remanded EB-2 NIW Case: Biotechnology

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JUL. 30, 2024 In Re: 32384186 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a biotechnologist researcher, seeks classification as a member of the professions 
holding an advanced degree or of exceptional ability, Immigration and Nationality Act (the Act) 
section 203(b )(2), 8 U.S.C. § 1153(b )(2). The Petitioner also seeks a national interest waiver of the 
job offer requirement that is attached to this employment based second preference (EB-2) 
classification. See section 203(b)(2)(B)(i) of the Act, 8 U.S.C. § 1153(b)(2)(B)(i). U.S. Citizenship 
and Immigration Services (USCIS) may grant this discretionary waiver of the required job offer, and 
thus of a labor certification, when it is in the national interest to do so. See Flores v. Garland, 72 F.4th 
85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts (and Third in an 
unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver 
to be discretionary in nature). 
The Director of the Texas Service Center denied the petition, concluding the Petitioner qualified for 
employment based second preference permanent immigrant classification as an individual of 
exceptional ability, but the record did not reflect they had established that a waiver of the required job 
offer, and thus of the labor certification, would be in the national interest. The matter is now before 
us on appeal pursuant to 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christa's, Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). Upon de novo review, 
we will withdraw the Director's decision and remand the matter for entry of a new decision consistent 
with the following analysis. 
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. The regulation at 8 C.F .R. § 204.5(k)(2) defines 
advanced degree to mean any United States academic or professional degree or a foreign equivalent 
degree above that of a 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 and so permit classification as an EB-2 permanent immigrant. 
Progressive experience can be demonstrated by the Petitioner by providing letters from current or 
former employers showing that they have at least five years of progressive post-baccalaureate 
experience in the specialty. The regulation at 8 C.F.R § 204.5(g)(l) requires letters from current or 
former employers include the name, address, and title of the writer, and a specific description of the 
duties performed. 
In the alternative, an individual can demonstrate eligibility for second preference permanent immigrant 
classification as an individual of exceptional ability. 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 the 
sciences, arts, or business." To demonstrate exceptional ability, a petitioner must submit at least three of 
the types of evidence listed at 8 C.F.R. § 204.5(k)(3)(ii): 
(A) An official academic record showing that the alien has a degree, diploma, certificate, 
or similar award from a college, university, school, or other institution ofleaming relating 
to the area of exceptional ability; 
(B) Evidence in the form ofletter(s) from current or former employer(s) showing that the 
alien has at least ten years of full-time experience in the occupation for which he or she is 
being sought; 
(C) A license to practice the profession or certification for a particular profession or 
occupation; 
(D) Evidence that the alien has commanded a salary, or other remuneration for services, 
which demonstrates exceptional ability; 
(E) Evidence of membership in professional associations; or 
(F) Evidence of recognition for achievements and significant contributions to the industry 
or field by peers, governmental entities, or professional or business organizations. 
If the above standards do not readily apply, the regulations permit a petitioner to submit comparable 
evidence to establish the beneficiary's eligibility. 8 C.F.R. § 204.5(k)(3)(iii). 
But meeting at least three criteria does not, in and of itself, establish eligibility for this classification. We 
will then conduct a final merits determination to decide whether the evidence in its totality shows that 
they are recognized as having a degree of expertise significantly above that ordinarily encountered in the 
field. 
If we conclude that a petitioner has an advanced degree or is of exceptional ability such that they have 
established their eligibility for classification as an immigrant in the EB-2 classification, we evaluate the 
national interest in waiving the requirement of a job offer and thus a labor certification. Whilst 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). Dhanasar states that USCIS may as a matter of discretion grant a national 
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interest waiver of the job offer, and thus of the labor certification, to a petitioner classified in the EB-
2 category if they demonstrate that (1) the noncitizen's proposed endeavor has both substantial merit 
and national importance, (2) the noncitizen 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 the 
noncitizen 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 noncitizen. To determine whether 
the noncitizen 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, progress towards achieving the proposed endeavor, and 
the interest of potential customers, users, investors, or other relevant entities or individuals are also 
key considerations. 
