dismissed EB-2 NIW Case: Neurology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-A-K-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 5, 2018 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a physician and researcher specializing in neurology, seeks second preference 
immigrant classiflcation 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 beneflcial to the United States to waive the 
requirements of a job offer and thus of a labor certification. Maller 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 classiflcation as a member of the professions 
holding an advanced degree, but that he had not established that a waiver of the required job offer, 
and thus of the labor certification, would be in the national interest. 
On appeal, the Petitioner submits additional evidence and contends that he is eligible for a national 
interest waiver under the Dhanasar framework. In addition, he contends that the Director imposed 
an overly high standard of proof. With respect to the standard of proof in this matter, a petitioner 
must establish that he meets each eligibility requirement of the benefit sought by a preponderance of 
the evidence. Maller of Chawathe, 25 I& N Dec. 369, 375-76 (AAO 201 0). In other words, a 
petitioner must show that what he claims is "more likely than not" or "probably" true. To determine 
whether a petitioner has met his burden under the preponderance standard, we consider not only the 
quantity, but also the quality (including relevance, probative value, and credibility) of the evidence. 
ld at 376; Maller of E-M-, 20 I&N Dec. 77, 79-80 (Comm'r 1989). 
Upon de novo review, we will dismiss the appeal. 
Matter ofS-A-K-
I. LAW 
To establish eligibility for a national interest waiver, a petitioner must first demonstrate qualification 
for the underlying EB-2 visa classificatior, 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 of job 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. 
While neither the statute rior the pertinent regulations define the term "national interest," we set forth 
a framework for adjudicating national interest waiver petitions in the precedent decision Maller 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 when the below prongs arc 
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. 
_1 In announcing this new fi-amework. we vacated our prior precedent·decision. 1\1at1er nf New York Srate Deparrme/11 rif 
Transportal ion, 22 I&N Dec.215 (Act. Assoc. Comm'r 1998) (NYSD07). 
2 
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Maller ofS-A-K-
The second prong shifts the focus from the propo sed endeavor to the foreign national. To determine 
whether he or she is well positioned to advance the proposed endeavor, we con sider facto rs 
including , but not limited to: the individual's education, skills, knowledge and reco rd of succes s i n 
related or sim ilar 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 releva nt entities 
or individual s. 
The third prong requires the petitioner to demon strate that, on balance , it would be beneficial to the 
United States to waive the requirements of a job offer and thus of a labor certific ation . In 
performing this analysis, USC IS may evaluate factors such as: whether , in light of the nature of the 
foreign national's qualification s or the propo sed endeavor, it would be imprac tica l either for the 
foreign national to secure a job offer or for the petitioner to obtain a labo r certification; whe ther, 
even assuming that other qualified U.S. workers are available, the United St"ates would st ill benefit 
from the foreign national's contributions; and whether the nation al interest in the foreign national's 
contributions is s ufficientl y urgent to warrant forgoing the labor certification process. In eac h 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 after and thus of a labor certi lication. 2 
II. ANALYSIS 
The Direct or found that the Petitoner qualifies as a member of the professions holding an advanced 
degree. The sole issue to be detennined 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 intere st. 
At the time of filing, the Petitioner was working as a neurology resident and chief of house staff at 
the 3 In 2017, he accepted "a graduate 
educational appo intment" as an accredited fellow of vascular neurology in the Department of 
Neurology at the 
A. Subst antial Merit and National Importanc e of the Proposed Endeavor 
The Petitioner indicates that his work as a neurologi st is aimed at providing patient s with the best 
possible care and advancing the field through his research. He further states that he seeks to train 
"other care providers ... through numerous educational acti vities." With respect to his clinical 
research, the Petitioner contends that he will study the " impact of ischemic conditioning on patients 
with acute isch emic stroke receivi ng mech anica l thrombectom y." He also explains that he will 
investigate the " sensitivity and specificity of the CT-pe rfusion scan in predic ting isc hemic 
2 See Dhmwsar , 26 l&N Dec. at 888-91, for elaboration on these three prongs. 
' The initial tiling included a letter from the director of neurology residency program stating that the Petitioner was 
employed as a "Neurology Resident in our 
from 2016 and I anticipate him successfully completing the program on 
2017.'" 
