sustained EB-2 NIW Case: Medicine

U.S. Citizenship 
and Immigration 
Services 
In Re: 8610928 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : DEC . 22, 2020 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a physician and 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). 1 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 2, 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 
1 In announcing this new framework. we vacated our prior precedent decision, Matter of New York State Department of 
Transportation. 22 l&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
2 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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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) 
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 
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 an orthopedic surgery resident at thel The 
record indicates that his duties involved both clinical work and conducting arthroplasty research . He 
proposes to complete his medical training and pursue a position as an academic surgeon, continuing 
his research relating to I I orthopedic surgery. Regarding his future plans, the 
Petitioner provided documentation showing his acceptance of an orthopedic surgery fellowship at the 
I I Institute atl !University. For the reasons discussed below , we conclude that 
the Petitioner has established eligibility for a national interest waiver under the Dhanasar framework. 
A. Substantial Merit and National Importance of the Proposed Endeavor 
The Petitioner indicated that he intends to contin hi m i 1 r r h in 
~lly, his proposed research is aimed at ...._ __________ .....,... ________ ...... 
l___Jarthroplasty (joint replacements)." The record includes a letter from 
Chair of the Department of Orthopedic Surgery at thel l indicat_in_g_t_h_a_t -th_e_P_e_t-it-io_n_e_r_' s 
current work is aimed at determining "the minimum required follow-up for studies reporting patient 
outcomes following hip and knee replacements . [The etitioner's oal is to standardizd I 
~ ~ for research projects in his field as a way to cut _____ -costs and maximize the output 
'o1 I data." 
In his decision, the Director determined that the Petitioner's proposed endeavor has substantial merit. 
Based upon the evidence in the record concerning the increasing number orl I surgeries 
in the United States and the mortality riskl I after surgery, we agree with the Director 
that the Petitioner' sl I research has substantial merit. 
To satisfy the national importance requirement, the Petitioner must demonstrate the "potential 
prospective impact" of his work . As evidence that the benefit of his proposed work has broader 
implications in the field of medicine, and more specifically orthopedic surgery, he submitted reference 
letters describing how his research involving arthroplasty stands to affect medical strategies for 
I ~-In addition, the Petitioner has submitted documentation of 
his ongoing research and its publication which indicates that the benefit of his proposed work has 
broader implications, as the results are disseminated to other experts in his field through medical 
journals and conferences. As the Petitioner has demonstrated both the substantial merit and national 
3 See Dhanasar , 26 l&N Dec. at 888-91, for elaboration on these three prongs. 
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importance of his proposed arthroplasty research, the record supports the Director's determination that 
he meets the first prong of the Dhanasar framework. 4 
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, medical certifications and license, published and presented 
work, awards, peer review activity, and documentation of numerous articles that cited to his research 
findings. In addition, the Petitioner offered reference letters describing his expertise in orthopedic 
surgery research and his past record of success in that field. 
