The Petitioner, a physician-researcher in the field of urologic oncology, seeks employment-based second preference (EB-2) 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 classification. See Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2).
The Director of the Texas Service Center denied the petition, concluding that the record did not establish, by a preponderance of the evidence, the Petitioner's eligibility for a national interest waiver under the Dhanasar framework. The matter is now before us on appeal. 8 C.F.R. § 103.3.
On appeal, the Petitioner submits additional evidence and a brief asserting that he is eligible for a national interest waiver. The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter de novo. Matter ofChristo 's, Inc. , 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, we will sustain the appeal.
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. Section 203(b)(2)(B)(i) of the Act.
If a petitioner demonstrates eligibility for the underlying EB-2 classification, they must then establish that they merit a discretionary waiver of the job offer requirement "in the national interest." Section 203(b)(2)(B)(i) of the Act. While neither the statute nor the pertinent regulations define the term "national interest," Matter ofDhanasar, 26 I&N Dec. 884, 889 (AAO 2016), provides the framework for adjudicating national interest waiver petitions. Dhanasar states that U.S. Citizenship 1 and Immigration Services (USCIS) may, as matter of discretion , grant a national interest waiver if the petitioner demonstrates that:
See also Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest waiver to be discretionary in nature).
- The proposed endeavor has both substantial merit and national importance;
- The individual is well-positioned to advance their proposed endeavor; and
- On balance, waiving the job offer requirement would benefit the United States.
Analysis
The Director concluded that the Petitioner qualifies as a member of the professions holding an advanced degree. 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.
At the time offiling, the Petitioner was employed as a resident physician in the Department ofUrology at I IUniversity and anticipated continuin his work through a fellowship program; ultimately, he began a urologic oncology fellowship at The Petitioner initially stated that, upon completing his urological specialty training program at _ he intended to continue to make advances in his scientific endeavor of conducting observational and interventional studies and data analysesaddressingdiseasesofsignificanthumanmorbidityandmortality. Specifically,thePetitioner intends to conduct clinical trials to develop surgical approaches to enhance delivery of care for cancer patients.
For the reasons discussed below, we conclude the Petitioner has established eligibility for the national interest waiver under the analytical framework set forth in Dhanasar.
A. Substantial Merit and National Importance
The first prong, substantial merit and national importance, focuses on the specific endeavor that the individualproposestoundertake. Theendeavor'smeritmaybedemonstratedinarangeofareassuch as business, entrepreneurialism, science, 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.
As evidence ofhis proposed endeavor's substantial merit and national importance, the Petitioner stated that he will continue to provide clinical care as a physician to cancer patients and to conduct research and lead clinical trials; he endeavors to impact the costliness of healthcare provision and to "create and develop innovative surgical approaches...to enhance delivery ofcare for patients suffering from cancer." The Petitioner submitted information from the American Cancer Society and the National Cancer Institute discussing urologic cancers and the economic burdens of patients receiving cancer care, as well as letters of endorsement from experts in the field discussing the implications of his research on patient treatment and recovery. Additionally, the Petitioner asserted that his citation record, publications in scientific journals, and presentations at conferences further demonstrated that his proposed research has broader implications for the field through dissemination of the results of that research. The Director determined that the Petitioner's endeavor has substantial merit and is of national importance. Upon review of the record, we conclude that the Petitioner has established that he meets the first prong ofthe Dhanasar framework.
B. Well Positioned to Advance the Proposed Endeavor
Thesecondprongshiftsthefocusfromtheproposedendeavortotheindividual. Todeterminewhether they are well positioned to advance the proposed endeavor, we consider factors including, but not limited to: their 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.Past record does not show influence or success Id. at 890. The Director determined that, after consideration of these factors, the evidence submitted did not support the Petitioner's statements. Upon review, we conclude that the evidence ofrecord establishes that the Petitioner is well positioned to advance his proposed endeavor.
The record includes the Petitioner's curriculum vitae, academic records, published articles, peer review activity, and articles that cite to his research findings. The record also includes letters of endorsement from experts in the field in senior positions at the University ofI IHealth Sciences Center, the University ofI IMedical School,I School of Medicine, I IUniversity School of Medicine,!
University School of Medicine, theI Iand the I detailed descriptions of the Petitioner's research accomplishments, including his development of surgical techniques that significantly impact patient recovery and have been utilized by medical centers in the United States and abroad. These letters also attest to the importance of the publication of the Petitioner's research in journals like the British Medical Journal (BMJ) Case Report and Urology, as well as the significance of his authorship of a chapter in a publication by the American Urological Association (AUA) that is relied upon by specialists nationwide for the delivery ofoptimal patient care. The letters also confirm the Petitioner's authorship of a test issued by the AUA that is required of practicing urologists to obtain Continuing Medical Education (CME) credits in order to maintain their licenses. They also emphasize the relevance of the presentation of the Petitioner's research at multiple seminars, the inclusion of three of the Petitioner's research projects at the AUA's annual conference, and the widespread use of his study on over-the-counter supplements as a guide to educate patients and to safeguard the public from complications associated with certain products. The Petitioner's record of success leading research projects and developing surgical methods in his STEM field position him well to advance his proposed endeavor. Accordingly, the Petitioner has demonstrated that he satisfies the second prong of the Dhanasar framework.
C. Whether on Balance a Waiver is Beneficial
The third prong requires a petitioner to demonstrate that, on balance, it would be beneficial to the In performing
this analysis, we may evaluate factors such as: whether, in light of the nature of the individual's qualifications or the proposed endeavor, it would be impractical either for them to secure a job offer or to obtain a labor certification; whether, even assuming that other qualified U.S. workers are available, the United States would still benefit from their contributions; and whether the national interest in their contributions is sufficiently urgent to warrant forgoing the labor certification process. In each case, the factor(s) considered must, taken together, establish 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. Id. at 890-91. The Director determined that the Petitioner had not satisfied the third prong of the Dhanasarframework. Uponreview,weconcludethatthewaiverofthelaborcertificationrequirement for the Petitioner would, on balance, be beneficial to the United States.
The evidence demonstrates that, as a research physician with a record ofpublished influential research ventures who has developed surgical techniques and treatment methods adopted by others, the Petitioner possesses experience and expertise in his STEM field. The evidence also demonstrates the widespread economic and public health benefits associated with research progress in improving treatment methods for cancer and other urologic disorders. In addition, letters from experts in the field, including one from a distinguished fellow at the Centers for Disease Control and Prevention (CDC), provide a reasoned analysis of why the labor certification process is not well suited for discovering highly skilled scientists and researchers. Based on the Petitioner's history of successful research and the significance of his proposed work to advance U.S. scientific and 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. The Petitioner, therefore, meets the third prong of the Dhanasar framework.
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.