dismissed EB-2 NIW Case: Medical Physics

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JUNE 12, 2024 In Re: 2984 7254 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a researcher in medical physics, seeks classification as a member of the professions 
holding an advanced degree. See Immigration and Nationality Act (the Act) section 203(b)(2), 
8 U.S.C. § 1153(b )(2). The Petitioner also seeks a national interest waiver of the job offer requirement 
that is attached to this EB-2 immigrant classification. See section 203(b )(2)(B)(i) of the Act. U.S. 
Citizenship and Immigration Services (USCIS) may grant this discretionary waiver of the required job 
offer, and thus of a labor certification, when it is in the national interest to do so. 
The Director of the Texas Service Center denied the petition, concluding that although the Petitioner 
qualifies as a member of the professions holding an advanced degree, the record did not establish that 
a waiver of the job offer requirement is in the national interest. The matter is now before us on appeal 
pursuant to 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe , 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 immigrant classification
, as either a member of the professions holding an 
advanced degree or an individual of exceptional ability in the sciences, arts, or business. Section 
203(b )(2)(B)(i) of the Act. 
Once a petitioner demonstrates eligibility for the classification, the petitioner must then establish 
eligibility for a discretionary waiver of the job offer requirement "in the national interest." Section 
203(b )(2)(B)(i) of the Act. While neither statute nor the pertinent regulations define the term "national 
interest," Matter of Dhanasar , 26 I&N Dec. 884, 889 (AAO 2016), provides the framework for 
adjudicating national interest waiver petitions. Dhanasar states that USCIS may, as a matter of 
discretion 1, grant a national interest waiver if the petitioner demonstrates that: 
• 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. 
Id. 
II. ANALYSIS 
The Director concluded that the Petitioner qualifies for the EB-2 classification as an advanced degree 
professional, based upon obtaining the foreign equivalent of a master of science degree in medical 
physics. The issue on appeal is whether the Petitioner has established that a waiver of the job offer 
requirement is in the national interest. The Director found that the Petitioner did not establish any of 
the three required prongs of the analytical framework set forth in Matter ofDhanasar. While, as we 
discuss below, we conclude that the Petitioner has demonstrated some of the elements of the Dhanasar 
framework and we withdraw the Director's findings to the contrary, we agree with the Director's 
ultimate conclusion that the Petitioner has not established eligibility for a national interest waiver. 
A. Whether the Proposed Endeavor Has Substantial Merit and National Importance 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
individual proposes to undertake. An endeavor's 
merit may be demonstrated in a range of areas such 
as business, entrepreneurialism, sciences, technology, culture, health, or education. In determining 
whether the proposed endeavor has national importance, we consider its potential prospective impact. 
Matter ofDhanasar, 26 I&N Dec. at 889. 
The Petitioner's proposed endeavor is to develop an _________ _.semiconductor detector 
for small field dosimetry with applications in radiation therapy. In support of the substantial merit and 
national importance of the proposed endeavor, the Petitioner submitted evidence regarding the 
prevalence of radiation therapy in cancer treatment in the United States and the benefits of improved 
safety, effectiveness, and accuracy in the dosing and delivery of radiation therapy. An opinion letter 
submitted by the Petitioner states as follows: 
Radiotherapy has already been proven as an effective and useful cancer treatment and 
uses high doses of radiation to kill cancer cells and shrink tumors. However, even a 
small error in radiation treatment planning, delivery, or dosimetry poses threats like 
poor tumor coverage or normal tissue toxicity. [The Petitioner's] research is very 
useful to improving cancer treatments in this regard, as it helps to overcome the 
inherent risks of radiation therapy by providing new techniques and devices for more 
accurate and effective dose delivery. The utility of her radiation therapy innovations 
1 See also Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts (and 
the Third in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver is 
discretionary in nature). 
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in regard to cancer treatment in the United States emphasizes the crucial medical 
applications of [ the Petitioner's] research. 
