dismissed EB-2 NIW Case: Epidemiology

U.S. Citizenship 
and Immigration 
Services 
In Re: 16302241 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JUL. 20, 2021 
Form I-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a medical epidemiologist, 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). 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner 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 nova 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 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. 
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 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 impmiance, 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 too btain a labor ce1iification; whether, even assuming 
that other qualified U.S. workers are available, the United States would still benefit from the foreign 
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) (NYSDOT). 
2 See also Poursina v. USCJS, No. 1 7-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USC IS' decision to grant or 
deny a nationalinterestwaiverto be discretionaiy in nature). 
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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 concluded that the Petitioner qualifies as a member of the professions holding an 
advanced degree. 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 Petitioner proposes to "ad vane [ e] pub lie health preparedness and emergency response in resource­
challenged environments with a focus on vaccine preventable diseases such as polioviruses and Ebola 
virus." For the reasons discussed below, we agree with the Director that the Petitioner has not 
sufficiently demonstrated eligibility under Dhanasar's three-prong analytical framework. 
The first prong relates to substantial merit and national importance of the specific proposed endeavor. 
Dhanasar, 26 I&N Dec. at 889. The Director concluded that the Petitioner's proposed endeavor met the 
substantial merit and national importance requirements, and the record supports that detem1ination. 
The second prong shifts the focus from the proposed endeavor to the petitioner in order to determine 
whether he or she is well positioned to advance the proposed endeavor. Dhanasar, 26 I&N Dec. at 
890. 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 
endeavor. Rather, we examine the factors set forth in Dhanasar to detennine 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. m 
determining that the Petitioner did not meet the second prong, the Director indicated and discussed the 
Petitioner's submitted documentation, such as his curriculum vitae, education credentials, 
employment record, reference letters, publication record, citation history, manuscript reviews, 
research projects, and media reports. On appeal, the Petitioner does not address the Director's specific 
findings or particularly identifies any erroneous conclusion oflaw. 
Instead, the Petitioner contends that his "current engagement with the.__ __________ _. 
I ~ on a full time basis, enables [him] to be well positioned to advance [his] proposed endeavor." 
In addition, the Petitioner submits a position description, dated July 2020, for a senior epidemiologist 
with I I and a job confirmation letter reflecting that he "served as a contractor Senior 
Epidemiologist on the ______________ ___. Support Team from October 1, 2019 
until October 1, 2020 when he became a full time employee." He filed his petition in June 2019, prior 
to his positions with I I Eligibility must be established at the time of filing. 8 C.F.R. 
§§ 103.2(b )(1), (12);MatterofKatigbak, 14 I&NDec.45, 49 (Reg'lComm'r 1971). A petition cannot 
be approved at a future date after the petitioner becomes eligible under a new set of facts. Matter of 
lzummi, 22 I&N Dec. 169, 175 (Comm'r 1998). That decision further provides, citing Matter of 
Bardouille, 18 I&N Dec. 114 (BIA 1981 ), that USCIS cannot "consider facts that come into being 
3 SccDhanasar, 26l&NDec. at 888-91, for elaboration onthesethreeprongs. 
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only subsequent to the filing of a petition." Id. at 1 76. Accordingly, we will not consider his positions 
withl I on appeal under Dhanasar's second prong. 
The Petitioner also submits a reference letter froml I However, the Petitioner 
did not off er this letter either at initial filing or after the Director afforded him an opportunity in a 
request for evidence (RFE). 4 See Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 1988) (providing 
that if "the petitioner was put on notice of the required evidence and given a reasonable opportunity 
to provide it for the record before the denial, we will not consider evidence submitted on appeal for 
any purpose" and that "we will adjudicate the appeal based on the record of proceedings" before the 
Chief); see also Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). Accordingly, we will not 
consider this evidence on appeal. 
As the Petitioner has not overcome the grounds of the Director's decision and has not shown on appeal 
that he is well positioned to advance his proposed research endeavor, he has not established that he 
satisfies the second prong of the Dhanasar framework. Accordingly, the Petitioner has not 
demonstrated eligibility for a national interest waiver. Further analysis of his eligibility under the trurd 
prong outlined in Dhanasar, therefore, would serve no meaningful purpose. 
III. CONCLUSION 
As the Petitioner has not met the requisite second prong of the Dhanasar analytical framework, we 
conclude that he has not demonstrated that 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. 
4 In the Director's RFE, he specifically stated "[t ]o show your education, skills, knowledge, and record of success in related 
or similar efforts, you may submit one or more pieces of evidence from the following non-exhaustive list: ... letters fiom 
experts in the field. describingyourpastachievements and providing specific curriculum vitae." 
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