The Petitioner, an adjunct instructor, seeks second preference immigrant classification as an individual of exceptional ability in the sciences, arts or business, 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 a 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. Matter of Dhanasar, 26 l&N Dec. 884 (AAO 2016).
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner had not established he is well positioned to advance the proposed endeavor or that awaiver of the required job offer, and thus of the labor certification, would be in the national interest.
On appeal, the Petitioner submits a brief and additional evidence to assert that he is eligible for a national interest waiver. 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; Matter of Chawathe, 25 l&N Dec. 369,375 (AAO 2010). Upondenovareview,wewilldismisstheappeal.
Legal Framework
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 servicesbe sought by aU.S. employer, aseparate 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 of job offer -
(i) National interestwaiver.... [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.
Section 101 (a)(32) o f the Act provides that "[t]he term 'profession' shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academics, or seminaries."
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definitions:
Advanced degree means any United States academic or professional degree or aforeign equivalent degree above that of baccalaureate. A United States baccalaureate degree or a foreign equivalent degree followed by at least five years o f progressive experience inthespecialtyshallbeconsideredtheequivalentofamaster'sdegree. Ifadoctoral degree is customarily required by the specialty, the alien must have a United States doctorate or a foreign equivalent degree.
Profession means one of the occupations listed in section 101(a)(32) of the Act, as well as any occupation for which a United States baccalaureate degree or its foreign equivalent is the minimum requirement for entry in the occupation.
Furthermore, 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 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of Transportation. 22 I&NDec. 215 (Act. Assoc. Comm'r 1998).
Matter of Dhanasar, 26 l&N Dec. 884 (AAO 2016). established eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) Dhanasar states that after a petitioner has p. 3 may,asmatterofdiscretion,2grantanationalinterestwaiverifthepetitionerdemonstrates: (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 foreignnationalproposestoundertake. Theendeavor'smeritmaybedemonstratedinarangeofareas 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.
Thesecondprongshiftsthefocusfromtheproposedendeavortotheforeignnational. Todetermine whether he or she is well positioned to advance the proposed endeavor, we consider factors including, butnotlimitedto: theindividual'seducation,skills,knowledgeandrecordofsuccessinrelatedor 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 UnitedStatestowaivetherequirementsofajobofferandthusofalaborcertification. Inperforming 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 ajob offer or for the petitioner to obtain alabor 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 sufficiently urgent to warrant forgoing the labor certification process. In each case, the f actor(s) considered must, taken together, indicate that on balance, it would be beneficial to the United States to waive the requirements of ajob offer and thus of a labor certification. 3
Analysis
The Director concluded that the Petitioner qualifies as a member of the professions holding an advanced degree. 4 The Director also determined that the Petitioner established that his proposed endeavor met the firstprongsetforthintheDhanasaranalyticalframework. Forthereasonsdiscussedbelow,however, we must withdraw the Director's conclusion that the Petitioner met the national importance portion of the first prong.
On the Form 1-140, Immigrant Petition for Alien Worker, which the Petitioner filed in July 2019, he provided the following information: See also Poursinav. USCIS, 936 F.3d 868, 2019 WL 4051593 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest wa iverto bed iscretionary in nature).
ThePetitionerearnedthreeforeigndegrees: abachelor'sdegreeinchemistry;amaster'sdegreeinorganicchemistty, and a Ph.D. degree in organic chemistry. He also earned a U.S. master's degree in integrated studies (chemist:ty and physics).
See Dhanasar, 261 &N Dec. at 888-91, for elaboration on thesethreeprongs.