In response to the Director's notice of intent to deny (NOID), the Petitioner further characterized her 
proposed endeavor as developing "an that is essential equipment for radiation 
detection and dosimetry in imaging and radiotherapy applications," and stated that she specifically 
intends to research the use of cadmium telluride (CdTe) as a semiconductor detector material. The 
Petitioner explained that as of 2021, "the silicon detector held the largest market share among 
semiconductor types" but that "silicon detectors are quite expensive and degrade from radiation over 
time." The Petitioner further explained that thin film photovoltaic is being researched as a less expense 
alternative detector, with CdTe as the most common of these. The Petitioner stated that she intends 
"to conduct research to develop an improved detector for small field radiation therapy applications by 
employing CdTe as a semiconductor detecting material" and that these efforts "will lead to more 
precise treatment and lower equipment expenses .... " 
The Director concluded that the Petitioner did not establish either the substantial merit or the national 
importance of the proposed endeavor. First, the Director noted that in some of the Petitioner's 
recommendation letters, the writers discuss a past research project of the Petitioner in which she used 
the Monte Carlo N-Particle Transport (MCNP) code. One of the letter writers describes this project 
by stating that the Petitioner "generated a Monte Carlo simulation to examine the effect ofnanoparticle 
presence and tumor radial distance on dose enhancement .... [The Petitioner's] results indicate that 
gold nanoparticles exhibited better dose enhancement than gadolinium nanoparticles .... " 
The Director stated that the Petitioner did not provide documentary evidence to show that she 
"developed a MCNPX Monte Carlo code" or that she was authorized to use any versions of the Monte 
Carlo code. The Director noted that MCNP and Monte Carlo N-Particle are registered trademarks 
owned by Triad National Security, LLC, which manages and operates the Los Alamos National 
Laboratory on behalf of the U.S. Department of Energy. The Director further noted that the record 
shows that the Petitioner was a medical physicist in Iran at the time she published research related to 
MCNP, and that Iran is not one of the countries listed in the Department of Energy's regulations as 
authorized to process MCNP codes. In the decision, the Director noted that the NOID requested 
evidence that the Petitioner was authorized to access the MCNP code, but that the Petitioner did not 
address this in the NOID response. The Director concluded that this weighed against both the 
substantial merit and the national importance of the endeavor. 
Additionally, the Director concluded that the Petitioner improperly changed her proposed endeavor in 
response to the NOID. The Director stated that the Petitioner's proposed endeavor as initially 
described was related to her research with the MCNP code and that in response to the NOID the 
Petitioner changed the endeavor to researching the use of CdTe as a semiconductor detector. The 
Director concluded that the Petitioner changed the proposed endeavor "since she will now conduct her 
research based on a completely different method or semiconductor" and, citing to Matter ofIzummi, 
22 I&N Dec. 169 (Assoc. Comm'r 1998), noted that a petitioner may not make material changes to a 
petition after its filing in an effort to make a deficient petition conform to USCIS requirements. 
Regarding the national importance of the endeavor specifically, the Director stated that the Petitioner 
did not provide a "specific definition" of the proposed endeavor and did not substantiate how "her 
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work with MCNPX relates to the proposed endeavor, or will benefit and positively impact the 
economy, and the medical industry" in the United States. Additionally, as to the Petitioner's claim 
that research into safer, more accurate means of delivering radiation therapy to cancer patients has 
important public health benefits, the Director found that the Petitioner was confusing the national 
importance of the proposed endeavor with the national importance of the industry or field. The 
Director stated that the Petitioner did not provide any information or independent, objective 
documentary evidence showing how the Petitioner, as a single individual, would improve the medical 
industry in the United States or would trigger substantial positive economic impacts. The Director 
stated that the fact that the Petitioner intends to engage in research was not sufficient to demonstrate 
the "significance of the innovation." Citing to Matter ofNew York State Department ofTransportation 
(NYSDOT), 22 I&N Dec. 215 (Act. Assoc. Comm'r 1998), the Director stated that most science is 
research-driven and implied that the Petitioner did not establish a sufficient "track record of success" 
or a "degree of influence over the field as a whole." 
