Researcher in medical physics

The Petitioner, a researcher in medical physics, seeks classification as a member of the professions holding an advanced degree. See Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § 1153(b )(2). The Petitioner also seeks a national interest waiver ofthe job offer requirement that is attached to this EB-2 immigrant classification. See section 203(b )(2)(B)(i) of the Act. U.S. Citizenship and Immigration Services (USCIS) may grant this discretionary waiver ofthe required job offer, and thus of a labor certification, when it is in the national interest to do so.

The Director of the Texas Service Center denied the petition, concluding that although the Petitioner qualifies as a member of the professions holding an advanced degree, the record did not establish that a waiver ofthe 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 ofproof 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 Christa 's, Inc. , 26 I&N Dec. 537, 537 n.2 (AAO 2015). 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 immigrant classification, as either a member of the professions holding an advanced degree or an individual of exceptional ability in the sciences, arts, or business. Section 203(b )(2)(B)(i) of the Act.

Once a petitioner demonstrates eligibility for the classification, the petitioner must then establish eligibility for a discretionary waiver of the job offer requirement "in the national interest." Section 203(b )(2)(B)(i) ofthe Act. While neither statute nor the pertinent regulations define the term "national interest," Matter of Dhanasar, 26 I&N Dec. 884, 889 (AAO 2016), provides the framework for p. 2 adjudicating national interest waiver petitions. Dhanasar states that USCIS may, as a 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
• On balance, waiving the job offer requirement would benefit the United States.

Id.

Analysis

The Director concluded that the Petitioner qualifies for the EB-2 classification as an advanced degree professional, based upon obtaining the foreign equivalent of a master of science degree in medical physics. The issue on appeal is whether the Petitioner has established that a waiver of the job offer requirement is in the national interest. The Director found that the Petitioner did not establish any of the three required prongs of the analytical framework set forth in Matter ofDhanasar. While, as we discuss below, we conclude that the Petitioner has demonstrated some ofthe elements ofthe Dhanasar framework and we withdraw the Director's findings to the contrary, we agree with the Director's ultimate conclusion that the Petitioner has not established eligibility for a national interest waiver. A. Whether the Proposed Endeavor Has Substantial Merit and National Importance The first prong, substantial merit and national importance, focuses on the specific endeavor that the individual proposes to undertake. An endeavor's merit may be demonstrated in a range of areas such as business, entrepreneurialism, sciences, technology, culture, health, or education. In determining whether the proposed endeavor has national importance, we consider its potential prospective impact. Matter ofDhanasar, 26 I&N Dec. at 889.

The Petitioner's proposed endeavor is to develop an __________.semiconductor detector for small field dosimetry with applications in radiation therapy. In support ofthe substantial merit and national importance of the proposed endeavor, the Petitioner submitted evidence regarding the prevalence of radiation therapy in cancer treatment in the United States and the benefits of improved safety, effectiveness, and accuracy in the dosing and delivery of radiation therapy. An opinion letter submitted by the Petitioner states as follows:

Radiotherapy has already been proven as an effective and useful cancer treatment and uses high doses of radiation to kill cancer cells and shrink tumors. However, even a small error in radiation treatment planning, delivery, or dosimetry poses threats like poor tumor coverage or normal tissue toxicity. [The Petitioner's] research is very useful to improving cancer treatments in this regard, as it helps to overcome the inherent risks of radiation therapy by providing new techniques and devices for more accurate and effective dose delivery. The utility of her radiation therapy innovations 1 See also Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts (and the Third in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver is discretionary in nature). p. 3 in regard to cancer treatment in the United States emphasizes the crucial medical applications of [ the Petitioner's] research.

In response to the Director's notice of intent to deny (NOID), the Petitioner further characterized her proposed endeavor as developing "an that is essential equipment for radiation detection and dosimetry in imaging and radiotherapy applications," and stated that she specifically intends to research the use of cadmium telluride (CdTe) as a semiconductor detector material. The Petitioner explained that as of 2021, "the silicon detector held the largest market share among semiconductor types" but that "silicon detectors are quite expensive and degrade from radiation over time." The Petitioner further explained that thin film photovoltaic is being researched as a less expense alternative detector, with CdTe as the most common of these. The Petitioner stated that she intends "to conduct research to develop an improved detector for small field radiation therapy applications by employing CdTe as a semiconductor detecting material" and that these efforts "will lead to more precise treatment and lower equipment expenses ...."

