The Petitioner, a cryptography researcher and graduate student, seeks employment-based second preference (EB-2) 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 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 dismiss 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.
If a 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.
Id.
Analysis
SCOPS found that the Petitioner qualifies for the EB-2 classification as an advanced degree professional, based upon obtaining a master's degree in computer science from~I------~ University. The issue on appeal is whether the Petitioner has established that a waiver of the requirement of a job offer, and thus 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 mischaracterized, diminished, or ignored much of the evidence in the record, that the decision uses "vague and confusing analysis," and that if viewed under the preponderance of the evidence standard, the Petitioner has established eligibility.
Upon de novo review and for the reasons discussed below, we withdraw SCOPS' findings regarding the first and second Dhanasar prongs, we affirm SCOPS' conclusion as to the third prong, and we agree with SCOPS that the Petitioner has not established eligibility for a national interest waiver under the analytical framework set forth in Matter ofDhanasar.
A. The Proposed Endeavor Has Both Substantial Merit and National Importance The first prong of the Dhanasar framework focuses on the specific endeavor that the individual proposes to undertake. Matter of Dhanasar, 26 I&N Dec. at 889. 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. SCOPS found that the Petitioner established the substantial merit ofthe proposed endeavor but not its national importance. We will withdraw SCOPS' finding that the Petitioner did not establish the national importance of the proposed endeavor and conclude that the record establishes the Petitioner's eligibility under the first Dhanasar prong. The Petitioner states that his proposed endeavor is to "optimize and develop new, state-of-the-art cryptography tools in order to build private and secure communication protocols for internet applications that include privacy-preserving machine learning systems, private messenger software, and distributed ledgers." The Petitioner indicates that he is currently pursuing his Ph.D. in computer science and engineering at the
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Based upon 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.
To support his claim that his proposed research endeavor is nationally important, the Petitioner provided reports from government agencies and offices that discuss the field of cryptography and the potential uses of cryptography tools to enhance data privacy and security, including the potential uses p. 3 for specific tools such as attribute-based encryption (ABE) and circuit garbling in secure multi-party computation, two specific cryptography methods that the Petitioner intends to research.
For example, the Petitioner submitted a National Security and Technology Council's report, The National Strategy to Advance Privacy-Preserving Data Sharing and Analytics, which concludes that research is needed to develop the foll potential of privacy-preserving data sharing and analytics (PPDSA) technologies, including secure multi-party computation. As one specific example of the potential implications for advancements in cryptography tools, the record contains the transcript of a 2019 hearing before the U.S. House of Representative's Task Force on Financial Technology that addressed the privacy concerns implicated with "Fintech" mobile applications. Specifically, the fact that the current state of technology requires consumers to "trust data-hungry apps that scour their sensitive data under vague privacy policies" but can "access, lose, exploit, and abuse" this raw user data, and the potential ability for cryptography advancements to allow consumers to maintain the privacy of their banking, credit, and other financial data, while being able to access the convenience of mobile banking and financial services. The record also contains copies of articles and reports about the rising cost of security breaches and the increasing valuation of privacy-enhancing technology services. Finally, the record contains evidence that privacy-enhancing technologies, communications and network security, and distributed ledger technologies are included in the National Science and Technology Council's list of critical and emerging technologies.
Based on the evidence in the record of the national importance of data privacy and security, and of the significant potential that researching and developing improved cryptography tools has to advance data privacy and security, we conclude that the proposed endeavor has a potential prospective impact that rises to the level of national importance. As such, we withdraw SCOPS' finding that the Petitioner did not establish the national importance of the proposed endeavor and we conclude that the Petitioner has established eligibility under the first prong.
B. The Petitioner Has Not Established That He Is Well-Positioned to Advance the Endeavor 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. However, for the reasons discussed below, we withdraw that finding and conclude that the Petitioner has not established his eligibility under the second prong.
