dismissed EB-2 NIW Case: Pharmaceutical Science

U.S. Citizenship 
and Immigration 
Services 
In Re: 13065452 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JUNE 14, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a pharmaceutical scientist , 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). 
The Director of the Nebraska Service Center denied the petition, concluding 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 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 ofjob 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 (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 offer and thus of a labor certification. 3 
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 of New York State Department of 
Transportation, 22 l&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
2 See also Poursina v. USC1S, No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or 
deny a national interest waiver to be discretionary in nature). 
3 To establish that it would be in the national interest to waive the job offer requirement, a petitioner must go beyond 
showing their expertise in a particular field. The regulation at 8 C.F.R. § 204.5(k)(2) defines "exceptional ability" as "a 
degree of expertise significantly above that ordinarily encountered" in a given area of endeavor. By statute, individuals of 
exceptional ability are generally subject to the job offer/labor certification requirement; they are not exempt by virtue of 
their exceptional ability. Therefore, whether a given petitioner seeks classification as an individual of exceptional ability, 
or as a member of the professions holding an advanced degree, that individual cannot qualify for a waiver just by 
demonstrating a degree of expertise significantly above that ordinarily encountered in their field of expertise. See 
Dhanasar, 26 l&N Dec. at 886 n.3. 
2 
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. 4 
II. ANALYSIS 
The Director found 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. 
At the time of filin the Petitioner was working "as a researcher 5 in the Pharmaceutical .... 1 --~ 
Laboratory in the Department of Pharmaceutics at the University of -----~--------' His research responsibilities include "conducting research in the area ofl I 'i========------.1, and developing "an understanding of the relationship between! I .__ ____ ~I using both experimental and computational tools. Another goal is to develop tablet 
products with desire~ lproperties." 5 
A. Substantial Merit and National Importance of the Proposed Endeavor 
The Petitioner indicated that he intends to continue his pharmaceutical research involving l._ __ _. 
~--------------------~ the design of new dosage formulations." He 
asserted that his proposed research is aimed at advancing the I I properties of 
drug products, improving the developability of drugs through I I processes, and 
promoting taste masking b~ I 
In his decision denying the petition, the Director determined that the Petitioner had demonstrated both 
the substantial merit and national importance of his proposed endeavor. The record supports this 
conclusion. For example, 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 scientific journals and conferences. Accordingly, we agree with the Director that the 
Petitioner meets the first prong of the Dhanasar framework. 
4 See Dhanasar, 26 T&N Dec. at 888-91. for elaboration on these three prongs. 
5 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 information about his research position to illustrate the capacity in which 
he intends to work in order to determine whether his proposed endeavor meets the requirements of the Dhanasar analytical 
framework. 
3 
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 curriculum vitae, academic credentials, published articles, peer review activity, 
and participation in projects funded by the National Science Foundation. He also offered evidence of 
articles that cited to his ublished work and letters of support discussing his postdoctoral research 
under the guidance o a professor in the Department of Pharmaceutics at the 
University o .__ ___ __. 
The Petitioner contends on appeal that his education, experience in his specialty, role in various 
research projects, published work, citation evidence, recommendation letters from others in the field, 
peer review service, and research funding demonstrate that he is well positioned to advance his 
proposed endeavor. For the reasons discussed below, the record supports the Director's determination 
that the evidence is insufficient to demonstrate that the Petitioner is well positioned to advance his 
proposed research under Dhanasar's second prong. 
In letters supporting the etition, several references discussed the Petitioner's postdoctoral research 
projects at University o 6 For example, regarding the Petitioner's work involving masking 
the un leasant taste of oral drugs, stated that the Petitioner developed a solution "to use an 
· to create the.__ _____ ___, solid forms from a range of nine diff~rent 
compounds." further indicated that the Petitioner "was able to formlJ and 
-----------~-------'-r....c.e.;..;.ac.c...t;_io"-n_'_' -'-a'-n"""d_t"-h-'-a'-'-t_'_,_,' t ]he resulting □ were ideal for 
.__ __ __. because they were.__ _____________ ~ solubility," but he did not provide 
specific examples indicating that the Petitioner work has been utilized in drug manufacturing 
operations or otherwise constitutes a record of success in the field. 
AdditionallyJ I professor at I I university in China, stated that the Petitioner 
"explored thq I stability oJ._ ____ ___,~ using simulated! I fluids in order 
to ascertain the many factors capable of iniluencing i: de:rdation I I· I I 
asserted that the Petitioner's "studies determined that the most influential in regards to the 
stability of the studied[ I and he was specifica y a e to highlight the risk of instability in 
these compounds in th~ I' but he does not explain how this work 
has affected the drug manufacturing industry or otherwise represents a record of success or progress 
rendering the Petitioner well positioned to advance his proposed endeavor. 
