sustained EB-2 NIW Case: Biostatistics

U.S. Citizenship 
and Immigration 
Services 
MATTER OF K-A-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 27.2016 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner. a biostatistician, 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). After the petitioner has established eligibility for EB-2 
classification, U.S. Citizenship and Immigration Services (USCIS) may. as 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 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. Maller of 
Dhanasar, 26 I&N Dec. 884 (AAO 2016). 
The Director of USCIS's Texas Service Center denied the petition. The Director found that the 
Petitioner qualified for classification as a member of the professions holding an advanced degree. 
but that she had not established that a waiver of a job oiler would be in the national interest. 
The matter is now before us on appeal. In her appeal, the Petitioner argues that she is eligible for a 
national interest waiver based on the impact of her work on national and international health 
guidelines. 
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: 
Matter of K-A-
(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. ... the 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 recently 
set forth a new framework for adjudicating national interest waiver petitions. See Dhanasar, 26 I&N 
Dec. 884. 1 Dhanasar clarities that, after EB-2 eligibility as an advanced degree professional or 
individual of exceptional ability has been established. USCIS may grant a national interest waiver if 
the petitioner demonstrates by a preponderance of the evidence: (I ) 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 otTer and thus of a labor certification. If these 
three elements are satisfied, USCIS may approve the national interest waiver as a matter of 
discretion. 
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. 
1 In announcing this new framework, we vacated our prior precedent decision, Matter n(Ne1r York State Dceartmcnt nl 
Transportation. 22 I&N Dec. 215 (Act. Assoc. Comm·r 1998) (NYSDOT). 
2 
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Matter of K-A-
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 sutliciently 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 ofajob otTer and thus of a labor certitication. 2 
II. ANALYSIS 
The Director found that the Petitioner qualified as a member of the professions holding an advanced 
degree. The sole issue in contention is whether the Petitioner has established that a waiver of the job 
offer requirement, and thus a labor certification. is in the national interest. 
The Petitioner works as a biostatistician at the 
at She is 
responsible tor collaborating in the design. implementation. and analysis of national and 
international AIDS and human immunodeficiency virus (lilY) clinical trials. As a 
statistician, the Petitioner's work supports the 
trials network funded by the 
a large multi-center pediatric and perinatal HIY I AIDS clinical 
3 
A. Substantial Merit and National Importance of the Proposed Endeavor 
The Petitioner proposes to continue her "role in the clinical trials network, ensuring rigorous 
study design and implementation. as well as analysis of data from that network's ground breaking 
research concerning pediatric HIY infection.'' Specifically. she intends to continue working ··on 
highest priority protocoL 
a $140.000,000 study designed to minimize mother-to-child transmission of J-IIY." The 
Petitioner provided letters from colleagues and intonnation from the websites of the and the 
that discuss the benefits of the study and its effm1 to identify 
the best approach for preventing mother-to-child transmission of IllY. We find that the Petitioner's 
proposed work. which offers biostatistical research and support f()r studies related to the treatment and 
management of young people atllieted with HIY. has substantial merit. 
2 See Dhanasar, 26 I&N Dec. at 888-91, for further elaboration on these three prongs. 
3 receives funding from the the 
and the 
3 
(b)(6)
Matter of K-A-
The record also demonstrates that the Petitioner's proposed endeavor is of national importance. The 
Petitioner submitted probative letters from experts in the field that describe the importance of her 
proposed work to ensure that the results of the HIV I AIDS studies are accurate and that 
the interpretation of those results is valid. In addition, she provided evidence showing that 
biostatistical research for HIVI AIDS studies has national and international implications. as the results 
from such work are disseminated to others in the field through medical conferences and journals. 
The record also included information from the and the websites indicating the 
international scale of the study and its impact on the medical field. The expert letters and 
information from the and the websites show the impm1ance of the proposed biostatistics 
research both nationally and internationally, and that work to identity better treatments for HIV I AIDS is 
a U.S. national priority. 
B. Well Positioned to Advance the Proposed Endeavor 
The Petitioner submitted numerous reference letters describing her expertise and record of success in 
her past work in the biostatistics field. As discussed above, the Petitioner's work supports the 
clinical trials network. The record, including letters from colleagues and copies of her 
published and presented work, reflects that she has consistently played a critical role in the design 
and implementation of these research studies, which were funded by government agencies such as the 
the 
and the 
For example, a principal research scientist in the Department of Biostatistics at 
noted that the Petitioner "plays a key role in the clinical trials network. ensuring 
rigorous study design and implementation, as well as analysis of data from that network's 
groundbreaking research concerning pediatric HIV infection." further stated: ''In the past 
three years, [the Petitioner] has made major contributions in all phases of the protocoL 
including study design and implementation, as well as analyses needed to monitor patient safety. This 
protocol has the most intricate design of any study conducted by the network." In addition, 
mentioned that the Petitioner's "work on studies has lead [sic] to numerous 
scientific presentations, and she has co-authored a number of peer-reviewed manuscripts." In support 
of statement, the Petitioner provided documentary evidence showing her authorship of 
journal articles and conference presentations. 
is a medical otlicer in the 
She indicated that the Petitioner "is an unusually talented biostatistician 
working on AIDS clinical research, an area of obvious importance to the health of our nation." 
