The Petitioner, a doctoral student 1 and researcher in the area of civil engineering, seeks employmentbased 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. § 1153(b)(2).
Service Center Operations (SCOPS) denied the petrt10n, concluding that the Petitioner did not establish that a waiver of the required job offer, and thus of a labor certification, would be in the national interest. We dismissed a subsequent appeal. The matter is now before us on motion to reopen. We have received and will consider the Petitioner's response to our notice ofintent to dismiss (NOID), in which we notified him of our intent to withdraw our previous conclusion that he is well positioned to advance his proposed endeavor.
The Petitioner bears the burden ofproof to demonstrate eligibility by a preponderance ofthe evidence. Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). Upon review, we will dismiss the motion.
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. § 103.5(a)(2). Because the scope of a motion is limited to the prior decision, we will only review the latest decision in these proceedings. 8 C.F.R. § 103.5(a)(l)(i), (ii). We may grant motions that satisfy these requirements and demonstrate eligibility for the requested benefit. See Matter of Coelho, 20 l&N Dec. 464, 473 (BIA 1992) (requiring that new evidence have the potential to change the outcome).
When a petitioner seeking a national interest waiver establishes eligibility for the underlying EB-2 classification, they must then demonstrate that they merit the discretionary waiver of the job offer 1 The Petitioner states in response to our NOID that he was recently awarded his doctorate degree in civil engineering. However, a petition may not be approved at a future date after the petitioner becomes eligible based on a new set of facts. Any new facts submitted on motion must establish eligibility at the time of filing. 8 C.F.R. § 103.2(b )(1 ); see also Matter ofIzummi, 22 I&N Dec. 169, 175-76 (Assoc. Comm'r 1998); Matter ofKatigbak, 14 l&N Dec. 45 , 49 (Reg. Comm'r 1971). We will therefore not consider the Petitioner's statement regarding his doctoral degree in making our detennination. p. 2 requirement under the analytical framework set forth in our precedent decision.
Section 203(b )(2)(B)(i) ofthe Act. Matter ofDhanasar, 26 I&N Dec. at 889, provides the framework for adjudicating national interest waiver petitions. Dhanasar states that U.S. Citizenship and Immigration Services (USCIS) may, as matter of discretion,2 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.
In our appeal decision, we agreed with SCOPS' conclusion that the Petitioner's proposed endeavor, the development of "new generations of sustainable, advanced construction materials with the aim of minimizing the costs ofrehabilitation and maintenance while maximizing the efficiency of structures," was of substantial merit and national importance. But we determined, contrary to SCOPS' decision, that the Petitioner had established that he was well-positioned to advance his proposed endeavor. Under the third prong of the Dhanasar framework, we concluded that he had not shown that, on balance, waiving the job offer requirement in his case would benefit the United States, and he therefore did not merit a national interest waiver.Did not show the waiver outweighs labor certification
On motion and in response to our NOID, the Petitioner submits two new reference letters in support of his qualification for a national interest waiver. The Petitioner asserts that these new facts establish eligibility, as they help to show that he is well positioned to advance his proposed endeavor and that a waiver of the EB-2 classification's job offer requirement would benefit the United States. We will address each of those prongs below.
Well Positioned to Advance the Proposed Endeavor
The second prong of the Dhanasar analytical framework shifts the focus from the proposed endeavor to the alien. Matter ofDhanasar, 26 I&N Dec. at 890. To determine whether they are well positioned to advance the proposed endeavor, we consider factors including, but not limited to: their 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.