I
Part 5 - Additional Information About the Petitioner Section 11. Occupation: Adjunct Instructor Part 6 - Basic Information About the Proposed Employment Section 1. Job Title: Adjunct Instructor The Petitioner also stated on his Form 1-140 that his position is part-time at twenty hours per week. In Section 3 of Part 6, which requests the "Nontechnical Job Description," the Petitioner referred our attention to an attached employment verification letter. A May 2019 employment verification letter froml Iof the Department of Mathematics and Natural Sciences within I I luniversityl Iin Missouri states that the Petitioner has been employed as an "Adjunct Instructor" since January 2019. The letter detailed the Petitioner's duties as "providing syllabi to students, instructing students in Chemistry, tracking student attendance, creating lectures, preparing class assignments, and measuring student performance." The Petitioner submitted a Form ETA 750 Part B with his initial filing and it also provided "Adjunct Instructor" as the name of the Petitioner's job. The Petitioner stated on this form that he works twenty hours a week with the duties of "[t]eaching,helpingstudentsperforminglab. Labsafetyprecautions. Gradingandpreparingquizand midterms, and final exams. Designing some lab sessions."
The initial filing predominantly provided details concerning the Petitioner's past research work but contained very little information about the Petitioner's proposed endeavor. According to the brief and other documents within the record, the Petitioner has been a volunteer post-doctorate research affiliate atl IUniversit~ Isince his graduation from the university in 2018.
The Petitioner submitted an abstract of a research project that combines a research group from I I headedb~ lwithcomputationalchemistrycourseworktori !students. Although this project was described in detail, the Petitioner did not state whether it is his proposed endeavor. The Director issued a request for evidence (RFE) which informed the Petitioner that he "did not provide a detailed description of [his] proposed undertaking or venture" and that in order to determine Section 2. SOC Code: 17-2031 whether his proposed endeavor had substantial merit and national importance, he needed to submit additional evidence. did not include research.
The Director also noted in the RFE that the Petitioner'sAdjunctlnstructorduties In his RFE ~"""""".....,_,,................._.......,._,........,,......,."----"'"""'""""""'--¥'at his "proposed endeavor is to continue to conduct ~___., research on which is vital to identifying new
" Specifically, he noted that his "future research on ,...___ _ _. is "crucial to finding proper targets" and that "[t]hese targets are pivotal to design computations to find potential ne ' The Petitioner stated that he intends to continue his work as an affiliate research scientist at and lans to ursue National Institute of Health (NIH) grant funding for research into the'.___ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ___.
The Department of Labor's (DOL) Occupational Information Network (O*NET) Summary Report for the standard occupational classification (SOC) code 17-2031.00 corresponds to the occupation of "Bioengineers and Biomedical Engineers." See https://www.onetonline.org/link/summary/17-2031.00 (last visited Aug.12, 2021). The purpose ofan RFE is to elicit information that clarifies whether eligibility for the benefit sought has been established, as ofthetimethepetitionisfiled. See8C.F.R.§§103.2{b){1),103.2{b){8),103.2{b){12). _______
'---------,------,---,-----1
,____ _ _ __,~s active sites." He stated that his research studies will focus on "how aflexible molecule adopts the conformation or a distinct shape," the link between molecular composition and molecular shape, and finding optimal ways to control the molecules such that they function for al I I n addition to the research related to D , the Petitioner's RFE response also stated that he intends to "continue his] Conformational Analysis research" and that it has "significant potential to advance of cancerous tumors." Specifically, the proposed endeavor includes "overcom[ing] ._1-im-i-ta-ti-on_s_i__.ncance~ Ithrough[]ConformationalAnalysisresearch. Theresearchisfocused on biological water and natural products... [and] is intended to help with th~ lot cancerous tissue .. .___ _ _ _ _ _ _ ___.techniques.7
Based upon these descriptions, we question whether the Petitioner selected the correct occupational categoryforhisfieldofendeavor. Asmentioned,thePetitionerselectedSOCcode17-2031.00,which corresponds to the occupation of "Bioengineers and Biomedical Engineers." Within this classification, O*NET's Summary Report provides a sample of reported job titles including: Biomedical Electronics Technician, Biomedical Engineer, Biomedical Engineering Technician, Biomedical Equipment Technician (BMET), Biomedical Technician, Engineer, Process Engineer, Research Engineer, and Research Scientist. The O*NET summary report also describes duties within the occupational classification as: "[a]pply knowledge of engineering, biology, chemistry, computer science, and biomechanical principles to the design, development, and evaluation of biological, agricultural, and health systems and products, such as artificial organs, prostheses, instrumentation, medical information systems, and health management and care delivery systems."