3 
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Maller ofS-A-K-
penumbra" and perform another study "comparing the functional outcome of patient s rece iVIng 
mechanical thrombectomy during work hours to those receiving it after hours." Lastly, he asserts 
that he plans to improve treatment for patient s in rural areas through utilization of telemed icine to 
provide expert stroke consultation. 
The record includes the Petitioner's "Gradua te Medical and Dental Education 
Contract" for his vascular neurology fellowship from 2017 until 2018. In addition, 
he submits a letter from the director of the Program offering him 
an fellowship position "starting 2018, followin g you r completion of your vasc ular 
neurolog y fellowship here at the "4 The Petiti oner also provides docume ntation 
of his ongoing invo lvem ent with to develop a prehospital stroke navigation sonwa re 
that connect s a mbulances with a dedicated stroke center. Fu.rtherm ore , he offers various articles that 
highlight the importance of researc h advancements in neurology, stroke treatment method s, and 
stroke telemedicine. We find that the Petitioner 's proposed work as a neurology research er, physician, 
telemedicin e product develop er, and health care educator has substanti al merit. 
To satisfy the national importance requirement , the Petitioner must demonstrat e the "po tentia l 
prospective impact" of his work. His evidence includes letters of sup port from colleagues discussing 
the potential benefits ofhis rese arch in the neurology field and healthcare industr y. For instance, 
director of the at the . asserts that the Petitioner's 
·"planned research will improve the clinical care patients nationwide receive." In add ition, the 
Petitioner has submitted documentation indicating that the benefit of his propo sed research has 
broader implic atio ns, as the results are disseminated to others in the field through medical journals 
and conferences. As the Petiti oner has documented both the s ubstan tial merit and nationa l 
importance of his proposed research and telest roke product devel opment , we find tha t the record 
supports the Director's determination that he meets the first prong of the Dhariasar framework. 5 
B. Well Positioned to Advance the Proposed Endeavor 
The second prong shifts the foc us from the proposed endeavor to the Petitioner's qualifications. The 
Petitioner submitted document ation of his published articles, conference presentations, profess iona l 
membership s, academic credentials, peer review for journals , statT evaluations, and intern al 
4 
We note that, while infonnation about the nature of the Petitioner's proposed endeavor is necessary for us to detennine 
whether he satisfies the Dhanasar framework, he need not have a job offer from a speci tic employer as he is applying for a 
waiver of the job offer requirement. . 
.5 With respect to the Petitioner's proposed care and treatment of patients and educational duties, while these endeavors have 
substantial merit, the record does not establish that his clinical and instructional work would impact the neurology field and 
healthcare industry more broadly, as opposed to being limited to the patients he serves and his medical trainees. Accordingly, 
without sufficient documentary evidence of their broader impact, the Petitioner's clinical work as a neurologist and activities 
as a medical instructor do not meet the "national importance" 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. /d. at 893. 
4 
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Malter ofS-A-K-
awards. 6 He also offered reference letters discussing his 
medical trammg, clinical work , and· research projects} On appeal, he provides documentation 
showing his involvement with telestroke product and a prop osa l for its imp lementation in 
North Carolina. 
The Petitioner maintains that his clinical experience and success in treating stroke patients, role as 
chief of house staff instructing other residents, and selection for the fellowship at the 
render him well positioned to advance his endeavor. 
8 
Because the Petitioner 's proposed 
clinical and instructional dutie s do not meet the first prong of the Dhanasar framewo rk, our analysis 
under this prong will focu s on whether he is well positioned to advance his proposed research and 
telestroke product development. · 
With respect to his neurology research, the Petitioner asserts that he has been activ e in "pub lishing 
medical research in leading medical journals and textbooks." In letters supporting the petition, 
several medical professors discussed the Petitioner's research aimed at improving the care and 
treatment of patients suffering from neurological diseases. For example, associate 
professor of neurofogy at . states that the Petitione r's "wor k on the new definition 
of the stroke was selected for publication by the prestigious but 
does not explain the significance of those tindings. 9 In addition, Chie f of Genera l 
Neurology Services at the indicate s that this 
article "demonstrates that stenting showed no improvement in cognitive impairment over aggressive 
medical management." While contends that the Petitioner's "original resea rch has 
produced new and important findings that are continuously havin g positive global implications 
throughout 
the field ," he does not otTer any specific examples of such implication s. 
professor of neurology at 
of the impact of the new 
definition of stroke on the 
mentions the Petitioner's study 
trial. indicates that the Petitioner's 
"res ults impl y an even higher benefit from medical therapy over stenting and a higher risk of 
symptomatic cerebral infarction in both groups than originally descri bed in 
Regarding the Petitioner's study ·entitled 
associate professor at the 
6 The Faculty Excellence awards were presented by "students of the College of Medicine" to honor exceptional 
resident faculty "with a Teacher of the Month nomination." 
