dismissed EB-2 NIW Case: Cyber-Physical Systems

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAR. 20, 2024 In Re: 30044466 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a cyber-physical system consultant, seeks second preference immigrant classification 
as a member of the professions holding an advanced degree or as an individual of exceptional ability, 
as well as a national interest waiver of the job offer requirement attached to this EB-2 classification. 
Immigration and Nationality Act (the Act) section 203(b )(2), 8 U.S.C. § 1153(b )(2). 
The Director of the Nebraska Service Center denied the petition, concluding the Petitioner had not 
established a waiver of the required job offer, and thus of the labor certification, would be in the 
national interest. Subsequently, the Director affirmed the decision on motion. The matter is now 
before us on appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
To establish eligibility for a national interest waiver, petitioners must demonstrate qualification for the 
underlying EB-2 visa classification, as either an advanced degree professional or as an individual of 
exceptional ability in the sciences, arts, or business. Section 203(b )(2)(B)(i) of the Act. In addition, 
petitioners must show the merit of a discretionary waiver of the job offer requirement "in the national 
interest." Section 203(b )(2)(B)(i) of the Act. Matter ofDhanasar, 26 I&N Dec. 884, 889 (AAO 2016) 
provides that U.S. Citizenship and Immigration Services (USCIS) may, as matter of discretion, 1 grant 
a national interest waiver if: 
• The proposed endeavor has both substantial merit and national importance; 
• The individual is well-positioned to advance the proposed endeavor; and 
• On balance, waiving the job offer requirement would benefit the United States. 
1 See also Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts (and 
Third in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver to be 
discretionary in nature). 
II. ANALYSIS 
At initial filing, the Petitioner's cover letter stated: 
[The Petitioner] seeks a national interest waiver ... so he may expand on his collaboration 
in neuroscience research, applying his vast experience in Information and Communication 
Technologies and Applied Electronics Design to build cyber-physical systems as novel 
tools for physicians to identify and monitor real-time restoration of consciousness and 
thus reduce long-term cognitive disability. 
In addition, the Petitioner provided a statement reflecting: 
My goal is to combine the two lines of my interest. I aim to build cyber-physical systems 
to apply recently discovered biomarkers to make real-time identification and monitor 
consciousness progression in brain injury and, more recently, COVID-19 comatose 
patients. The proposed tool is not a monolithic device containing predetermined 
functionality. Instead, this is a composition of interconnected systems that work as one 
whole, seeking to integrate data collection for real-time data analysis using cloud 
computing resources and the novel 5G mobile network. This network offers incredible 
capabilities to achieve fast computing and minimize processing delay accelerating real­
time acquisition and analysis. This system may store and process vital information to 
optimize current biomarkers and simultaneously apply those biomarkers to thousands of 
individuals nationwide. By doing so, during the COVID-19 pandemic for instance, one 
can assess patients' persistent unresponsiveness from home, an ambulance, and small 
hospitals without specialized physicians near the patient's bedside. 
In order to demonstrate his ability to accomplish his endeavor, the Petitioner referenced his education, 
collaborations, research contributions, memberships, and conferences. Based on the Petitioner's 
statements and documentation contained in the record regarding his proposed endeavor, the Director 
informed the Petitioner in the request for evidence (RFE) of the satisfaction of the first prong, relating to 
substantial merit and national importance. Dhanasar, 26 I&N Dec. at 889. However, the Director 
determined, in part, the Petitioner did not meet the second and third prongs, pertaining to his position in 
advancing his proposed endeavor and whether waiving the job offer requirement would be beneficial to 
the United States. Id. at 890. 
In response to the RFE, the Petitioner submitted a business plan for his proposed endeavor. In addition, 
the Petitioner provided evidence of his trainings and courses, experience in number portability, 
presentations, consulting work and employment, and contract certifications and awards. In denying the 
petition under the second prong, the Director indicated that the evidence, including support letters, did 
not show the Petitioner "played a significant role in the funded projects, was listed on the grants, or was 
the primary award contact of the grants." Further, the Director determined the Petitioner did not have a 
"determinative role in establishing or controlling the direction of the research, that he has received 
repeated funding as primary awardee, or is listed on the grants as sole researcher." In addition, the 
Director concluded the Petitioner has "a record of success or that [he is] well positioned to advance [his] 
proposed endeavor" and "none of this evidence show that [he has] a leading role in the project." 
2 
On motion, the Petitioner referenced his prior evidence and provided the previously submitted business 
plan. In affirming the denial, the Director stated: 
. . . You submitted a plan describing how you intend to pursue your entrepreneurial 
business in the United States. However, you did not provide sufficient evidence to support 
your business plan such as correspondence from prospective/potential employers, clients, 
or customers. You have submitted no evidence to indicate that you have registered a 
corporation in the United States. As a part of our business plan, you indicate that 'We 
have identified as potential customers Academic Medical Centers composed of accredited 
medical schools and major teaching hospitals, and tertiary care hospitals,' but you have 
not submitted any evidence that you have contacted these entities or that any of them have 
an interest in collaborating with your potential medical device company. The evidence 
does not show your model and plan and its support for work in the United States. 
