dismissed EB-2 NIW Case: Neonatology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-P-P-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 23.2017 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an academic physician and researcher specializing in neonatology, 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). After a 
petitioner has established eligibility for EB-2 classification. U.S. Citizenship and Immigration 
Services (USCIS) may, as 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. Matler of'Dhanasar. 26 I&N Dec. 884 
(AAO 2016). 
The Director of the Texas Service Center denied the Form I-140. Immigrant Petition for Alien 
Worker, finding that the Petitioner qualified for classification as a member of the professions 
holding an advanced degree, but that he had not established that a waiver of the required job otTer. 
and thus of the labor certification, would be in the national interest. 
On appeal, the Petitioner submits additional evidence and asserts that he is eligible for a national 
interest waiver because he "has distinguished himself from his peers to such an extent that the 
benefits of testing the U.S. labor market are outweighed by the benefits [the Petitioner] provides this 
nation via his work as a highly skilled neonatologist and influential medical researcher." In August 
2017, we issued a request for evidence (RFE) asking the Petitioner to provide evidence satisfying the 
three-part framework set forth in Dhanasar. In response. he provides further evidence and maintains 
that he is eligible for a national interest waiver. 
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. Because this classification 
Matter ofS-P-P-
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) ofthe 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 otTer-
(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. 
While neither the statute nor the pertinent regulations define the term "national interest." we recently 
set forth a new framework for adjudicating national interest waiver petitions. See 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 when the below prongs are met. 
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. 
1 
In announcing this new framework, we vacated our prior precedent decision, Matter o{New York State Department o{ 
Transportation, 22 I&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOn. 
2 
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Matter ofS-P-P-
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. 2 
II. ANALYSIS 
The Director found that the Petitoner qualities as a member of the professions holding an advanced 
degree.3 The sole 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. 
At the time of filing, the Petitioner was working as a neonatology fellow and house staff at the 
· In response to our RFE, the Petitioner 
indicates that he is ''currently on the teaching faculty at the as an Assistant 
Professor in the Division of Neonatology." 
A. Substantial Merit and National Importance of the Proposed Endeavor 
The Petitioner indicates that his work is aimed at "advancing the medical field's ability to treat sick 
newborns" and that he intends ''to conduct several clinical studies along with top of the line neonatal 
care to sick neonates." With respect to his clinical 
research, the Petitioner contends that he will 
study the "effects of optimal nutrition in extremely low birth weight infants on neurodevelopmental 
outcomes," "antibiotic stewardship in chorioamnionitis," and the "physiology of cerebral 
circulation." He further states that he plans to "work extensively on reducing the incidence of 
bronchopulmonary dysplasia in our NICU [neonatal intensive care unit] and publish our work." In 
addition, the Petitioner mentions his plans for a study of the NICU's 
care program. The record includes a "Letter of Intent" relating to 
his Request for Grant Application which seeks funding for his proposed research project to evaluate 
the effectiveness and safety of the care program at at 
2 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
3 The Petitioner received a bachelor of medicine and a bachelor of surgery degree from in India 
(2008) and a master of public health degree from in Illinois (2010). 
4 Previously, he trained as a pediatric resident at fi·om July 
2010 through June 2013. 
5 is a teaching hospital affiliated with the 
3 
.
Matter o.fS-P-P-
The Petitioner states that "preterm birth is the greatest contributor to infant death'" in the United 
States, is "a leading cause of long-term neurological disabilities in children, .. and imposes ··serious 
financial strain on both out-of-pocket losses [for] families and on the healthcare system more 
generally." We find that the Petitioner's proposed work as a neonatal researcher, professor. and 
physician has substantial merit. 