The Director concluded that the Petitioner did not establish either the substantial merit or the national importance of the proposed endeavor. First, the Director noted that in some of the Petitioner's recommendation letters, the writers discuss a past research project of the Petitioner in which she used the Monte Carlo N-Particle Transport (MCNP) code. One of the letter writers describes this project by stating that the Petitioner "generated a Monte Carlo simulation to examine the effect ofnanoparticle presence and tumor radial distance on dose enhancement .... [The Petitioner's] results indicate that gold nanoparticles exhibited better dose enhancement than gadolinium nanoparticles ...."

The Director stated that the Petitioner did not provide documentary evidence to show that she "developed a MCNPX Monte Carlo code" or that she was authorized to use any versions ofthe Monte Carlo code. The Director noted that MCNP and Monte Carlo N-Particle are registered trademarks owned by Triad National Security, LLC, which manages and operates the Los Alamos National Laboratory on behalf of the U.S. Department of Energy. The Director further noted that the record shows that the Petitioner was a medical physicist in Iran at the time she published research related to MCNP, and that Iran is not one of the countries listed in the Department of Energy's regulations as authorized to process MCNP codes. In the decision, the Director noted that the NOID requested evidence that the Petitioner was authorized to access the MCNP code, but that the Petitioner did not address this in the NOID response. The Director concluded that this weighed against both the substantial merit and the national importance of the endeavor.

Additionally, the Director concluded that the Petitioner improperly changed her proposed endeavor in response to the NOID. The Director stated that the Petitioner's proposed endeavor as initially described was related to her research with the MCNP code and that in response to the NOID the Petitioner changed the endeavor to researching the use of CdTe as a semiconductor detector. The Director concluded that the Petitioner changed the proposed endeavor "since she will now conduct her research based on a completely different method or semiconductor" and, citing to Matter ofIzummi, 22 I&N Dec. 169 (Assoc.Tried to change the endeavor after filing Comm'r 1998), noted that a petitioner may not make material changes to a petition after its filing in an effort to make a deficient petition conform to USCIS requirements. Regarding the national importance of the endeavor specifically, the Director stated that the Petitioner did not provide a "specific definition" of the proposed endeavor and did not substantiate how "her p. 4 work with MCNPX relates to the proposed endeavor, or will benefit and positively impact the economy, and the medical industry" in the United States. Additionally, as to the Petitioner's claim that research into safer, more accurate means of delivering radiation therapy to cancer patients has important public health benefits, the Director found that the Petitioner was confusing the national importance of the proposed endeavor with the national importance of the industry or field.Argued the field's importance, not the endeavor's The Director stated that the Petitioner did not provide any information or independent, objective documentary evidence showing how the Petitioner, as a single individual, would improve the medical industry in the United States or would trigger substantial positive economic impacts.Job creation or economic claims unsupported The Director stated that the fact that the Petitioner intends to engage in research was not sufficient to demonstrate the "significance ofthe innovation." Citing to Matter ofNew York State Department ofTransportation (NYSDOT), 22 I&N Dec. 215 (Act. Assoc. Comm'r 1998), the Director stated that most science is research-driven and implied that the Petitioner did not establish a sufficient "track record of success" or a "degree of influence over the field as a whole."Past record does not show influence or success

On appeal, the Petitioner contends that the Director's questions regarding the MCNP code are irrelevant to the first prong analysis but that she has nevertheless sufficiently responded to those questions. The Petitioner also asserts that she has not materially changed her proposed endeavor, that she has sufficiently defined it, and that she has submitted documentary evidence to establish both its substantial merit and national importance.

Regarding the finding that the Petitioner materially changed the proposed endeavor in response to the NOID, the Petitioner emphasizes on appeal that, despite the Director's statement otherwise, her proposed endeavor does not specifically involve the use of the MCNP or MCNPX codes.Proposed endeavor too vague

Additionally, the Petitioner contends that her research with CdTe as a semiconductor detector is in line with her endeavor of developing an semiconductor detector for small field dosimetry.