On appeal, the Petitioner contends that the Director's questions regarding the MCNP code are 
irrelevant to the first prong analysis but that she has nevertheless sufficiently responded to those 
questions. The Petitioner also asserts that she has not materially changed her proposed endeavor, that 
she has sufficiently defined it, and that she has submitted documentary evidence to establish both its 
substantial merit and national importance. 
Regarding the finding that the Petitioner materially changed the proposed endeavor in response to the 
NOID, the Petitioner emphasizes on appeal that, despite the Director's statement otherwise, her 
proposed endeavor does not specifically involve the use of the MCNP or MCNPX codes. 
Additionally, the Petitioner contends that her research with CdTe as a semiconductor detector is in 
line with her endeavor of developing an semiconductor detector for small 
field dosimetry. 
Upon review of the record, we agree. First, although the Director states that the Petitioner "initially 
claimed her research work was related to MCNPX and MCNP," we agree with the Petitioner that she 
did not characterize her proposed endeavor as specifically related to this code. While evidence in the 
record shows that the Petitioner's past research involved using this code, and this research was in her 
field of medical physics, the Petitioner does not describe her current proposed endeavor as being 
related to or requiring the use of the MCNP code. Additionally, although the Petitioner's initial filing 
does not mention the specific use of CdTe as a semiconductor detector material, we conclude that the 
Petitioner's focus on this compound appears to fall within the proposed endeavor as described in the 
initial filing. The Petitioner initially described her endeavor as developing an improved semiconductor 
detector for use in radiation therapy. In response to the NOID, the Petitioner updated the record to 
advise that her current research focuses on the use of CdTe as the material for this improved device. 
We disagree with the Director that the Petitioner has not sufficiently defined or explained the endeavor, 
that the proposed endeavor involves the use of the MCNP code, and that the Petitioner sought to 
materially change the proposed endeavor. We withdraw the Director's findings to the contrary. 
Regarding the Director's conclusion that the Petitioner's use of the MCNP code was unauthorized and 
that this reflects negatively upon the substantial merit and national importance of the proposed 
endeavor, we also agree with the Petitioner that this is not relevant to the first prong analysis. As 
addressed above, we conclude that the Director's statement that the proposed endeavor is specifically 
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related to this code is not supported by the record. But moreover, even were we to agree with the 
Director that the proposed endeavor relates to the use of the MCNP code, the focus of the first 
Dhanasar prong is the proposed endeavor itself, not the Petitioner's authorization or ability to pursue 
it. Consideration of whether a petitioner is authorized to conduct their proposed research or otherwise 
engage in their field is generally a consideration for the second Dhanasar prong, which shifts the focus 
from the proposed endeavor to the petitioner and whether they are well-positioned to advance it. 2 
Matter ofDhanasar, 26 I&N Dec. at 890. 
We also withdraw the Director's conclusions that the Petitioner did not provide independent, 
documentary evidence to satisfy the first prong and that the Petitioner conflated the national 
importance of the field with the national importance of the endeavor. To the contrary, we are 
persuaded by the probative and credible evidence in the record, including that from the American 
Cancer Society and the recommendation letters from individuals in the field, of the substantial merit 
and national importance of improved radiation therapy for cancer patients, and that the proposed 
endeavor of improving semiconductor detectors for use in radiation therapy has the potential to 
positively impact the accuracy, efficacy, and safety of this treatment. 