7 We discuss only a sampling of these letters, but have reviewed and considered each one. 
8 
The letter from the director of the Program states that this "fellowship involves a pre-requisite year to learn basic 
catheter ski lis, neuroimaging, and other important "clinical aspects of cerebrovascular disease. The second year is a formal 
12 month experience in NeuroEndovascular techniques .... " Selection for a clinical training program to learn basic skills 
relating to the treatment of cerebrovascular disease is not necessarily an indicator that the Petitioner is well positioned to 
advance his proposed endeavor. 
9 This article is entitled 
·s 
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Maller ofS-A-K-
states that the Petitioner 
also notes the Petitioner observed tha t patient s expe rienced "the greates t decl ine du ring the 
postprandial period and that thi s deCline indicate s cln accelerated clea rance of resu lting from 
meal-induc ed ox idative stress.'· He conclud es that "[t]his is a significant find ing as thi s is the lirst 
study to demonstrate elevated level s among patient s \Vith intracran ial atherosd erosis." 
While the 
a fore mentioned references note the import ance of the Petitioner's research projects, they 
do not offe r spe cific exampl es of how the Petitioner 's. findin gs have gene rated positive interest 
amo ng relevant parties, have been implemented as part of stroke treatme nt programs, or otherwis e 
reflect a record of success in his a rea of research. 
With rega rd to the Petitioner 's teles troke product development work for he offe rs a letter 
from and the compan y's co-founders, stating that he co­
invented a novel healthcare technology product with them which "o perates to conne ct ambulances 
with a dedicated stroke center" and that their compa ny owns the patent for this device. 10 His 
appellate subm ission also includes an amended operating agreement for identify ing the 
Petitioner as a member , informat ion about the company 's prehospi ta l stroke naviga tion so ftware, and 
a "to develop video telestroke 
capabilitie s" in some of its am bulances. Although EMS has developed an 
implementati on plan for telestroke produ ct, the record does not adequately document that 
the product stands to be utiliz ed beyond this single loca lity. 
The record demonstrate s that the Petitioner has cond ucted , published 11, and presente d resea rch 
during his medical career and been invol ved with the deve lopm en t of tele stroke product. 
Wh ile we recognize that research mu st add information to the pool of knowledge in some way in 
order to be accept ed for publication, presentation , funding, or academic credi t, not eve ry ind ividual 
who has performe d original research will be · fou nd to be well positioned to advance his or her 
propo sed research. Rather, we examine the factors set forth in Dhanasar to determ ine whether, for 
instanc e, the individual 's progre ss towards achieving the goals of the proposed research, recor d of 
success in similar efforts, or ge neratio n of interest amon g releva nt parties supports such a finding. 
!d. at 890. The Petitioner has not shown that his research has been frequently cite d 12 by indepe ndent 
neurologi sts or otherwise served as an impetu s for progress in the field, that it has affec ted clinical 
10 The record does not include a copy of this patent to support their assertion that the Petitioner was one of the invento rs. 
11 On appeal , the Petitioner provid es his online profile from reflecting 2,687 publication reads of his body 
of work and a congratu latory message indicating that his article entitled "Rationa le for ische mic condition ing to prevent 
stroke in patients with intracran ial arter ial stenos is" "reached 200 reads." Whi le this infonnat ion indica tes that othe rs have 
read his article s, it does not show the impact of his work or demo nstrate that the interest in his work rises to a level of 
rendering him we ll pos itioned to advanced his proposed resea rch. 
12 The Petitioner 's response to th e Director's reque st for evidence (RFE) includ ed an art icle e ntitled "Citat ion ana lysis may 
severely underest imate the impact of clinical research as compared to basic resea·rch." Although this article disc usses the 
limitations of popular bibliometric indicators, such as the h-index and the impact factor, and concludes that those indicators 
are nor reliable in making "accur ate between-field compa risons," it does not undennine the value of citat ions as one of the 
tools for asses sing clinical research perfonnance . For example, the article states that "[ c )itation ana lysis is widely used in the 
assess ment of resea rch perfonnanc e in the medical sc iences .'' 