At the time of filing, the Petitioner held the equivalent of a United States master's degree in civil engineering and was pursuing his doctoral degree in the same field. He stated that after he received his degree, he intended to pursue a post-doctoral fellowship to continue to develop efficient and environmentally-friendly composite construction materials. In responding to our NOID, the Petitioner stresses that in addition to his advanced degree in a field relating to his proposed endeavor, the evidence shows that he has a record of success in pursuing his proposed endeavor and that there is 2 See Viana Guedes v. Mayorkas, 123 F.4th 68, 72 (1st Cir. 2024) (joining the Third, Fifth, 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). p. 3 interest in his work from other relevant parties in his field. He particularly focuses on his papers published in scientific journals, and the citations to those papers by other civil engineering researchers. The Petitioner first mentions the ranking of the journals in which his research papers have been published and specifically refers to Construction and Building Materials. We acknowledge the evidence showing that Google Scholar ranked this journal first in the field of civil engineering, and that the Petitioner published a single article in this journal. 3 But we will not assume that every paper published in a highly ranked journal, or one with a high impact factor, shows a record of success.Citation record not persuasive The record indicates that those rankings are based upon the number of citations to all papers published in the journal during a period of time and do not necessarily reflect the field's reaction to his particular article.
Next, the Petitioner points to evidence showing that one of his papers, which was published in Construction and Building Materials in 2023, ranked among the highest 10% of papers published in the field of engineering in 2023. The evidence shows that this paper had been independently cited on 5 occasions at the time the Petitioner responded to SCOPS' request for evidence (RFE), and that information from Clarivate Analytics indicated that in the field of engineering, papers with at least 4 citations ranked in the top 10% of all papers published in that field in 2023. But as noted in SCOPS' decision, the Petitioner has not demonstrated that rankings applicable to the broader field of engineering are relevant to his more specialized field of civil engineering, or to the focus of his proposed endeavor of developing composite construction materials. Further, the "highly skewed"4 nature ofsuch metrics is evident in these particular figures, which show that 50% ofengineering papers published in this time frame had received at least 1 citation, but that the top 1 % had received 15 citations and the top .01 % had received 97 citations. Thus these figures do not demonstrate that there was a meaningful difference in the quality, impact, or success ofa paper such as the Petitioner's ranked in the top 10% versus those with the average or mean number of citations published in the broader field of engineering.
The record also includes partial copies of papers written by other researchers which cite to the Petitioner's work, as well as letters from experts, some of whom are among those citing researchers. For example, P-K- states that he and his co-author used the Petitioner's work, published in Research Journal of Environmental and Earth Sciences in 2014, to verify their own findings regarding the relationship between porosity and strength in concrete. A partial copy of the citing paper confirms that the Petitioner's paper was cited once to report "similar observations" to those of P-K- and his colleague.5 The letter also points out other research groups which have cited to the Petitioner's published work, including an article published in Construction and Building Materials in 2018. It states that this other research group cited the Petitioner's work "multiple times," and that this shows that the Petitioner's work is "clearly assisting his peers in developing innovative methods for updating the production of pervious concrete." We note that the partial copy of this citing article shows that the Petitioner's work is cited twice, and in both instances was included as a group of papers supporting 3 We note that the Petitioner did not submit similar information regarding other journals in which his work was published. 4 From Exhibit 3 of the Petitioner's RFE response: "Citation frequency is highly skewed with many infrequently cited papers and relatively few highly cited papers. Consequently, citations rates should not be interpreted as representing the central tendency of the distribution."
a single statement. The letter from P-K- concludes that these citations to the Petitioner's published research shows how he is "facilitating progress in his field, especially in the development of novel methods and materials related to pervious concrete." While we agree that this evidence shows that the Petitioner's work has added to the pool of knowledge in his field, he has not demonstrated that the context in which his work was cited is indicative of a record of success in advancing his proposed endeavor.
