The Petitioner, an analytical chemist, 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 ofthe Nebraska Service Center denied the petition, concluding that the Petitioner qualified for classification as a member of the professions holding an advanced degree, but that he 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 additional documentation and a brief asserting that he 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 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 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. - p. 2 (A) In general. - Visas shall be made available ... to qualified immigrants who are members of the professions holding advanced degrees or their equivalent or 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.
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 of Dhanasar, 26 I&N Dec. 884 (AAO 2016). eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) may, as matter of discretion , 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 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 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).
Dhanasar states that after a petitioner has established 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). p. 3 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 The Director found that the Petitioner qualifies as a member of the professions holding an advanced 4 At initial filing, regarding his claim of eligibility under Dhanasar's first prong, the Petitioner asserted: to waive the requirements of a job offer and thus of a labor certification.
Analysis
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I importance because it hel~s in the development ofl _ I for effectively deTcting 1
The remaining issue to be determined is whether the Petitioner has established that a waiver of degree. the requirement of a job offer, and thus a labor certification, would be in the national interest. At the time of filing, the Petitioner was working as a research scientist ad I l 7 5 He previously served in research assistant positions while attending the Universid_ _ _ ..... ~ d the University I Ifrom 2011 - 2017 .
[He] proposes to continue his research on the development ofl Isensors, robust algorithms, and efficient platforms for understanding, analyzing and detecting chemicals in a I I environment . . . . His research in his area is o f reat Ibased on
I such a s - - - - ~ in the human body. that allows the detection of molecules in very low concentrations and provides rich structural information that not only helps in preventing various diseases but also assists in the development ofnew drugs and medical devices ... .I Iare widely used in a variety of sectors and its capability of enhancing productivity and analytical operation has resulted in an increased demand in ma~or arrs of industry includin healthcare Ifood safety testing, and development. [His] ....__...,....__...., research helps in addressing this increased demand through the development o for detecting chemicals and applying! !methods to understand the ch._e_m_1_c·_a.l.... and physical behavior ofc==:]during their screening, development, formulation, and manufacturing stage.
In support ofhis claims, the Petitioner pointed to ajob letter fromc=]reflecting a general overview of the job duties for a "Research Scientist I" position and a report from,marketwatch.com regarding the growth of thd Imarket.Support letters generic or unsupported Pertaining to the substantial merit of his proposed endeavor, he referenced advisory opinion letters from! landl ~ho discussed the See Dhanasar, 26 I&N Dec. at 888 -91 , for elaboration on these three prongs.
Petitioner's previous research and work w i t h 0
"has develoP.ed a novel sensor with hei htened sensitivit and selectivity that allows for a n i n c r e a s e d . _ _ _ _ _ _ _ _ _ _ _ _ _ . . , - - - - - , _ _ _ _ _ _ _ _ _ _ ____, a n d " h a s d e v e l o p e d a method more suitable in the detection of.........._ _ ~.than the original gold standards." I = I stated that the Petitioner "has successfully developed a novel I lsensor for the I Idetection ofI Iin living cells with higher sensitivity, efficiency, and selectivity than other sensors." In addition, the Petitioner argued that his proposed endeavor had broad implications in the field and presented statistics relating to.___ _ _ _ _ _ _ _ _ _ _ ~ and a document from the U.S. Department of Health and Human Services regarding the risk of cancer from exposure tq I .
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In arguing the national importance of his proposed endeavor, the Petitijner aga~n cited to the letters froml landl lwho discussed his past research. For example tated that "[t]hrough the utilization ofhis method, researchers are now more able to mitigate the adverse effects ofl I and risk of cancer," and! Iindicated that "[t]hrough rigorous research, [the Petitioner. has developed a newI _ Istrategy that plays a key role in the early diagnosis o ~-~ and Imonitoring, offering the United States scientific community and medical industry an invaluable opportunity." In general, the Petitioner's previou~ Iresearch and findings relate to the second prong ofthe Dhanasar framework, which "shifts the focus from the proposed endeavor to the foreign national." Id. at 890. The issue here is whether the specific endeavor that he proposes to undertake has national importance under Dhanasar's first prong. In this case, the Petitioner broadlv claimed that he would continue his research and referenced general statistics o~ ] andI Iand a document relating tol IThe Petitioner did not differentiate his past research from his prospective endeavor. Furthermore, the Petitioner did not demonstrate the nexus between his proposed endeavor and the possible impact on .___ _ _ _ _ _ _ _ _ _ _ __, and I ~hat might show its national importance.
