The Petitioner, an aerospace engineer, 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 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 asserts 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. Upon de novo review, we will dismiss 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. 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 p. 2 substantially benefit prospectively the national economy, cultural or educational interests, or welfare ofthe 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)Nationalinterestwaiver.... [T]heAttorneyGeneralmay,whentheAttorney 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.
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 Matter o f 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 , 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 impmiance, 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, 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 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 a job offerorforthe 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 Inannouncingthisnewframework,wevacatedourpriorprecedentdecision,MatterofNew YorkStateDepartmentof Transportation, 22 I&NDec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT).
See also Poursina v. USCJS, No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or deny a nationalinterestwaiverto be discretionaiy in nature). p. 3 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 The Director concluded that the Petitioner qualifies as a member of the professions holding an advanceddegree. TheremainingissuetobedeterminediswhetherthePetitionerhasestablishedthata waiver o f the requirement o f a job offer,and thus a labor certification, would be in the national interest For the reasons discussed below, we agree with the Director that the Petitioner has not sufficiently demonstrated eligibility under Dhanasar's three-prong analytical framework. to waive the requirements of a job offer and thus of a labor certification.
Analysis
The Petitioner proposes to "work in further described:
~----------------~
" The Petitioner
A space rendezvous is an orbital maneuver during which two spacecraft[s], one of which can be a space station or satellite, arrive at the same orbit and approach to a very close distance (e.g. within visual contact). Rendezvous requires a precise match of the orbital velocities and position vectors of the two spacecraft[s]. Rendezvous may or may not be followed by docking or berthing, procedures which bring the spacecraft into physical contact and create a link between them.
The first prong relates to substantial merit and national importance of the specific proposed endeavor. Dhanasar, 26 I&N Dec. at 889. The Director concluded that the Petitioner's proposed endeavor met the substantial merit and national importance requirements.
The second prong shifts the focus from the proposed endeavor to the petitioner in order to determine whetherheorsheiswellpositionedtoadvancetheproposedendeavor. Dhanasar,26I&NDec.at 890. The record includes documentation of his curriculum vitae, academic credentials, published articles,andconferencepresentationsandabstracts. Healsoofferedastatementregardinghisfuture lans and letters of SU Ort discussin his aduate research and work under the guidance o f n ---~_d_ir_e_ct~or of at the University o f c = ] andCEOo I
T h e r e c o r d r e f l e c t s t h a t t h e P e t i t i o n e r p r o v i d e d t h r e e l e t t e r s o f s u p p o r t f r o m l. . . . _ _ _ _ _. I A t i n i t i a l f i l i n g , Istated:
SccDhanasar, 26l&NDec. at 888-91, for elaboration onthesethreeprongs.
I have overseen [the Petitioner's] education and research over the course ofhis Master's degree inAstronauticalEngineering. Moving forward to his DoctoralDegree,Ihavebeen involved closely with his groundbreaking research as his primary thesis advisor and chair o f his dissertation committee . . . .
While working towards the doctorate de ee a the Petitioner has been the lead researcher, reporting directly to me, on
I ~-supportedprojecto -=-~~:~~~:~~~~~~~~~~~~~~~~~~~~-d-oc-k-in_g_m-eth-od~s for space vehicles to enable next-generation commercial and national security applications in Earth orbit. . . . He has resented his research to a consortium ofl Iservicin companies, the.________________________________. I Lalong with representatives from,____ __, all of whom are very interested in defining how this future regulatory framework will affect the commercial~!--~ industryasawhole,bothintheUSandworldwide.... Hehasalsopublishedtheresults from his significant work and presented it at two subsequen~ I I Iwhich is one of the most prestigious conferences related to astronautical engineering that is attended by the international scientific community.
[ThePetitioner]hasledateamoftwerystu entsandrecentengineeringgraduatesto design, build, and test a smalll Iat 1to deliver to al Icompany with thegoalofdeliveringtheirpayloadtoorbittheEarth. Thispayload,builtbyourcustomer I I, will enable the next generation ot1 Iby bringing to the indus1Iy the possibility of software-define:dl I. ... In response to the Director'srequest forevidenceJ~----~' stated:
[ThePetitioner's specificw01khasbeenrecognizedintheSpacefieldthroughhisimpact to the.___ _ _ ~cons01iium technical development . . . . The set of risk metrics and technical algorithms that [the Petitioner] created, to define the rocess of safe, low risk, and reliable I Iare currently bein used b the consortium and their member companies to assess their.___ _ _ _ _ ~ missions for risk and compliance to guidelines.
