dismissed EB-2 NIW Case: Materials Science

U.S. Citizenship 
and Immigration 
Services 
In Re: 10856946 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JUNE 9, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a materials scientist, 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 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. 1 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
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: 
1 In the decision, the Director stated that "[a]fter the [P]etitioner has established ... eligibility for second preference 
classification under section 203(b)(2)(A) of the [Act], [U.S. Citizenship and Immigration Services (USCIS)] may grant a 
national interest waiver if the [P]etitioner demonstrates by a preponderance of the evidence that [the three prongs of the 
Dhanasar framework have been satisfied]." The Director then conducted an analysis of the Dhanasar prongs without 
concluding whether the Petitioner established eligibility for second preference classification. However, in a request for 
evidence (RFE), the Director noted that the record established the Petitioner "was granted a PhD in Materials Science and 
Engineering from the University I If which] establishes that the [Petitioner] qualifies for the classification with an 
advanced degree." 
(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. ... the 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, USCIS may, as a matter of discretion, 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 
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). 
2 
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. 3 
II. ANALYSIS 
The Director found 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 of a labor certification, would be in the national interest. 
Specifically, the Director concluded that the Petitioner satisfied the first two prongs of the Dhanasar 
framework but the record did not "establish 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." 
We disagree that the record establishes that the proposed endeavor has national importance, as required 
by the first Dhanasar prong. See Dhanasar, 26 I&N Dec. at 889. Furthermore, we note that the 
Director's analysis of the third Dhanasar prong does not support the conclusion that the proposed 
endeavor has national importance. Accordingly, we withdraw the Director's finding that the evidence 
establishes that the proposed endeavor has national importance as contemplated by Dhanasar. 
The Petitioner initiall described the proposed endeavor as 
He farther stated that 
he "proposes to continue his research on novel organic semiconductor materials." In response to the 
Director's RFE, the Petitioner elaborated as follows: 
Atj I I am continuing my career in thcl I display industry. As a Technical 
Program Manager, my key responsibilities include managing the ~I----~­
application project, both internally and at a key customer site, in order to enable and 
optimizq I mass production processes. 
Atj II use my expertise in materials science and I u ., lfrom my background 
to support the development of the company'~ I technology. My success 
in my research and work here will not only help! I gain a significant share of this 
fast-growing and highly competitive market in the near future, but also ensure that the 
United States will retain its foothold in this area against other international competitors. 
Moreover] !has already expanded its U.S. manufacturing sites and will continue 
to do so in order to meet the demand of the market, thereby creating a significant 
number of jobs in the United States in the near future. 
3 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
3 
In determining national importance, the relevant question is not the importance of the industry, field, 
or profession in which the individual will work; instead we focus on the "the specific endeavor that 
the foreign national proposes to undertake." See Dhanasar, 26 I&N Dec. at 889. Dhanasar provided 
examples of endeavors that may have national importance, as required by the first prong, such as 
"certain improved manufacturing processes or medical advances [ resulting in] national or even global 
implications within a particular field" and endeavors that "have significant potential to employ U.S. 
workers or has other substantial positive economic effects, particularly in an economically depressed 
area." Dhanasar, 26 I&N Dec. at 889-90. 
Despite concluding in the decision that "[t]he evidence does establish that the [P]etitioner's proposed 
endeavor has ... national importance," when analyzing the third Dhanasar prong the Director stated 
that "[the proposed] endeavor is just part of the whole process of It O O O I 
~------~ [production] and does not prove that it is urgent for the nation as a whole. USCIS 
will agree there is an urgency for your company to get the product produced, but not urgent enough, 
on a national interest, to forgo the [l]abor certification process." The Director farther stated that, 
although the Petitioner's employer "may be producing jobs, the record lacks evidence to show that the 
[P]etitioner's endeavor will directly lead to the creation of jobs." As noted above, these observations 
do not support the conclusion that the proposed endeavor has national importance, as required by the 
first Dhanasar prong. 
