dismissed EB-2 NIW Case: Ophthalmology

MATTER OF D-I-R-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 7, 2018 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an ophthalmologic 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). 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: (I) 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. Matter of 
Dhanasar, 26 I&N Dec. 884 (AAO 2016). 
The Director of the Texas Service Center denied the Form 1-140, 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 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. 
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: 
Matter of D-I-R-
(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 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 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. 
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 
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) (NYSDO]). 
2 
.
Matter of D-1-R-
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 qualifies 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. 
The record reflects that the Petitioner worked as a pediatric ophthalmic surgeon at from 
September 2009 until November 2015. In addition, he indicates that he was employed as an 
ophthalmic consultant and scientist at 
from February 2012 until December 2015, and as an ophthalmologist and consultant at the 
at from June 2013 until December 2015. On - . 
December 24, 2015, the Petitioner was admitted to the United States as an F-1 nonimmigrant 
student. 
A. Substantial Merit and National Importance of the Proposed Endeavor 
The Petitioner indicates that he intends to continue his research aimed at developing new and 
improved treatment options for retinopathy of prematurity (ROP), a degenerative eye disease that 
causes blindness in children. He states: "Currently, I am developing digital applications aimed to 
advance data analysis research and improve diagnostic techniques to make ROP diagnosis more 
widely available throughout the world." In addition, the Petitioner asserts that he will pursue 
"research on cicatricial ROP and OCT [Optical Coherence Tomography] technologies to develop 
more efficient treatment options in the U.S. and internationally." He also explains that he will strive 
"to make new developments in my industry, including new software for layer segmentation that I am 
independently working on, and I hope to patent in the United States." 
The record includes information about age-related eye diseases in the United States from the 
For example, according to the , ROP "is a 
potentially blinding eye disorder that primarily affects premature infants weighing about 2¾ pounds 
2 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
3 The Petitioner presented an academic credentials evaluation indicating that his degree from 
(2014) is the foreign "equivalent of the U.S. degree of Doctor of Philosophy in 
Biomedical Sciences earned at a regionally accredited institution of higher education in the United States." See 8 C.F.R. 
§ 204.5(kX3)(i)(A). 
3 
.
Matter of D-1-R-
(1250 grams) or less that are born before 31 weeks of gestation . . . . About 14,000 - 16,000 of 
[U.S.] infants are affected by some degree of ROP." We find that the Petitioner's proposed research 
aimed at improving diagnosis and treatment options for ROP has substantial merit. 
To satisfy the national importance requirement, the Petitioner must demonstrate the "potential 
prospective impact" of his work. In addition to information from the 
the record includes letters of support discussing the potential benefits of his proposed eye disease 
research. For instance, emeritus professor of ophthalmology at 
contends that the proposed research stands to "substantially benefit our work here in 
the United States, especially in the fight to decrease ROP blindness and in the development of new 
diagnostic methods for retinal diseases." Furthermore, the Petitioner has submitted documentation 
indicating that the benefit of his proposed research has broader implications for the field, as the 
results are disseminated to others in the field through medical journals and conferences . As the 
Petitioner has documented both the substantial merit and national importance of his proposed 
research, we find that he meets the first prong of the Dhanasar framework. 
B. Well Positioned to Advance the Proposed Endeavor 
The second prong shifts the focus from the proposed endeavor to the Petitioner. The record includes 
documentation of his academic credentials, medical training, research articles, conference 
presentations, and citation reports. He also submitted evidence of his professional memberships, two 
young scientist award nominations, three patent certificates, an "implementation 
certificate" from and reference letters discussing his research experience and projects. 4 
With respect to his research contributions, the Petitioner asserts that "he has invented one of the only 
techniques to detect ROP" and that his techniques have been awarded patents, implemented in 
healthcare systems, presented at international conferences, and cited by other researchers. He also 
contends that "his techniques are being used by other experts in the field to advance a cure for 
ROP." 
In letters supporting the pet1t10n, several references discussed the Petitioner's research that 
investigated the cicatricial phase of ROP. While complementary of the Petitioner's work, they do 
not offer sufficient detail regarding his claims that his techniques have been "implemented in 
healthcare systems" and utilized by others in the field "to advance a cure for ROP." For example, 
General Secretary of the indicates that 
the Petitioner's "focus on the later stage of ROP is important because it could create better treatment 
options and cures for this disease even at the most advanced stages, leading to its potential 
eradication." In addition, asserts that the Petitioner's "research into ROP focused on the 
cicatricial (scarring) phase of the disease, which has benefited the medical community's 
knowledge." While states he was impressed by the "research that [the Petitioner] has 
performed in the field of [ROP], as well as his development of novel instrumental methods for 
4 We discuss only a sampling of these letters, but have reviewed and considered each one. 
4 
.
Matter of D-1-R-
diagnosing ROP and other retinal diseases," he does not offer specific examples of how the 
Petitioner's methods have been implemented or utilized in order to support the Petitioner's claims. 
Although the Petitioner provides an "implementation certificate" stating that his "prognostication 
methods of clinic-functional outcomes of a cicatricial retinopathy of immature infants of 3-4 
degrees" were implemented in pediatric consulting and outpatient department, the record 
does not show that those methods have been utilized beyond this institute or that the extent of their 
usage is otherwise sufficient to demonstrate a record of success in his research. 