Finally, although the Petitioner did not raise this aspect of the Director's decision on appeal, we also 
withdraw the Director's conclusions that the Petitioner did not establish the national importance of the 
endeavor because the evidence does not demonstrate that she has a sufficient "track record of success" 
or a "degree of influence over the field as a whole" as described in Matter of NYSDOT. Matter of 
NYSDOT, which established the previous framework used for evaluating national interest waiver 
petitions, was vacated by our precedent decision in Matter of Dhanasar. See Matter of Dhanasar, 
26 I&N Dec. at 884. The Director's use of our vacated decision in Matter of NYSDOT to analyze 
whether the Petitioner established eligibility under Matter ofDhanasar 's first prong is a legal error. 
As such, we conclude that the Petitioner has established the substantial merit and the national 
importance of the proposed endeavor. 
B. Whether the Petitioner Is Well-Positioned to Advance the Proposed Endeavor 
In the second prong, we consider whether the individual is well-positioned to advance the proposed 
endeavor. Id. at 890. In this determination, 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. Id. 
The record includes the Petitioner's curriculum vitae, academic records, published work, peer review 
activity, recommendation letters, and information regarding the Petitioner's citation record. The 
Director concluded that the Petitioner did not establish this prong. The Director specifically stated 
that the evidence related to the MCNP code did not help demonstrate the Petitioner's positioning to 
advance the endeavor due to the issue, discussed above, of authorization to use the code. Regarding 
2 Because we conclude that the Petitioner's authorization to use the MCNP code is not relevant to the first prong analysis, 
we need not address here whether the Petitioner has sufficiently responded to the Director's questions on this issue. 
However, we discuss this issue in detail below. 
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the Petitioner's citation record, the Director concluded that the record did not establish how the 
Petitioner's citations were notable, as claimed, nor that they reflect a level of interest in the Petitioner's 
work sufficient to meet the second prong. 
On appeal, the Petitioner contends that the evidence establishes that she is well-positioned to advance 
the endeavor and specifically that her research using the MCNP code, while not relevant to her current 
endeavor, does help demonstrate her knowledge, skills, and record of success in related or similar 
efforts. The Petitioner contends that this evidence should be considered because "USCIS has not 
presented a single piece of evidence indicating that [the Petitioner] was wrongly given access to 
MCNP or MCNPX or that she used this code without proper authorization." 
Although not relevant to the first Dhanasar prong, the Petitioner's prior research work is relevant to 
the second prong. Moreover, if the Petitioner engaged in unauthorized research, this would be a factor 
for consideration in whether that research reflects the Petitioner's positioning to advance the proposed 
endeavor. The Petitioner contends that she has sufficiently responded to the Director's concerns 
regarding the MCNP code. However, she has not provided either documentary or testimonial evidence 
regarding the issue. Rather, the Petitioner's counsel, in response to the NOID and on appeal, has 
attempted to address these questions. In response to the NOID, the Petitioner's counsel stated that the 
Petitioner "did not claim that she created the code, used it personally, or even had access to it, only 
that she utilized Monte Carlo simulation data to investigate dose enhancement." Counsel further 
explained that "research is typically a collaborative effort and not every researcher listed as a co-author 
on any given paper is necessarily involved in every step of the process of preparing, conducting, and 
analyzing the outcomes ofresearch experiments." Counsel also noted that "this research project was 
an international collaboration between researchers from Iran and the U.S." and that the lead author of 
the study at issue is affiliated with a U.S. institution, the _______________ 
Without stating it specifically, counsel appears to be implying that one of the Petitioner's collaborators 
could have obtained authorization to use the MCNP code and that the Petitioner's role in this study 
did not require her to access it personally. But counsel also contends on appeal that access to the code 
can be requested by noncitizens and the fact that the Petitioner was in Iran at the time her research was 
published "does not exclude her having the necessary authorization to conduct this work .... " But 
explaining that there are scenarios in which the Petitioner did not access this controlled code without 
authorization is not the same as demonstrating that one of those scenarios is true. Moreover, assertions 
of counsel are not evidence. See, e.g., Matter ofS-M-, 22 I&N Dec. 49, 51 (BIA 1998) ("statements 
in a brief, motion, or Notice of Appeal are not evidence and thus are not entitled to any evidentiary 
weight"). 
