dismissed EB-2 NIW Case: Electrical Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re: 9825328 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 27, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, an electrical engineer, 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. § 1153(b )(2). 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner qualified 
for classification as a member of the professions holding an advanced degree, but that he 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 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. 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. -
(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 ofjob 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 
1 In announcing this new framework. we vacated our prior 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. USC1S. 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 
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. 3 
II. ANALYSIS 
The Director found that the Petitioner qualifies as a member of the professions holding an advanced 
degree. 4 The remaining 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. 
The regulation at 8 C.F.R. § 204.5(k)(4)(ii) states, in pertinent part, "[t]o apply for the [national 
interest] exemption the petitioner must submit Form ETA-750B, Statement of Qualifications of 
Alien." The denial decision stated that the Petitioner did not provide "a properly completed 
Application for Alien Employment Certification (Form ETA-750B) or Application for Permanent 
Employment Certification (ETA Form 9089), Parts J, K, and L. Therefore, since the petitioner did not 
submit this required evidence, USCIS must deny the Form I-140." With the petition, however, the 
Petitioner offered a properly signed and executed Form ETA-750B. Accordingly, the Director's 
finding on this issue is withdrawn. 
At the time of filing, the Petitioner was working as a "Vice President in Technology" for! I I I 5 His responsibilities include "design and development of a high-c~acit 
and transportation system to inject reference data to the low-latency platform of 
~---------~. The Petitioner previously served as a research assistant at 
University from September 2012 until October 2017. 
A. Substantial Merit and National Importance of the Proposed Endeavor 
The Petitioner indicated that he intends to continue his research aimed at "the development of 
frameworks for computer networks to improve caching, traffic engineering, and other real-world 
applications of advanced algorithms." He stated that his proposed work "contributes to technological 
developments pertaining to network performance, social media and entertainment consumption, 
content delivery, autonomous vehicle systems, and other aspects of modem-day network-based 
devices." The Petitioner farther explained that his proposed research involves "optimizing I I 
I I algorithms~---------------~ for extremely latency-sensitive 
applications," "applying combinatorial optimization techniques to jointly optimizel O I I I strategies in content centric networks," and "applying network coding to peer-assisted content 
delivery networks." 
3 See Dhanasar, 26 T&N Dec. at 888-91, for elaboration on thesf three prongs. 
4 The Petitioner received a Ph.D. in Electrical Engineering from !university in December 2017. 
5 As the Petitioner is applying for a waiver of the job offer requirement, it is not necessary for him to have a job offer from 
a specific employer. However, we will consider information about his current position to illustrate the capacity in which 
he intends to work in order to determine whether his proposed endeavor meets the requirements of the Dhanasar analytical 
framework. 
3 
The record supports the Director's determination that the Petitioner's proposed endeavor has 
substantial merit and national importance. For example, the record includes a letter froml I I I professor au I University, stating that the Petitioner's proposed research stands 
to benefit "the progression of the overall field and technolopical advanceme11{s in tbe JTuited Stat,s." 
In addition, the Petitioner offered a letter froni.__ ___ _.l vice president o~ ..... ______ ___.I for 
.__ __________ -,........::ac::.;ss::...:e:..:::.rt.:c:i~n that the Petitioner's undertaking stands to "have a highly 
significant impact on the U.S . .__ __ ~ market." Furthermore, the Petitioner provided documentation 
indicating that the benefit of his proposed research has broader implications, as the results are 
disseminated to others in the field through engineering journals and conferences. As the Petitioner 
has documented both the substantial merit and national importance of his proposed I I 
optimization research, he has established 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. The record includes 
documentation of his curriculum vitae, academic credentials, published articles, conference 
presentations, U.S. patent application, peer review activity for the Institute of Electrical and 
Electronics Engineers (IEEE), and participation in a project fonded by the.__ _____ ___. 
I I "Innovation Corps Program." He also offered evidence of articles that cited to his 
published work, and letters of support discussing his graduate work under the guidance ofl I D a professor atl I University, andl I a former fellow withl 16 
The Petitioner contends on appeal that his education, research experience in his specialty, published 
and presented work, citation evidence, U.S. pa~ent ap]ilication, recommendation letters from others in 
the field, peer review service for IEEE, an research fonding demonstrate that he is well 
positioned to advance his proposed endeavor. For the reasons discussed below, the record supports 
the Director's determination that the evidence is insufficient to demonstrate that the Petitioner is well 
positioned to advance his proposed research under Dhanasar' s second prong. 