With respect to the Petitioner's research relating to the connection between pharmaceutical! I 
'r==========::....t:=i::..::e:c:rt..::ic.::.e:::..is c!:I ==r _____ _____.l a professor at the National Institute of 
in India asserted that the Petitioner investigated "the 
._a_p_p_li_c-ab_i_li-ty_o_f-th-e..-----------~---.......,topology analysis approach to better identify D 
~-~I" I I further stated: "[The Petitioner] combined this approach with I I topology 
using computational approaches and found that his method was able to easily and accurately identify 
I I that were in strong agreement with observed I I 
characteristics." Whild !indicated that he cited to the Petitioner's work because it "provided 
6 While we discuss a sampling of these letters, we have reviewed and considered each one. 
4 
an excellent example o,....f_u_se_o_f....__o_l .... m_e_r_a_,s'----i.....----------' to harvest potential~! _____ ~ 
advantages of soluble ' he does not offer examples of how the Petitioner's 
computational method and other findings have been implemented, utilized, or applauded in the 
pharmaceutical industry. 
The record also includes examples of various articles which cited to the Petitioner's work. 7 For 
instance, the Petitioner rovided an article, entitled 
L---------------.r---"l---_J(Journal C! Pharmaceutical Sciences), in which 
the authors cited to the Petitioner and,1,--~----..!s paper, entitled ' ( Crystal Growth & 
Design . 8 The article's authors identi 1e etitioner an s paper as one of five that reported 
usmg~--------------------~ as "potential alternatives for masking 
bitter taste of APis." This article, however, does not distinguish or highlight the Petitioner's work 
from the 3 7 other papers referenced in the article. 
Another article resented b the Petitioner entitled 
Cr stEn Comm cites to the to the Petitioner and~-~ s paper, entitled ~---' 
I-------' 
( Crystal Growth & Desi n . In this article, 
the authors referenced the Petitioner and s work, stating that were 
prepared from the.__~~-~--~~__. using ·mixtures betwee. ____ ~ and the corresponding 
I I wit out 1so at10n o t e I lbase." This article, however, does not 
I 
differentiate the Petitioner's paper from the 38 other papers referenced in the article. 
Regarding the Petitioner's overall citation record.I !professor atl I University, 
indicated that the Petitioner's "full body of work has been cited over 100 times .... The fact that his 
work has been used to guide the work of so many other researchers shows that his research has become 
an integral part of advancement in this area." As it relates to the citation of the Petitioner's work, the 
recor d . 1 d M 2019 . f t f G 1 S h 1 . d. f th th. th h. h t ·t d me u es ay m orma 10n rom oog e c oar m 1ca mg a IS ree 1g es Cle 
articles, entitled I I I 
land I 
teach received 23, 19, and 15 citations, respectively. The Petitioner does not 
specify how many citations for each of these individual articles were self-citations by him or his 
coauthors. 
Furthermore, the Petitioner provided data from Clarivate Analytics regarding baseline citation rates 
and percentiles by year of ublication for the en research field. The Petitioner claims that 
his a er coauthored with entitled 
~-------------------------_.ranked among "the top 1 % most­
cited articles published in Pharmacology & Toxicology in 2018" based on the number of citations it 
has received (9) since that time. He also asserts that he "has eight other articles placing among the top 
10% in the field for their respective publication years." The Petitioner did not indicate whether he 
7 Although we discuss representative sam le articles here we have reviewed and considered each one. 
8 The aiticle's authors stated: 
5 
factored in any self-citations in determining these percentile rankings. In addition, the Clarivate 
Analytics citation data is from February 11, 2019, and therefore does not capture citations that 
occurred after early 2019, while the Petitioner's Google Scholar citation report is dated May 24, 2019. 9 
Because the Clarivate Analytics data is not contemporaneous with the Petitioner's Google Scholar 
data, he has not shown that the former provides a proper analysis of his citation record. Moreover, the 
documentation from Clarivate Analytics states that "[ c ]itation frequency is highly skewed, with many 
infrequently cited papers and relatively few highly cited papers. Consequently, citation rates should 
not be interpreted as representing the central tendency of the distribution." 