In another reference letter, P-S- states that he is familiar with the Petitioner's research and mentions the same paper discussed by P-K- above, as well as a paper from an unrelated research group which cites to the Petitioner's work. P-S- indicates that this latter group cited the Petitioner when discussing "the importance of aggregate size and type as a determining factor of concrete strength." As with the above discussion, a partial copy of the citing paper confirms that the Petitioner's work was cited as part of a large group of papers presenting several factors affecting the physical and functional performance of porous concrete. Like the previous example, the Petitioner has not shown that this evidence adds meaningful information beyond the fact that his work was cited by other researchers. A letter from S-P-S-, who was one of the Petitioner's collaborators during his doctoral studies, states that the Petitioner's publication record is "remarkable" and shows that he "has repeatedly made discoveries that are ofimportance to others in his field." But he does not elaborate on why he considers the Petitioner's publication record to be remarkable, in terms of either quality or quantity. S-P-Sdescribes the Petitioner's research in the flow and setting time of cement and concrete, and his development of a method to determine the rheological characteristics of cement. He notes that the results of this research "serve(s) other researchers seeking to investigate cement," and mentions a particular paper in which other researchers utilized the Petitioner's data to compare with their own results. The record does not include a copy of this citing article, but it does appear in the list of citing articles from Google Scholar submitted by the Petitioner in response to SCOPS' RFE. Notably, the lead author of this citing paper, A-A-S-J-, was also the lead author of the cited paper to which the Petitioner contributed; in other words, this was not an independent citation of the Petitioner's work. As such, it does not support S-P-S-'s statement regarding the importance of the Petitioner's published research to other researchers in his field.
The evidence discussed above shows that while pursuing his doctoral degree, the Petitioner has published and presented research related to his proposed endeavor, and that those publications have been cited by other researchers in their own work. We recognize that research must add information to the pool ofknowledge in a particular field to be accepted for publication, presentation, and academic credit, but not every individual who has performed and published original research will be found to be well positioned to advance their proposed endeavor. In Dhanasar, although we listed the petitioner'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. Rather, we found "[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." When making our determination under the second prong, we consider all relevant factors, including a petitioner's plan for future activities related to their proposed endeavor, progress m achieving their proposed endeavor, and the interest of other relevant parties in their work. p. 5 Additional evidence of the Petitioner's work towards his proposed endeavor includes a patent certificate from an entity of the government of Iran which lists him as one of four inventors (but not one of the three owners) of
Also, the Petitioner submitted two letters from chief executive officers of construction companies in Iran who state that their companies have used this device, which he describes as evidence that this patent "has been commercialized." But we note that the letters do not go into detail regarding how frequently the companies have employed this invention or whether they have purchased or plan to purchase this device. Further, despite the Petitioner's assertion that his work has been commercialized, the record does not include supporting evidence such as information about the production and marketing of the device, photographs or technical drawings of the device, licensing agreements, or other evidence beyond these two letters to show its implementation in the industry. While such evidence is not required to show that the Petitioner is well positioned to advance his endeavor, the record is insufficient to show the interest in this invention from potential customers, users, investors, or other relevant entities.No interest from users, customers or investors
The Petitioner also asserts in his response to our NOID that his work as a peer reviewer and on the boards of engineering conferences demonstrates interest in his work. The evidence shows that he has served as a peer reviewer for the Journal ofMaterials in Civil Engineering (JMCE) on 10 occasions and has reviewed articles submitted to other journals. A letter from the American Society of Civil Engineers, which publishes JMCE, notes that "reviewers are selected based on their specialty and expertise in the field." While we acknowledge that a peer reviewer must possess knowledge and skills in the field in which they conduct their reviews, the Petitioner has not shown that the quantity or quality of his participation in the widespread peer review process represents interest in his work or that he is otherwise well positioned to advance his proposed endeavor.
In the same vein, the Petitioner also points to the evidence of his membership on the executive committee of what appears to be a combined conference as support for his claim under the second prong of the Dhanasar analytical framework. A letter from an associate professor at the university that hosted the event, which was also the institution at which the Petitioner was pursuing his master's degree at the time of the conference, stated that his selection was based upon his "comprehensive knowledge of self-compacting concrete." But the letter does not provide any detail regarding the Petitioner's duties in this role or the identity of other members of the executive committee, and the record is silent as to the number of conference attendees or overall prestige of this event in the field of civil engineering. Thus the evidence is insufficient to demonstrate that this role shows interest in the Petitioner's work or is indicative of a record of success in advancing his endeavor.
