The Petitioner, a computer scientist, seeks employment-based second preference (EB-2) immigrant classification as a member ofthe 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. § l 153(b)(2).
SCOPS denied the petition, concluding that the record did not establish that a waiver of the job offer requirement is 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 Christo 's, Inc. , 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, we will sustain the appeal.
Law
To qualify for the underlying EB-2 visa classification, a petitioner must establish they are an advanced degree professional or an individual of exceptional ability in the sciences, arts, or business. Section 203(b )(2)(A) of the Act.
Ifa petitioner establishes eligibility for the underlying EB-2 classification, they must then demonstrate that they merit a discretionary waiver of the job offer requirement "in the national interest." Section 203(b )(2)(B)(i) ofthe Act. 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 and Immigration Services (USCIS) may, as matter of discretion, 1 grant a national interest waiver if the petitioner demonstrates that:
- The proposed endeavor has both substantial merit and national importance;
- The individual is well-positioned to advance their proposed endeavor; and 1 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Third, Ninth, Eleventh, and D.C. Circuit Courts of Appeals in concluding that USCIS' decision to grant or deny a national interest waiver is discretionary in nature).
- On balance, waiving the job offer requirement would benefit the United States.
Matter ofDhanasar, 26 I&N Dec. at 889.
Analysis
SCOPS found that the Petitioner qualifies for the EB-2 classification as an advanced degree professional, based upon obtaining the foreign equivalent of a Ph.D. in computer and information engineering. The issue on appeal is whether the Petitioner has established that a waiver of the job offer requirement, and thus of a labor certification, is in the national interest. SCOPS determined that while the Petitioner established eligibility under the second prong of the Dhanasar analytical framework, he did not demonstrate eligibility under the first or third Dhanasar prongs. On appeal, the Petitioner claims that SCOPS failed to consider the relevant, credible, and probative evidence in the record, and asserts that the record establishes his eligibility. On de novo review and for the reasons discussed below, we will sustain the appeal.
The Petitioner's proposed endeavor is to continue his research on developing "efficient, scalable, generalizable, and robust optimization algorithms and optimization theory to enhance decisionmaking, predictions, and control in engineering applications." At the time of filing the petition, the Petitioner was completing a postdoctoral fellowship and had an offer to begin a position as a tenuretrack assistant professor. As of the filing of the Petitioner's appeal, he had begun his professorship at the university.
The first prong, substantial merit and national importance, focuses on the specific endeavor that the individual proposes to undertake. Id. The endeavor's merit may be demonstrated in a range of areas such as business, entrepreneurialism, science, technology, culture, health, or education. Id. In determining whether the proposed endeavor has national importance, we consider its potential prospective impact. Id.
Based on the evidence that the Petitioner intends to pursue an endeavor that relates to advancing an area ofscience and technology, we agree with SCOPS that the Petitioner has established the substantial merit of the proposed endeavor. Id.
Regarding national importance, the Petitioner claims on appeal that SCOPS' finding that the record does not establish this requirement is based on a mischaracterization of the proposed endeavor. The Petitioner contends that SCOPS improperly conflated his endeavor with his employment and moreover mischaracterized that employment. The Petitioner points to language in the decision in which SCOPS states that the Petitioner's specific endeavor is to work as a computer scientist for a private U.S. company and that the Petitioner's objectives "simply describe the occupational duties of a [c]omputer [s]cientist." The SCOPS decision also finds that even if the Petitioner engages in research, the record does not establish that this would impact the field because "it is not apparent that any internal research discoveries conducted during employment would be made publicly available rather than maintained as proprietary information" for the Petitioner's employer.
On de novo review, we agree with the Petitioner that the record does not support these statements; instead, the record shows that the proposed endeavor involves the publication, presentation, and p. 3 dissemination ofresearch in the Petitioner's field. Moreover, the Petitioner contends that his areas of research in fundamental optimization and machine learning theory have implications for artificial intelligence (AI), energy systems, and communication systems. In support of these claims, the Petitioner provided evidence of specific potential applications for improvements related to optimization theory, for example, the ability of power systems to use dynamic resource allocation to respond to changes in environment in real time and for autonomous vehicles to make better decisions under uncertainty.
Based on the evidence in the record of the national importance of improved decision-making in machine learning and of the significant potential for optimization theory to advance these decisionmaking processes, we conclude that the proposed endeavor has a potential prospective impact that rises to the level of national importance. As such, we withdraw SCOPS' findings to the contrary and we conclude that the Petitioner has established eligibility under the first prong.
In the second prong, we consider whether the individual is well-positioned to advance the proposed endeavor. Matter of Dhanasar, 26 I&N Dec. at 890. In this determination, 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.Past record does not show influence or success Id.
SCOPS found that the Petitioner established that he is well-positioned to advance the proposed endeavor. Based upon the evidence in the record, we agree. For example, the Petitioner possesses a Ph.D. in a science, technology, engineering or mathematics (STEM) field related to the proposed endeavor, the Petitioner's support letters identify specific examples of how the Petitioner's prior research has impacted the field, demonstrate interest in the Petitioner continuing to pursue his endeavor, and are supported by other evidence in the record such as the Petitioner's publication record, citation history, and peer review service. Finally, the evidence in the record supports the Petitioner's specific plan for future activities. We therefore conclude that the Petitioner has established eligibility under the second Dhanasar prong.
The third prong requires a petitioner to demonstrate that, on balance, it would be beneficial to the United States to waive the requirement of a job offer and thus of a labor certification. Id. at 890-91. 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. Id. 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 ofa job offer and thus ofa labor certification. Id. at 891. The Petitioner asserts on appeal that SCOPS' finding that the Petitioner did not establish eligibility under the third prong was informed by the same factual errors that formed the basis of its first prong analysis. The Petitioner also asserts that the language ofMatter ofDhanasar and the USCIS p. 4 Policy Manual related to STEM endeavors that advance critical and emerging technologies2 support a finding that the United States would benefit from the Petitioner's contributions even if there are qualified U.S. workers available.
As a computer and information engineering researcher and professor, the Petitioner possesses considerable expertise relating to optimization theory and developing methods to train systems in better decision-making. The record also demonstrates the potential benefits associated with research progress related to optimization. In addition, the Petitioner has documented his past successes in advancing research in this area and in publishing influential research findings. Based on the Petitioner's track record ofresearch and the significance of his proposed work to advance U.S. STEM interests, we conclude that he 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.
Conclusion
The Petitioner has established eligibility for the EB-2 classification and that he meets 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.