dismissed EB-2 NIW Case: Materials Chemistry

U.S. Citizenship 
and Immigration 
Services 
In Re: 9505533 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAY 10, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a materials chemistry researcher, 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 approved the immigrant petition, but subsequently issued a 
notice of intent to revoke (NOIR) and later revoked the approval of the petition, concluding that U.S. 
Citizenship and Immigration Services (USCIS) had approved the petition in error. Specifically, the 
Director determined that although the Petitioner qualified for classification as a member of the 
professions holding an advanced degree, 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 nova review, we will dismiss the appeal. 
I. LAW 
The Secretary of Homeland Security "may, at any time, for what he deems to be good and sufficient 
cause , revoke the approval of any petition .... " Section 205 of the Act, 8 U.S.C. § 1155. By 
regulation this revocation authority is delegated to any USCIS officer who is authorized to approve an 
immigrant visa petition. 8 C.F.R. § 205.2(a). USCIS must give the petitioner notice of its intent to 
revoke the prior approval of the petition and the opportunity to submit evidence in opposition thereto, 
before proceeding with written notice of revocation. See 8 C.F.R. § 205.2(b) and (c). The Board of 
Immigration Appeals has discussed revocations on notice as follows: 
[A] notice of intention to revoke a visa petition is properly issued for "good and 
sufficient cause" where the evidence of record at the time the notice is issued, if 
unexplained and unrebutted, would warrant a denial of the visa petition based upon the 
petitioner's failure to meet his burden of proof. The decision to revoke will be 
sustained where the evidence of record at the time the decision is rendered, including 
any evidence or explanation submitted by the petitioner in rebuttal to the notice of 
intention to revoke, would warrant such denial. 1 
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).2 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 3, 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 
1 Matter of Ho, 19 I&N Dec. 582, 590 (BIA 1988) ( citing Matter of Estime, 19 I&N Dec. 450 (BIA 1987)). Upon the 
proper issuance of a notice of intent to revoke for good and sufficient cause, the petitioner bears the burden of proving 
eligibility the requested immigration benefit. Id. at 589. 
2 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). 
3 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 
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. 4 
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 
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. 5 
II. ANALYSIS 
The Director found that the Petitioner qualifies as a member of the professions holding an advanced 
degree. 6 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. 
At the time of filing, the Petitioner was pursuing a Ph.D. in Che.,..m_..i..,_stry=......._,a=t .... l ________ ~I 
University I I His research responsibilities included developing 'i~----.,,......,==.UI P::....:o::.;:;ly,Lm=e~rs::...,, 
derived from natural sources, such a ~---------~ and methods of j I 
4 To establish that it would be in the national interest to waive the job offer requirement, a petitioner must go beyond 
showing their expertise in a particular field. The regulation at 8 C.F.R. § 204.5(k)(2) defines ·'exceptional ability" as "a 
degree of expertise significantly above that ordinarily encountered" in a given area of endeavor. By statute. individuals of 
exceptional ability are generally subject to the job offer/labor certification requirement; they are not exempt by virtue of 
their exceptional ability. Therefore, whether a given petitioner seeks classification as an individual of exceptional ability, 
or as a member of the professions holding an advanced degree, that individual cannot qualify for a waiver just by 
demonstrating a degree of expertise significantly above that ordinarily encountered in their field of expertise. See 
Dhanasar, 26 I&N Dec. at 886 n.3. 
5 See Dhanasar, 26 I&N Dec. at 888-91. for elaboration on these three prongs. 
6 The Petitioner received a Master of Science degree in Chemistry from the University of~-------~ m 
December 2015. 
3 
leading to " In response to the Director's 
NOIR, the Petitioner provided a June 2019 letter from I I a professor at 
University I I stating: "Since MjY of ~19, [the Petitioner] is employed in 
the Department of Mechanical and Industrial Engineering at here [he] started his research under 
my supervision in conjunction with pursuing his Ph.D.I degree in Mechanical Engineering." c::J 
'.=========in=-d=i:..::.cated that the Petitioner's work at involves "the design ofl I 
~----.-----~ biodegradable polymers and nanomaterials. . . . [The Petitioner] is also 
researching the synthesis of novel nanoparticles and nanomaterials for water remediation 
applications." 7 
A. Substantial Merit and National Importance of the Proposed Endeavor 
The Petitioner indicated that he intends to continue his research involving "materials chemistry with 
applications in energy and water remediation." He asserted that his proposed research is aimed at 
developing smart polymers for water remediation, I I ~-------~ 
In the decision revoking the approval of the petition, the Director determined that the Petitioner had 
demonstrated both the substantial merit and national importance of his proposed endeavor. The record 
supports this conclusion. For example, the Petitioner has submitted documentation indicating that the 
benefit of his proposed research has broader implications for the field, as the results are disseminated 
to others in the field through scientific journals and conferences. Accordingly, we agree with the 
Director that the Petitioner 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, and peer review 
activity. He also offered evidence of articles that cited to his published work, a statement regarding 
his future plans, and letters of support discussing his graduate research. The Director concluded that 
the Petitioner's published work, citation evidence, future plans, and letters of support were not 
sufficient to demonstrate that he is well positioned to advance his proposed endeavor. 
