sustained EB-2 NIW Case: Biotechnology

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: APR. 12, 2024 In Re: 30628157 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a researcher using biotechnology tools to advance cancer therapeutics, 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Circuit Courts (and Third in an unpublished decision) in concluding that USCIS' decision to grant or 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 
classification as a member of the professions holding an advanced degree, 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 I&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 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. 
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 T&N Dec. 884 (AAO 2016). Dhanasar states that USCTS may as a matter of discretion 
grant a national 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 that 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. USCTS 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. 
TT. ANALYSTS 
The Director found that the Petitioner qualified 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 of a labor certification, would be in the national interest. 
At the time of filing, the Petitioner was a "scientist, biology" at ______ in 
Massachusetts developing and executing cellular assays to characterize novel hetero-bifonctional 
molecules whilst also utilizing cell line engineering and cellular technology to investigate the platform 
and novel targets. The Petitioner proposed to endeavor to continue research into tumorigenesis and 
developing new technologies for cancer therapies utilizing biological assays they created to facilitate 
cancer drug and biomarker screening, characterization, and development. 
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. 
2 
A. Substantial Merit and National Importance 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
individual proposes to undertake. As stated above, the endeavor's merit may be demonstrated in a 
range of areas such as business, entrepreneurialism, sciences, technology, culture, health, or education. 
In determining whether the proposed endeavor has national importance, we consider its potential 
prospective impact. Dhanasar, 26 I&N Dec. at 889. 
The Director determined that the Petitioner provided sufficient evidence to establish the substantially 
meritorious nature of their proposed endeavor but did not conclude that the proposed endeavor rose to 
a level of national importance. 1 The Petitioner's submission contained probative letters of support 
from experts in the fields of biotechnology and cancer research describing the Petitioner's experience, 
work, and proposed endeavor in personalized and meaningful detail, and a detailed statement from the 
Petitioner's current employer describing the Petitioner's endeavor, their development of assays, and 
its potential prospective impact on eventual advances in the treatment of cancer utilizing 
phosphorylation inducing chimeric small molecules (PHICS). Additionally, the Petitioner submitted 
documentation indicating the benefit of their proposed research as broader implications for the field, 
as the results were and are intended to continue being disseminated to others in the field through 
scientific journals. Moreover, the Petitioner's endeavor involves critical and emerging biotechnology 
in their research. 2 The Petitioner's assertions are supported by material, relevant, and probative 
evidence demonstrating both the substantial merit and national importance of their proposed research. 
1 We, like the Petitioner, view the Director's decision with a measure of concern. In their decision, the Director determined 
that the Petitioner's proposed endeavor was of substantial merit. And for the second part of their decision regarding the 
first prong of the Dhanasar framework. the Director concluded that the Petitioner did not demonstrate their proposed 
endeavor's national importance. However, the Director's analysis of national importance relied upon elements from the 
third prong of the framework, in which we determine whether, on balance, it would be beneficial to the United States to 
waive the requirements of a job offer and thus of a labor certification. For example, immediately after concluding that the 
proposed endeavor was not nationally important, the Director stated that the Petitioner had not established that "it would 
be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification," and went on 
to list several third prong factors from the precedent decision. Later in the decision, under the bulleted heading "National 
importance," the Director initially (and correctly) explained that the focus of a national importance analysis under the 
Dhanasar framework was the specific proposed endeavor, not the field or industry in which a petitioner proposed to work. 