The third prong requires the petitioner to demonstrate that, on balance of applicable factors, it would 
be beneficial to the United States to waive the requirements of a job offer and thus of a labor 
certification. USCIS may evaluate factors such as whether, in light of the nature of the noncitizen' s 
qualification or the proposed endeavor, it would be impractical either for the noncitizen to secure a 
job offer or for the petition to obtain a labor certification; whether, even assuming that other qualified 
U.S. workers are available, the United States would still benefit from the noncitizen's contributions; 
and whether the national interest in the noncitizen's contributions is sufficiently urgent to warrant 
forgoing the labor certification process. Each of the factors 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. 
II. ANALYSIS 
A. EB-2 Classification 
In the first instance, we note the Director's RFE concluded the Petitioner qualified for the employment 
based second preference immigrant classification because the Petitioner held "a Bachelor's degree in 
Engineering and is a candidate in a Ph.D. program." However, in the decision, the Director concluded 
the Petitioner "satisfie[ d] the Dhanasar requirement for exceptional ability" because they submitted 
their "Bachelor's degree, current Doctoral research assignment, and evidence of previous 
employment." 
As stated above, a petitioner can demonstrate their eligibility for the EB-2 category either as an 
advanced degree professional or an individual of exceptional ability. An advanced degree professional 
is an individual who has earned a degree above a baccalaureate degree or has earned a baccalaureate 
degree accompanied by five years of post-baccalaureate work experience in the specialty. And a 
petitioner may qualify for EB-2 permanent immigrant classification as an individual of exceptional 
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ability if they possess "a degree of expertise significantly above that ordinarily encountered in the 
sciences, arts, or business" upon demonstrating eligibility under three of the six criteria contained at 8 
C.F.R. § 204.5(k)(2) that the final totality of the evidence reflects they merit recognition as having a 
degree of expertise significantly above that ordinarily encountered in the field. 
The Director's conclusions about the basis of the Petitioner's eligibility for EB-2 classification contrast 
between the Director's RFE and the ultimate decision. Consequently, we withdraw the Director's 
decision and remand this matter so that the Director can substantiate the basis for the Petitioner's 
eligibility or ineligibility for classification in the EB-2 permanent immigrant category. 
On remand, the Director could choose to evaluate whether the Petitioner has demonstrated that they have 
accumulated at least five-years of post-baccalaureate work experience in their specialty. In the course of 
their evaluation the Director may note the Petitioner earned their bachelor's degree in engineering in 
2021, less than five years before they filed the petition on March 2, 2023, keeping in mind that a petitioner 
must establish eligibility for the benefit they are seeking at the time the petition is filed. See Matter of 
Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). 
Further, as stated above, an individual can demonstrate eligibility for second preference permanent 
immigrant classification as an individual of exceptional ability by submitting at least three of the types 
of evidence contained at 8 C.F.R. § 204.5(k)(3)(ii) and listed above. Only upon demonstration that a 
Petitioner met at least three ofthe criteria contained in the regulation will the agency conduct a final merits 
determination to decide whether the evidence in its totality shows that the Petitioner is recognized as 
having a degree of expertise significantly above that ordinarily encountered in the field. The Director's 
decision concluded the Petitioner "satisfie[ d] the Dhanasar requirement for exceptional ability." But our 
precedent decision in Dhanasar set forth a three-prong analytical framework to evaluate if a petitioner 
merited a favorable act of discretion to waive the requirement of a job offer, and thus of the labor 
certification. Our precedent decision in Dhanasar did not contain any "requirement for exceptional 
ability." Additionally, the Director concluded that the Petitioner's submission of their "Bachelor's 
degree, current Doctoral research assignment, and evidence of previous employment" demonstrated their 
exceptional ability. But it is not clear which criteria the Petitioner met by submitting their "Bachelor's 
degree, current Doctoral research assignment, and evidence of previous employment" and how the totality 
of that evidence demonstrates a degree of expertise significantly above that ordinarily encountered in the 
field. 