In his NOID response, the Petitioner addresses our statement that while the record shows that his work was fonded by the U.S. Department of Transportation (DOT), it did not indicate that the fonding was granted in his name or was based upon his work. While we agree that evidence of fonding is not a specific requirement in establishing that a petitioner is well positioned to advance his endeavor, the fonding of research to which the Petitioner contributed was highlighted as a positive factor in his petition and also noted in our previous decision. Further, as was the case in Dhanasar, evidence that a petitioner is named as the primary or sole researcher in grant documentation can be a positive factor in showing interest in their work. Matter ofDhanasar, 26 I&N Dec. at 893. Here the fonding was initially evidenced only by an acknowledgment in one of the Petitioner's co-authored papers that the p. 6 work was supported by the
The Petitioner now submits a letter from the principal investigator regarding his role in the fonded project. M-S-K-G- states that the Petitioner "formulated environmentally friendly cement-based systems" and "supported our research into best practices for applying sealers and coatings in order to prolong bridge longevity." She goes on to write that his contributions were critical to the success of the project, and that he went on to co-author at least two papers based upon this research. M-S-K-Galso adds that the group's research was endorsed by a committee of the American Concrete Institute. 6 However, while this evidence shows the DOT' s interest in research to which the Petitioner contributed, it does not demonstrate its interest in his proposed endeavor, as there is no indication that he was named on the initial grant application.
We also note the Petitioner's assertion in his response to our NOID that in referring to footnote 3 7 of the Dhanasar decision we imposed a novel requirement, and that this footnote constitutes dicta which is inapplicable to his petition. We disagree.
The footnote provides guidance for determining eligibility for a national interest waiver, noting that a petitioner "must go beyond showing the individual's expertise in a particular field," and in fact "cannot qualify for a waiver just by demonstrating a degree of expertise significantly above that ordinarily encountered in his field of expertise." And the statement clearly indicates that this guidance applies in all cases where a petitioner has first established eligibility for the EB-2 classification. Rather than being unnecessary to the decision, it informs both petitioners and adjudicators of the requirements for waiver eligibility and is an integral part of the adjudicatory framework introduced in this precedent decision.
In addition, the Petitioner's assertion that the purpose of the footnote is to emphasize that a petitioner must show their positioning to advance their specific endeavor versus their expertise in an overall field is not consistent with its plain language. Rather, the statement that petitioners "are not exempt by virtue of their exceptional ability" and "cannot qualify for a waiver just by demonstrating a degree of expertise significantly above that ordinarily encountered in his field of expertise" is meant to emphasize the higher level of expertise required to qualify for a national interest waiver. In concluding that the Petitioner was well positioned in Dhanasar, we explained:
Beyond his multiple graduate degrees in relevant fields, the petitioner has experience conducting research and developing computational models that support the mission of 6 The letter states that the._______________
.ofthe American Concrete Institute endorsed their research proposal application for $50,000, but is unclear as to whether this funding was ultimately granted. 7 Footnote 3 of the Dhanasar decision states the following regarding satistying the national interest waiver requirement at Section 203(b )(2)(i)(B) ofthe Act: "To do so, a petitioner must go beyond showing the individual's expertise in a particular field. The regulation at 8 C.F.R. § 204.5(k)(2) defines "exceptional ability" as "a degree of expertise significantly above that ordinarily encountered" in a given area of endeavor. By statute, individuals ofexceptional ability are generally subject to the job offer/labor certification requirement; they are not exempt by virtue of their exceptional ability. Therefore, whether a given petitioner seeks classification as an individual of exceptional ability, or as a member of the professions holding an advanced degree, that individual cannot qualify for a waiver just by demonstrating a degree of expertise significantly above that ordinarily encountered in his field of expertise." p. 7 the United States Department of Defense ("DOD") to develop air superiority and protection capabilities of U.S. military forces, and that assist in the development of platforms for Earth observation and interplanetary exploration. The petitioner submitted detailed expert letters describing U.S. Government interest and investment in his research, and the record includes documentation that the petitioner played a significant role in projects fonded by grants from the National Aeronautics and Space Administration ("NASA") and the Air Force Research Laboratories ("AFRL") within DOD. Thus, the significance of the petitioner's research in his field is corroborated by evidence of peer and government interest in his research, as well as by consistent government fonding of the petitioner's research projects. The 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 fonding from government entities such as NASA and AFRL, position him well to continue to advance his proposed endeavor of hypersonic technology research.