The Petitioner contends on appeal that the Director erred in stating that the record did "not include 
[the Petitioner's] plan for future activities beyond his statement of June 14, describing research 
activities that correspond with his pursuit of a Ph.D." 8 The Petitioner references his June 14, 2019 
statement outlining his "Future Research Plans" and claims that this statement "provided an 
7 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 research positions to illustrate the capacity in which 
he intends to work in order to detennine whether his proposed endeavor meets the requirements of the Dhanasar analytical 
framework. 
8 The Director further stated: "[The Petitioner] does not describe how he intends to continue his work in the United states 
beyond finding employment once his academic career is over. Furthermore, the record holds no correspondence from 
perspective/potential employers, clients or customers. The record also lacks an indication [the Petitioner] has prospective 
financial support; he himself has received no grants nor has [he] provided copies of contracts, agreements, or licenses 
resulting from [his] proposed endeavor." 
4 
exhaustively detailed description of his future research plans beyond his academic pursuits." The 
Petitioner's June 2019 statement, however, did not specify w
1
ether the "Future Research Plans" he 
outlined related to his ongoing graduate research at or his postdoctoral research plans. 
Regardless, even if we concluded that the Director's analysis was problematic, this issue does not 
undermine the remaining bases for revocation. 
Additionally, the Petitioner asserts that the Director erred in not considering evidence that post-dates 
the filing of the petition. Eligibility, however, must be established at the time of filing. 8 C.F.R. 
§ 103.2(b)(l); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). A petition cannot be 
approved at a future date after the petitioner becomes eligible under a new set of facts. Matter of 
Izummi, 22 I&N Dec. 169, 175 (Comm'r 1998). That decision farther provides, citing Matter of 
Bardouille, 18 I&N Dec. 114 (BIA 1981), that USCIS cannot "consider facts that come into being 
only subsequent to the filing of a petition." Id. at 176. 
The Petitioner farther argues that his research experience, published work, citation evidence, 
recommendation letters from others in the field, and peer review service 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. 
~===--; ,.........~et=i.....,tion, several references discussed the Petitioner's research projects at 
University and For example, regarding the Petitioner's work involving 
absorbents of frameworks containing c==J..»anostructures for water 
remediation, assistant rofessor of chemist atL_J stated that the Petitioner 
"fabricated a series ofL_ __ ....----------,. ______ ____Jcomposites" to absorb al I I I pollutant. Whil ,__-,--....,.,--,------,-,, asserted that this work "has delivered critical insight to 
the materials chemistry community," he did not provide specific examples indicating that the 
Petitioner's novel absorbents have been implemented in the I ] remediation industry or 
otherwise constitute a record of success in the field. 
With respect to the Petitioner's research aimed at im the "efficiency of1t--------....., 
,...J....lJ.U..-'&J.JL....l.l.JLL.U.LU..L'""-".ll.1..1.L..l,.J~J.ll.<....ll.L"-l..LLJ.._ _____ ...i.i....Ll.l,<J...J,ormance," _ 
'--~---------1 '------------' 
professor at ~---------r-------.-----.---------,-. indicated that the Petitioner 
"enhanced the overall fabrication process of by optimizing the 
I ~herein uniform thin la er._s_o_f..,........__....::..._-----'---------""'-----'---,-w-it-h-h-i-g-h-q-u-a-l-it-y-w-e-re___. 
adhered to the conductive substrate.".__ ___ ___.forther stated that that the Petitioner's method 
"substantially improved energy conversion efficacy," but he did not offer examples of how the 
Petitioner's findings have been implemented, utilized, or applauded in the materials chemistry field. 
9 While we discuss a sampling of these letters, we have reviewed and considered each one. 
5 
I I activity of this novel I I [ the Petitioner] has taken a critical step towards 
securing the environmental application o±1 1'6 I did not provide 
specific examples indicating that the Petitioner's work has affected the mdustry, has served as 
an impetus for progress or generated positive discourse in the materials chemistry field, or otherwise 
represents a record of success or progress rendering him well positioned to advance his proposed 
endeavor. 
Furthermore,,__ _____ ____. professor of lhysics at the University I O l indicated that the 
Petitioner "has developed improvedlthrough his focus on the materials utilized inl I 
He optimized th de osition technique in order to produce uniform, thin layers I I 
over a conductive substrate." farther noted that he cited to the Petitioner's findings in a 
paper, entitled r-----1-- _ ___J ith natural gel polymer! I as 
counter-electrode." 10 .__ ___ _.s paper, however, does not distinguish or highlight the Petitioner's 
work from the 43 other articles he cited to in his paper. 
The record includes additional examples of articles which cited to the Petitioner's work in Materials 
Science in Semiconductor Processin .11 For instance, he resented an article, entitled 
' in which the article's authors identified the Petitioner's a er as one of three that showed 
~--------~ ' While the authors briefly referenced the Petitioner's work, their article does 
not differentiate his paper from the 48 other papers they cited. 