When the Director examines whether the Petitioner has demonstrated they are an individual of 
exceptional ability meriting classification in the employment based second preference permanent 
immigrant classification on remand, they could evaluate if the Petitioner's bachelor's degree is an official 
academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, 
university, school, or other institution oflearning relating to the area of exceptional ability. The Petitioner 
has earned a bachelor's degree in engineering with a "subplan" or concentration in scientific computing. 
The Director may consider if the evidence in the record supports scientific computing's applicability to 
biotechnology bearing in mind that scientific computing generally describes the science of utilizing 
advanced computing capabilities to understand and solve complex physical problems whilst 
biotechnology conversely relates to biological (not physical) systems, living organisms, and their 
component parts like the neural progenitor cells and malformations of cerebral cortex or cortical 
development described in the Petitioner's proposed endeavor. Or in other words, the Director may choose 
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to investigate if the Petitioner's bachelor's degree in engineering with a "subplan" or concentration in 
scientific computing is related to the Petitioner's claimed area of exceptional ability. 
On appeal, the Petitioner draws attention to other evidence in the record that they contend demonstrates 
their exceptional ability, namely their membership in the Society of Neuroscience and "evidence of 
recognition for [their] achievements and significant contributions to the industry or field by peers, 
government entities, or professional or business organizations." But the record contains insufficient 
evidence to establish the minimum requirements for admission to membership in the Society of 
Neuroscience and if those requirements demonstrate that membership in the Society of Neuroscience is 
reserved for professionals. Accordingly, the Director could request evidence to ponder how the 
Petitioner's individual membership in the Society of Neuroscience as a "graduate student" supports their 
membership in an organization of professionals, which ordinarily may not include students who have not 
yet attained professional status but are instead in the pursuit of their chosen profession. 
The Director could also request evidence from the Petitioner to support the Petitioner's contention on 
appeal regarding how the "evidence ofrecognition for [their] achievements and significant contributions 
to the industry or field by peers, government entities, or professional or business organizations" 
demonstrates their exceptional ability. The Petitioner submitted four letters ofrecommendation authored 
by three professors at United States institutions of higher education and a senior scientist in the 
biolaboratory industry. The Director may choose to consider if this evidence supports the Petitioner's 
"work on the role of glia in synaptogenesis" and investigation of "the relationship between microglial 
pruning of thalamocortical synapses and male-specific neurodevelopmental disorders" indicating a role 
for "non-genetic causes, such as air pollution and stress" in neurodevelopmental disorders is an 
achievement or significant contribution to their field. The Director could also consider if the Petitioner's 
"research on macrophage-based muscle regeneration" resulting in "structural and functional repair in 
patients with cardiotoxic injury" is an achievement or significant contribution to the field of 
biotechnology "characterizing the transcriptomic landscape of neural progenitor fate determination and 
development of analysis tools and experimental methods for integrating information across high­
throughput technologies." On appeal, the Petitioner asserts their "first-authored paper,I I 
1s an'---------------------------------------' achievement and significant contribution to their field because it has 74 citations. The Director could 
choose to investigate if 74 citations is an achievement or significant contribution to the Petitioner's 
claimed field. 
So, the Director may consider on remand and request evidence to consider which of the six criteria 
contained in 8 C.F.R. § 204.5(k)(3)(ii) the Petitioner's evidence supports, and if the evidence supports at 
least three of the six regulatory criteria, consider if upon a final merits determination the evidence in its 
totality shows that the Petitioner is recognized as having a degree of expertise significantly above that 
ordinarily encountered in the field. 
B. Eligibility for Discretionary Waiver of the Job Offer, And So a Labor Certification, in the National 
Interest. 
If the Director determines on remand that the Petitioner is eligible for classification in the EB-2 
permanent immigrant category, the Director can proceed to determine whether a discretionary waiver 
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of the job offer requirement, and thus a labor certification, is warranted. Section 203(b )(2)(B)(i) of 
the Act. 