In letters supporting the petition, several references discussed the Petitioner's graduate research 
projects atl !University and I [ 7 For example, regarding the Petitioner's work 
involving utilization ofl I networks.I I stated that the Petitioner developed "a network 
model in which I I have the capability to temporarily store popular content so that the 
reguestina I are able to retrieve this content from these temporaryl I' In addition, 
I I indicated that the Petitioner devised "a second model that is primarily meant to serve more 
densely populated urban areas by incorporatin~ ~ into the network." While I I 
asserted that the Petitioner's I I network "models, combined with his I O O I 
significantly reduce network delays while simultaneously maximizing throughput," he did not provide 
specific examples indicating that these models have been implemented in the digital communications 
industry or otherwise constitute a record of success in the field. 
61 I stated: "I first met the petitioner through his Ph.D. advisor,.__ ____ __, .. who recommended him as an 
extremely capable and accomplished student. Thus, I recrnited him into my research group as a Ph.D. intern in 2015 where 
he worked with our team on projects related td I" 
7 While we discuss a sampling of these letters, we have reviewed and considered each one. 
4 
With res ect to the Petitioner's research atl7 relating tq I congestion control schemes for 
r-----,.. _________ __,,,__.,,C:=J\ndicated that he and the Petitioner "developed ,c=J 
.___ _ _.algorithm, dubbed.___ _ ___,, to efficiently and fairly utilize all the available capacity located 
along the paths which connect the end user to intermediary routers that are working to cache the 
requested content object."I I further stated that "[t]hrough extensive network simulations, [the 
Petitioner] has demonstrated thatlhis algothm is superior to its predecessors," but he does not offer 
examples of how the Petitioner's algorithm has been implemented, utilized, or applauded in 
the digital communications industry. 8 
Likewise,! I associate professor au I university, asserted that the Pe~itioner's 1 1 
algorithm is capable of achieving I I fairness while maintaining! J completion times 
antj~----~~ink utilization." Additionall noted that he cited to the Petitioner's work 
in a paper, entit.~le~d:!;..!:=.-------~-------=--------------------' 
I l"9 I ~s paper, however, does not distinguish or highlight the Petitioner's work from 
the 18 other articles he cited to in his paper. 
~ding the Petitioner's overall citation record,I 00 l assistant professor at University of 
L___Jindicated that the Petitioner's "work has been cited over 30 separate times, a clear indication 
that his expertise is recognized by fellow researchers." As it relates to the citation of the Petitioner's 
work, the record includes Janua 2019 information from Goo le Scholar indicatin that his three 
hi hest cited articles, entitled ' 
and 
~---~ ' each received 17, 6, and 5 citations, respectively. The Petitioner does not specify how 
many citations for each of these individual articles were self-citations by him or his coauthors. 
Moreover, in response to the Director's request for evidence (RFE), the Petitioner submitted an 
updated Google Scholar list ( dated October 1 7, 2019) reflecting a moderate increase of citations to his 
individual articles. He did not demonstrate how many of these additional citations occurred in papers 
published prior to or at the time of initial filing. See 8 C.F.R. § 103.2(b)(l). 
Furthermore, the Petitioner provided data from Clarivate Analytics regarding baseline citation rates 
and percentiles by year of publication for the engineerinl research field. The Petitioner claimed that 
his paper coauthored withl land others, entitled I 
I t ranked among "the top 10% most-cited articles published in Engineering in 
2016" based on the number of citations it has received (17) since that time. The Petitioner did not 
indicate whether he factored in any self-citations in determining this percentile ranking. In addition, 
the initial Clarivate Analytics citation data is from February 2018, and therefore does not capture 
citations that occurred after early 2018, while the Petitioner's first Google Scholar citation report is 
8 The record contains a U.S. patent application, entitled .__ _________ ========~----:::~ 
that was published on December 14. 2017. This published patent application filed b.,,__ ______ ___, listsD 
~ the Petitioner, and two others as inventors. While issuance of a patent recognizes the originality of an invention, the 
Petitioner has not demonstrated the significance of his innovation in the field. 
9 The record includes a copy ofl Is paper in which he references the Petitioner's l.___--r----------, 
~-----~" but concludes that the Petitioner and his coauthors "don't consider the effects o~'-------=u-­
and assume that the transfer path is constant during the transmission, which may be not practical." 
5 
dated January 2019. 10 Likewise, the Clarivate Analytics citation data offered in response to the RFE 
is from February 2019, and therefore does not capture citations that occurred after early 2019, while 
the Petitioner's second Google Scholar citation report is dated October 2019. Because the Clarivate 
Analytics data is not contemporaneous with the Petitioner's Google Scholar data, he has not shown 
that the former provides a proper analysis of his citation record. Moreover, the documentation from 
Clarivate Analytics states that "[ c ]itation frequency is highly skewed, with many infrequently cited 
papers and relatively few highly cited papers. Consequently, citation rates should not be interpreted 
as representing the central tendency of the distribution." 