Upon review of the record, we agree. First, although the Director states that the Petitioner "initially claimed her research work was related to MCNPX and MCNP," we agree with the Petitioner that she did not characterize her proposed endeavor as specifically related to this code. While evidence in the record shows that the Petitioner's past research involved using this code, and this research was in her field of medical physics, the Petitioner does not describe her current proposed endeavor as being related to or requiring the use of the MCNP code. Additionally, although the Petitioner's initial filing does not mention the specific use of CdTe as a semiconductor detector material, we conclude that the Petitioner's focus on this compound appears to fall within the proposed endeavor as described in the initial filing. The Petitioner initially described her endeavor as developing an improved semiconductor detector for use in radiation therapy. In response to the NOID, the Petitioner updated the record to advise that her current research focuses on the use of CdTe as the material for this improved device. We disagree with the Director that the Petitioner has not sufficiently defined or explained the endeavor, that the proposed endeavor involves the use of the MCNP code, and that the Petitioner sought to materially change the proposed endeavor. We withdraw the Director's findings to the contrary. Regarding the Director's conclusion that the Petitioner's use of the MCNP code was unauthorized and that this reflects negatively upon the substantial merit and national importance of the proposed endeavor, we also agree with the Petitioner that this is not relevant to the first prong analysis. As addressed above, we conclude that the Director's statement that the proposed endeavor is specifically p. 5 related to this code is not supported by the record. But moreover, even were we to agree with the Director that the proposed endeavor relates to the use of the MCNP code, the focus of the first Dhanasar prong is the proposed endeavor itself, not the Petitioner's authorization or ability to pursue it. Consideration of whether a petitioner is authorized to conduct their proposed research or otherwise engage in their field is generally a consideration for the second Dhanasar prong, which shifts the focus from the proposed endeavor to the petitioner and whether they are well-positioned to advance it. 2 Matter ofDhanasar, 26 I&N Dec. at 890.

We also withdraw the Director's conclusions that the Petitioner did not provide independent, documentary evidence to satisfy the first prong and that the Petitioner conflated the national importance of the field with the national importance of the endeavor. To the contrary, we are persuaded by the probative and credible evidence in the record, including that from the American Cancer Society and the recommendation letters from individuals in the field, of the substantial merit and national importance of improved radiation therapy for cancer patients, and that the proposed endeavor of improving semiconductor detectors for use in radiation therapy has the potential to positively impact the accuracy, efficacy, and safety of this treatment.

Finally, although the Petitioner did not raise this aspect of the Director's decision on appeal, we also withdraw the Director's conclusions that the Petitioner did not establish the national importance of the endeavor because the evidence does not demonstrate that she has a sufficient "track record of success" or a "degree of influence over the field as a whole" as described in Matter ofNYSDOT. Matter of NYSDOT, which established the previous framework used for evaluating national interest waiver petitions, was vacated by our precedent decision in Matter ofDhanasar. See Matter ofDhanasar, 26 I&N Dec. at 884. The Director's use of our vacated decision in Matter ofNYSDOT to analyze whether the Petitioner established eligibility under Matter ofDhanasar 's first prong is a legal error. As such, we conclude that the Petitioner has established the substantial merit and the national importance of the proposed endeavor.

B. Whether the Petitioner Is Well-Positioned to Advance the Proposed Endeavor In the second prong, we consider whether the individual is well-positioned to advance the proposed endeavor. Id. 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. Id.

The record includes the Petitioner's curriculum vitae, academic records, published work, peer review activity, recommendation letters, and information regarding the Petitioner's citation record. The Director concluded that the Petitioner did not establish this prong. The Director specifically stated that the evidence related to the MCNP code did not help demonstrate the Petitioner's positioning to advance the endeavor due to the issue, discussed above, of authorization to use the code. Regarding 2 Because we conclude that the Petitioner's authorization to use the MCNP code is not relevant to the first prong analysis, we need not address here whether the Petitioner has sufficiently responded to the Director's questions on this issue. However, we discuss this issue in detail below. p. 6 the Petitioner's citation record, the Director concluded that the record did not establish how the Petitioner's citations were notable, as claimed, nor that they reflect a level ofinterest in the Petitioner's work sufficient to meet the second prong.Citation record not persuasive

On appeal, the Petitioner contends that the evidence establishes that she is well-positioned to advance the endeavor and specifically that her research using the MCNP code, while not relevant to her current endeavor, does help demonstrate her knowledge, skills, and record of success in related or similar efforts. The Petitioner contends that this evidence should be considered because "USCIS has not presented a single piece of evidence indicating that [the Petitioner] was wrongly given access to MCNP or MCNPX or that she used this code without proper authorization."

