dismissed EB-2 NIW Case: Pediatric Critical Care Medicine

U.S. Citizenship 
and Immigration 
Services 
MATTER OF M-Y-A-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 9, 2019 
APPEAL OF NEBRASKA SER VICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a physician working in the area of pediatric critical care, 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. § l 153(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. Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). 
The Director of the Nebraska 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 she 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 a brief asserting that she 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 ofM-Y-A-
(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 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 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 I&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
2 
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Matter ofM-Y-A-
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 
11. ANALYSIS 
The Director found that the Petitoner 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. 
At the time of filing, the Petitioner was serving as a pediatric critical care medicine fellow at 
in Ohio. In response to the Director's request for evidence 
(RFE), the Petitioner indicated that upon completing this fellowship in June 2018, she planned to 
continue her medical career as a clinician scientist at 3 
A Substantial Merit and National Importance of the Proposed Endeavor 
In an April 2017 letter accompanying the Form 1-140, the Petitioner indicated that she intends to 
continue her work as a clinical physician and pediatric health researcher "to improve healthcare for 
children who are suffering from illness and debilitating conditions." She further explained that her 
research is aimed at "respiratory diseases that impact hundreds of thousands of young children, such 
as Respiratory Syncytial Virus Infection" (RSV) and Community-Acquired Pneumonia (CAP), and 
that her work will "improve diagnosis and treatment of these diseases." 
In response to the Director's RFE, the Petitioner asserted that her "long term goal is to develop 
community based programs that are designed with a multidisciplinary approach to improving access 
to affordable, qualitative and accessible heath care services for children with chronic conditions." In 
addition, she stated that she plans to investigate "the modifiable individual and community factors that 
affect those children with chronic conditions whose health care needs are very different from the 
general pediatric population. My research would be building a nexus between public health research 
and critical care outcomes for this very special subgroup of children." 
The initial submission offered information about RSV and CAP from the Centers for Disease Control 
and Prevention (CDCP) and Medscape discussing the prevalence of these diseases in the United States. 
We find that the Petitioner's proposed clinical research focused on improving medical practices for 
children with chronic health conditions has substantial merit. 
To satisfy the national importance requirement, the Petitioner must demonstrate the "potential 
prospective impact'' of her work. In addition to the information from CDCP and Medscape , the record 
includes letters of support discussing the potential benefits of her proposed research. For instance, 
2 See Dhanasar, 26 I&N Dec. at 888-91 , for elaboration on these three prongs. 
3As the Petitioner is applying for a waiver of the job offer requirement, it is not necessary for her to have a job offer from 
a specific employer. However, we will consider information about her current and prospect ive positions to illustrate the 
capacity in which she intends to work in order to determine whether her proposed endeavor meets the requirements of the 
first prong of the Dhanasar framework. 
3 
.
Matter ofM-Y-A-
a research assistant professor in the Department of Pediatrics at 
, asserted that the Petitioner's proposed work will improve "health outcomes of children 
with chronic conditions, especially those who frequently require admission to a pediatric intensive 
care unit." The record also includes documentation indicating that the benefit of her proposed research 
has broader implications, 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 her proposed research, we find that she meets the first prong of the Dhanasar framework. 4 
B. Well Positioned to Advance the Proposed Endeavor 
The second prong shifts the focus from the proposed endeavor to the Petitioner. 5 The record includes 
documentation of her curriculum vitae, academic credentials, medical certifications and license, 
published articles, conference presentations, and residency awards. She also offered reference letters 
discussing her medical training, clinical work, and research projects. 6 Upon review of this evidence, 
we find it does not establish that the Petitioner is well positioned to advance her proposed endeavor of 
improving medical practices for children with chronic health conditions in the field of pediatric critical 
care. 
In letters supporting the petition, several medical professors discussed the Petitioner's research aimed 
at advancing treatment for children with RSV and the improving the quality of pediatric critical care. 
For example, professor of pediatrics at described the 
Petitioner's research project relating to antibiotics and length of stay in children hospitalized with 
RSV. He stated that the importance of the Petitioner's "study lies in the fact that inappropriate use of 
antibiotics has been closely linked to antibiotic resistance and rising healthcare cost." In addition, 
indicated that the Petitioner's work "showed that unnecessary antibiotic use was associated 
with prolonged hospitalization." Likewise, associate professor of pediatrics at 
noted that the Petitioner's work "showed that antibiotic use in confirmed RSV 
infection prolonged hospital stay without additional impact on outcomes." 
In addition, professor of surgery and pediatrics at 
asserted that the Petitioner "has worked on several quality improvement projects to improve outcomes 
of critically injured children with acute respiratory failure." He further stated: "[The Petitioner] and 
her team have developed strategies to reduce iatrogenic fluid overload in this population. Results of 
her work were recently presented at the __ ________ conference where she 
received a lot of commendation for her work." 
4 With respect to the Petitioner 's proposed care and treatment of patients , while these endeavors have substantial merit, the 
record does not establish that her clinical work would impact the pediatric critical care field and healthcare industry more 
broadly, as opposed to being limited to the patients she serves. Accordingly, without sufficient documentary evidence of 
its broader impact, the Petitioner 's clinical work as a physician does 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. Id. at 893. 
5 As previously noted, the Petitioner's clinical duties do not meet the first prong of the Dhanasa r framework , therefore our 
analysis under this prong vvill focus on whether she is well positioned to advance her proposed research. 
6 While we discuss a sampling of these letters, we have reviewed and considered each one. 
4 
.
Matter ofM-Y-A-
Furthermore, 
medical director of 
professor of anesthesiology at and 
and at 
indicated that the Petitioner developed a "Quality Improvement 
curriculum for her pediatric residency program" and that "this curriculum is still in use today and has 
led to many resident-led quality improvement projects." 7 Although pediatric residency 
program has adopted the Petitioner's Quality Improvement curriculum, the record does not show that 
this curriculum stands to be utilized beyond this single hospital. 
The Petitioner presented two "Resident of the Year" awards for 
and a for her These 
residency awards from however, are insufficient to show a record of success or a level of interest 
in her research from relevant parties adequate to meet this prong. 
The record demonstrates that the Petitioner has conducted, published, and presented research during 
her 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. Id. at 890. The Petitioner has not shown that her published and presented work has been 
frequently cited by independent researchers 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 her work constitutes a record 
of success or progress in her area of research. As the record is insufficient to demonstrate that the 
Petitioner is well positioned to advance her proposed research endeavor, she has not established that 
she 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 she is eligible for a waiver due to her education, research 
experience and accomplishments, and based on the impracticality oflabor certification and a "shortage 
of physician-scientists in the field of pediatric critical care medicine." 8 However, as the Petitioner has 
not established that she meets the first and second prongs of the Dhanasar framework, she is not 
eligible for a national interest waiver and further discussion of the balancing factors under the third 
prong would serve no meaningful purpose. 
7 The Petitioner received her pediatric residency training at from 2012 until 2015. 
8 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. 
5 
Matter ofM-Y-A-
III. CONCLUSION 
As the Petitioner has not met the requisite three prongs set forth in the Dhanasar analytical framework, 
we find that she has not established she is eligible for or otherwise merits a national interest waiver as 
a 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. In visa petition 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; Matter of Skirball Cultural Ctr., 25 I&N Dec. 799, 806 (AAO 2012). Here, that burden has 
not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofM-Y-A-, ID# 2696644 (AAO Apr. 9, 2019)