Furthermore, the record includes a letter from 
named after 
indicating that the Petitioner worked on the 
general director of 
'a Russian medical device manufacturer, 
project entitled 
describes this work as "a promising technology that 
allows to significantly improve the OCT method and visualize eye tissues practically at the cellular 
level." He further asserts that the Petitioner has "made a significant contribution" to the project's 
"optical coherence tomography and adaptive optics," but the record does not adequately document 
implementation of this work at medical centers or ophthalmological clinics, or show how it 
otherwise renders him well positioned to advance his proposed endeavor. 
With respect to his published research, the Petitioner's appellate submission includes a citation 
report from showing that one of his articles has been cited to seven times and that six of 
his other articles have each been cited to once. The record also includes a citation report from 
reflecting· similar results. The Petitioner does not, however, offer comparative 
statistics indicating how often other ophthalmologic researchers are cited, nor does the record 
otherwise demonstrate that his published and presented research constitutes a record of success or a 
level of interest in his work from relevant parties sufficient to meet this prong. 
The record demonstrates that the Petitioner has conducted, published, and presented research during 
his medical career and worked on diagnostic methods for eye diseases. 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 or coauthored patents 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. 
Id. at 890. The Petitioner has not shown that his research has been frequently cited by independent 
researchers or otherwise served as an impetus for progress in the field, that it has affected diagnostic 
methods outside of the medical institutions where he has worked, or that it has generated substantial 
positive discourse in the broader ophthalmology community. Nor does the evidence otherwise 
demonstrate that his work constitutes a record of success or progress in his area of research. 
5 This letter states that the Petitioner worked for the company from December 2012 until October 2014. 
5 
.
Matter of D-1-R-
Regarding the Petitioner's professional memberships, he provided evidence that he is member of the 
The Petitioner has not provided the specific membership requirements for 
these associations, or offered other evidence demonstrating that his involvement rises to the level of 
rendering him well positioned to advance his proposed research endeavor. Furthermore, with respect 
to his young scientist award nominations, the record does not show that such nominations for those in 
the early stages of their careers represent a record of success in his field or that they are otherwise an 
indication that he is well positioned to advance his proposed ophthalmology research. 
With regard to the Petitioner's plan for future activities in the United States, he states: "I intend to 
make new developments in my industry, including a new software for layer segmentation that I am 
independently working on, and I hope to patent in the United States. Further, I am also currently 
applying for researcher positions throughout the United States."6 The Petitioner provides a letter 
from a pediatric ophthalmologist at the in 7 
Louisiana, stating that the Petitioner asked him for assistance "in his search for a suitable research 
position in the USA in the medical field." The record, however, does not include evidence of the 
research positions to which the Petitioner has applied to illustrate the capacity in which he intends to 
work. Nor is there supporting documentation showing whether the Petitioner has engaged in 
research activities since his arrival in the United States in December 2015 or whether any relevant 
parties are interested in funding or otherwise supporting his future research activities in this country. 
Furthermore, aside from and letters, the record does not include any other 
letters from ophthalmologists, potential customers, users, or investors in the United States expressing 
their interest in the Petitioner's proposed endeavor to develop layer segmentation software and 
digital applications for ROP diagnosis. 
In the appeal brief, the Petitioner refers to an AAO non-precedent decision concerning a physician 
whose proposed endeavor involved developing surgical and non-surgical spinal treatments. See 
Matter of 1-K-C-, ID# 613815 (AAO Oct. 24, 2017).8 In addition, the Petitioner references another 
AAO non-precedent decision from January 2009 for an engineer that was adjudicated under the 
vacated NYSDOT framework. He contends that the Director "erred by judging the number of [the 
Petitioner's] citations rather than the success and impact of the research." The aforementioned 
decisions were not published as a precedent and therefore they do not bind USCIS officers in future 
adjudications. See 8 C.F.R. § 103.3(c). 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. 
6 As the Petitioner is applying for a waiver of the job offer requirement, it is not necessary for him to have a job offer from a 
specific employer. However, we will consider evidence relating to his future plans to determine whether he is well positioned 
to advance his proposed endeavor as required under the second prong of the Dhanasar framework. 
H In the cited matter, the evidence was not sufficient to meet the second prong of the Dhanasar framework. 
6 
Matter of D-1-R-
Here, the Petitioner has not shown that the evidence and issues in the above non-precedent decisions 
are substantially similar to the present case. Furthermore, the evidence offered in the present matter 
is insufficient to show that the Petitioner's ophthalmology research constitutes a record of success or 
progress in his field, or has garnered degree of interest in his work from relevant parties, that would 
rise to the level of rendering him well positioned to advance his proposed endeavor aimed at 
improving diagnosis and treatment options for ROP. 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 expertise in 
ophthalmology, research contributions, and the impracticality of labor certification, and because of 
the urgency of finding a cure for ROP. 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 he is eligible for or otherwise merits a national interest waiver as 
a matter of discretion. 
ORDER: The appeal is dismissed. 
Cite as Matter of D-1-R-, ID# 1441011 (AAO Aug. 7, 2018)