To evaluate whether the Petitioner's work satisfies the national importance requirement, we 
requested evidence documenting the "potential prospective impact" of his work. His response to our 
RFE includes an article in the about approach to assisting opioid-
dependent mothers and their infants, and the hospital's care program. This article indicates 
that ' 
The Petitioner 
also submits an article from the website that discusses increases 
in maternal opioid abuse and neonatal abstinence syndrome in the United States. In addition. he 
provides an article from that describes a study in which researchers at the 
found that the United States has a greater link between low birth weight 
and lower income and education levels than other developed countries. 
The record also contains letters from physicians and professors of medicine discussing the 
Petitioner's proposed research concerning neonatal care improvements and its potential benefit to 
our nation's healthcare system. For instance, a professor of pediatrics at 
indicates that the Petitioner's study of perinatal asphyxia-induced cerebral vascular 
dysfunction and endogenous protection "could result in new approaches for prevention and treatment 
of Hypoxic-ischemic encephalopathy (HIE), [ ] one of the leading causes of cerebral palsy ... 
Additionally, an assistant professor of pediatrics at 
states that the Petitioner's work "has a potential to develop therapeutic interventions·· for 
infants suffering from cerebral circulation disorders. The record also establishes that the proposed 
benefit of his research has broader implications, as the results from his work are disseminated to 
others in the field through medical journals and conferences. We find the evidence sufficient to 
demonstrate that the Petitioner's neonatology research is of national importance. As the Petitioner 
has documented both the substantial merit and national importance of his proposed research, he 
meets the first prong of the Dhanasar framework. 
With respect to the Petitioner's proposed care and treatment of patients and academic duties, while 
these endeavors have substantial merit, the record does not establish that his clinical and 
instructional work would impact the neonatology field and healthcare industry more broadly, as 
opposed to being limited to the patients he serves and his students. Accordingly, without sufficient 
documentary evidence of their broader impact, the Petitioner's clinical work as a neonatologist and 
teaching activities as an assistant professor do not by themselves meet the .. national impmiance·· 
6 The article further states that .. 
4 
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Matter of S-P-P-
element of the first prong of the Dhanasar framework. Similarly, in Dhanasar, we determined that 
the petitioner's teaching activities did not rise to the level of having national importance because 
they would not impact his field more broadly. Jd. at 893. 
B. Well Positioned to Advance the Proposed Endeavor 
The second prong shifts the focus from the proposed endeavor to the Petitioner's qualifications. The 
Petitioner submitted documentation of his published articles, conference presentations, professional 
memberships, academic credentials, and staff evaluations. He also offered reference letters 
discussing his medical training and research projects. 7 In response to our RFE, he provides a 
statement describing his past research and current work at the an article he 
published in a conference presentation confirmation, 
documentation of his peer review activities, and a research project proposal. 
The Petitioner maintains that his medical degree, master's degree in public health, medical training 
at board certification as a pediatrician, low patient complication rate, role as chief resident 
instructing other hospital staff: and years of clinical experience render him well positioned to 
advance his endeavor. Because the Petitioner's proposed clinical and teaching duties do not meet 
the first prong of the Dhanasar framework, our analysis under this prong will focus on whether he is 
well positioned to advance his proposed research. 
With respect to his neonatal research, the Petitioner asserts that his work "has been published in high 
ranking medical journals and he has also traveled to different scientific meetings to present his 
research and to disseminate his findings to the greater medical community.'· In letters supporting the 
petition, several medical professors discussed the Petitioner's research aimed at improving neonatal 
care. For example, professor at indicates that 
the Petitioner performed a study examining the use of glycerin suppositories in low birthweight 
infants and their adverse side effects such as anal irritation, rectal mucosal injury, and rectal 
bleeding. states that the Petitioner "found that glycerin suppository use was associated with 
increased number of days to reach full feeds and increased hospital stay. This work is important 
because it highlighted the need for further prospective studies to evaluate its safety and efficacy." 
a professor of pediatrics at indicates that Petitioner evaluated "new 
approaches for prevention and treatment of post-asphyxia perinatal brain injury." 
contends that the Petitioner's work entitled "' 
as it addresses ·'a serious healthcare 
problem and the single most prominent cause of death and cerebral palsy in newborns." While 
and note the importance of the Petitioner's research projects, they do not offer 
specific examples of how the Petitioner's findings have generated positive interest among relevant 
parties, have been implemented as part of NICU treatment programs, or otherwise reflect a record of 
success in his area of research. 