Although not relevant to the first Dhanasar prong, the Petitioner's prior research work is relevant to the second prong. Moreover, if the Petitioner engaged in unauthorized research, this would be a factor for consideration in whether that research reflects the Petitioner's positioning to advance the proposed endeavor. The Petitioner contends that she has sufficiently responded to the Director's concerns regarding the MCNP code. However, she has not provided either documentary or testimonial evidence regarding the issue. Rather, the Petitioner's counsel, in response to the NOID and on appeal, has attempted to address these questions. In response to the NOID, the Petitioner's counsel stated that the Petitioner "did not claim that she created the code, used it personally, or even had access to it, only that she utilized Monte Carlo simulation data to investigate dose enhancement." Counsel further explained that "research is typically a collaborative effort and not every researcher listed as a co-author on any given paper is necessarily involved in every step of the process of preparing, conducting, and analyzing the outcomes ofresearch experiments." Counsel also noted that "this research project was an international collaboration between researchers from Iran and the U.S." and that the lead author of the study at issue is affiliated with a U.S. institution, the _______________ Without stating it specifically, counsel appears to be implying that one ofthe Petitioner's collaborators could have obtained authorization to use the MCNP code and that the Petitioner's role in this study did not require her to access it personally. But counsel also contends on appeal that access to the code can be requested by noncitizens and the fact that the Petitioner was in Iran at the time her research was published "does not exclude her having the necessary authorization to conduct this work ...." But explaining that there are scenarios in which the Petitioner did not access this controlled code without authorization is not the same as demonstrating that one ofthose scenarios is true. Moreover, assertions of counsel are not evidence.Claims not backed by documents See, e.g., Matter ofS-M-, 22 I&N Dec. 49, 51 (BIA 1998) ("statements in a brief, motion, or Notice of Appeal are not evidence and thus are not entitled to any evidentiary weight").

The Petitioner does not confirm in her statement whether she obtained her own authorization to use the code or whether her role in the project did not require access to it. While counsel is correct that the Petitioner does not claim that she "used it personally" or "even had access to it," this is because the Petitioner's statement simply does not address the question at all. The Petitioner also did not provide documentary evidence of her authorization to use the code or testimonial evidence from any of the collaborators on the project stating that they, rather than the Petitioner, were authorized to use the code.

Counsel claims that USCIS has not "presented a single piece of evidence" that the Petitioner accessed the MCNP code without authorization. But the burden of proof is on the Petitioner to establish eligibility. Matter of Chawathe, 25 I&N Dec. at 375-76. The Director raised a legitimate question regarding the Petitioner's authorization to conduct her prior research, based upon the Petitioner's location at the time ofthe research and the fact that access to the code used in this research is restricted. In response, the Petitioner's counsel asserts that it is possible that the Petitioner either obtained authorization to access the MCNP code or that her role in the study did not require her to access it. While these are possibilities, the Petitioner has not provided evidence to demonstrate that the Petitioner did not engage in unauthorized research, nor does counsel even specifically whether their contention is that the Petitioner obtained MCNP code authorization or that the Petitioner did not directly access the code as part of the project.

The record appears to show that this was a notable study, that the Petitioner had an important role in it, and that it is relevant to the Petitioner's field. This would ordinarily weigh in favor of the Petitioner's positioning to advance her proposed endeavor, as it may reflect success in a related effort. But we consider the omission of evidence on this point to be notable, given the Director's specific questions on this issue, the fact that this research project is the most heavily cited of the Petitioner's past work, and the fact that the record contains a statement from both the Petitioner and the first listed author of this study, neither of whom address this question. For that reason, we conclude that the Petitioner has not sufficiently responded to the Director's request on this issue and the Petitioner has not met her burden of proof to demonstrate that she did not engage in unauthorized use of the MCNP code. Therefore, we do not consider the Petitioner's efforts in this study to be a positive factor in the second Dhanasar prong.

Turning to the factors enumerated in Matter ofDhanasar for evaluating evidence under the second prong, we first consider the Petitioner's education, skills, knowledge, and record of success. The record shows that the Petitioner has obtained the foreign equivalent of a master of science degree in medical physics. The Petitioner had not obtained a Ph.D. at the time of filing, although she was working toward obtaining her Ph.D. in physics with a specialization in medical physics. Additionally, the Petitioner states that her record of success in related or similar efforts is demonstrated by her research, record of citations, and her peer review activity. We do consider the Petitioner's citation record and peer review activity to be significant, and it appears that the Petitioner has been cited frequently by independent researchers at a rate that is high relative to others in the field. However, the positive weight of the Petitioner's citation record and prior research is reduced because, as discussed above, we do consider it a negative factor that the Petitioner's most cited study is one in which she has not demonstrated that she did not engage in unauthorized research. We also note that the works which have received the most attention are those in which the Petitioner was one of several contributors and not the first listed author. Finally, we note that at the time offiling the Petitioner had obtained only a master's degree and not a Ph.D. in her field.