The Petitioner does not confirm in her statement whether she obtained her own authorization to use 
the code or whether her role in the project did not require access to it. While counsel is correct that 
the Petitioner does not claim that she "used it personally" or "even had access to it," this is because 
the Petitioner's statement simply does not address the question at all. The Petitioner also did not 
provide documentary evidence of her authorization to use the code or testimonial evidence from any 
of the collaborators on the project stating that they, rather than the Petitioner, were authorized to use 
the code. 
6 
Counsel claims that USCIS has not "presented a single piece of evidence" that the Petitioner accessed 
the MCNP code without authorization. But the burden of proof is on the Petitioner to establish 
eligibility. Matter of Chawathe, 25 I&N Dec. at 375-76. The Director raised a legitimate question 
regarding the Petitioner's authorization to conduct her prior research, based upon the Petitioner's 
location at the time of the research and the fact that access to the code used in this research is restricted. 
In response, the Petitioner's counsel asserts that it is possible that the Petitioner either obtained 
authorization to access the MCNP code or that her role in the study did not require her to access it. 
While these are possibilities, the Petitioner has not provided evidence to demonstrate that the Petitioner 
did not engage in unauthorized research, nor does counsel even specifically whether their contention 
is that the Petitioner obtained MCNP code authorization or that the Petitioner did not directly access 
the code as part of the project. 
The record appears to show that this was a notable study, that the Petitioner had an important role in 
it, and that it is relevant to the Petitioner's field. This would ordinarily weigh in favor of the 
Petitioner's positioning to advance her proposed endeavor, as it may reflect success in a related effort. 
But we consider the omission of evidence on this point to be notable, given the Director's specific 
questions on this issue, the fact that this research project is the most heavily cited of the Petitioner's 
past work, and the fact that the record contains a statement from both the Petitioner and the first listed 
author of this study, neither of whom address this question. For that reason, we conclude that the 
Petitioner has not sufficiently responded to the Director's request on this issue and the Petitioner has 
not met her burden of proof to demonstrate that she did not engage in unauthorized use of the MCNP 
code. Therefore, we do not consider the Petitioner's efforts in this study to be a positive factor in the 
second Dhanasar prong. 
Turning to the factors enumerated in Matter of Dhanasar for evaluating evidence under the second 
prong, we first consider the Petitioner's education, skills, knowledge, and record of success. The 
record shows that the Petitioner has obtained the foreign equivalent of a master of science degree in 
medical physics. The Petitioner had not obtained a Ph.D. at the time of filing, although she was 
working toward obtaining her Ph.D. in physics with a specialization in medical physics. Additionally, 
the Petitioner states that her record of success in related or similar efforts is demonstrated by her 
research, record of citations, and her peer review activity. We do consider the Petitioner's citation 
record and peer review activity to be significant, and it appears that the Petitioner has been cited 
frequently by independent researchers at a rate that is high relative to others in the field. However, the 
positive weight of the Petitioner's citation record and prior research is reduced because, as discussed 
above, we do consider it a negative factor that the Petitioner's most cited study is one in which she has 
not demonstrated that she did not engage in unauthorized research. We also note that the works which 
have received the most attention are those in which the Petitioner was one of several contributors and not 
the first listed author. Finally, we note that at the time of filing the Petitioner had obtained only a master's 
degree and not a Ph.D. in her field. 
Regarding the Petitioner's model or plan for future activities, the Petitioner points to her research work 
while earning her Ph.D. and her offer for a postdoctoral fellow position following completion of the 
Ph.D. In response to the NOID, the Petitioner provided evidence that she accepted a residency position 
in medical physics at a university medical center. The Petitioner also asserts that she has demonstrated 
progress toward achieving the proposed endeavor based upon her focus on CdTe for the material of 
an improved semiconductor detector. Based upon the evidence in the record, we do consider that the 
7 
Petitioner has a detailed and credible plan for her future activities, that she is continuing to progress 
in her proposed endeavor, and that this weighs favorably in demonstrating the Petitioner's positioning 
to advance the endeavor. 