Here, the Petitioner has not established that he is well positioned to advance his proposed endeavor, and we withdraw our previous determination that he meets the requirements of the second prong of the Dhanasar analytical framework.
Benefit to 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 requirements of a job offer and thus of a labor certification. Matter of Dhanasar, 26 I&N Dec. 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 of a job offer and thus of a labor certification. Id. at 891.
On motion, the Petitioner challenges our conclusion that he did not establish that it would be impractical for him to obtain a labor certification.Labor certification not shown to be impractical He also submits new evidence regarding the temporary nature of the postdoctoral research position that he was offered and through which he proposed to advance his proposed endeavor. A new letter from the Petitioner's current and future supervisor, H-H-J-, states that the offered position is temporary in nature, his contract will expire in one year, and the institution cannot therefore sponsor him via a labor certification application. 8 While the Petitioner has sufficiently established that it would be impractical for him to obtain a labor certification, this is only one of the non-exclusive factors applicable to the third prong that are mentioned in Dhanasar. In response to our NOID, the Petitioner asserts that other factors also weigh 8 We note that it is not apparent that as an assistant professor, H-H-J- has the authority to offer and hire for positions at the I Nevertheless, the letter generally supports the Petitioner's stated intention to continue his career in research.Support letters generic or unsupported
I p. 8 positively in his case, including the urgency of the national interest in his proposed endeavor. The Petitioner primarily relies upon his own statement submitted in response to SCOPS' RFE, a budget memo from the previous White House administration, and a single page apparently from a report from the International Energy Agency (IEA) in asserting that there is an urgent national interest in the reduction of environmental harms related to concrete production. The White House memo orders prioritization of research in "meeting the climate crisis" by, among other initiatives, supporting research efforts to "achieve net-zero greenhouse gas emissions by 2050," but does not specifically mention emissions related to concrete production. Also, the IEA report states that the "CO2 intensity of cement production" is increasing, whereas 3% annual declines are needed to meet "Net Zero Emissions" goals. However, the Petitioner explains in his RFE response that his proposed research relates to the use of agricultural and industrial waste materials in cement production with carbon sequestration properties, not to the emissions produced during cement production. Further, while the Petitioner's proposed research may broadly align with the goal ofgreenhouse gas reduction, the record does not include independent documentary evidence establishing the direct impact of his proposals on this goal. Although the letter from M-S-K-G- states that the endorsement of her group's (including the Petitioner) research proposal by a committee of the American Concrete Institute "reflects the widespread importance and acknowledgement" of this research, the record lacks documentary evidence of this funding. And even if this evidence was in the record, it is not apparent that the level of funding claimed ($50,000) conveys any urgency or prioritization of this research.No urgency shown Considered together, the totality of the record does support the Petitioner's assertion of an urgent national interest in his specific proposed endeavor.
The Petitioner also asserts that the United States would benefit from his contributions despite the availability ofother qualified workers. We acknowledged his advanced STEM degree which is related to his proposed endeavor as a positive factor in our previous decision. But we concluded that the Petitioner had not distinguished himself from those other available researchers working towards the development of sustainable and durable construction materials. Further, as discussed above in our analysis under the second prong of the Dhanasar analytical framework, the Petitioner has not shown that he is well positioned to advance his. Accordingly, he has not demonstrated that his education, skills, and knowledge, or the level of interest in his work, are such that the United States would benefit from his endeavor even considering the availability of other researchers in his field.
Per the discussion above, the Petitioner has not established that on balance, it would be beneficial to the United States to waive the EB-2 classification's job offer requirement in his case.
Conclusion
Although the Petitioner has submitted additional evidence in support of the motion to reopen, the Petitioner has not established eligibility for a national interest waiver. Therefore, the motion will be dismissed. 8 C.F.R. § 103.5(a)(4).
ORDER: The motion to reopen is dismissed.
NOTICE: 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 of the Act through the p. 9 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.