[The Petitioner] presented information about his critical systems engineering role on the thirdl Iproject out ot-c=] Among the team ofovera dozen students that were working on this project, [the Petitioner] was the only Systems Engineer for the project, and the only one with the skills and the qualifications to perform this role . . . .
On appeal,,_!_ _ _ _.Istated:
[The Petitioner's] work has made additional significant impact and served to advance progressinthefieldaswellasaffectedpractices. Forinstance,c==Jsubmittedthe first policy guidelines (as a global worldwide standard for futun{_ _J activities) to the International Standards Organization (ISO) inl IMost spacefaring countries, includingRussia/China,arepartofISO. Specificallyandasstatedearlier,[thePetitioner and I contributed technical data (to sections 1.4.1 and 1.4.2 of the.,........._ _ _ --1 Recommended Design and Operations Practices document, published on.___ _ _ ....,.
2019) and published internationally recognized papers to hell make the case that the first ISO standard for this field should come from I _. . . . [T]hel I leadership presented the policy guidelines to the United Nations Committee on the Peaceful Uses of Outer Space (UN-COPUOS) on I
I2019
I INote again that [the Petitioner] played a critical role on the project as the only one with the knowledge and qualifications in systems engineering (design and testing of the entire The other important project I had referenced in the original filinJ concerned D ' s 3rd I Ifor the U.S. start-up company,_ spacecraft) and spacecraft dynamics modeling to lead this project . . . .
Regarding! lthe Petitioner provided several other letters of support discussing the Petitioner's research and work while attendin for his graduate studies.4 For exampleJ Ivice president o,......._ _ _ _ _ _ _ _ ___, who hostsc=] interns, indicated the Petitioner's work on "the design of a support vehicle" referenced b~ ISimilarlyJ I lecturer at stated that the Petitioner "was the lead engineer and worked to optimize the overall systems and lead a team of around 20 graduate students and professional engineers to integrate the design into the final product," and thel ~'will enable the next generation orl lby bringing to the industry the possibility o f software-definedl I' As it relates tol lthe Petitioner offered background information about the organization, a copy of the Petitioner's presentation made to I Iand a copy ofl I' presentations to the United Nations.
As discussed above, the Petitioner primarily claims eligibility under Dhanasar' s second prong based on his graduate work withl landI l5 As it pertains tol demonstrate how his role undetj Iin leading students and recent graduates in al Itest as partofhisgraduatestudiesreflectsthatheiswellpositionedinthefield. ThePetitionerdidnotshow,for example, that the testing has affected the aerospace o r e = ] field or otherwise represents a record of success or progress rendering the Petitioner well positioned to advance his proposed endeavor; the record does not indicate an impact in the field beyond! l6 Regarding) Iworking with and under the direction o~ technical data to two sections of the 1 IRecommended Design and Operations Practices document," which was presented to the United Nations. Although he assisted! Iwith the two sections of thel Ias well as made a presentation before the organization, the P e t i t i o n e r d i d n o t e s t a b l i s h t h a t t h e e x t e n t o f h i s r o l e a n d o v e r a l l c o n t r i b u t i o n s t o l Is u f f i c i e n t l y demonstrates that he is well positioned to advance his proposed endeavor.
While we discuss a sampling ofletters, we have reviewed and considered each one.
In response to the Director's request for evidence and acknowledged byl ts letter on appeal, the Petitioner provided evidence relating to research and projects occurring after the initia Ifiling of the petition. The Petitioner must establishthatalleligibilityrequirementsfortheimmigrationbenefithavebeensatisfiedfromthetime of-filingandcontinuing throu ad·udication. See 8 JFR S) 03 2(b)(l).
6.__...-----,,___, indicatedtha Iwentbankruptandisnowownedbyl Iwhoisworkingona contra ct with him.
Ithe Petitioner did not lthe Petitioner contributed
Further, in listing the evidence submitted bfu the Petitioner, the Director indicated "an unsigned FDP Cost Reimbursement Subaward."I states that"[t]his couldbe thd Igovernment funding (amount of$300K+) letter, and:
I also provided a follow up document (dated 10/11/2019) which shows an increase in funding for thel Iproject based on the outstanding work that I and [the PetitionetJ executed, and it was signed b~ Iwho i s ~ s Contract and Grant Officer as well asl Iwho i L J s Contracts Manager. Again these are valid documents that can be provided to certify real funding from a USG agency t C L J that funded [the Petitioner's] work efforts that he contributed directly to. contracting company that has facilitated the collaboration between! l a n d L J I IThe fact that [the Petitioner's] name is not on the funding documentation should not detract, in any way whatsoever, from his recognized, outstanding leadership wotk. It is very nmmal and standard procedure in the case of government funding for the institute that is receiving funding to be named and not any individual person. On the original contracts only the PI (myself) is named as the technical representative, but internal to._l_ _. in execute was funded by me througi-e=] to support this effort directly.