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Malter <?[S-A-K-
practice, or that it has generated subs tantial positive discourse in the broader medi cal co mmunit y. 
Nor does the evidence otherwise demonstr ate that his work consti tutes a record of success or 
progre ss in his area of research. 
In the appeal briet: the Pet itioner refers to an AAO non-preced ent dec ision concerning a metallurgica l 
engineer whose proposed endeavor involved perforn1ing services for her compa ny's produc tion and 
manufacturin g projects. See Matter (!l L-R-R-, 10# 448049 (AAO Aug. 2 1, 20 17). He contends we 
detennin ed that a letter from this engi neer's employer was sufficien t to meet the second prong of the 
Dhanasar framewo rk. This decisio n ·was not published as a precedent and therefore does not bind 
USCIS officers in future adjudicat ions. See 8 C.F.R . § 103.3(c). Non-preceden t dec isio ns apply 
existing law and policy to the specific facts of the individ ual case , and may be distinguish able based on 
the evid ence in the record of proceedings, the issues considered, and appl icab le law and policy. Here, 
the Petitio ner has not shown that the evidence and issues in Mat ter of L-R-R- are substantially similar to 
the present case. Furthennor e, while we found in Matter of L-R-R- that the engineer was well 
positioned to support her particular company 's production and manufa cturin g operatio ns, we 
specifically noted that her evidence was insufficient to show her metallurgy research const ituted a 
record of success or progres s in her tield, or had garne red degree of interest in her work from relevant 
parties, that would rise to the leve l of rendering her well positioned to advance any type of r esea rch 
endeavor. Id. at 6, n.8. 
Regardin g the Petitioner's peer review activit ies, he provided documentation indic ating that he had 
complet ed one review each for and 
at the time of filing . He also offe red seve ral invitations that he received to review paper s tor journa l 
publication. The Petition er has not documented the reputati on of the afo rementioned journa ls or 
oftered othe r evidence demon strating that his peer review experience rises to the level of render ing 
him well positioned to adv ance his proposed re search endea vor. The recor d doe s not show that the 
Petitioner 's occas ional particip ation in the widespread peer review process represents a recor d of 
succes s in his field or that it is otherw ise an indication that he is well positioned to advance neurology 
research . 
In response to the Directo r's RFE, the Petiti oner provided an email and a letter of support from 
. Deputy Edi tor-in-Chief of indicat ing that he 
reviewed a manuscript for this journal in April 2017. He also sub mitt ed a June 2017 emai l from 
inviting him "to serve as a Memb er of the 
beginning July 1, 2017 and endi ng June 30, 2019 ." On appeal, the Petitioner contends that his 
service as a reviewer tor the a fore mention ed journal and membersh ip in the 
demonstrate that he is well posi tioned to advance his proposed endeavor. The 
Petition er's manuscript review for 
membership, however, post-da te the filing of the petition. See 8 C.F.R . § 103.2(b)( l ), ( 12). 
Regardle ss, without further information and docu mentation regarding the significance of this 
evidence, we do not find it sufficient to demon strate that the Petitioner is well positioned to adva nce 
his propo sed research or product deve lopmen t. 
7 
Maller rifS-A-K-
In sum, the Petitioner has not demonstrated a record of success or progress in his f1eld, or a degree of 
interest in his work from relevant parties, that rise to the level of rendering him well positioned to 
advance his proposed endeavor of conducting clinical research and product development aimed at 
improving patient care in the neurology field. As the record is insuff1cient 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 
certif1cation. Here, the Petitioner claims that he is eligible for a waiver due to his research and 
clinical skills and accomplishments, and based on the impracticality of labor certilication and a 
"national shortage of neurologists on a nationwide level." 13 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. 
Ill. CONCLUSION 
As the Petitioner has not met the requisite three prongs set forth in the Dhanasar analytical framework, 
we lind that he has not established he is eligible for or otherwise merits a national interest waiver as 
a matter of discretion. 
ORDER: The appeal is dismissed. 
Cite as MatterofS~A-K-, ID# 1264560 (AAO June 5, 2018) 
13 We note that the U.S. Department of Labor addresses shortages of qualifi~d 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. 
8