In response to the Director's request for evidence (RFE), the Petitioner reiterated his ast research, such as "[the Petitioner] has been instrumental in the development of sensors that effectively detect even very small concentrations o±1 Iand.___ ___. in the human body," "[the Petitioner's] research provides and effective tool for monitoring importa~n_,tl_ _ ..--_ _. in the blood that provide researchers and clinicians with an improved understanding ofl I," and " the Petitioner's] development of this sensor provides an outstanding tool for the detection of _ _ in the human body."7 Moreover, the Petitioner referenced the marketwatch.com article and __. claill).ed that "ft]he improvements that [he] has made through his development of effective and I _sensorsnaturallybenefitthemarketfotj Idevices." Again,thePetitioner made arguments relating to his past research rather than how his proposed endeavor would be nationally important. Further, the Petitioner did not explain or demonstrate how his proposed endeavor would impact thd lmarket.
In addition, the Petitioner submitted in response to the Director's RFE his personal statement listing three current projects: 1) comprehensive identification of theI Ipopulation present in 6 The record contains additional recommendation letters from I...._ _ _ _ ___.I and.___ _ _ _ _ _ ~ w h o also addressed the Petitioner's priori Iresearch and work.
II
The Petitioner also submitted an updated employment letter that praised him for his professional accomplishments at For instanceJ lindicated that the Petitioner
I I
!products and their manufacturing processes, 2) developin non-invasive and innovative Imethod to characterize thel Istructure of products, and 3) developing non-invasive I Imethod to monito_,___ _ _ _ _.. The Petitioner's statement did not address the national importance of his initial claims, nor did it demons'trate the connection between his research projects and I discussed entirely new research relating td products, and I I Eligibility must be established at the time of filing. 8 C.F.R. §§ 103.2(b)(l), (12); Matter ofKatigbak, 14 I&N Dec. 45, 49 (Reg'l Cornm'r 1971).Not eligible at the time of filing A petition cannot be approved at a future date after the petitioner becomes eligible under a new set of facts. Matter of Izummi, 22 I&N Dec. 169, 175 (Comm'r 1998). That decision further provides, citing Matter of Bardouille, 18 l&N Dec. 114 (BIA 1981), that USCIS cannot "consider facts that come into being onlysubsequenttothefilingofapetition." Id.at176.Regardless,thePetitionersubmittedscreenshots from I Iand! Ihighlighting statistics for the overall! Imarket and I !expenditure. The Petitioner did not show the connection between these general figures and his revised proposed endeavors. the Petitioner contends his past research and findings, such as "we included statistics from ,...........__ _ _ _ _ _ _ _ __, pertaining to I Is disease, a condition that [his] research on - - - - - . - - ~ - - - - - - s e n s o r s w a s e f f e c t i v e i n h e l p i n g t o d i a g n o s e " a n d h i s '1 I .....__.....sensor was effective in detecting! t' (ef11obasis adc;led).Proposed endeavor too vague In addition, the Petitioner references the previously discussed letters froml..__ __,~nd...._ _ ____.J"highlight[ing] the public health threats posed b~ Iandl Irespectively, thus providing additional evidence ofthe critical value of [his] research on I Idetection development to national interests." Again, the Petitioner's arguments relate to his previous research rather than his initial proposed endeavor. ThePetitioneralsosubmitsadocumententitled,! I ~ - - - - - - - - - - - ' by the Congressional Research Service arguing that "this level of interest by itself suggests that the benefits of safer treatments are undoubtedly considered substantial." The document, however, pertains to the Food and Drug Administration's approval process without specifically showing the government's interest in the Petitioner's proposed research.No interest from users, customers or investors
To evaluate whether the Petitioner's proposed endeavor satisfies the national importance requirement, we look to evidence documenting the "potential prospective impact" of bis work. Although he relies on his past research and work, the Petitioner has not offered sufficient infonnation and evidence to demonstrate that the prospective impact of his proposed endeavor rises to the level of national importance. Because the documentation in the record does not establish the national importance of his proposed endeavor as required by the first prong of the Dhanasar precedent decision, the Petitioner has not shown eligibility for a national interest waiver. Further analysis of his eligibility under the second and third prongs outlined in Dhanasar, therefore, would serve no meaningful purpose.
Conclusion
As the Petitioner has not met the requisite first prong ofthe Dhanasar analytical framework, we conclude that he has not established his eligibility for or otherwise merits a national interest waiver as a matter of discretion. The appeal will be dismissed for the above stated reasons, with each considered as an independent and alternate basis for the decision.
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Iorl I In fact, the Petitioner ~tructure o~ I
ORDER: The appeal is dismissed.