dismissed EB-2 NIW Case: Medical Research

U.S. Citizenship 
and Immigration 
Services 
In Re: 22697955 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : OCT . 25, 2022 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a medical 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 Nebraska Service Center denied the petition, concluding that while the Petitioner 
qualified as a member of the professions with an advanced degree, the record did not establish that a 
waiver of this classification's job offer requirement was in the national interest. She now appeals that 
decision. 
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: 
(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. 
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definitions: 
Advanced degree means any United States academic or professional degree or a foreign 
equivalent degree above that of baccalaureate. A United States baccalaureate degree 
or a foreign equivalent degree followed by at least five years of progressive experience 
in the specialty shall be considered the equivalent of a master's degree. If a doctoral 
degree is customarily required by the specialty, the alien must have a United States 
doctorate or a foreign equivalent degree. 
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. 1 Dhanasar states that after EB-2 eligibility has been established, 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. 2 
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, 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 T&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSD01). 
2 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, they must go beyond demonstrating a degree of expertise 
significantly above that ordinarily encountered in their field of expertise to establish eligibility for a national interest 
waiver. See Dhanasar. 26 I&N Dec. at 886 n.3. 
2 
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. 3 
II. ANALYSIS 
The Petitioner is a medical researcher focusing in the area of liver transplantation. She obtained a 
bachelor's degree in medicine from _____________ in Brazil in 2010, and was 
previously employed as a surgeon and researcher at a hospital in Brazil. At the time of filing her 
petition she was a research intern at the University of I She proposes to continue performing 
research in the area of liver transplantation in the United States. 
The Director found that the Petitioner qualifies as a member of the professions with an advanced 
degree, and upon review we agree. Therefore the sole issue on appeal is whether a waiver of the job 
offer requirement, and thus a labor certification, is in the national interest. 
A. Substantial Merit and National Importance 
As noted above, in the first prong of the Dhanasar framework, we consider the specific endeavor 
proposed by the petitioner and its potential prospective impact. In the Director's decision, he focused 
on a specific research project in which the Petitioner was engaged at the University of1 I time 
of filing, and appeared to conclude that because she was no longer working on that project and had 
changed employers, her proposed endeavor did not meet this prong. 4 However, as mentioned above, 
the analysis in the first prong under the Dhanasar framework is prospective, focusing on the merits of 
the proposed endeavor, and is not limited by a petitioner's job at the time of filing. As with all of 
those applying for a national interest waiver, we consider the Petitioner's current and prospective job 
offers in this analysis only as they illustrate the capacity in which she intends to work. We will 
therefore focus in our review on the Petitioner's proposed endeavor of performing research regarding 
liver transplantation, which includes the liver after removal from the donor. 
3 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
4 The Director concluded without providing analysis that the Petitioner's work on this research project was of substantial 
merit and national importance, but then noted that she was "no longer conducting that research." 
3 
The substantial merit of the Petitioner's proposed endeavor is evidenced by documentation showing 
its role in advancing medical science and improving human health. Information in the record from 
the website of the Mayo Clinic indicates that liver transplantation is an important treatment option for 
many types of chronic liver failure. In addition, the Petitioner submitted several articles published in 
scientific journals noting the potential forl I to provide 
improved assessment and restoration of livers prior to transplant. This evidence establishes that her 
proposed endeavor is of substantial merit. 
When evaluating the national importance of a proposed endeavor under Dhanasar, we look for 
evidence that it will have broader implications within a particular field. Here, the record includes a 
2018 article published in the journal Organogenesis noting that the availability of liver transplantation 
remains limited in the United States due to the lack oflivers of suitable and that offers 
an opportunity to _________ donor organs. Based upon this evidence, the Petitioner 
has established that proposed endeavor is of national importance. 
As the Petitioner has shown that her proposed endeavor meets both elements of the first prong of the 
Dhanasar analysis, we will next consider whether she is well positioned to advance her endeavor. 
B. Well Positioned to Advance the Proposed Endeavor 
In determining whether a petitioner is well positioned to advance their endeavor, we look at factors 
including 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. On 
appeal, the Petitioner argues that the Director did not evaluate any of these factors in his decision, and 
that the Director erred in finding that she had made an impermissible material change to the petition 
when submitting evidence regarding her new employer. 
Regarding the latter issue, in responding to the Director's request for evidence (RFE) the Petitioner 
submitted a letter from the University of !offering her a position as a 
Medical Scientist II, as well as evidence which showed that she had accepted the offer and began 
working there. This letter indicated that the position was in the school's department of surgery, and 
more specifically the division of transplant surgery, and listed the research duties she would have in 
this position. As this evidence shows that the Petitioner intends to continue to pursue her proposed 
endeavor, we disagree with the Director's finding that her acceptance of a position with a new 
employer constituted a material change to the petition, and withdraw that portion of his decision. 5 
Turning to the factors weighed when evaluating a petitioner's positioning to advance their endeavor, 
the Director concluded that the evidence of the Petitioner's research did not show that she had a track 
record of success. He specifically noted that at the time of filing, the Petitioner had co-authored a 
conference presentation, but had not submitted evidence of other published papers that had garnered 
attention in her field. The Director also noted the reference letters in the record written by physicians, 
5 We further note that per a search of the Google Scholar database, the Petitioner has continued to publish research in the 
area ofliver transplantation after filing her petition. 
4 
one of whom was a former colleague of the Petitioner's, but concluded that they also did not show 
that she had a record of success as a researcher. 
