dismissed EB-2 NIW Case: Mechanical Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re: 23660123 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 11, 2023 
Form 1-140, Immigrant Petition for Alien Worker (National Interest Waiver) 
The Petitioner, a mechanical engineer, 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. Immigration and Nationality Act (the Act) 
section 203(b )(2), 8 U.S.C. § 1 l 53(b )(2). 
The Director of the Texas Service Center denied the petition, concluding that 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. The matter is now before us on appeal. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo . Matter of Christa's, Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015) . 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. Section 203(b )(2)(B)(i) of the Act. Next, a 
petitioner must then demonstrate that they merit a discretionary waiver of the job offer requirement 
"in the national interest." Section 203(b )(2)(B)(i) of the Act. Matter of Dhanasar, 26 I&N Dec. 884, 
889 (AAO 2016) provides that U.S. Citizenship and Immigration Services (USCIS) may, as matter of 
discretion 1, grant a national interest waiver if the petitioner shows: 
• The proposed endeavor has both substantial merit and national importance; 
• The individual is well-positioned to advance their proposed endeavor; and 
• On balance, waiving the job offer requirement would benefit the United States. 
1 See also Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
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 
under the three-prong Dhanasar analytical framework. The record reflects that the Petitioner proposes 
to conduct research on ocean energy conversion devices in order to implement vortex-induced 
vibration for energy generation from ocean and river currents. The first prong relates to substantial 
merit and national importance of the specific, proposed endeavor. Id. at 889. The Director decided 
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 Director determined that the Petitioner did not show that he is well positioned to advance 
his proposed research under the second prong. 
The Director's decision acknowledged the submission of evidence, including educational credentials, 
recommendation letters, articles and conference papers, journals rankings, peer review activity, 
funding documentation, citatory information, and field reports and articles. In addition, the Director 
indicated that the Petitioner has a master's degree, is working towards his doctoral degree, and has 
experience conducting research in the field. Further, the Director determined that even though the 
Petitioner added to the general knowledge of the field through his research, the Petitioner did not 
demonstrate how his five publications and five conference presentations sufficiently positioned 
himself to advance his proposed endeavor. 
Similarly, the Director discussed the Petitioner's peer review activity and found that such review work 
did not make him well positioned to advance his proposed endeavor. Moreover, the Director indicated 
the citation figures of the Petitioner's work by others, including citation percentiles. However, the 
Director determined that such citation data did not demonstrate the Petitioner's past record of success, 
did not reflect the authoritative nature of his research and published work, or did not otherwise show 
him to be well positioned to advance his proposed endeavor. 
In addition, the Director addressed the Petitioner's claim of receiving funding for his past research. 
Specifically, the Director indicated that the evidence in the record did not indicate that the Petitioner's 
research had received funding and pointed out a reference letter indicating that the Petitioner was not 
named in funding documents, suggesting that "it was not his project that was funded or he did not play 
a significant initiating role in obtaining funding." Moreover, the Director concluded that assisting or 
being involved in a research project is not "the same as receiving funding or support for his own 
project." Further, the Director found "the evidence is insufficient to demonstrate that the petitioner 
has a similar determinative role in establishing or controlling the direction of the research, that he has 
received repeated funding as primary awardee, or is listed on the grants as sole researcher." 
Finally, as it relates to progress towards achieving the proposed endeavor, the Director repeated that 
the record did not show the Petitioner's receipt of funding for his past research, nor the existence of 
grants, contracts, or agreements awarded to him for prior research or to continue his proposed 
2 
endeavor. In addition, the Director indicated that while the Petitioner's previous research has added 
to the general pool of knowledge, it did not sufficiently demonstrate his position to advance the 
proposed endeavor. 
Although the Petitioner contests the Director's findings, a review of the record reflects that the Director 
sufficiently evaluated the evidence, and we agree with the Director's ultimate conclusions. Therefore, 
we adopt and affirm the Director's decision with the comments below. See Matter of Burbano, 20 
I&N Dec. 872, 874 (BIA 1994); see also Chen v. INS, 87 F.3d 5, 8 (1st Cir. 1996) (joining eight U.S. 
Courts of Appeals in holding that appellate adjudicators may adopt and affirm the decision below as 
long as they give "individualized consideration" to the case). 
On appeal, the Petitioner emphasizes that he "holds an advanced degree in a STEM [Science, 
Technology, Engineering, and Mathematics] field, mechanical engineering." USCIS considers an 
advanced degree, particularly a Ph.D. in a STEM field tied to the proposed endeavor and related to 
work furthering a critical and emerging technology or other STEM area important to U.S. 
competitiveness or national security, an especially positive factor to be considered along with other 
evidence for purposes of the assessment under the second prong. See 6 USCIS Policy Manual 
F.5(D)(2), https://www.uscis.gov/policymanual. However, a degree in and of itself is not a basis to 
determine that a person is well positioned to advance the proposed endeavor. Id. Although the 
Petitioner's master's degree in mechanical engineering is an especially positive factor, the totality of 
the evidence in the record, as discussed by the Director and indicated above, does not show that he is 
well positioned to advance his proposed endeavor. 2 Furthermore, 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. 
In addition, the record contains several recommendation letters that generally discuss the Petitioner's 
research and reference the publication of the Petitioner's research in journals or the citation of his 
work by others, including a few letters who state they have cited to his research in their own papers. 
Again, the Petitioner did not demonstrate that his citatory evidence reflects a record of success in the 
field. Moreover, the letters do not indicate or explain how the Petitioner's work has been implemented, 
utilized, or applauded at a level that would well position him to advance his proposed endeavor. 
Further, while the record contains a letter from a professor at I I University 
confirming the Petitioner's employment in the mechatronics lab in the department of mechanical and 
material engineering as a researcher in conjunction with him earning his Ph.D. in mechanical 
engineering and a letter from a professor at the SState University at inviting the Petitioner 
to engage in research pending the availability of funds, the Petitioner did not establish how these 
temporary and contingent jobs well positions him to advance his proposed endeavor. 
2 While the Petitioner submits additional documentation, 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 T&N Dec. 764, 766 (BIA 1988) (providing that if "the 
petitioner was put on notice of the required evidence and given a reasonable opp01tunity 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 Director); see also Matter of Obaigbena, 19 l&N Dec. 533 (BIA 1988). 
3 
The record demonstrates that the Petitioner has conducted and 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 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 established that his published work has served as an impetus 
for progress in the field or that it has generated substantial positive discourse. Nor does the evidence 
otherwise reflect that his work constitutes a record of success or progress in advancing his research. 
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. As such, analysis of his eligibility under the third prong outlined in Dhanasar, therefore, 
would serve no meaningful purpose. 3 Accordingly, the Petitioner has not shown eligibility for a national 
interest waiver. 
ORDER: The appeal is dismissed. 
3 See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (stating that ·'courts and agencies are not required to make findings on 
issues in the decision of which is unnecessary to the results they reach"); see also Matter of L-A-C-, 26 l&N Dec. 516, 526 
n. 7 (BIA 2015) ( declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
4