Turning to the factors enumerated in Matter ofDhanasar for evaluating evidence under the second prong, we conclude that the Petitioner's education, skills, and knowledge are positive factors in supporting his positioning to advance the proposed endeavor. Specifically, the Petitioner has obtained a master's degree in a field related to his proposed endeavor and his published research and peer review service show that he has developed skills and knowledge that would be useful in continuing to research ABE schemes, circuit garbling, and other tools relevant to the field of cryptography. However, we do p. 4 note that the Petitioner did not yet possess a Ph.D. in his field as of the time of filing. 2 Regarding the Petitioner's record of success in related or similar efforts, we conclude that the evidence appears to demonstrate that the published work that the Petitioner has contributed to has been cited frequently by independent researchers at a rate that is high relative to others in the field.Citation record not persuasive
The next factors applicable to the second prong of the Dhanasar framework are the petitioner's model or plan for future activities and any progress toward achieving the proposed endeavor. Matter of Dhanasar, 26 I&N Dec. at 890. The Petitioner contends that he intends to pursue a position as an assistant professor at the University of California, Santa Barbara or a similar employer. In response to the RFE, the Petitioner further stated that after he completes his Ph.D., he will begin a postdoctoral researcher position atl !University where he will "initiate new research collaborations with leading cryptography experts at institutions across the United States." The Petitioner states that this will be a one- to two- year appointment, after which, he plans to pursue a tenure-track assistant professor role and "establish an independent research group focused on developing cryptographic techniques that preserve privacy and minimize information leakage." In this statement, the Petitioner also provided summaries of two research projects that he intends to begin pursuing related to his proposed endeavor.
While the Petitioner claims to have obtained a postdoctoral position and states his intention to pursue a permanent position as an assistant professor, we conclude the record does not sufficiently demonstrate these claims. First, the record does not contain evidence, other than the Petitioner's own statement, related to the postdoctoral position, such as a job offer letter or other information about the position. There is, therefore, no evidence in the record to support the Petitioner's claim that in this position he will "initiate new research collaborations with leading cryptography experts at institutions across the United States." Additionally, the Petitioner did not provide evidence of any contacts within or communications from the University of California, Santa Barbara, or any other university, that would demonstrate interest in or support from a U.S. university in the Petitioner pursuing his proposed endeavor through an assistant professor position. 3No interest from users, customers or investors
The Petitioner seeks a national interest waiver of the job offer requirement; therefore, evidence of an offer of employment is not a requirement for approval, nor is the lack of a job offer a negative factor in analyzing the evidence, depending on the specific circumstances of the case. However, in this instance, the Petitioner's stated intention for advancing his endeavor requires an offer of employment, and the Petitioner has not provided documentary evidence of pursuing this employment or any specific steps taken toward achieving employment. By contrast, the petitioner in Matter of Dhanasar demonstrated that he was already employed as a postdoctoral research associate at a university, was performing research and development related to his proposed endeavor at this university, and intended to continue to do so. See id. at 891. We therefore conclude that the evidence in the record related to the Petitioner's model or plan for future activities and his progress towards achieving the proposed endeavor do not support a finding that the Petitioner is well-positioned to advance it.
The final factor enumerated in Matter of Dhanasar relates to evidence of interest from potential customers, users, investors, or other relevant entities or individuals. Matter ofDhanasar, 26 I&N Dec. at 890. Here, we similarly conclude that the evidence in the record does not weigh in favor of demonstrating that the Petitioner is well-positioned to advance the endeavor. In support ofthis factor, the Petitioner contends that his research has been supported by fonding from the National Science Foundation, the Defense Advanced Research Projects Agency's Securing Information for Encrypted Verification and Evaluation Program, and the Department of Energy's National Energy Technology Laboratory. However, we conclude that this assertion is not sufficiently established by the record. In support of this claim, the Petitioner submitted copies of publications he has co-authored during his time at the.__ ____________.which indicate in the acknowledgements section that the research was supported by grants or awards from these agencies. However, the record does not establish the parameters ofthese grant awards; for example, the record does not show whether the Petitioner applied for and received this fonding for his research. By contrast, in Dhanasar, we noted that the petitioner had received "consistent" government fonding ofresearch projects in which he played a "significant" role, specifically that he initiated or was the primary award contact on several fonded grant proposals and was the only listed researcher on many of the grants. Id. at 893, Fn. 11. Here, we are unable to tell the Petitioner's role, if any, in obtaining this fonding, and therefore whether this fonding indicates any interest from relevant agencies in the Petitioner pursuing the proposed endeavor. The evidence in the record regarding the Petitioner's fonding from U.S. government agencies does not appear to be similar in kind to the fonding received by the petitioner in Matter ofDhanasar.
