The Petitioner, a physics 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 Texas 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 submits a brief asserting that the Beneficiary 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 nova 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 p. 2 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 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) 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.
Section 10l(a)(32) ofthe 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 a foreign equivalent degree above that of baccalaureate. A United States baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive experience in the specialty shall be considered the equivalent of a master's degree. If a doctoral degree is customarily required by the specialty, the alien must have a United States doctorate or a foreign equivalent degree.
Profession means one ofthe occupations listed in section 10l(a)(32) ofthe 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 Matter ofDhanasar, 26 I&N Dec. 884 (AAO 2016). established eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) may, as matter of discretion2, 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 foreignnationalproposestoundertake. Theendeavor'smeritmaybedemonstratedinarangeofareas 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).
In announcing this new framework, we vacated our prior precedent decision, Matter ofNew York State Department of Transportation, 22 l&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT).
Dhanasar states that after a petitioner has p. 3 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 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 At the time of filing, the Petitioner was a doctoral candidate in physics and a research assistant at the University I I The Director concluded that the Petitioner qualifies as a member o f the professions holding an advanced degree based upon his receipt of a master's degree i~ Iphysics from the Universit~ lin 2013. The Director also determined that the Petitioner had established that his proposed endeavor met the first prong set forth in the Dhanasar analytical framework. The Director's decision then discussed the deficiencies in the submitted evidence and provided a well- reasoned explanation as to why the Petitioner did not meet the remaining two prongs.
Therefore, upon consideration ofthe entire record, and affirm the Director's decision with the comments below. See Matter ofP. Singh, Attorney, 26 I&N Dec. 623 (BIA 2015) (citing Matter ofBurbano, 20 I&N Dec. 872, 874 (BIA 1994); see also Chen v. INS, 87 F.3d 5, 7-8 (1st Cir. 1996) ("[I]f a reviewing tribunal decides that the facts and evaluative judgments prescinding from them have been adequately confronted and correctly resolved by a trial judge or hearing officer, then the tribunal is free simply to adopt those findings" provided the tribunal's order reflects individualized attention to the case).
Regarding the second prong, on appeal the Petitioner generally repeats previous claims that he "has established his eligibility . . . according to the exact same factors as the Matter o fDhanasar beneficiary" and that "his record ofresearch is similar" to that ofDr. Dhanasar. For example, he again argues that he to waive the requirements of a job offer and thus of a labor certification.
Analysis
See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs.
While we may not discuss every document submitted, we have reviewed and considered each one. including the arguments made on appeal, we adopt p. 4 had"eighttimesthecitations"Dr.Dhanasarhadatthetimeofhisinitialfiling. However,whilewelisted 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 alone.Citation record not persuasive As discussed by the Director in his decision, we found that "[t]he petitioner's education, experience, and expertise in his field, the significance of his 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.
Likewise, as it relates to the Petitioner's education, while his master's degree 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. Unlike the Petitioner, Dr. Dhanasar 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. Regardless, we look to a variety of factors in determining whether a petitioner is well positioned to advance his proposed endeavor, and education and citations are merely two factors among many that may contribute to such a finding.
The Petitioner also repeats prior claims that his "research has been funded by a prestigious government 5 agency,"I ~-
Petitioner, rather than his professor or one of his coauthors for exam le was rimaril responsible for securing the funding for the research projects. According to the Petitioner's advisorattheI IDepartmentofPhysicsattheUniversit .___________.the "continuation o t L J grant funding relies on the demonstration o f sustained progress toward the goals specified in the grant proposal." He further states that the Petitioner was "a major part of our team's ability to continue to receive funding from~grants," and that the annual report lists the Petitioner "as a recipient o f funding." Notably, the Petitioner did not provide a copy o f t h e L = h annual report or other evidence to clarify the Petitioner's role in securing the grant. In contrast, Dr. Dhanasar provided evidence establishing that he "initiated" or was "the primary award contact on several funded grant proposals" and that he was "the only listed researcher on many of the grants." Id. at 893, n.11.
While the record demonstrates that the Petitioner has conducted and published research that has been cited during his graduate studies, we agree with the Director that he has not sufficiently established that this work renders him well positioned to advance his proposed endeavor. Although we recognize that research must add information to the pool of knowledge in order to be accepted for publication, presentation, funding, or academic credit, not every individual who has performed original research will meet the second prong. We must 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. at 890. Here, the Petitioner has not, for example, demonstrated that his published work has generated substantial positive discourse in the field or otherwise provided sufficient evidence to establish that his work constitutes a record of success or progress in advancing research in his field.
This claim is also repeated in a number of the opinion letters submitted.
However, the record does not establish that the
As the record does not establish that the Petitioner is well positioned to advance the proposed endeavor as required by the second prong ofDhanasar, the Petitioner has not demonstrated eligibility for a national interest waiver. Therefore, further analysis of his eligibility under the third prong would serve no meaningful purpose.
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.