In Dhanasar, the record established that the petitioner "initiated" or was "the primary award contact on several funded grant proposals" and that he was "the only listed researcher on many ofthe grants." Id. at 893, n.11. Despitd l's claims, the record does not show that the Petitioner (rather thanl ~was mainly responsible for obtaining funding forl l's research projects. While L J as well as other universities and organizations, have designated personnrl to handle contracts and funding, the Petitioner did not demonstrate that he was essential or critical to I receiving such funding.
In addition, the Director stated that"[aJccording to Google Scholar at the time of filing the [Petitioner] had approximately six publications which had received seven citations, in which, the majority of citations wereselfcitesbythe[Petitioner]andhiscollaborators." Onappeal,I Icontendsthat"Iwant to state that the work [the Petitioner] is doing work [sic] in a field itselfthat is so pioneering and new that it is not possible to have hundreds of citations immediately and it would be inaccurate to compare his citations to others in different (more established) fields."Argued the field's importance, not the endeavor's The Director, however, did not require the Petitioner to have hundreds of citations or compare his citations with others, even in different fields. Rather, the Director indicated that his publications received six citations with the majority being self- citations. We note that while in our Dhanasar precedent decision we listed Dr. Dhanasar's "publications and other published materials that cite his work" among the documents he presented, our determination that he was well positioned under the second prong was not based on his citation record.Citation record not persuasive Rather, in our precedent decision we found "[t]he petitioner's education, experience, and expertise in his field, the significance ofhis role in research projects, as well as the sustained interest of and funding from government entities such as NASA and AFRL, position him well to continue to advance his proposed endeavor of hypersonic technology research." Id. at 893. Here, the Petitioner did not show the significance ofhis published works or that they garnered a level ofinterest sufficient Please further note that the funding documents referencec=J as the institution that is receiving the government funding.No interest from users, customers or investors I ~ 11 00 p. 7 to demonstrate that he is well positioned to advance his endeavor. Although! Iargues that thePetitioner"wroteabouthisresearchfindin srelatedto inaconferencepublication"and th
"won Best Paper" at the "IO ~------~--_...,.....Conference, as well as presentations in other conferences, he did not further elaborate and explain how the field has been affected by the paper beyond being later published in a journal after he filed the petition.
As it pe1iains to the Petitioner's education, while his master of science degree fromc=]renders him eligible for the underlying EB-2 visa classification, he has not shown that his academic accomplishments by themselves are sufficient to demonstrate that he is well positioned to advance his proposed endeavor. In Dhanasar, the record established that the petitioner held multiple graduate degrees including "two master of science degrees, in mechanical engineering and applied physics, as well as a Ph.D. in engineering." Id. at 891. We look to a variety of factors in determining whether a petitioner is well positioned to advance his proposed endeavor and education is merely one factor among many that may contribute to such a finding.
The record demonstrates that the Petitioner has conducted and published research while pursuing his masteranddoctoratedegreesaO buthehasnotshownthatthisworkrendershimwellpositioned to advance his proposed research. While we recognize that research must add information to the pool of knowledge in some way in order to be accepted for publication, presentation, funding, or academic credit, not every individual who has performed original research will be found to be well positioned to advance his proposed endeavor. Rather, we examine the factors set forth in Dhanasar to determine whether, for instance, the individual's progress towards achieving the goals of the proposed research, record of success in similar efforts, or generation of interest among relevant parties supports such a finding. Id. at890. ThePetitioner,however,hasnotsufficientlydemonstratedthathisworkhasserved as an impetus for progress in the astronautical field or that it has generated substantial positive discourse in the space industry. Nor does the evidence otherwise show that his work constitutes a record of success or progress in advancing research relating t o O s .
As the record is insufficient to demonstrate that the Petitioner is well positioned to advance his proposed research endeavor, he has not established that he satisfies the second prong ofthe Dhanasar framework. Accordingly,thePetitionerhasnotdemonstratedeligibilityforanationalinterestwaiver. Further analysis of his eligibility under the third prong outlined in Dhanasar, therefore, would serve no meaningful purpose.
Conclusion
As the Petitioner has not met the requisite second prong of the Dhanasar analytical framework, we conclude that he has not demonstrated that he is eligible for or otherwise merits a national interest waiver as a matter of discretion. 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.