The final factor enumerated in Matter ofDhanasar relates to evidence of interest of potential customers, 
users, investors, or other relevant entities or individuals. Here, we conclude that the evidence in the record 
does not weigh in favor of demonstrating that the Petitioner is well-positioned to advance the endeavor. 
The Petitioner contends that her citation record, peer review activity, and letters of recommendation 
demonstrate the interest of relevant parties in her work. While these are positive factors, we have also 
considered the Petitioner's citation record and peer review activity as they relate to her skills, knowledge, 
and record of success. They may also be relevant here, but the Petitioner has little additional, independent 
evidence in support of this factor. For example, the Petitioner has not provided evidence of funding from 
investors, research institutions, or government entities. By contrast, in Dhanasar, we noted that the 
petitioner had received "consistent" government fonding of research projects in which he played a 
"significant" role, specifically that he initiated or was the primary award contact on several funded 
grant proposals and was the only listed researcher on many of the grants. Matter of Dhanasar, 
26 I&N Dec. at 893, Fn. 11. The evidence in the record here does not contain similar evidence of 
fonding for the Petitioner's research. 
On balance, we conclude that the record does not establish that the Petitioner is well-positioned to 
advance the proposed endeavor. The Petitioner's plan for her future activities, her research and 
citation record, and her peer review activity are positive factors. But the positive weight of the 
Petitioner's research and citation record is reduced because of the questions regarding her 
authorization to engage in her most highly cited work. Additionally, while the Petitioner's citation 
record is relevant to both her record of success and the interest of relevant entities, these factors are 
not sufficient on their own to support a finding that the Petitioner is well-positioned to advance the 
proposed endeavor and the record lacks other, additional evidence to support this finding. 
Not every individual who has conducted original research and published findings will be found to be 
well-positioned to advance their proposed endeavor. Rather, we must examine the factors set forth in 
Matter ofDhanasar to determine whether, for instance, the individual's education, skills, and record of 
success, their model or plan for future activities, their progress towards achieving the proposed endeavor, 
and the generation of interest among relevant parties supports such a finding. Id. at 890. In considering 
the record in totality, particularly the fact that the Petitioner relies heavily on her citation record but did 
not demonstrate that her most heavily cited study did not involve unauthorized research, we conclude that 
the Petitioner has not established that she is well-positioned to advance the proposed endeavor. 
C. Whether, on Balance, Waiving the Job Offer Requirement Would Benefit the United States 
The third prong requires the Petitioner to demonstrate that, on balance, it would be beneficial to the 
United States to waive the requirement of a job offer and thus of a labor certification. Because the 
Petitioner has not demonstrated that she is well-positioned to advance the proposed endeavor, as 
required by the second prong of the Dhanasar framework, we need not address whether the Petitioner 
has established the third Dhanasar prong. We acknowledge the Petitioner's arguments on appeal as 
to the third prong but, having found that the evidence does not establish that the Petitioner is well­
positioned to advance the proposed endeavor, we will not address those arguments here. See INS v. 
8 
Bagamasbad, 429 U.S. 24, 25 (1976) (stating that agencies are not required to make "purely advisory 
findings" on issues that are unnecessary to the ultimate decision); see also Matter of L-A-C-, 
26 I&N Dec. 516, 526 n. 7 (BIA 2015) ( declining to reach alternate issues on appeal where an applicant 
is otherwise ineligible). 
III. CONCLUSION 
The Petitioner has not met the requisite second prong of the Dhanasar analytical framework. We 
therefore conclude that the Petitioner has not established she is eligible for or otherwise merits a 
national interest waiver as a matter of discretion. 
ORDER: The appeal is dismissed. 
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