Chemistry, rather than engineering or technician work, appears to be the main focus o f the Petitioner's education and research. Therefore, we question whether SOC code 19-1021.00, corresponding to "Biochemists and Biophysicists," would have been a more appropriate classification. 8 The summary of th is occupation includes the sample reported job titles of Analytical Research Chemist, Biochemist, Biophysics Researcher, and Scientist, along with the following occupational description:
Study the chemical composition or physical principles of living cells and organisms, their electrical and mechanical energy, and related phenomena. May conduct research to further understanding of the complex chemical combinations and reactions involved in metabolism, reproduction, growth, and heredity. May determine the effects of foods, drugs, serums, hormones, and other substances on tissues and vital processes of living organisms.
Upon collective examination of the initial filing and the RFE response, we conclude that significant unresolvedquestionsexistconcerningtheparticularsofthePetitioner'sproposedendeavor. Namely,we question how the Petitioner intends to incorporate his Adjunct lntstructor duties into his research work, as well as whether the Petitioner selected the correct occupational classification for his position. Nevertheless, the Director found that the Petitioner sufficiently described the proposed endeavor such that he had established elibility under the first prong of Dhanasar, relating to the proposed endeavor's proposed endeavorwork.
The Petitioner has not stated whether he plans to continue his part-time adjunct instructor duties while he carries out his Seehttps://www.onetonline.org/link/summary/19-1021.00for additional information (last visited Aug.12, 2021). p. 6 substantial merit and national importance. The Director determined, however, that the Petitioner was not well positioned to advance his proposed endeavor, in part because the evidence did not persuasively demonstrate that the Petitioner had a record of success in his field, nor did it show that the Petitioner had aresearchpositionorfundingwithwhichtoadvancetheproposedendeavor.Past record does not show influence or success Furthermore,theDirector determined that the evidence failed to show that it would be impractical to obtain a labor certification, that the Petitioner's contributions were sufficiently urgent, that his knowledge and skiIls distnguish him from others in his field, or that the projects he investigates could signficantly influence his field.No urgency shown Therefore, in April 2020, the Director denied the petition under the second and third prongs of the Dhanasar framework.
The Petitioner then filed a motion to reopen and reconsider the Director's decision, and within his motion, he included two letters f roml la Professor in the Department of Chemistry atl I One of the letters was an em,..P.!Q.Y.,ment letter that offered the Petitioner a full-time, paid postdoctoral student researcher position atl__Jto begin on or after July 1, 2020. The other letter was in support of the Petitioner's national interest waiver petition and offered additional details on the research that he would perform in his new position with I latl I The letters described new research topics thatdifferfromthePetitioner'spreviously-articulatedresearchfocus. ThePetitionerdidnotsubmita new or updated proposed endeavor or any information explaining how he would maintain focus on both his proposed endeavor research topics and his adjunct instructor duties. As articulated b~ I the Petitioner will now "build upon his prior research by designing.,.....__ _ _ _ _ _ _ _ _ ____, I J lot biologically important molecules using computational organic chemistry and machine learning, which is vital to the synthesis o ~ ~ - - - - - - ~ t In addition! l's description of the new research included the following verbatim duties for the Petitioner:
- [G]enerate new in silica catalyst libraries and calculate and validate features for different optimization problems;
- [l]dentify potential ideal targets using certain chemical reaction optimization problems;
- [P]erformtheseoptimizations based on either regression analysis or machine learning algorithms;
- [M]odify or design new workflows to minimize synthetic effort;
- [U]s[e] 3D convolutional neural networks to model alignment independent structural analysis;
- [D]evelop 2D convolutional networks which do not require the 3Dstructure to make models; and
- [G]enerate 3D point-cloud representations of molecules using 2D-graphs and apply it to obtain optimized new catalysts fo~ !relevant targets.