On appeal, the Petitioner provides new evidence and claims that "this appeal will be used to add novel 
evidence to overcome the 'grounds for denial' and outline current progress towards achieving the 
proposed endeavor." Because the Petitioner was put on notice and given a reasonable opportunity to 
provide this evidence, we will not consider it for the first time of appeal. See 8 C.F.R. § 103.2(b)(l 1) 
(requiring all requested evidence be submitted together at one time); Matter of Soriano, 19 I&N Dec. 764, 
7 66 (BIA 1988) ( declining to consider new evidence submitted on appeal because "the petitioner was put 
on notice of the required evidence and given a reasonable opportunity to provide it for the record before 
the denial"). Furthermore, the evidence relates to events occurring after the initial filing of the petition. 
Eligibility must be established at the time of filing. 8 C.F.R. §§ 103.2(b)(l), (12); Matter ofKatigbak, 
14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). Moreover, a petitioner may not make material changes to 
a petition that has already been filed in an effort to make a deficient petition conform to USCIS 
requirements. Matter ofIzummi, 22 I&N Dec. 169, 175 (Assoc. Comm'r 1998). 
Notwithstanding the above, the record supports the Director's determination that the Petitioner did not 
demonstrate that he is well positioned to advance his proposed endeavor under Dhanasar 's second prong. 
The Petitioner possesses a master of science degree in telecommunications and network management. 
USCIS considers an advanced degree, particularly a Ph.D. in a Science, Technology, Engineering, and 
Mathematics (STEM) field tied to the proposed endeavor and related to work furthering a critical and 
emerging technology or other STEM area important to U.S. competitiveness or national security, an 
especially positive factor to be considered along with other evidence for purposes of the assessment 
under the second prong. See 6 USCIS Policy Manual F.5(D)(2), https://www.uscis.gov/policymanual. 
However, a degree in and of itself is not a basis to determine that a person is well positioned to advance 
the proposed endeavor. Id. Furthermore, in Dhanasar, the record established that the petitioner held 
multiple graduate degrees including "two master of science degrees, in mechanical engineering and 
applied physics, as well as a Ph.D. in engineering." Id. at 891. We look to a variety of factors in 
determining whether a petitioner is well positioned to advance his proposed endeavor and education 
is merely one factor among many that may contribute to such a finding. 
The Petitioner also presented evidence relating to his past employment in telecommunications. Again, 
the Petitioner claimed his proposed endeavor is to "expand on his collaboration in neuroscience research, 
applying his vast experience in Information and Communication Technologies and Applied Electronics 
3 
Design to build cyber-physical systems as novel tools for physicians to identify and monitor real-time 
restoration of consciousness and thus reduce long-term cognitive disability." However, the record does 
not reflect the Petitioner has a record of success in collaborating in neuroscience research by building 
cyber-physical systems to identify and monitor real-time restoration of consciousness. Instead, the 
Petitioner provided letters that make broad, general statements regarding his past involvement as a guest 
researcher and "offering his experience in electronic design and Machine learning algorithms." Here, the 
Petitioner not shown a track record of success in order to advance his proposed endeavor. 
Moreover, as discussed by the Director, the Petitioner has not demonstrated his ability to secure funding 
for his endeavor. The letter from D-P-C- simply indicates that the Petitioner "currently serves as a 
consultant for this work, which has been presently funded by the National Institute of Health." In 
Dhanasar, the record established that the petitioner "initiated" or was "the primary award contact on 
several funded grant proposals" and that he was "the only listed researcher on many of the grants." Id. at 
893, n.11. Here, the record does not show that the Petitioner was mainly responsible for obtaining funding 
for the research project. 
Finally, the Petitioner has not established how his collaboration and alignment with researchers shows 
how he has had an impetus for progress in the field or that he has generated substantial positive discourse 
in the industry rather than relying on others to conduct the research and work. We examine the factors 
set forth in Dhanasar to determine whether, for instance, the individual's progress towards achieving the 
goals of the proposed endeavor, record of success in similar efforts, or generation of interest among 
relevant partis supports such a finding. Id. at 890. Here, the Petitioner has not sufficiently demonstrated 
a record of success or progress in advancing his proposed endeavor, including through his business plan 
with corroborating evidence. 
As such, the Petitioner has not shown that he is well positioned to advance his proposed endeavor under 
Dhanasar 's second prong. 
III. CONCLUSION 
As the Petitioner has not met the requisite second prong of the Dhanasar analytical framework, we 
conclude he has not demonstrated eligibility for or otherwise merits a national interest waiver as a 
matter of discretion. Therefore, analysis of his eligibility under the third prong outlined in Dhanasar 
would serve no meaningful purpose. 2 Accordingly, 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. 
2 See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (stating that agencies are not required to make "purely advisory findings" 
on issues that are unnecessary to the ultimate decision); see also Matter ofL-A-C-, 26 l&N Dec. 516,526 n.7 (BIA 2015) 
( declining to reach alternate issues on appeal where applicants do not otherwise meet their burden of proof). 
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