Regarding the Petitioner's model or plan for future activities, the Petitioner points to her research work while earning her Ph.D. and her offer for a postdoctoral fellow position following completion of the Ph.D. In response to the NOID, the Petitioner provided evidence that she accepted a residency position in medical physics at a university medical center. The Petitioner also asserts that she has demonstrated progress toward achieving the proposed endeavor based upon her focus on CdTe for the material of an improved semiconductor detector. Based upon the evidence in the record, we do consider that the p. 8 Petitioner has a detailed and credible plan for her future activities, that she is continuing to progress in her proposed endeavor, and that this weighs favorably in demonstrating the Petitioner's positioning to advance the endeavor.

The final factor enumerated in Matter ofDhanasar relates to evidence of interest of potential customers, users, investors, or other relevant entities or individuals. Here, we conclude that the evidence in the record does not weigh in favor of demonstrating that the Petitioner is well-positioned to advance the endeavor. The Petitioner contends that her citation record, peer review activity, and letters of recommendation demonstrate the interest of relevant parties in her work. While these are positive factors, we have also considered the Petitioner's citation record and peer review activity as they relate to her skills, knowledge, and record of success. They may also be relevant here, but the Petitioner has little additional, independent evidence in support ofthis factor. For example, the Petitioner has not provided evidence of funding from investors, research institutions, or government entities. By contrast, in Dhanasar, we noted that the petitioner had received "consistent" government fonding of research projects in which he played a "significant" role, specifically that he initiated or was the primary award contact on several funded grant proposals and was the only listed researcher on many of the grants. Matter of Dhanasar, 26 I&N Dec. at 893, Fn. 11. The evidence in the record here does not contain similar evidence of fonding for the Petitioner's research.

On balance, we conclude that the record does not establish that the Petitioner is well-positioned to advance the proposed endeavor. The Petitioner's plan for her future activities, her research and citation record, and her peer review activity are positive factors. But the positive weight of the Petitioner's research and citation record is reduced because of the questions regarding her authorization to engage in her most highly cited work. Additionally, while the Petitioner's citation record is relevant to both her record of success and the interest of relevant entities, these factors are not sufficient on their own to support a finding that the Petitioner is well-positioned to advance the proposed endeavor and the record lacks other, additional evidence to support this finding. Not every individual who has conducted original research and published findings will be found to be well-positioned to advance their proposed endeavor. Rather, we must examine the factors set forth in Matter ofDhanasar to determine whether, for instance, the individual's education, skills, and record of success, their model or plan for future activities, their progress towards achieving the proposed endeavor, and the generation of interest among relevant parties supports such a finding. Id. at 890. In considering the record in totality, particularly the fact that the Petitioner relies heavily on her citation record but did not demonstrate that her most heavily cited study did not involve unauthorized research, we conclude that the Petitioner has not established that she is well-positioned to advance the proposed endeavor. C. Whether, on Balance, Waiving the Job Offer Requirement Would Benefit the United States The third prong requires the 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. Because the Petitioner has not demonstrated that she is well-positioned to advance the proposed endeavor, as required by the second prong of the Dhanasar framework, we need not address whether the Petitioner has established the third Dhanasar prong. We acknowledge the Petitioner's arguments on appeal as to the third prong but, having found that the evidence does not establish that the Petitioner is wellpositioned to advance the proposed endeavor, we will not address those arguments here. See INS v.

Bagamasbad, 429 U.S. 24, 25 (1976) (stating that agencies are not required to make "purely advisory findings" on issues that are unnecessary to the ultimate decision); see also Matter of L-A-C-, 26 I&N Dec. 516, 526 n. 7 (BIA 2015) ( declining to reach alternate issues on appeal where an applicant is otherwise ineligible).

Conclusion

The Petitioner has not met the requisite second prong of the Dhanasar analytical framework. We therefore conclude that the Petitioner has not established she is eligible for or otherwise merits a national interest waiver as a matter of discretion.

ORDER: The appeal is dismissed.