sustained EB-2 NIW Case: Biochemistry

U.S. Citizenship 
and Immigration 
Services 
In Re: 15942242 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : AUG . 9, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a biochemistry 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 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 additional documentation and a brief asserting that he is eligible for 
a national interest waiver under the Dhanasar framework. 
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 novo review, we will sustain 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). 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 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, 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, 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 
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). 
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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. 2 
II. ANALYSIS 
The Director found that the Petitoner qualifies as a member of the professions holding an advanced 
degree. The sole 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 filing, the Petitioner was working as a "postdoctoral fellow in the Department of 
I I at the University ofl t• With regard to the Petitioner's research duties, the record 
includes a letter from I I professor oft I and neurosurgery at University of 
I I stating that the Petitioner is responsible for inde endentl desi ning and executing 
"different biological assays related to I I brain tumor usm small 
molecules inhibitors as well as th~ I brr-ai_·n_tu ___ m_o ___ r _ ____,.---------------1 
I !through different signaling pathways." In addition..,__ __ ,........,.__,indicated that the Petitioner 
"is currently involved in three different brain tumor studies" and that his responsibilities include 
publishing and presenting his research findings. For the reasons discussed below, we conclude the 
Petitioner has established eligibility for a national interest waiver under the analytical framework set 
forth in Dhanasar . 
A. Substantial Merit and National Importance of the Proposed Endeavor 
The Petitioner indicated that he intends to continue his work "identifying unrecognized therapeutic 
targets for the development of! I brain tumor treatments." He explained that his research 
involves discovering optimal target zones within the brain "for important medical procedures and 
surgeries aimed at removing! I brain tumors while preserving vital bodily functions." 
As evidence that his proposed research has substantial merit and national importance, the Petitioner 
provided letters of support discussing how his undertaking stands to advance treatment methods for 
I !suffering fro~ !tumors. He also presented information about the incidence ofl I 
brain tumors in the United States. Additionally, 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 medical journals and conferences. As the Petitioner has 
demonstrated both the substantial merit and national importance of his proposed research, we agree 
with the Director's determination that the Petitioner meets the first prong of the Dhanasar framework. 
B. Well Positioned to Advance the Proposed Endeavor 
The second prong shifts the focus from the proposed endeavor to the Petitioner. The record includes 
his curriculum vitae, academic records, published articles, peer review activity, and documentation of 
numerous articles that cited to his research findings. In addition, the Petitioner offered reference letters 
2 See Dhanasar , 26 l&N Dec. at 888-91, for elaboration on these three prongs. 
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describing his expertise in biochemistry research and his past record of success in that field. Several 
expert references identify specific examples of how the Petitioner's research progress involving novel 
therapeutic targets in I I and cancer biology has affected his field. As corroborating 
documentation regarding the significance of his work, the Petitioner provided citation evidence showing 
that his published work has been frequently cited by independent researchers, and that the rate at which 
his work has been cited is high relative to others in the field. His experience and expertise as a biochemist, 
published articles, citation evidence, record of success contributing to various research projects, and 
progress in his field position him well to advance his proposed endeavor. Accordingly, the record 
supports the Director's determination that the Petitioner satisfies the second prong of the Dhanasar 
framework. 
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. In denying the petition, the Director concluded that the Petitioner did not meet this prong 
because the record did not show he is "the principal investigator of projects in the United States that 
can significantly influence your field." In addition, the Director stated that the Petitioner's "inability 
to obtain a permanent position with your employer, which is certainly free to offer you a permanent 
position, does not buttress your case." 
While the Petitioner's research contributions and the national interest in his contributions are relevant 
factors for consideration under prong three of the Dhanasar framework, there is no requirement that 
a petitioner demonstrate that he is "the principal investigator of projects ... that can significantly 
influence [his] field" in order to satisfy this prong. The Director's analysis was also problematic 
because it incorrectly implies that the lack of a permanent job offer from the Petitioner's current 
employer is an adverse factor under Dhanasar' s third prong. As the Petitioner is applying for a waiver 
of the job offer requirement, it is not necessary for him to present a job offer from a specific employer. 
As a biochemist, the Petitioner possesses considerable experience and expertise in research relating to 
cancer biology. The record also demonstrates the widespread public health benefits associated with 
research progress in improving treatment methods for I I suffering from I I tumors. In 
addition, the Petitioner has documented his past successes in advancing research relating to therapeutic 
targets forl land publishing influential research findings. Based on the Petitioner's track 
record of successful research and the significance of his proposed work to advance U.S. public health 
interests, we conclude that he offers contributions of such value that, on balance, they would benefit the 
United States even assuming that other qualified U.S. workers are available. 
III. CONCLUSION 
The Petitioner has met the requisite three prongs set forth in the Dhanasar analytical framework. We 
conclude that he has established he is eligible for and otherwise merits a national interest waiver as a 
matter of discretion. 
ORDER: The appeal is sustained. 
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