On appeal, the Petitioner first refers to the letters which were submitted in response to the RFE. One 
of these was written b a former co-worker of hers at the University ofl 11 I 
writes that the Petitioner had presented scientific posters concerning 
at at professional conferences in her home country of Brazil which were depended 
upon by industry professionals, but does not provide any specific information or refer to supporting 
evidence. Although another letter from a former colleague who worked with her in Brazil provides 
more detail, it concludes that a !technique that the Petitioner helped to develop "could certainly 
be used worldwide for similar diagnoses." Neither letter shows that her previous work in Brazil, 
evidenced by certificates documenting a surgical case study and a poster presentation in the area of 
nutrition, constitutes a track record of success relating to her proposed endeavor of research in liver 
transplantation. 
Another letter was submitted by I . I of the University ofl I both with the initial 
filing and in response to the Director's RFE. She references "the tremendous progress" in I 
that the Petitioner made with her poster presented at the 2020 American Transplant Congress, but does 
not specify the nature of that progress or provide any gauge of its success. Similarly, her second letter 
describes in great detail research conducted by the Petitioner relating to liver transplantation which 
had been submitted to a journal for review but had yet to be published. While we acknowledged above 
that such research is in the national interest, this evidence does not demonstrate that the Petitioner's 
work has been deemed by the field to be successful or has generated interest among other researchers. 
A third set of letters was written by ______ an anesthesiologist who became aware of the 
Petitioner's work by reviewing her resume and presentations. In his initial letter, he opines that the 
Petitioner's presentation at the 2020 American Transplant Congress "evidences our nation's immense 
interest in her work" and that her "continued research has the substantial probability to boost 
resourcefulness within the medical field." However, we need not accept these primarily conclusory 
assertions. 1756, Inc. v. The Attorney General of the United States, 745 F. Supp. 9, 15 (D.C. Dist. 
1990).1 I provides no basis for these and other similar statements in his letters, and as such 
they carry little weight in showing that the Petitioner is well positioned to advance her endeavor. 
The Petitioner also refers to a non-precedent decision we issued in another matter on December 20, 
2010 to support her contention that her continued publications after the date of filing reinforce an 
existing trend, and thus show her record of success. As noted in that decision, non-precedent decisions 
apply existing law and policy to the specific facts of the individual case, and may be distinguishable 
based on the evidence in the record of proceedings, the issues considered, and applicable law and 
policy. We note that that decision considered additional citations to a researcher's already published 
work after the date of filing, not work published after the date of filing. In addition, the Petitioner has 
not established that her presentation of three posters prior to filing her petition, only one of which 
directly relates to her proposed endeavor, establishes a trend which has since been built upon to show 
a record of success. As indicated in the O*Net Online report for medical scientists included in the 
record, an essential part of the duties of a medical scientist is writing and publishing articles in 
scientific journals and presenting at conferences, such that performing this duty is not an indicator of 
success. 
5 
In summary, we agree with the Petitioner that her change in employment was related to her proposed 
endeavor and therefore did not constitute an impermissible material change to the petition. However, 
while she possesses sufficient education and experience to carry out her duties as a medical scientist, 
she has not shown that she has a record of success in her field, or that she has made significant progress 
towards achieving her proposed endeavor. In addition, she has not shown that her work related to her 
proposed endeavor has drawn the interest of other researchers in her field, either through citation of 
her published work or implementation of her research. For these reasons, we conclude that she has 
not established that she is well positioned to advance her endeavor. 
C. Whether on Balance it Would be in the National Interest to Grant a Waiver 
As explained above, the third prong of the Dhanasar framework 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. The Dhanasar decision spells out several possible factors to be 
weighed under this prong, three of which were considered by the Director in his decision and are now 
argued by the Petitioner on appeal. Although we have already determined that the Petitioner has not 
established that she is well positioned to advance her endeavor and therefore does not merit a national 
interest waiver, we will briefly address each of these claims. 
The Petitioner first argues that it would be impractical for her to obtain a labor certification because 
of her "rare combination of experience and education." In support of this argument she refers only to 
I I second reference letter, in which he makes several unsupported assertions regarding the 
labor certification process despite admitting that he is "no specialist in immigration law." For 
example, he writes that "earning a medical degree alone provides far from enough training to conduct 
high-level research of the type that [the Petitioner] performs." However, the chapter from the U.S. 
Department of Labor's Occupational Outlook Handbook on medical scientists, which was submitted 
by the Petitioner, indicates that medical scientists "typically have a Ph.D.," while some "get a medical 
degree instead of, or in addition to, a Ph.D." The Petitioner has not established that her education, 
which is equivalent to a U.S. bachelor's degree, and her experience includes knowledge or skills that 
are rare or would not easily be articulated in a labor certification. 
In addition, the Petitioner asserts that because of the shortage in available livers for transplant, the 
national interest in her contributions to is sufficiently urgent to warrant foregoing the labor 
certification process. While the record includes several articles from scientific journals which identify 
this shortage and imply some level of urgency, it does not demonstrate that the Petitioner's 
contribution to research that addresses this issue rises to the level at which it overcomes the national 
interest in protecting the domestic labor supply inherent in the labor certification process. 
Finally, the Petitioner asserts that her specialized skills are such that even assuming the availability of 
other qualified U.S. workers, the nation would still benefit from her contributions. As we have already 
considered her education, experience and skills under the second prong and concluded that they do 
not position her to advance her proposed endeavor, we similarly conclude here that they are not 
sufficient to show that it would be beneficial to the United States to waive the requirement of a job 
offer. 
6 
For all of the reasons explained above, we conclude that the Petitioner does not meet the third prong 
of the Dhanasar framework. 
III. CONCLUSION 
The Petitioner has established that shed qualifies as a member of the professions with an advanced 
degree, and that her proposed endeavor is of substantial merit and national importance. However, 
because she has not shown that she is well-positioned to advance that endeavor, and that the national 
interest in her endeavor outweighs that inherent in the labor certification process, she does not merit a 
waiver of the classification's job offer requirement. 
ORDER: The appeal is dismissed. 
7