dismissed EB-2 NIW Case: Medical Science

U.S. Citizenship 
and Immigration 
Services 
In Re: 10184145 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAY 14, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a medical 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 Texas 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. 
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. ... 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). 1 Dhanasar states that, after a petitioner has established 
eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (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 
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) 
1 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 
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. 2 
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. 
For the reasons discussed below, the Petitioner has not established that a waiver of the requirement of 
a job offer is warranted. 
The Director concluded that the Petitioner's proposed endeavor of conducting research on 
I I diseases and development of "therapeutic methods with application of O therapy 
orl I factors" at the University ofl O ,I University ofl ] or at a "research 
institute such asl lor~--------~Medical Center" satisfied the first 
Dhanasar prong because it has both substantial merit and national importance. Upon a review of the 
record, we agree. 3 However, the Director concluded that the Petitioner did not satisfy either the second 
or the third Dhanasar prongs, both of which are required for eligibility for a national interest waiver. 
Examples of evidence that may establish a petitioner is well positioned to advance a proposed 
endeavor include, but are not limited to, the following: 
• The individual's education, skills, knowledge, and record of success in related or 
similar efforts; 
• A model or plan for future activities; 
• Any progress toward achieving the proposed endeavor; and 
• The interest of potential customers, users, investors, or other relevant entities or 
individuals. 
Dhanasar, 26 I&N Dec. at 890. 
The record establishes that the Petitioner possesses education, skills, and knowledge in efforts related 
or similar to the proposed endeavor. For example, the record contains a copy of a degree certificate 
for a doctor of philosophy in medicine, awarded to the Petitioner by thd !University. 
The record also contains evidence of 32 peer-reviewed scientific articles published in medical journals 
such as the European Journal of Neuroscience, Animal Cells and Systems, and the Journal of 
Neurology & Neurophysiology, which were co-authored by the Petitioner between 2005 and 2018. 
The record farther contains information about other peer-reviewed articles that have cited the 
Petitioner's research, which are at a level indicative of a record of success. 
The record contains opinion letters froml I a researcher at the1=I =========­
Hospital, and I I a postdoctoral research associate at the University o±1~--------~ 
College of Medicine. 
2 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
3 Although we may not discuss each document in the record for brevity, we have reviewed the record in its entirety. 
3 
As a matter of discretion, we may use opinion statements submitted by the Petitioner as advisory. Matter 
o_f Caron Int'l, Inc., 19 I&N Dec. 791, 795 (Comm'r 1988). However, we are ultimately responsible 
for making the final determination regarding an individual's eligibility for the benefit sought; the 
submission of expert opinion letters is not presumptive evidence of eligibility. Id.; see also Matter of 
V-K-, 24 I&N Dec. 500, 502 n.2 (BIA 2008) ("[E]xpert opinion testimony, while undoubtedly a form 
of evidence, does not purport to be evidence as to 'fact' but rather is admissible only if 'it will assist 
the trier of fact to understand the evidence or to determine a fact in issue."'). 
The letter states, in relevant part, that "among [the Petitioner's] projects,! I from the 
,,__ ___ __.__w_h_i_,ch is such a special technique, could dramatically attenuate phenotypes of 
~------==" diseases. This technique led new [sic] paradigm to treatment o~ I 
diseases." TheO letter states, in relevant part, that the Petitioner "developed a technology to 
effectively I land patented it. If this technology is farther developed, it will be applied 
to the development of anl I kit." However, neither letter elaborates on how the 
Petitioner'~ ltechnique or technology has advanced! • _ I or~-----~ 
research. Moreover, the letters speculate that the technique could attenuate phenotypes and that the 
technology will be applied to the development of anl I kit if it is farther developed, 
which does not establish that the research the Petitioner has already conducted has affected the field 
of research. In summation, the opinion letters are not corroborated by evidence that establishes the 
assertions made about the Petitioner's projects. See Matter of Caron Int'l, Inc., 19 I&N Dec. at 795; 
Matter of V-K-, 24 I&N Dec. 502 n.2. 
Turning to the Petitioner's model or plan for future activities, as noted above, the Petitioner rOP.OSes 
to continue research and develoP,ment of"therapeutic methods with application ofj orD 
D factors" at the Universitvl l University! l or at a "research institute 
such asl loJ I Medical Center," a continuation of the research work 
the Petitioner has performed since 2006. On appeal, the Petitioner asserts that "[t]he description record 
provides details such as when [I intend] to apply, name ofjob position, prospective employers' name 
[sic], and [my] specific career goal in the United States." However, on appeal the Petitioner resubmits 
a copy of the letter initially supported in support of the petition, that states, in relevant part, the 
following: 
If I am granted US ~sic] permanent resident status, I will continue my research at the 
University I lor University I I If it is not possible, I will apply 
for the job to work national [sic] renowned research institute such asl I or 
I !Medical Center, etc[.] in the United States. 
Although the Petitioner has established his intention to apply for work if his petition is approved, the 
record does not demonstrate that any of the entities identified in his proposed endeavor have expressed 
an interest in the Petitioner or his research. 
Relatedly, the record does not establish whether potential customers, users, investors, or other relevant 
entities or individuals, such as fellow researchers, are interested in the Petitioner conducting the 
research he describes in the United States. As noted, the opinion letters speak favorably of the 
Petitioner's research; however, they~ the context of co-authors who wrote articles with the 
Petitioner. Specifically, although thel___jletter opines that "[the Petitioner's] passion and challenge 
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will make ijport contributioru; to develop drug [sic] tori lmsorders," and 
although the etter opines that "[the Petitioner] will make significant c~n [sic] to the 
United States through his scientific expertise in the field o~ landl___Jresearch," the 
letters do not assert that the authors are interested in such a drug as potential customers, users, 
investors, or fellow researchers. 4 
On appeal, the Petitioner asserts that "[the Petitioner] has not been received [sic] any job offer from 
U.S. employer [sic] which is NOT required pursuant to [section 203(b)(2) of the Act]" (emphasis 
original). We acknowledge that a job offer is not required for a national interest waiver; however, 
evidence of whether a petitioner has received interest from a potential customer, user, investor, 
employer, or other relevant entities or individuals is a factor in determining whether a petitioner is 
well positioned to advance a proposed endeavor. Relatedly, with respect to the Petitioner's statements 
about obtaining a research position at a U.S. university or research institute, the record does not contain 
documentation from any such organization identifying the specific research projects he intends to 
pursue on the organization's behalf. Without sufficient evidence demonstrating the means or financial 
support to undertake his propose<] , • I research in the United States, the Petitioner has not 
shown that his plan for future activities renders him well positioned to advance his proposed endeavor. 
In summation, in consideration of the record in its entirety, the Petitioner has not established that he 
is well positioned to advance the proposed endeavor, as required by the second Dhanasar prong, and 
therefore is not eligible for a national interest waiver. We reserve our opinion regarding whether the 
record satisfies the third Dhanasar prong. 
III. CONCLUSION 
As the Petitioner has not met the requisite second 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 We note that I I is a postdoctoral research associate at the University of I I one of the Petitioner's 
proposed employers. However,I I doels not exress the opinion that the University 0~ lis interested in 
the Petitioner's proposed endeavor. nor does appear to have the authority to do so in the capacity of a postdoctoral 
research associate. 
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