7 We discuss only a sampling of these letters, but have reviewed and considered each one. 
.
Matter ofS-P-P-
In addition, clinical assistant professor of pediatric and adolescent medicine at 
states that the Petitioner's ''review article entitled ' 
further indicates that he "utilized this important research numerous times in 
my own practice." Furthermore, assistant professor of pediatrics at 
contends that the Petitioner's "work on teenage pregnancy and prenatal drug exposure .. has 
"provided others with a very useful tool for the management of such cases.'' Although 
and assert that they have relied on the Petitioner's work, the record does not document 
that his findings have been utilized beyond his coworkers from and the 
The record demonstrates that the Petitioner has conducted, published, and presented research during 
his medical career. 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 or her proposed research. 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. !d. at 890. The Petitioner has not shown that his research has been frequently cited 8 by 
independent neonatologists or otherwise served as an impetus for progress in the field, that it has 
affected clinical practice, or that it has generated substantial positive discourse in the broader 
medical community. Nor does the evidence otherwise demonstrate that his work constitutes a record 
of success or progress in his area of research. 
With regard to the Petitioner's peer review activities, his response to our RFE contains 
documentation indicating that he agreed to review a manuscript submitted to 
Additionally, he offers emails thanking him for reviewing manuscripts provided 
to The Petitioner has not documented the 
reputation of the aforementioned journals or offered other evidence demonstrating that his peer 
review experience rises to the level of rendering him well positioned to advance his proposed research 
endeavor. The record does not show that the Petitioner's occasional participation in the widespread 
peer review process represents a record of success in his field or that it is otherwise an indication that he 
is well positioned to advance neonatology research. 
In sum, the Petitioner has not demonstrated a record of success or progress in his field, or a degree of 
interest in his work from relevant parties, that rise to the level of rendering him well positioned to 
8 The appellate submission includes an article entitled · 
Although this article discusses the limitations of popular bibliometric 
indicators, such as the h-index and the impact factor, and concludes that those indicators are not reliable in making 
"accurate between-field comparisons,'" it does not undermine the value of citations as one of the tools for assessing 
clinical research performance. For example, the article states that "'[c]itation analysis is widely used in the assessment of 
research performance in the medical sciences.'' 
Matter ofS-P-P-
advance his proposed endeavor of conducting clinical research aimed at improving medical care for 
neonates. As the record is insufficient to demonstrate that the Petitioner is well positioned to 
advance his proposed endeavor, he has not established that he satisfies the second prong of the 
Dhanasar framework. 
C. Balancing Factors to Determine Waiver"s Benefit to the United States 
As explained above, 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. Here, the Petitioner claims that he is eligible for a waiver due to his knowledge, skills, 
and accomplishments, and based on "a critical national shortage of neonatologists.'' 9 However, as 
the Petitioner has not established that he is well positioned to advance his proposed endeavor as 
required by the second prong of the Dhanasar framework, he is not eligible for a national interest 
waiver and further discussion of the balancing factors under the third prong would serve no 
meaningful purpose. 
III. CONCLUSION 
As the Petitioner has not met the requisite three prongs set forth in the Dhanasar analytical framework. 
we find that he has not established eligibility for or otherwise merits a national interest waiver as a 
matter of discretion. 
ORDER: The appeal is dismissed. 
Cite as Matter (?(S-P-P-, ID# 571944 (AAO Oct. 23, 2017) 
9 
We note that the U.S. Department of Labor addresses shortages of qualified workers through the labor certification 
process. Accordingly, a shortage alone does not demonstrate that waiving the requirement of a labor certification would 
benefit the United States. 
...,