remanded EB-2 NIW Case: Data Analytics And Machine Learning

U.S. Citizenship 
and Immigration 
Services 
InRe : 19271321 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEPT. 21, 2021 
Form I-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a.__ _______ __. a private university, 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 employment-based "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 although the 
Beneficiary qualified for classification as a member of the professions holding an advanced degree, 
she had not established that a waiver of the required job off er, and thus of the labor certification, would 
be in the national interest. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will withdraw the Director's 
decision and remand the matter for further consideration and the 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. 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)Waiverofjob 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, 
aiis, professions, or business be sought by an employer in the United States. 
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. 
Exceptional ability in the sciences, arts, or business means a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business. 
In addition, the regulation at 8 C.F.R. § 204.5(k)(3)(ii) sets forth the specific evidentiary requirements 
for demonstrating eligibility as an individual of exceptional ability. A petitioner must submit 
documentation that satisfies at least three of the six categories of evidence listed at 8 C.F.R. 
§ 204.5(k)(3)(ii). This, however, is only the first step, and the successful submission of evidence 
meeting at least three criteria does not, in and of itself, establish eligibility for this classification. 1 
When a petitioner submits sufficient evidence at the first step, we will then conduct a final merits 
determination to decide whether the evidence in its totality shows that the beneficiaty is recognized as 
having a degree of expertise significantly above that ordinarily encountered in the field. 8 C.F.R. 
§ 204.5(i)(3)(i). 
While neither the statute nor the pertinent regulations define the te1m "national interest," we set forth 
a framework for adjudicating national interest waiver petitions in the precedent decision Matter of 
Dhanasar, 26 I&N Dec. 8 84. 2 Dhanasar states that after EB-2 eligibility has been established, USCIS 
may, as a 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 
1 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of aliens of 
exceptional ability. USCTS Policy Memorandum, Evaluation of Evidence Submitted with Certain Form I-140 Petitions; 
Revisions to the Adjudicator·s Field Manual (AFM) Chapter 22.2, AFM Update ADJ 1-14, PM-602-0005.1 (Dec. 22, 
2010). 
2 In announcing this new framework, we vacated our prior precedent decision, Matter o{Ncw York State Department of 
Transportation, 22 I&NDec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
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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 
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 ce1iification. 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 off er 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 wan-ant forgoing the labor ce1iification 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 
As noted earlier, the initial focus of the three-prong analysis is on the endeavor itself. Although the 
analysis does call for the focus to move away from the proposed endeavor, shifting to the foreign 
national and their ability to advance the endeavor, this shift cannot take place unless the endeavor is 
determined to have substantial merit and national importance. This determination, however, cannot 
be made and thus the first prong cannot be deemed to have been satisfied without a clear understanding 
of the endeavor the Petitioner seeks to promote. 
In the present matter, the record indicates that at the time of filing, the Beneficiary was working for 
the Petitioner as a statistical data analyst. The Petitioner stated that the Beneficiary's work has been 
funded by U.S. government agencies and explained that the Beneficiary's work is focused on 
developing data analrics and machine learning algorithm techniques to be applied in thel I 
and I industries. The Petitioner also discussed various projects the Beneficiary has 
worked on since commencing her employment with its organization in 2013 and provided letters of 
support from colleagues who lauded the Beneficiary's research and contributions with respect to the 
3 SccDhanasar, 26l&NDec. at 888-91, for elaboration onthesethreeprongs. 
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listed projects. In other words, the Petitioner discussed the Beneficiary's role with respect to the 
projects she worked on, but it did not specifically identify the Beneficiary's proposed endeavor, an 
element that is fundamental to conducting the three-prong analysis within the Dhanasar framework. 
With the initial filing, the Petitioner provided a supporting cover letter in which it described the 
Beneficiary's employment background and work experience, which includes her position as a full­
time research analyst at the petitioning institution and a part-time statistical data analyst at the 
Petitioner's "spin-off company." The Petitioner stated thatthe Beneficiary's work with advanced data 
analytics and machine leamin al orithms has resulted in her development of techniques that can be 
applied in the areas o ~----,,..__;.;;.;='---~-------' The Petitioner listed four projects - one in 
I land three in the.__ __ ___, industry - and described the types of improvements that 
resulted from the Beneficiary's data analytics work. In sum, the Petitioner stated that the Beneficiaiy's 
"research contributions" have substantial merit and national imp01iance and further claimed that the 
Beneficiary is well positioned "to continue to advance herresearchin these areas." In supportofthese 
claims, the Petitioner provided letters from the Beneficiary's colleagues, including four professors and 
one founder and president of a company whose flagship analytics tool is claimed to have been created 
with the help of the Beneficiary's research contributions. However, none of this evidence describes 
with any specificity the proposed endeavor that the Beneficiary will undertake. 
Although the Director issued a request for evidence (RFE), he did not seek clarification of the proposed 
endeavor and instead determined that the Beneficiary's work "in the fields of advanced data analytics 
and machine learning" meets the first prong requirements of the Dhanasar framework, thereby 
indicating that a proposed endeavor had been adequately identified. The prerequisite for determining 
whether a proposed endeavor satisfies the three prongs of the Dhanasar framework is to first identify 
the endeavor itself. Without an understanding of this most basic element, we cannot conduct a 
comprehensive analysis within the Dhanasar framework, which requires that we evaluate the 
substantial merit and national importance of the proposed endeavor prior to shifting our focus to the 
foreign national. Here, the Petitioner discussed the Beneficiary's area of research and described past 
projects where that research was utilized. However, the Petitioner did not identify the specific 
endeavor the Beneficiary seeks to pursue. Despite this evidentiary deficiency, the Director concluded 
that the Petitioner met the requirements of Dhanasar 's first prong and continued with an analysis of 
the second and third prongs. 
Because we find that the Petitioner has not provided sufficient details of the Beneficiary's proposed 
endeavor, the Director's decision cannot be affirmed. However, the Director did not accurately 
identify or explain the deficiencies in the evidence, as required by 8 C.F.R. § l 03.3(a)(l )(i). On 
remand, the Director should seek further information and clarification of the Beneficiary's proposed 
endeavor. The Director may issue an RFE requesting additional evidence addressing this critical 
element. Unless and until the Petitioner conveys a meaningful understanding of the proposed 
endeavor, the Director cannot proceed with an assessment of the Petitioner's eligibility for a national 
interest waiver within the context of Dhanasar 's three-prong analysis. Once the Petitioner provides 
the necessary in formation about the proposed endeavor, the Director shall then analyze the supporting 
evidence under the Dhanasarframeworkto determine whether the Petitioner has established eligibility 
for the national interest waiver. 
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ORDER: The Director's decision is withdrawn and the matter is remanded for further 
consideration and the entry of a new decision consistent with the above analysis. 
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