Not every individual who has conducted original research, published findings, and provided peer review service 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. The Petitioner's knowledge, skills, and record of success in related efforts, as demonstrated by his education, publication history, citation record, and peer review service, are positive factors. However, they are not sufficient to overcome the lack of evidence demonstrating the Petitioner's model or plan for future activities, his progress toward achieving the endeavor, or interest from potential investors or other relevant entities. In considering the record in totality, we conclude that the Petitioner has not established that he is well-positioned to advance the proposed endeavor, and we withdraw SCOPS' finding to the contrary.
C. Whether, on Balance, Waiving the Job Offer Requirement Would Benefit the United States 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 p. 6 beneficial to the United States to waive the requirements ofa job offer and thus ofa labor certification. Matter ofDhanasar, 26 I&N Dec. at 891.
On appeal, the Petitioner asserts that his endeavor "holds significant value" for cybersecurity, digital communications, financial technology, and for strengthening the United States' technological leadership in privacy-enhancing technologies. Additionally, the Petitioner contends that he possesses a specialized degree and has a documented record of success, and that there is an urgent national interest in his contributions and for advancement in cryptographic and privacy-preserving technologies. The Petitioner claims that the United States would therefore benefit from his contributions, even if there are qualified U.S. workers available. Finally, he claims that it would be impractical to obtain a labor certification, because I IUniversity does not offer visa sponsorship for its employees.Labor certification not shown to be impractical
As to whether a national interest waiver is justified even given the presence of qualified workers in his field in the United States, the Petitioner has not established that his skills, training, and experience in the field of cryptography are of such value that, on balance, they outweigh the national interest in protecting the national workforce.Did not show the waiver outweighs labor certification Unlike the petitioner in Matter ofDhanasar, here the Petitioner has not demonstrated a sufficient progress toward achieving the proposed endeavor, or that he has served in a leading role in research repeatedly funded by U.S. government agencies.
Regarding whether it would be impractical to obtain a labor certification, as stated above, the Petitioner has not documented the existence of his postdoctoral position atl IUniversiy or what I it entails. Additionally, the Petitioner does not claim that he will seek a permanent position at I !University. Moreover, while we acknowledge that there may be obstacles in obtaining a labor certification, per our analysis above, the Petitioner has not demonstrated that he is well-positioned to advance his proposed endeavor under the second Dhanasar prong. In addition, our precedent decision states that in order to establish eligibility for a national interest waiver, a petitioner must go beyond showing expertise "significantly above that ordinarily encountered" in their field. Matter ofDhanasar, 26 I&N Dec. at 886, n. 3. Here, the Petitioner has not shown that at this point in his career he has achieved that level of expertise. We therefore conclude that, taken together, these factors do not establish 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.
For these reasons, we agree with SCOPS that the Petitioner has not established eligibility under the third prong of the Dhanasar analytical framework.
Conclusion
We withdraw SCOPS' findings regarding the first and second Dhanasar prongs; upon de novo review, we conclude that the Petitioner has established both the substantial merit and the national importance of the proposed endeavor but that he has not established that he is well-positioned to advance it. We further conclude that the Petitioner has not established eligibility under the third Dhanasar prong. Because the Petitioner has not established eligibility under either the second or third prongs of the Dhanasar analytical framework, he is not eligible for a national interest waiver as a matter of discretion. The appeal will be dismissed for the above stated reasons.
ORDER: The appeal is dismissed.
NOTICE: This constitutes the final decision in this matter. The filing of a motion will not postpone the effect of the decision. 8 C.F.R. § 103.5(a)(l)(iv). Aliens who are not lawfully present, or who are otherwise inadmissible or deportable, may be subject to the commencement of removal proceedings under section 240 ofthe Act through the issuance of a Form I-862, Notice to Appear. Those proceedings may result in their removal from the United States and possible ineligibility for future visas or other immigration benefits.