In his decision, the Director stated that because the Petitioner listed orthopedic surgery resident as his 
proposed employment on Forms 1-140 and ET A-7 5 OB, and because he acknowledged in his statements 
that his work includes both arthroplasty research and clinical patient care, the fact that he possessed 
only a "Training Certificate" medical license at the time of filing renders him insufficiently positioned 
to advance his proposed endeavor. In his appeal brief, the Petitioner emphasizes that he plans to 
continue to conduct research in his field, which does not require a medical license. 5 Because we have 
already determined that to the extent that his proposed endeavor does involve patient care, these 
activities do not have a broader impact and so are not of national importance, we need not determine 
whether the Petitioner has established that he is well positioned to advance his clinical activities. Our 
analysis under this prong therefore will focus solely on whether he is well positioned to advance his 
proposed orthopedic surgery research. 6 
Several expert references identify specific examples of how the Petitioner's arthroplasty research has 
affected the field. For example, with respect toD S stem Chief of Joint 
Recoustrnction and Vice President of Strategic Initiatives at ital in 
I I stated that the Petitioner's work "showed that those on long-term had 
significantly higher 5-year survival rates compared to those who were not I I 
Furthermore, [the Petitioner] was able to detect exactly which group of patients! I were most 
likely to benefit from this treatment." I I further indicated that the Petitioner's paper on this 
topic in Journal of Bone and Joint Surgery "has been cited in numerous follow-up studies, textbooks, 
and lectures on this topic. Furthermore, for this project, [ the Petitioner] won the I I Current 
Concepts in Joint Replacement yearly prize for best clinical research." The record includes the 
Petitioner's Google Scholar profile page indicating that this paper has received 56 citations. The 
Petitioner also provided hisc=J award certificate from thel I 
4 The Petitioner acknowledges that at least a portion of his proposed endeavor will involve the care and treatment of 
patients. While these endeavors have substantial merit, the record does not establish that his clinical work stands to impact 
the orthopedic surgery field or the U.S. healthcare industry more broadly, as opposed to being limited to the patients he 
serves. Accordingly, without sufficient documentary evidence of its broader impact, the Petitioner's clinical work as an 
orthopedic surgeon does not meet the "national importance" element of the first prong of the Dhanasar framework. 
Similarly, in Dhanasar, we determined that the petitioner's teaching activities did not rise to the level of having national 
importance because they would not impact his field more broadly. Id. at 893. 
5 The Petitioner's appellate submission includes his September 2019 license to practice medicine in the state of Ohio. 
6 We note that the Petitioner's supervisor at the I I submitted a letter stating: "Having chosen the career path 
of an academic surgeon, [ the Petitioner] has made research a main part of his career." In addition, the Petitioner's response 
to the Director's request for evidence makes clear that be clairos eJiaibiJity for a national interest waiver based on his 
"previous and ongoing research activity on behalf ofthel f, 
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.__ ___ _.I and Current Concepts in Joint Replacement "for contributions to scientific knowledge and 
patient care." 
In additionJ ~ Director of Research for Arthroplasty Service a~ I 
Hospital as part ofl Medical School, explained that 'i I joint replacements have always 
been challenging to diagnose as there is no single test able to reliably detect this complication." She stated 
that "[b ]y measuring! lof patients before and after treatment in addition 
to following their clinical outcome in the long run, [the Petitionr] was able to shed light on this issue and 
determine which markers can detect.__ _______ __." asserted that this work "was a 
particularly important study to support our clinical practice, as there was no previous clinical evidence 
published on this topic. . . . [T]here is a pressing need for additional strategies to treat and prevent these 
I I and [the Petitioner's] work has been invaluable in this respect." 
Furthermore,! l professor of Orthopedic Surgery atl I university, asserted 
that the Petitioner "has made significant scientific contributions" relating tcL_J of the hip and knee, and 
that he "has proved to be a high output clinical researcher in multiple orthopedic specialties, impacting 
clinical practice." I I further stated that the Petitioner "has already become a recognized 
researcher in his field with at least 18 publications in peer reviewed journals, 2 book chapters, and 
numerous posters and oral presentations in national and international conferences." As corroborating 
documentation regarding the significance of his work, the Petitioner offered citation evidence showing 
that his articles have been frequently cited by independent researchers. This documentation helps 
demonstrate that the Petitioner is well positioned to advance his proposed research in the United States. 
The Petitioner's experience and expertise in his field, published and presented work, citation evidence, 
record of success contributing to various clinical research projects, and progress in arthroplasty 
research position him well to advance his proposed endeavor. Accordingly, the record demonstrates 
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. As a physician and researcher, the Petitioner possesses considerable experience and 
expertise in research involving orthopedic surge1>i I The record also demonstrates the 
widespread benefits associated with research progress irl I In 
addition, the Petitioner has documented his past successes in advancing arthroplasty research and 
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. healthcare 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. 
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ORDER: The appeal is sustained. 
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