However, they then went on to conduct an analysis of whether the Petitioner was well positioned to advance their proposed 
endeavor, which falls under the second prong of the framework. This is especially concerning considering the Director's 
request for evidence, within which the Director stated that the evidence of the Petitioner's education and experience was 
sufficient to establish that they were well positioned to advance their endeavor, and thus met the second prong of the 
Dhanasar framework. before reaching the opposite conclusion in their decision. An officer must fully explain the reasons 
for denying a visa petition to allow the Petitioner a fair opportunity to contest the decision and to allow us an opportunity 
for meaningful appellate review. See 8 C.F.R. § 103.3(a)(i); see also Matter ofM-P-, 20 I&N Dec. 786 (BIA 1994) (finding 
that a decision must fully explain the reasons for denying a motion to allow the respondent a meaningful opportunity to 
challenge the determination on appeal). Although the Director's decision did not sufficiently or comprehensively explain 
the reasons behind their conclusion that the Petitioner's proposed endeavor is not nationally important, we conclude upon 
de novo review as described in this decision that the record contains material, relevant, and probative evidence 
demonstrating the Petitioner's eligibility for a favorable act of discretion granting a national interest waiver of the job 
offer, and thus the requirement of a labor certification. 
2 "Many proposed endeavors that aim to advance STEM (science, technology, engineering, or mathematics) technologies 
and research, whether in academic or industry settings, not only have substantial merit in relation to U.S. since and 
technology interest, 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. 
3 
So, they have demonstrated both the substantial merit and the national importance of their proposed 
endeavor under 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 
the Petitioner's curriculum vitae, their academic records, published and presented work, reference 
letters, and documentation of numerous articles that cited to their research findings. 3 Specifically, the 
Petitioner offered reference letters describing, in meaningful detail, their expertise in assay 
development, biotechnology, cell growth regulation, selection of appropriate biological candidates for 
further study, and their past record of success in their current and other related fields. As corroborating 
documentation regarding the significance of their work, the Petitioner provided evidence showing that 
their published work has been frequently cited by independent researchers, and that the rate at which 
their work has been cited is high relative to others in the field. The Petitioner's experience and 
expertise as a researcher at the intersection of biotechnology, oncology, and cancer therapeutics, 
published articles, citation evidence, progress in their field, and professional progression at reputed 
research institutions position them well to advance their proposed endeavor. Additionally, the record 
contains evidence of substantial capital infusions funding the entity within which the Petitioner will 
perform their endeavor. So, the Petitioner has demonstrated that they satisfy the second prong of the 
Dhanasar framework. 
C. Whether On Balance a Waiver is Beneficial 
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. 4 As a researcher 
with an advanced degree and with experience as a research scientist at institutions of higher education 
of repute and in industry, the Petitioner possesses considerable education, experience, and expertise 
in analysis of biological materials at a cellular level to study attributes and behavior under set 
conditions with an aim to influence outcomes. The record also demonstrates the potential for 
widespread medical benefits associated with the Petitioner's most recent research. In addition, the 
Petitioner has documented their past successes in advancing novel research. They have also 
demonstrated the significance of their proposed work advancing the treatments and therapeutic 
outcomes to reduce morbidity and mortality. So, we conclude that the Petitioner offers contributions 
of such value that, on balance, they would benefit the United States even if other qualified U.S. 
workers are available. The Petitioner, therefore, meets the third prong of the Dhanasar framework. 
3 "USCIS considers an advanced degree, particularly a Doctor of Philosophy (Ph.D.), in a STEM field tied to the proposed 
endeavor and related to work furthering a critical and emerging technology or other STEM area important to U.S. 
competitive or national security, an especially positive factor to be considered along with other evidence for purposes of 
the assessment under the second prong." See generally 6 USC!S Policy Manual, F.5(0)(2), https://www.uscis.gov/policy­
manual. 
4 When evaluating the third prong, USCIS considers the following combination of facts contained in the record to be a 
strong positive factor: (1) The person possesses an advanced STEM degree, particularly a Ph.D.; (2) The person will be 
engaged in work fm1hering a critical and emerging technology of other STEM area important to U.S. competitiveness; and 
(3) The person is well positioned to advance the proposed STEM endeavor of national importance. See generally USCIS 
Policy Manual, supra, at F.5(D)(2). 
4 
III. CONCLUSION 
The Petitioner has met the requisite three prongs set forth in the Dhanasar analytical framework. We 
conclude they have established that they are eligible for and otherwise merits a national interest waiver 
as a matter of discretion. 
ORDER: The appeal is sustained. 
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