Additionally, the Petitioner presented an article in Scientometrics written by Lutz Bornmann and 
Werner Marx, entitled "How to evaluate individual researchers working in the natural and life sciences 
meaningfully? A proposal of methods based on percentiles of citations." This article presents 
recommendations for "how to evaluate individual researchers in the natural and life sciences" for 
purposes of funding and promotion or hiring decisions. The authors state that "publications which are 
among the 10% most cited publications in their subject area are as a rule called highly cited or 
excellent" and that "the top 10% based excellence indicator" should be given "the highest weight when 
comparing the scientific performance of single researchers." While the authors offer proposed 
methods for bibliometric analysis of research performance, the record does not indicate that their 
methods have been accepted and implemented by the academic community. Moreover, with regard 
to citation information from Google Scholar, the authors advise against "using Google Scholar (GS) 
as a basis for bibliometric analysis. Several studies have pointed out that GS has numerous 
deficiencies for research evaluation." 
In response to the Director's request for evidence, the Petitioner presented two line charts (2012-2019) 
that he claims were derived from "Microsoft Academic." He contends that these charts compare his 
citation and publication counts to those of other researchers in the field, but the charts do not identify 
the specific field used as the basis for comparison. Again, the Petitioner did not indicate whether he 
factored in any self-citations in compiling his percentile rankings from Microsoft Academic. 
Moreover, the date of collection of the percentile rankings post-dates the filing of the petition, and 
therefore the Petitioner has not shown that the citation and publication counts used in the Microsoft 
Academic percentile calculation occurred in papers published prior to or at the time of initial filing. 
See 8 C.F.R. § 103.2(b)(l). Regardless, the Petitioner has not demonstrated that the number of 
citations received by his published articles reflects a level of interest in his work from relevant parties 
sufficient to meet Dhanasar' s second prong. 
The record also includes information about several of the journals in which the Petitioner has published 
his work. That a publication bears a high journal ranking or impact factor is reflective of the 
publication's overall citation rate. It does not, however, show the influence of any particular author 
or otherwise demonstrate how an individual's research represents a record of success in the field. 
Further, as it relates to the Petitioner's education, while his doctoral degree fronl !University 
of Science and Technology renders him eligible for the underlying EB-2 visa classification, he has not 
shown that his academic accomplishments by themselves are sufficient to demonstrate that he is well 
9 A webpage accompanying the Clarivate Analytics information states that its citation "data is updated six times a year" 
(every two months). 
6 
positioned to advance his proposed endeavor. In Dhanasar, the record established that the petitioner 
held multiple graduate degrees including "two master of science degrees, in mechanical engineering 
and applied physics, as well as a Ph.D. in engineering." Id. at 891. We look to a variety of factors in 
determining whether a petitioner is well positioned to advance his proposed endeavor and education 
is merely one factor among many that may contribute to such a finding. 
Regarding his peer review activity, the Petitioner provided emails thanking him for reviewing 
manuscripts submitted to Cellulose, AAPS PharmSciTech, Pharmaceutical Research, Journal of 
Pharmacy and Pharmacology, Journal of Pharmaceutical Sciences, International Journal of 
Pharmaceutics, and Heliyon. The Petitioner, however, has not demonstrated that his 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 his research endeavor. 
The Petitioner also asserts that he has received funding for his research from government and 
commercial sources. For instance, the record includes copies of two "Standard Grants" from the 
National Science Foundation identifying University o±1 I researchers I I and 
I las "Princi]al Investigator." He also presented a research paper that he coauthored 
with I ~------ I I and others in which the "Acknowledgements" section noted 
that their work was supported b the National Science Foundation. In addition, the Petitioner provided 
a March 2020 letter from statin that their work has also b~orted by I I 
LaboratoriesJ I,~--~~--------..__ ___ _, L__J andl I Medicine, 
but the record does not include copies of the research grants from the_se companies. In Dhanasar, the 
record established that the petitioner "initiated" or was "the primary award contact on several funded 
grant proposals" and that he was "the only listed researcher on
1
many oyhe grants." Id. at 893, n.11. 
Here, the record does not show that the Petitioner (rather than I I or I I 
was mainly responsible for obtaining funding for their research projects. 
The record demonstrates that the Petitioner has conducted and published research while at University 
ofl landl I University of Science and Technology, but he has not shown that this 
work renders him well positioned to advance his proposed research. 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 proposed endeavor. 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, however, has not sufficiently 
demonstrated that his published work has served as an impetus for progress in the pharmaceutics field 
or that it has generated substantial positive discourse in the pharmaceutical manufacturing industry. 
Nor does the evidence otherwise show that his work constitutes a record of success or progress in 
advancing research relating to pharmaceutical science. As the record is insufficient to demonstrate 
that the Petitioner is well positioned to advance his proposed research endeavor, he has not established 
that he satisfies the second prong of the Dhanasar framework. 
7 
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 the impracticality of 
labor certification, his expertise in the field, and the importance of his research. 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 second prong of the Dhanasar analytical framework, we 
conclude that he has not established he 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. 
ORDER: The appeal is dismissed. 
8