On appeal, the Petitioner reasserts, as he did in response to the Director's RFE, that his "considerable 
expertise supportsl I' sl I technology development, thus aiding I ~and in 
tum, the United States-in gaining a substantial share of this fast-growing, competitive market." He 
also reasserts that he is "an important researcher to the creation of . . I ~echnology atl I 
... in the U.S. and the subsequent creation of jobs to which it leads." The Petitioner farther asserts 
that, because I ~echnology . . . is widely used in smartRhones and virtual reality headset 
displays" and "[l]eading American technology companies such asl lrely 
on this technolo~id their digital systems," the proposed endeavor's "focus[] on enhancing the 
performance ofL___jtechnology ... underscores the national importance and substantial merit of 
[the Petitioner's] work to the U.S. hi-tech industry." 
The record does not establish that the Petitioner's proposed endeavor of project management,!~ _ __. 
~ production process optimization, and I I technology development entail "certain 
improved manufacturing processes [ resulting in] national or even global implications in the fields of 
I I production or! ~ee Dhanasar, 26 I&N Dec. at 889. Although the Petitioner 
may improve his employer'sl J production manufacturing process, the record does not 
establish how that process improvement will be proportionate to "national or even global 
implications." See id. Moreover, that the Petitioner's employer may gain a share of the market of 
I I technology through the proposed endeavor does not necessarily establish that, "in tum, 
the United States" would gain a substantial share of that market. 
Although the Petitioner asserts that his research leads to the creation of jobs for his employer, the 
record does not establish the particular number of jobs his research has created in the past, or the 
anticipated number of jobs the proposed endeavor would create for his employer. The Petitioner also 
4 
does not assert that the area in which the jobs may be created is economically depressed. 4 Accordingly, 
the record does not establish that the proposed endeavor has significant potential to employ U.S. 
workers, particularly in an economically depressed area, that rises to the level of national importance 
as contemplated by Dhanasar. 5 See id. at 889-90. 
Additionally, the Petitioner's observation that "[l]eading American technology companies such as 
I I rely on" the type of technology he would research for his employer does 
not establish how the proposed endeavor would entail certain improved manufayuring Jrocesses or 
advances resulting in national or even global implications within the field of technology 
development, or have substantial positive economic effects, particularly in an economically depressed 
area. See id. at 889-90. Again, the focus of the first prong is on the specific endeavor, not the 
importance of the industry, field, or profession in which the individual will work. See id. at 889. 
In summation, the Petitioner has not established that the proposed endeavor has national importance, 
as required by the first Dhanasar prong, and therefore is not eligible for a national interest waiver. 6 
We reserve our opinion regarding whether the record satisfies the second or third Dhanasar prong. 
III. CONCLUSION 
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, we 
conclude that the Petitioner has not established eligibility for, or otherwise merits, a national interest 
waiver as a matter of discretion. 
ORDER: The appeal is dismissed. 
4 The record establishes that the Petitioner's employer is located inl I California. 
5 We further take administrative notice that publicly available information filed with the State of California under the 
Worker Adjustment and Retraining Notification (WARN) Act, Cal. Lab. Code §§ 1400-1408, requiring employers to 
provide a 60-day notice prior to conducting a mass layoff of employees, indicates that the Petitioner's employer reduced 
its workforce by 144 workers at the beginning of 2020, one year after the petition filing date. State of California, 
Employment Development Department, Worker Adjustment and Retraining, WARN Report- Summa,y by Received Date 
07/01 /2019-06/30/2020 State Fiscal Year, available at: https://edd.ca.gov/Jobs_and_ Training/wam/WARN-Report-for-7-
1-20 l 9-to-6-30-2020.pdf. The record does not indicate whether the Petitioner's research lead to the creation ofjobs despite 
the Petitioner's employer reducing its workforce by 144 workers. 
6 Because we conclude that the record does not satisfy the first Dhanasar prong, which is dispositive, we need not address 
the Petitioner's further assertions on appeal regarding the third prong. 
5