Furthermore, emphasized the Petitioner's critical role in the study stating: 
"Should [the Petitioner] be required to leave the United States, this would be a tremendous loss to our 
study and severely impair its progress." further stated: 
[The Petitioner] is in the midst of the analyses for the study, which will 
require several more years of work. Her unique contributions to this study are 
invaluable. She ensures the participants' safety and the smooth conduct of the study by 
4 
(b)(6)
Matter of K-A-
at 
extensive regular monitoring. In addition, she is taking the lead to regular and time­
critical interim analyses to see if there is any evidence of efficacy so that decisions can 
be made quickly and efficiently about the potential utility of treatments. 
a professor of psychiatry in the Department of Psychiatry and Behavioral Science 
indicated that he has collaborated with the Petitioner on several 
projects, including a study they coauthored regarding the "'emergence of mental health 
disorders in youth perinatally infected with HIV and peer comparisons." stated that the 
Petitioner completed the data analysis and played "'a crucial part in writing and revising the final 
manuscript" leading to their publication of the article in . 
The record includes citation evidence from showing that their article has 
been frequently cited by independent researchers. A substantial number of favorable independent 
citations for an article is an indication that other researchers are familiar with the work and may have 
been influenced by it. Such evidence helps show a past record of achievement that demonstrates the 
Petitioner is well positioned to advance HIV I AIDS research. 
professor of pediatrics and associate dean tor research at 
stated that she worked with the Petitioner on a study entitled " 
described the study as ··the first of 
its kind tor the funded network'. and indicated that their findings have ··made major 
contributions to the way we think about our aging up perinatally HIV infected youth." In addition, 
mentioned that the Petitioner "has taken the lead in the statistical analysis of numerous 
projects," presented her work at multiple international medical conferences. and contributed to studies 
that 
have "made a huge impact on our ability to treat and manage young people with Hiv:· 
director of the at noted 
that the Petitioner "is a key biostatistician in HIVI AIDS research and has made significant contributions 
to our efforts in this high priority field." Similarly, director of the at 
explained that the Petitioner's work has contributed "'to the development of better treatment 
strategies for HIV I AIDS'' in the United States and internationally. 
In addition to her work on HIVIAIDS, the record reflects that the Petitioner has done int1uential 
biostatistics work on other projects. For instance, an associate professor of 
medicine at described his collaboration with the Petitioner on a study to prove 
the efficacy of inhibiting an enzyme that is critical tor cancer metabolism in kidney cancer cells to 
prevent their growth. stated that the Petitioner designed the experiment, provided 
guidelines regarding the number of test subjects. and conducted the analysis of the results. He further 
noted that the results of the study were published in that the research findings ""ignited 
the interest of the pharmaceutical industry:' and that a biotechnology company has now developed a 
drug that inhibits the enzyme. In addition. indicated that the Petitioner was ""the leader in 
creating the clinical database'' tor the 
"a reference center for the genetic evaluation of people with kidney cancer in the Northeast area of the 
U.S.'' 
(b)(6)
Matter r?f'K-A-
As detailed above, the significance of the Petitioner's past projects in the field is corroborated by 
documentation of peer and government praise for her work. In addition. she offered citation evidence 
for her published articles indicating that her findings have affected the work of others in the field. The 
Petitioner's experience and expertise in her field. published and presented work. record of success 
contributing to various medical studies, progress in the area of HIV I AIDS research. and significant 
role for projects such as the protocol position her well to advance her proposed 
endeavor. 
C. Balancing Factors to Determine Waiver's Benefit to the United States 
As a biostatistician. the Petitioner possesses considerable experience and expetiise in collaborating in 
the design, implementation, and analysis of national and international AIDS and HIV clinical trials for 
The record also demonstrates the widespread health benefits presented by research studies 
that offer ways to more eflectively treat HIV I AIDS. The Petitioner has documented her past successes 
advancing studies and providing inf1uential research findings. For instance. 
indicated that the Petitioner ''has been intensely involved in the development of the 
protocols and has made major contributions to all aspects of the development. implementation, review. 
and approval of the study and its key resources... In addition, the repeated funding of 
research studies in which the Petitioner has played a key role indicates that federal agencies within the 
have found her work on those projects to be promising and useful. Based on the Petitioner's track 
record of successful research and the significance of her ongoing role in a project that advances U.S. 
interests, we find that she oilers 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 
find that she has established eligibility for and otherwise merits a national interest waiver as a matter 
of discretion. Accordingly, the Petitioner has met her burden to establish eligibility for the 
immigration benefit sought. Section 291 of the Act 8 U .S.C. ~ 1361. 
ORDER: The appeal is sustained. 
Cite as Matter ofK-A-, ID# 77437 (AAO Dec. 27. 2016)