Another article offered b the Petitioner, entitled 
indicates that there 
have been " n umerous scientific reports on the '---------------------~ ~--------.- ...... T"-'h=i=s--=a=rt=i=cl=e._t=h=e=n'-"',oints to the Petitioner's paper and two others as examples which 
showed "that th ~------~appears at an approximate temperature range from 300 up to 600 
°C." Again, the authors do not distinguish the Petitioner's paper from the 39 other papers they 
referenced. 
A ·t 1 t t th t t s 1 re a es o e c1 a 10n o e e 1 10ner s wor , fth P ff k th e recor d. 1 d A mcu es ugus m orma 10n t2016. f t fi rom 
Google Scholar indicating that his three highest cited articles, entitled I 
I' 1 
f' and I 
I each received 24, 23, and 20 citations, respectively. The Petitioner does not 
specify how many c1tat10ns for each of these md1v1dual articles were self-c1tat10ns by him or his 
coauthors. Moreover, in response to the Director's NOIR and in support of the appeal, the Petitioner 
submitted updated Google Scholar lists ( dated June 2019 and November 2019) reflecting an increase 
I 
10 The record includes a copy o~ Is paper in which he references the Petitioner's a1ticle in Materials Science in 
Semiconductor Processing and another aiticle b different researchers on the sub· ect o I I's a er 
states: "The method similar to that used by~-------------------~--- ......... 
from plants was followed." 
11 Although we discuss representative sample aiticles here, we have reviewed and considered each one. 
6 
I 
I 
I 
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 )(1 ). 12 
Additionally, the Petitioner provided data from Clarivate Analytics regarding baseline citation rates 
and percentiles by year of publication for the materials science field. The Petitioner claimed that 
several of his papers ranked among "the top 10% most-cited articles published in Materials Science" 
based on the number of citations received since their publication. The Petitioner did not indicate 
whether he factored in any self-citations in determining this percentile ranking. In addition, the 
Clarivate Analytics citation data is dated January 2015, and therefore does not capture citations that 
occurred after early 2015, while the Petitioner's Google Scholar citation report is from August 2016. 13 
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. 14 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." 
The Petitioner also 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." While the authors offer proposed methods for bibliometric 
analysis of research performance, the record does not indicate that their methods have been accepted 
and implemented by the academic community. 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 NOIR included May 2019 information derived from 
"Microsoft Academic" that compares his citation and ublication counts to those of other researchers 
in the areas of "Res onse surface methodolo 
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 (May 21, 2019) post-dates 
the filing of the petition, and therefore the Petitioner has not shown that the 630 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 )(1 ). The Petitioner has not demonstrated that 
12 The record also includes Google Scholar and Scimago rankings listing several of the journals in which the Petitioner has 
published his work. That a publication bears a high ranking or impact factor is reflective of the publication's overall 
citation rate. It does not, however, show the influence of any particular author or otherwise demonstrate how an 
individual's research represents a record of success in the field. 
13 A webpage accompanying the Clarivate Analytics information states that its citation "data is updated six times a year" 
(every two months). 
14 Likewise, the Petitioner has not shown that the Clarivate Analytics data provided on appeal is contemporaneous with 
the Petitioner's November 2019 Google Scholar data. 
7 
the number of citations received by his published articles at the time of filing reflects a level of interest 
in his work from relevant parties sufficient to meet Dhanasar' s second prong. 
The Petitioner maintains on appeal that he has a stronger citation record 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 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 fonding 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. 
Regarding his peer review activity, the Petitioner provided emails thanking him for reviewing 
manuscripts submitted to International Journal of Hydrogen Energy, Desalination and Water 
Treatment, Iranian Journal of Polymer Science and Technology, Arabian Journal of Chemistry, 
Research on Chemical Intermediates, Journal of Industrial & Engineering Chemistry, Journal of 
Renewable and Sustainable Energy, Karbala International Journal of Modern Science, Chemical 
Engineering Communications, Progress in Photovoltaics: Research and Applications, RSC Advances, 
and Materials Science in Semiconductor Processing. The Petitioner, however, has not demonstrated 
the stature of these journals. Nor has he shown 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 conducted, published, and presented research during 
his graduate studies, 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 materials chemistry field or that it has generated 
substantial positive discourse in the environmental remediation or solar industries. Nor does the 
evidence otherwise show that his work constitutes a record of success or progress in advancing 
research relating to smart polymer development. As the record is insufficient to demonstrate that the 
Petitioner is well positioned to advance his proposed research endeavor, we agree with the Director 
that the Petitioner has not established 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 and the benefits of his proposed research. However, as the Petitioner has not 
established that he is well positioned to advance his proposed endeavor as required by the second 
8 
prong of the Dhanasar framework, he is not eligible for a national interest waiver and further 
discussion of the balancing factors under the third prong 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 established he is eligible for or otherwise merits a national interest waiver as 
a matter of discretion. The revocation of the previously approved petition is affirmed for the above 
stated reasons, with each considered as an independent and alternative basis for the decision. 
ORDER: The appeal is dismissed. 
9