dismissed EB-2 NIW Case: Industrial Chemistry

U.S. Citizenship 
and Immigration 
Services 
In Re : 16130740 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 9, 2021 
Form I-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner , an industrial chemist, 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 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 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 
The Petitioner proposes to "generat[e] scientific advances with direct applications forl I 
research throughout our country'cl I industries." 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. 
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, published 
articles, peerreview activity, and a Ukrainian patent classification. He also offered evidence of articles 
that cited to his published work, and letters of support mainly describing his postdoctoral research at 
I I University. For the reasons discussed below, the record supp01is 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 postdoctoral research 
projects a~ IUniversity. 4 For exampleJ I stated that "while 
working on his project work, [the Petitioner] developed and investirted a scheme forl I I I' HoweverJ _ did not further elaborate and 
offer examples of how this scheme and other findings have been implemented or applauded in the 
chemical industry. 
Similarly,.__ ______ ____. described the Petitioner's research on.__ __________ ____. 
pollution. Although he claimed that "[he] can guarantee that vhe Perioner's] area of research 
expertise has direct applications throu out the United States Industry including I I 
Engineering, Operations, L..-----,-----..,.._ _ _, Plant Construction, Equipment Supply, and Specialist 
I IChemicals,'.__ ___ _.did not provide specific, actual examples indicating that the 
Petitioner's work has been utilized in any of these industries or otherwise constitutes a record of 
success in the field. 
3 SccDhanasar, 26l&NDec. at 888-91, for elaboration onthesethreeprongs. 
4 While we discuss a sampling of these letters, we have reviewed and considered each one. 
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Additionall indicated that the Petitioner "ex lain ed throu h his research that 
'--~-------------~--------------' and "the direct conversion 
o..._ _____________ _. reactor has not been previously reported in literature, hence, 
this is considered to be an important research." However,! I did not explain how this work 
has affected the chemical industry or otherwise represents a record of success or progress rendering 
the Petitioner well positioned to advance his proposed endeavor. 
The record also contains a Ukrainian patent classification for~--------~ The patent 
lists the Petitioner along with six others as the 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. 
The Petitioner provided the first page of articles claiming that they cited to his work. However, the 
articles did not support the Petitioner's assertions; the Petitioner did not include the reference pages 
showing that the articles actually cited to his research. In addition, the incomplete articles did not 
demonstrate thatthey differentiated the Petitioner's published material from the other cited works. On 
appeal, the Petitioner provides the reference pages for the articles. However, we will not consider this 
evidence for the first time on appeal as it was not presented before the Director. 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 ofObaigbena, 19 I&N Dec. 53 3 (BIA 
1988). Regardless, the aiiicles do not distinguish or highlight the Petitioner's work from the hundreds 
of other papers referenced in the aiiicles. 
Likewise, on appeal, the Petitioner submits three articles published by SdenceDaily reporting on the 
conversion ofl I We will not consider this evidence for the first time on appeal as it was not 
presented before the Director. Soriano, 19 I&N Dec. at 766; see also Obaigbena, 19 I&N Dec. at 533. 
Notwithstanding, none of the articles mention or credit the Petitioner's research, showing that it has 
somehow impacted the chemical industry or otherwise constitutes a record of success in the field. 
As it relates to the citation of the Petitioner's work, the record includes July 2018 information from 
Google Scholar indicating that only two of his articles have been cited by others, 12 and 10 times, 
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. Moreover, in response to the Director's request 
for evidence, the Petitioner submitted an updated Google Scholar list reflecting slight citation 
increases to the two articles, as well as a single cite to a third article. 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 )(1 ). Nevertheless, the Petitioner has not shown that the number of citations 
received by his articles or the level of interest they generated is sufficient to demonstrate that he is 
well positioned to advance his endeavor. 
Furthermore, the Petitioner maintains on appeal that he has a stronger citation record and 
"Research Gate Score" than Dr. Dhanasar, the petitioner in our Dhanasar precedent decision. While 
we listed Dr. Dhanasar's "publications and other published materials that cite his work" among the 
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documents he presented, our determination that he was well positioned under the second prong was 
not based on his citation record. Rather, in our precedent decision we found "[t]he petitioner's 
education, experience, and expertise in his field, the significance of his role in research projects, as 
well as the sustained interest of and funding from government entities such as NASA and AFRL, 
position him well to continue to advance his proposed endeavor of hypersonic technology research." 
Id. at 893. 
As it pertains to the Petitioner's education, while his doctoral degree from~--------~ 
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. 
Regarding his peer review activity, the Petitioner provided emails thanking him for reviewing nine 
manuscripts submitted to the Journal of Environmental Chemical Engineering and Chemical 
Engineering Communications. The Petitioner, however, has not demonstrated that his 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 record demonstrates that the Petitioner has mostly conducted and published research while atc=J 
~------__.University, 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, funding, 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 work 
has served as an impetus for progress in the industrial chemical 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 industrial chemical science. 
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. 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 framework, we 
conclude that he has not demonstrated that he is eligible for or otherwise merits a national interest 
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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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