Additionally, the Petitioner presented an article in Scientometrics written by Lutz Bornmann and 
W emer Marx, entitled "How to evaluate individual researchers working in the natural and life sciences 
meaningfully? A proposal of methods based on percentiles of citations." This article presents 
recommendations for "how to evaluate individual researchers in the natural and life sciences" for 
purposes of funding and promotion or hiring decisions. The authors state that "publications which are 
among the 10% most cited publications in their subject area are as a rule called highly cited or 
excellent" and that "the top 10% based excellence indicator" should be given "the highest weight when 
comparing the scientific performance of single researchers." The Petitioner's field of electrical 
engineering, however, does not fall under "the natural and life sciences." Moreover, with regard to 
citation information from Google Scholar, the authors advise against "using Google Scholar (GS) as 
a basis for bibliometric analysis. Several studies have pointed out that GS has numerous deficiencies 
for research evaluation." 
The Petitioner's response to the Director's RFE included June 2019 information derived from 
"Microsoft Academic" that compares his citation and publication counts to those of other researchers 
in the areas of I [,___ _____ __.,I I 
I O l" Again, the Petitioner did not indicate whether he factored in any self-citations in 
compiling his percentile rankings from Microsoft Academic. Moreover, the "Date of Collection" of 
the percentile rankings (June 27, 2019) post-dates the filing of the petition, and therefore the Petitioner 
has not shown that the 53 Google Scholar citations used in the Microsoft Academic percentile 
calculation occurred in papers published prior to or at the time of initial filing. See 8 C.F.R. 
§ 103.2(b)(l). Regardless, the Petitioner has not demonstrated that the number of citations received 
by his published articles reflects a level of interest in his work from relevant parties sufficient to meet 
Dhanasar's second prong. 
Further, as it relates to the Petitioner's education, while his Ph.D. from I I University 
renders him eligible for the underlying EB-2 visa classification, he has not shown that his academic 
accomplishments by themselves are sufficient to demonstrate that he is well positioned to advance his 
proposed endeavor. 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. 
10 A webpage accompanying the Clarivate Analytics information states that its citation "data is updated six times a year" 
(every two months). 
6 
Regarding his peer review activity, the Petitioner provided emails thanking him for reviewing one 
manuscript submitted to IEEE/ACM Transactions on Networking and another manuscript submitted 
twice to IEEE Transactions on Wireless Communications. The Petitioner, however, has not 
demonstrated that his occasional participation in the widespread peer review process represents a record 
of success in his field or that it is otherwise an indication that he is well positioned to advance his research 
endeavor. 
The Petitioner also asserted that he has received fonding for his research from thec=J "Innovation 
Corps Program." The record includes a July 2016 email from thec=]program director tol I 
informing him that his "team has made the final cut" to submit an "I-Corps Proposal." In addition, 
the Petitioner provided a January 2019 letter from I I stating that although the Petitioner was an 
"instrumental" part of the I-Corps project team, he "is not listed as the direct recipient of this fonding." 
In Dhanasar, the record established that the petitioner "initiated" or was "the primary award contact 
on several fonded 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 (rather thanl I was mainly 
responsible for obtainingDfonding for their research project. 
The record demonstrates that the Petitioner has conducted, published, and presented research during 
his graduate studies atl I University, internship witH land employment with 
I I but he has not shown that this work renders him well positioned to 
advance his proposed 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, fonding, or academic 
credit, not every individual who has performed original research will be found to be well positioned 
to advance his 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 sufficiently demonstrated that his published and 
presented work has served as an impetus for progress in the electrical engineering field or that it has 
generated substantial positive discourse in the digital communications industry. Nor does the evidence 
otherwise show that his work constitutes a record of success or progress in advancing research relating 
to caching optimization and traffic engineering. As the record is insufficient to demonstrate that the 
Petitioner is well positioned to advance his proposed research endeavor, he has not established that he 
satisfies 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 a waiver due to the impracticality of 
labor certification, his expertise in the field, and the importance of his research. However, as the 
Petitioner has not established that he is well positioned to advance his proposed endeavor as required 
by the second prong of the Dhanasar framework, he is not eligible for a national interest waiver and 
farther discussion of the balancing factors under the third prong would serve no meaningful purpose. 
7 
III. CONCLUSION 
As the Petitioner has not met the requisite second prong of the Dhanasar analytical framework, we 
conclude that he has not established he 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. 
ORDER: The appeal is dismissed. 
8