In Dhanasar, we concluded the first prong, substantial merit and national importance, focused on the 
specific endeavor the noncitizen proposed to undertake. The endeavor's merit could be demonstrated 
in a range of areas such as business, entrepreneurialism, science, technology, culture, health, or 
education. And in determining whether the proposed endeavor has national importance, we consider 
its potential prospective impact. In Dhanasar we also said that "we look for broader implications." 
See Dhanasar, 26 I&N Dec. at 889. Broader implications are not necessarily evaluated from a narrow 
frame of reference such as geography; implications within a field which demonstrate a national or 
even international influence of broader scale can rise to a level of national importance. Additionally, 
many proposed endeavors that aim to advance STEM technologies and research, whether in academic 
or industry settings, not only have substantial merit in relation to U.S. science and technology interests, 
but also have sufficiently broad potential implications to demonstrate national importance. See 
generally 6 USCIS Policy Manual, F.5(D)(2), https://www.uscis.gov/policy-manual. As the Director 
evaluates the substantial merit and national importance of the Petitioner's proposed endeavor, they 
may elect to consider if the evidence in the record supports the aim of the Petitioner's endeavor to 
advance STEM research when they "examine the role of the cell cycle in neural progenitor cells" and 
if that work has sufficiently broad potential implications from the publication of its results such that it 
triggers matters of national importance. 
And the Director may evaluate the evidence in the record to determine if the Petitioner is well 
positioned to advance their proposed endeavor. The Director may 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, progress towards achieving the proposed endeavor, and 
the interest of potential customers, users, investors, or other relevant entities or individuals are also 
key considerations. Not every individual who has conducted original research and published findings 
will be found to be well-positioned to advance their proposed endeavor. The Director may opt to 
examine the Petitioner's prior research projects to determine if they are related or similar efforts to 
their proposed endeavor in biotechnology, and specifically the role of the cell cycle in neural 
progenitor cells. They may also evaluate the evidence in record consisting of the Petitioner's 
baccalaureate education in engineering with a "subplan" or concentration in scientific computing's 
applicability to research into the role of the cell cycle in neural progenitor cells. And the Director 
could examine the four independent advisory opinion letters submitted by the Petitioner to evaluate if 
they offer meaningful detail in an adequately material, relevant, and probative matter to establish the 
Petitioner's expertise in cell cycle research in neural progenitor cells, and their past record of success 
in their current and other related fields. Moreover, the Director may choose to further examine if the 
evidence supports that the rate at which the Petitioner's work has been cited is high relative to others 
in the field. The Director may also choose to consider if the evidence in the record reflects the 
Petitioner has a cognizable plan or model for their endeavor's future. The Petitioner stated that they 
intend to continue their work as they pursue their Ph.D. at the 
I However, the pursuit of their Ph.D. would not advance their endeavor in a permanent or 
indefinite manner because the pursuit would culminate with their matriculation and potentially leave 
their endeavor in limbo. An offer of employment is not a requirement for approval, nor is the lack of 
a job offer a negative factor in analyzing the evidence the Petitioner submits into the record. But when 
the prosecution of an endeavor itself depends on a constricted and finite event, such as the course an 
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educational curriculum heading towards matriculation, the absence of a permanent indefinite conduit 
like a specific post-doctoral, faculty, or industry employment position to further their proposed 
endeavor may be a matter the Director could elect to explore to determine if the Petitioner is well­
positioned to advance their proposed endeavor. 
On remand, the Director may evaluate whether the Petitioner has demonstrated 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. On remand the Director could consider the impracticality of a labor certification, the 
benefit to the U.S. of a petitioner's contributions, the urgency of a petitioner's contributions to the 
national interest, the capacity for job creation, and any adverse effects on U.S. workers when 
conducting the balancing of the national interests of waiving the requirements of a job offer and 
therefore a labor certification. 
III. CONCLUSION 
For the foregoing reasons, the 
matter will be remanded to the Director. The Director may request any 
additional evidence considered pertinent to rendering a decision under the foregoing analysis, and we 
express no opinion regarding the ultimate resolution of this case on remand. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
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