicable law and policy. 
While the Petitioner and his co-inventors have applied for patents based upon the development of the 
drug discovery platform and two drug leads, the record does not establish that they have led to the 
further commercial development of cancer fighting drugs based on the "curve ball" strategy. Nor 
does the evidence otherwise demonstrate that his work constitutes a record of success or progress in 
this area of research. Accordingly, we find that the Petitioner does not meet the second prong of the 
Dhanasar framework. 
C. 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 he is eligible for such a waiver because a labor 
certification would not account for his education, skills, and expertise in his field. In addition, he 
asserts that his contributions would be of such value to the pharmaceutical industry in the United 
States that he would benefit the United States despite the availability of qualified workers. 
However, as the Petiti_oner has not established that he is well positioned to advance his proposed 
was cited to a total of 44 times, with one article accounting for 23 of those citations. The Petitioner does not, however, 
offer comparative statistics which would indicate how often other medical science researchers are cited, nor does the 
record otherwise demonstrate that his published and presented research constitutes a record of success, or indicates a 
level of interest in his work from relevant parties, that would be sufficient to meet this prong. 
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Matter of 1-N-
endeavor as required by the second prong of the Dhanasar framework, he is not eligible for a 
national interest waiver and further discussion of the balancing factors under the third prong would 
serve no meaningful purpose. 
lll. CONCLUSION 
As the Petitioner has not met the requisite three prongs set forth in the Dhanasar analytical 
framework, we find that he has not established that he is eligible for or otherwise merits a national 
interest waiver as a matter of discretion. · 
ORDER: The appeal is dismissed. 
Cite as Matter of 1-N-, ID# 1483 750 (AAO Aug. 14, 2018) 
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