,____ _ _ __.I stated that their catalyst design research will benefit the medical community as awhole, but patientssufferingfromcancerorotherinfectiousdiseaseinparticular. Specifically,hestatedthattheir research "will also benefit U.S. hospitals and clincial sites by designing and synthesizing ne~ I I I, which will reduce costs by introducing more affordable and more reliabh~ The Director denied both motions, concluding that the Petitioner's new job offer and start date arose subsequent to the filing of the petition and that USCIS would not consider evidence that came into being only subsequent to a petition filing. Moreover, the Director noted that the Petitioner must establish eligibility atthe time offiling. 8 C.F.R. § 103.2(b)(12); Matter of Katigbak, 14 l&NDec.45, 49(Comm'r 1971).Not eligible at the time of filing Although we need not consider this evidence, the contents of the evidence raise additional concerns that undermine the Director's previous determination o f the Petitioner's eligibility under the first Dhanasar prong.
I
On appeal, the Petitioner relies primarily upon the evidence he previously submitted but contends that the research he will perform withl Ibuilds upon and is a continuation of his prior research. However, the Petitioner offers little su~poryor this assertion. It is not well explained whether the Petitioner intends to end his research o or the computation analysis performed to advance! I I IIf he intends to continue it, he has not explained how it will be incorporated into his new catalyst design, machine learning, and modeling work, or how much time will be spent on each researchtopic. Iftheresearchtopicsonmotionaresimilartothosedescribedintheproposedendeavor such that they do not represent a significant change in focus, the Petitioner has not explained how this isso. NorcanweascertainwhetherthePetitionerwillmaintainhisdutiesasanadjunctinstructoras originally articulated on the Form 1-140, via the employment verification letter, and on the Form ETA 750PartB. InDhanasar,weheldthatapetitionermustidentify"thespecificendeavorthattheforeign national proposes to undertake." Id. at 889. Here, the information provided by the Petitioner on motion did not clarify or provide more specificity to the proposed endeavor as initially described, but rather changed its focus.
The motion presented a new set of facts regarding the proposed endeavor, which is material to eligibilityforanationalinterestwaiver. SeeMatterofMichelinTireCorp.,17I&NDec.248(Reg'l Comm'r1978);seealsoDhanasar,26l&NDec.at889-90. ItappearsasthoughthePetitionersought to address the Director's concerns regarding his lack of a research position and funding, but in so doing, he has significantly changed his proposed endeavor. A petitioner may not make material changes to a petition in an effort to make a deficient petition conform to USCIS requirements. See Matteroflzummi,22I&NDec.169,176(Assoc.Comm'r1998). Ifsignificant,materialchangesare made to the initial request for approval, a petitioner must file a new petition rather than seek approval of a petition that is not supported by the facts in the record.
In determining whether an individual qualifies for a national interest waiver, we must rely on the specific proposed endeavor to determine whether (1) it has both substantial merit and national importance and (2) the foreign national is well positioned to advance it under the Dhanasar analysis. Because the Petitioner has not provided consistent information regarding his proposed endeavor, we cannot conclude that he meets either the first or second prong, or that he has established eligibility for a national interest waiver. 9 Accordinaly, we must withdraw the Director's conclusion that the Petitioner met the first prong of the Dhanasar framework.
Ill. CONCLUSION
The appeal will be dismissed for the above stated reasons, with each considered as an independent and alternate basis for the decision. ORDER: The appeal is dismissed.
Because the identified reasons for dismissal are dispositive ofthe Petitioner's appeal, we decline to reach andhe1eby reserve the Petitioner's remaining appellate arguments concerning his eligibility under the Dhanasarframework. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach"); see also Matter of L-A-C-, 26 l&N Dec. 516,526 n.7 (BIA 2015) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible).