dismissed EB-2 NIW Case: Neurosurgery

U.S. Citizenship 
and Immigration 
Services 
In Re: 16423786 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JUL. 29, 2021 
Form I-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner , a neurosurgeon and researcher, seeks second preference immigrant classification as a 
member of the professions holding an advanced degree and as an individual of exceptional ability, 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 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 documentation and a brief asserting that he is eligible for 
a national interest waiver. 
In these proceedings, it is the petitioner 's burden to establish eligibility for the immigration benefit 
sought. 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 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. 
Furthermore, 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 matter of discretion 2, 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 off er 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 off er or for the petitioner too btain a labor ce1iification; whether, even assuming 
that other qualified U.S. workers are available, the United States would still benefit from the foreign 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 I&NDec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
2 See also Poursina v. USCJS, No. 1 7-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USC IS' decision to grant or 
deny a nationalinterestwaiverto be discretionary in nature). 
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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 Director concluded 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 a labor certification, would be in the national interest. 
In the decision, the Director decided that the Petitioner did not demonstrate eligibility for any of the 
three prongs under the Dhanasar analytical framework. 
The first prong relates to substantial merit and national importance of the specific proposed endeavor. 
Dhanasar, 26 I&N Dec. at 889. At initial filing and in response to the Director's request for evidence 
(RFE), the Petitioner submitted statements of his intentions in the United States. However, the Petitioner 
did not provide sufficient information and details to reflect a specific proposed endeavor as contemplated 
in Dhanasar. Instead, the Petitioner generally claimed to pursue work in "research, industry, and 
academics" without identifying what he specifically planned to do in any of those "facets oflife." For 
example, while the Petitioner asserted that his "research has multiple application areas," he did not 
identify and elaborate on the research he intended to conduct. Likewise, the Petitioner broadly indicated 
that he is "striving to develop and contribute more in the medical industry and economic[] growth by 
contributing with new concepts and ideas" and is "already making an impact as a staff faculty of a 
neurosurgical residency and as a researcher fellow working with observers and medical students, giving 
support, guidance, orientation and teaching" without specifically showing what he intends to develop and 
contribute. 
In addition, in support of his claims, the Petitioner referenced statistics for stroke deaths in the United 
States from the "Heart Disease and Stroke Statistics 2017 Update: A Report from the American Heart 
Association" but did not submit the repmi to supp01i his asse1tions. Accordingly, in light of offering a 
vague endeavor, the Petitioner did not demonstrate the substantial merit and national importance of his 
proposed endeavor. 
Similarly, in the response to the RFE, the Petitioner again made broad claims, such as "I intend to provide 
the best care possible for patients here in the USA and treat all these neurosurgical conditions, specially 
the cerebrovasculardisorders andoffercuttingedgetreatments in order to maintain the American people's 
health and consequently petpetuate the greatest economy in the world," "I plan to continue to broaden the 
range and continue to develop and improve scientific research with new boundaries, knowledge and 
groundbreaking ideas utilizing my great experience, knowledge and skills to produce impactful data that 
enhances healthcare in the USA," "I intend to collaborate with the medical industry in the USA, in order 
to facilitate the blossoming, evolution and spread ofnewtechnologythathelps patients,and consequently 
affects theeconomycreatingjobs anddevelopingthe market,"and "I plan to strive in the academic aspect 
of life, ... as a Research Fellow, Clinical Fellow and Neurosurgical Simulation Fellow working with pre­
graduate and postgraduate students, observers, medical students, fellow physicians and neurosurgeons 
3 SccDhanasar, 26l&NDec. at 888-91, for elaboration onthesethreeprongs. 
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mentoring, giving support, guidance, orientation and teaching." Again, the Petitioner did not sufficiently 
explain and provide details to satisfy a specific proposed endeavor consistent withDhanasar's first prong 
requirements. 
Moreover, in the cover letter accompanying the RFE response, the Petitioner referenced submitted 
documentation and articles relating to the economic impact of physicians and workforce shortages of 
neurosurgeons and stroke specialists in the United States. While the evidence might relate to substantial 
merit, it is important to note that the shortage of neurosmgeons and physicians in the United States does 
not render his potential employment nationally important under the Dhanasar framework. In fact, such 
shortage of qualified workers is directly addressed by the U.S. Department of Labor (DOL) through the 
labor certification process. Further, the Petitioner did not establish the national importance of his 
prospective employment at a hospital, institution, or other medical organization. In Dhanasar, we 
determined that the petitioner's teaching activities did not rise to the level of having national impmtance 
because they would not impact his field more broadly. Id. at 893. The Petitioner did not show that his 
future employmentwould impact the neurological or medical fields more broadly at a level commensurate 
with national importance. 
On appeal, the Petitioner contends that he "proposes two related endeavors, as a medical practitioner and 
as a researcher." As it relates to a medical practitioner, the Petitioner claims: 
[He] aims to achieve full accreditation as a medical doctor in the United States and treat 
thousands of patients in the United States throughout his career. His particular 
specialization in Neurosurgery is a field which is already experiencing a shortage in the 
United States. As the United States population becomes older on average, this shortage 
is expected to become significantly more serious. Only about 160 new Neurosurgeons 
are graduating from medical residency programs per year in the United States, which is 
not nearly enough to address the growing shortage which is expected in the coming 
decades. 
The Petitioner provides two new articles, as well as a previously submitted article, relating to workforce 
shortages of neurosurgeons in the United States. However, we will not consider this evidence for the first 
time on appeal as it was not presented before the Director. See Matter o_/Soriano, 19 I&N Dec. 7 64, 
766 (BIA 1988) (providing that if "the petitioner was put on notice of the required evidence and given 
a reasonable opportunity to provide it for the record before the denial, we will not consider evidence 
submitted on appeal for any purpose" and that "we will adjudicate the appeal based on the record of 
proceedings" before the Chief); see also Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). For the 
reasons previously discussed above, shortages of neurosurgeons do not render potential employment 
nationally important under theDhanasar framework and are directly addressed by DOL through the labor 
certification process. In addition, the Petitioner did not demonstrate the national importance of his 
futuristic employment as a neurosurgeon and how it would sufficiently extend beyond his potential 
employer and patients to impact the fieldmore broadly. Furthermore, the Petitioner did not establish how 
his employment would reach the level of "substantial positive economic effects" as contemplated by 
Dhanasar. Id. at 890. 
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Regarding as a researcher, the Petitioner contends that: 
[H]is research reports on new treatment techniques in the I I and 
~-----~ subareas of Neurosurgery. Several of the articles report on new surgical 
techniques, individual case studied patients, post treatment complications and clinical 
outcomes. These research publications amount to concrete contributions in the field, 
which can provide insight for researchers and practicing surgeons. Implementation of the 
findings in these articles in surgeries over the course of many years will have an impact 
on the health and well-being of thousands of neurosurgical patients, rising to a ''potential 
prospective impact" commensurate with a finding of National Importance. 
[His] previous record of success in research is more than sufficient to evidence that he 
will continue to impact the field in similar ways throughout his career, thus makmg a 
nationally important impact in his field and in the lives of thousands of patients .... 
He also provides three "examples of his research and publications," such as aiiicles relating to 
I ~- steps in treatment for I I stroke patients, and thel I I I, and claims that "[t]hese articles represent only a small part of [his] overall research 
in the area" and "[he] will continue to produce new and innovative research in the area, thus advancing 
the field and providing a benefit which will help thousands of patients and physicians." He also submits 
his updated citation histoiy and an article from rarediseases.org relating toO. 
Here, the Petitioner makes arguments regarding his past research, findings, and publications and 
references his "previous record of success in research." In general, the Petitioner's previous work relates 
to the second prong oftheDhanasar framework, which "shifts the focus from the proposed endeavor to 
the foreign national." Id. at 890. The issue here is whether the specific endeavor that he proposes to 
undertake has substantial merit and national importance under Dhanasar' s first prong. In this case, the 
Petitioner did not present a specific endeavor before the Director and did not sufficiently demonstrate 
what he intended to pursue in the United States rather than broadly claiming research. He did not 
differentiate his proposed endeavor from his past work. Even ifhe offered a specific proposed endeavor 
before us, we would not consider it for the first time on appeal. Soriano, 19 I&N Dec. at 7 66; see also 
Obaigbena, 19 I&N Dec. at 533. Regardless, the Petitioner asserts that he "will continue to produce 
new and innovative research in the area," without presenting a specific, detailed proposal sufficiently 
explaining what research he intends to pursue. 
For these reasons, the Petitioner's proposed endeavor does not meet the first prong of the Dhanasar 
framework. Further analysis of his eligibility under the second and third prongs, therefore, would serve 
no meaningful purpose. 
III. CONCLUSION 
As the Petitioner has notmetthe requisite first prong of theDhanasar analytical framework, we conclude 
that he has not demonstrated that he is eligible for or othe1wise merits a national interest waiver as a 
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matter of discretion. The appeal will be dismissed for the above stated reasons, with each considered 
as an independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
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