dismissed EB-2 NIW Case: Physics

U.S. Citizenship 
and Immigration 
Services 
In Re: 10137119 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 19, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a physics 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). 
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 a brief asserting that the Beneficiary 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. 
Section 10l(a)(32) of the Act provides that "[t]he term 'profession' shall include but not be limited to 
architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, 
colleges, academics, or seminaries." 
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definitions: 
Advanced degree means any United States academic or professional degree or a foreign 
equivalent degree above that of baccalaureate. A United States baccalaureate degree 
or a foreign equivalent degree followed by at least five years of progressive experience 
in the specialty shall be considered the equivalent of a master's degree. If a doctoral 
degree is customarily required by the specialty, the alien must have a United States 
doctorate or a foreign equivalent degree. 
Profession means one of the occupations listed in section 10l(a)(32) of the Act, as well 
as any occupation for which a United States baccalaureate degree or its foreign 
equivalent is the minimum requirement for entry in the occupation. 
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 offer 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 
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). 
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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 
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 
At the time of filing, the Petitioner was a doctoral candidate in physics and a research assistant at the 
University I I The Director concluded that the Petitioner qualifies as a member of the 
professions holding an advanced degree based upon his receipt of a master's degree i~ I physics 
from the Universit~ lin 2013. The Director also determined that the Petitioner had established 
that his proposed endeavor met the first prong set forth in the Dhanasar analytical framework. The 
Director's decision then discussed the deficiencies in the submitted evidence and provided a well­
reasoned explanation as to why the Petitioner did not meet the remaining two prongs. 
Therefore, upon consideration of the entire record, 4 including the arguments made on appeal, we adopt 
and affirm the Director's decision with the comments below. See Matter of P. Singh, Attorney, 26 
I&N Dec. 623 (BIA 2015) (citing Matter of Burbano, 20 I&N Dec. 872, 874 (BIA 1994); see also 
Chen v. INS, 87 F.3d 5, 7-8 (1st Cir. 1996) ("[I]f a reviewing tribunal decides that the facts and 
evaluative judgments prescinding from them have been adequately confronted and correctly resolved 
by a trial judge or hearing officer, then the tribunal is free simply to adopt those findings" provided 
the tribunal's order reflects individualized attention to the case). 
Regarding the second prong, on appeal the Petitioner generally repeats previous claims that he "has 
established his eligibility ... according to the exact same factors as the Matter of Dhanasar beneficiary" 
and that "his record ofresearch is similar" to that of Dr. Dhanasar. For example, he again argues that he 
3 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
4 While we may not discuss every document submitted, we have reviewed and considered each one. 
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had "eight times the citations" Dr. Dhanasar had at the time of his initial filing. However, while we listed 
Dr. Dhanasar's "publications and other published materials that cite his work" among the documents 
he presented, our determination that he was well positioned under the second prong was not based on 
his citation record alone. As discussed by the Director in his decision, we found that "[ t ]he petitioner's 
education, experience, and expertise in his field, the significance of his role in research projects, as 
well as the sustained interest of and funding from government entities such as NASA and AFRL, 
position him well to continue to advance his proposed endeavor of hypersonic technology research." 
Id. at 893. 
Likewise, as it relates to the Petitioner's education, while his master's degree 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 positioned to advance his proposed endeavor. 
Unlike the Petitioner, Dr. Dhanasar 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. 
Regardless, we look to a variety of factors in determining whether a petitioner is well positioned to 
advance his proposed endeavor, and education and citations are merely two factors among many that 
may contribute to such a finding. 
The Petitioner also repeats prior claims that his "research has been funded by a prestigious government 
agency,"I ~- 5 However, the record does not establish that the 
Petitioner, rather than his professor or one of his coauthors for exam le was rimaril responsible for 
securing the funding for the research projects. According to the Petitioner's 
advisor at the I I Department of Physics at the Universit .__ _____ ____. the 
"continuation otLJ grant funding relies on the demonstration of sustained progress toward the goals 
specified in the grant proposal." He further states that the Petitioner was "a major part of our team's 
ability to continue to receive funding from~grants," and that the annual report lists the Petitioner 
"as a recipient of funding." Notably, the Petitioner did not provide a copy of theL=h annual report 
or other evidence to clarify the Petitioner's role in securing the grant. In contrast, Dr. Dhanasar 
provided evidence establishing that he "initiated" or was "the primary award contact on several funded 
grant proposals" and that he was "the only listed researcher on many of the grants." Id. at 893, n.11. 
While the record demonstrates that the Petitioner has conducted and published research that has been 
cited during his graduate studies, we agree with the Director that he has not sufficiently established 
that this work renders him well positioned to advance his proposed endeavor. Although we recognize 
that research must add information to the pool of knowledge in order to be accepted for publication, 
presentation, funding, or academic credit, not every individual who has performed original research 
will meet the second prong. We must 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. Here, the Petitioner has not, for example, demonstrated that his published work has generated 
substantial positive discourse in the field or otherwise provided sufficient evidence to establish that 
his work constitutes a record of success or progress in advancing research in his field. 
5 This claim is also repeated in a number of the opinion letters submitted. 
4 
As the record does not establish that the Petitioner is well positioned to advance the proposed endeavor 
as required by the second prong of Dhanasar, the Petitioner has not demonstrated eligibility for a national 
interest waiver. Therefore, further analysis of his eligibility under the third prong would serve no 
meaningful purpose. 
III. CONCLUSION 
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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