dismissed EB-2 NIW Case: Gastroenterology

U.S. Citizenship 
and Immigration 
Services 
In Re: 16086370 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 10, 2021 
Form I-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a gastroenterologist, 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 Texas 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 asserts 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 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 offerorforthe 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 
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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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 
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. In his initial cover letter, the Petitioner claimed that '"his distinguished 
record of clinical success and research accomplishments conclusively demonstrates that he can be 
expected to continue serving the U.S. national interest to a significantly greater extent than other 
physicians/researchers." Furthermore, the Petitioner asserted that his eligibility "is premised on his 
accomplishments as physician/researcher who has demonstrated a profound expe1iise in the area of 
gastroenterology, as well as in several other areas of medicine." In addition, the Petitioner provided a 
letter fro ml I who discussed "some on · ro · ects that have the otential to make an 
im act on the field " such as 
also rovided the Petitioner's .......,.. ____ ...., 
future studies, such as "establish[ing] a standard method to remove.__ ___ __,completely and prevent 
.__ ____ __.I In response to the Director's request for evidence, the Petitioner provided a statement in 
indicating that he "will be joinin~ I' "to run more research that further focuses on disease 
preventive measures anq improve the quality of.__ ________ __.· The record contains 
documentation relating td I diseases and statistics, and information pertaining tol I 
and gastroenterologists. Here, the Petitioner has sufficiently shown the substantial merit and national 
importance of his proposed research endeavor. Accordingly, the Petitioner satisfied the first prong of the 
Dhanasar analytical framework. 
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. The record includes documentation of his curriculum vitae, academic credentials, studies, 
published materials and abstracts, presentation slides, and conference and peer review invitations. He 
also offered recommendation letters and evidence of citations to his research. For the reasons 
discussed below, the evidence in the record 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 previous research and 
work. 4 For example I I stated that the Petitioner "frequently shares his knowledge 
in gastroenterolo in a varie of wa s, includin writin case re orts on interestin 
cases," such as' '-----------------------------------' 
3 SccDhanasar, 26l&NDec. at 888-91, for elaboration on these three prongs. 
4 Although we discuss a sampling ofletters, we have reviewed and considered each one. 
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0 0 I Although! I indicated its publication in the American Journal of 
Gastroenterology and citation in another article, he did not further explain how this article or work 
has been implemented in the field beyond being cited in a single article, representing a record of 
success or progress rendering him well positioned to advance his proposed endeavor. 
Similarly~-------~ indicated that the Petitioner "often presents unique and difficult cases 
that he has managed in the form of case report, such as his aiiiclel I I I' which was published in the American Journal of Gastroenterology." 
While he claimed thatthe Petitioner's "paper increases the awareness amongphysicians,'1 I 
did not provide specific examples indicating how the Petitioner's work has served as an impetus for 
progress or generated positive discourse in the field, or otherwise signifies a record of success in the 
field. 
Likewise,~--------~ stated that the Petitioner "has produced a significant amount of 
work on a wide range of topics relevant to his expertise in gastroenterology, such as his article on 
I I Although he asserted that the article's publication in the American 
Journal of Gastroenterology "demonstrates the impact this report is having in the field of 
gastroenterology,'' he did not further elaborate and describe the article's influence in the field, 
indicating the Petitioner's history of success in the field. 
As it relates to the citation of the Petitioner's work, the record includes information from Google 
Scholar indicating that only three of his articles have been cited by others, 7, 2, and 1 time(s), 
respectively. The Petitioner does not specify how many, if any, citations for each of these individual 
articles were self-citations by him or his coauthors. Nevertheless, the Petitioner has not shown that 
the number of citations received by his three articles or the level of interest they generated is sufficient 
to demonstrate that he is well positioned to advance his endeavor. 
As it pertains to the Petitioner's education, while his degree froml !University ofl I I !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. 
Regarding his peer review activity, the Petitioner provided emails requesting him to be a member of 
editorial boards for journals. However, the Petitioner did not show that he actually served on the 
boards or otherwise conducted peer reviews for the journals. Regardless, the Petitioner did not 
demonstrate how receiving requests to be part of journal editorial boards constitutes a record of success 
in his field or that it is otheiwise an indication that he is well positioned to advance his research endeavor. 
Similarly, the Petitioner provided emails inviting him to attend conferences and symposiums. 
However, the Petitioner did not demonstrate which events, if any, he attended. The record contains 
presentation slides but do not indicate to which events they pertain. Nonetheless, many professional 
fields regularly hold meetings and conferences to present new work, discuss new findings, and 
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network with other professionals. Here, the Petitioner has not shown that his presentations generated 
a level of interest to reflect that he is well positioned to advance his endeavor. 
The record demonstrates that the Petitioner has published research, but he has not shown that this work 
renders him well positioned to advance his proposed research. While we recognize that research must 
add inf mmation 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 perf mmed 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 work has served as an impetus for progress in the field or that it has 
generated substantial positive discourse in the industry. Nor does the evidence otherwise show that 
his work constitutes a record of success or progress in advancing research relating to gastroenterology. 
Because 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. Accordingly, the Petitioner has not demonstrated eligibility for a national interest waiver. 
Further analysis of his eligibility under the third prong outlined in Dhanasar, therefore, would seive 
no meaningful purpose. 
III. CONCLUSION 
As the Petitioner has not met the requisite second prong of the Dhanasar analytical framewmk, 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. 
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