remanded EB-2 NIW Case: Materials Science

U.S. Citizenship 
and Immigration 
Services 
In Re: 12796399 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JUNE 28, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a materials scientist, seeks classification as a member of the professions holding an 
advanced degree . See Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C . 
§ 1 l 53(b )(2). The Petitioner also seeks a national interest waiver of the job offer requirement that is 
attached to this EB-2 immigrant 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. 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner 
qualifies 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. 
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 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) 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). Dhanasar states that after a petitioner has established 
eligibility for EB-2 classification, users may, as matter of discretion, 1 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, regarding 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, users 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) 
1 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). 
2 
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 
II. ANALYSIS 
The record demonstrates that the Petitioner qualifies as a member of the professions holding an 
advanced degree. 3 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. 
The Petitioner underwent postdoctoral training a~ I university and then a~ I University: 
I IN ew York. The Petitioner seeks employment as a research assistant professor atl J 
where he "proposes to continue his work on chemical I ~ for 
I !manufacturing and various fundamental principles including surface chemistry, 
colloidal chemistry, and electrochemistry." Thee=] process is used to prepare I ~ surfaces 
in data storage devices such as flash drives and memory cards. 
The Director determined that the Petitioner satisfied the elements of the first prong of the Dhanasar 
framework, but not the second prong (showing him to be well positioned to advance the proposed 
endeavor). The Director stated no conclusion regarding the third prong. 
The Director devoted three paragraphs of the denial notice to the second Dhanasar prong. In the first 
paragraph, the Director described the proposed endeavor and listed the types of evidence submitted to 
support the petition. In the second paragraph, the Director summarized recommendation letters in the 
record and then stated: 
At the time of filing the beneficiary's publications had received 152 citations, including 
InCites Essential Science Indicators and notable citations. While the beneficiary has 
published scholarly articles which have received some attention from the field, the 
comparative ranking of a paper's citation rate does not automatically demonstrate a 
record of success in the field. 
Later in the decision, the Director stated: 'The beneficiary has not shown that his research has been 
frequently cited by independent scientists. . . . Rather, the beneficiary's findings were utilized as 
background information to the [citing] authors' papers." These two quoted passages appear to be 
inconsistent with one another. The latter passage suggests that the Petitioner did not provide 
comparative citation data, while the former passage appears to acknowledge that citation data while 
assigning it minimal weight. 
The Director also gave minimal weight to an emailed reference to a technical transfer agreement, 
stating that the record lacks further corroboration of the agreement. The Petitioner, on appeal, 
correctly observes that the email message in question states that, for reasons of confidentiality, further 
details and documents are not available. More significantly, the Director does not explain how this 
agreement would have had greater weight if the record had included such corroboration. 
2 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on t~prongs. 
3 The Petitioner received a Ph.D. in energy engineering fromL__JUniversit~._ _ ___.I South Korea, in 2017. 
3 
Commercialization of industrial technology does not inherently establish eligibility for the national 
interest waiver. 
The Director then stated: 
The record demonstrates that the beneficiary has conducted, published, and has had 
citations to his research during his 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, fonding, 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 beneficiary has not shown that 
his research has been frequently cited by independent scientists or otherwise served as 
an impetus for progress in the field, that it has affected his field of endeavor, or that it 
has generated substantial positive discourse in the broader material science community. 
Nor does the evidence otherwise demonstrate that his work constitutes a record of 
success or progress in his area of research. Rather, the beneficiary's findings were 
utilized as background information to the authors' papers. As the record is insufficient 
to demonstrate that the beneficiary is well positioned to advance his proposed endeavor, 
he has not established that he satisfies the second prong of the Dhanasar framework. 
On appeal, the Petitioner asserts that the Director "offered nothing more than a vague summary of the 
evidence of record coupled with a boilerplate assessment that is in no way specific to [this] petition. 
There is no discussion or explanation of which evidence the [Director] considered relevant, probative, 
or credible." 
We agree with the Petitioner's assessment of this part of the denial notice. The Director must explain 
in writing the specific reasons for denial. 8 C.F.R. § 103.3(a)(l)(i). We do not necessarily find that 
the Director came to the wrong conclusion about the second Dhanasar prong, but the Director did not 
adequately explain how the evidence in the record led to that conclusion. This lack of detail in the 
denial notice did not give the Petitioner a sufficient opportunity to appeal the decision as effectively 
as he otherwise might have done. 
III. CONCLUSION 
The Director's second prong determination was the sole ground for denial; the Director granted the 
first Dhanasar prong and did not reach a determination on the third prong ( concerning balancing 
factors to determine whether the waiver would benefit the United States). Because the Director has 
not adequately set forth grounds for denying the petition based on the second prong, we will remand 
this matter back to the Director for farther consideration and a more detailed explanation for the 
decision ( and, if warranted, an initial determination on the third prong). 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
4