The Petitioner, a postdoctoral fellow in chemical engineering, seeks second preference immigrant classification as a member o f the professions holding an advanced degree, as well as a national interest waiver of the job offer requirement attached to this EB-2 classification. See Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2).
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner had not established that a waiver of the required job offer, and thus of the labor certification, would be in the national interest.
On appeal, the Petitioner asserts 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. -(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 p. 2 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)Nationalinterestwaiver.... [T]heAttorneyGeneralmay,whentheAttorney 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.
Furthermore, while neither the statute nor the pertinent regulations define the term "national interest," we set forth a framework for adjudicating national interest waiver petitions in the precedent decision Matter o f Dhanasar, 26 I&N Dec. 884 (AAO 2016). 1 Dhanasar states that after a petitioner has established 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 imp01iance, 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.
Thesecondprongshiftsthefocusfromtheproposedendeavortotheforeignnational. Todetermine 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 UnitedStatestowaivetherequirementsofajobofferandthusofalaborcertification. Inperforming 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 offerorforthe petitioner to obtain a labor certification; whether, even assuming that other qualified U.S. workers are available, the United States would still benefit from the foreign national's contributions; and whether the national interest in the foreign national's contributions is Inannouncingthisnewframework,wevacatedourpriorprecedentdecision,MatterofNew YorkStateDepartmentof Transportation, 22 I&NDec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT).
See also Poursina v. USCJS, No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or deny a nationalinterestwaiverto be discretionaiy in nature). p. 3 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 concluded that the Petitioner qualifies as a member of the professions holding an advanceddegree. TheremainingissuetobedeterminediswhetherthePetitionerhasestablishedthata waiver o f the requirement o f a job offer, and thus a labor certification. would be in the national interest The Petitioner ro oses "to ex and [his] research to design fuell Ifor ,.___ _ _ _ _ , , - - - - - - - - - - - , - J combustion by understanding the breakdown mechanisms and prope1iy relationships" and "to design a fuel I I 1----___,.a_b__,le to expand the operational speed and load inl Iengines to fully take advantage o f their environmentally-friendly features."
The first prong relates to substantial merit and national importance of the specific proposed endeavor. Dhanasar, 26 I&N Dec. at 889. The Director concluded that the Petitioner's proposed endeavor met the substantial merit and national importance requirements.
The second prong shifts the focus from the proposed endeavor to the petitioner in order to determine whether he or she is well positioned to advance the proposed endeavor. Dhanasar, 26 I&N Dec. at 890. The record includes documentation of his curriculum vitae, academic credentials, published articles,andfundingsources. Healsoofferedevidenceofarticlesthatcitedtohispublishedwotk, information on journals that published his work, and letters of supp01i discussing his graduate and postdoctoral research. For the reasons discussed below, the record supp01is the Director's determination that the evidence is insufficient to demonstrate that the Petitioner is well positioned to advance his proposed research under Dhanasar's second prong.
In letters supporting the petition, several references discussed the Petitioner's graduate research For example, in discuslingl the Petitioner's research usingl Ito transform samples into bio-crude oil, --------~s_ta_t_e_d_t_h_a~tthe Petitioner "determined that bio-crude oils obtained through have a calorific value o f 36-38 MJ/k which is close to petroleum" and "discoveredthat'------.---,=============.----------successfully removed dissolved solids as well asL__ _ _ _ , - - - - - - , _ ~ _ _ _ _ J ions dissolved solids from brine." Although he opined that" t his examination o brine rovided energy researchers with a new source for concentrate management and roduction while simultaneously lowering emissions o f ~ - - - - ~ through photosynthesis, ~ - - - - ~ d i d not provide specific examples indicating that the Petitioner's work has been utilized in chemical engineering or otherwise constitutes a record of success in the field beyond "inclu[sion] in several review articles," discussed later. to waive the requirements of a job offer and thus of a labor certification.
Analysis
projects atl Jpuiversitv audl luniversity.
SccDhanasar, 26l&NDec. at 888-91, for elaboration onthesethreeprongs.
While wediscussa samplingoftheseletters,wehavereviewedandconsideredeachone.
Likewise,! Icommented that the Petitioner's research "is a unique feat of chemical e n g i n e e r i n g , a n d i t h a s c e r t a i n l y d r a w n m y i n t e r e s t , " a n d h e h a s " r e f e r r e d t o [ t h e P e t i t i o n e r g i nf i n on ~to further contextualize my findings and to validate their accuracy." Whil indicated that the Petitioner's "work has helped me complete an exhaustive analysis o I Ithat is relevant to the design and execution of future research projects in the field," he does not offer examples of how the Petitioner's research and other findings have been implemented, utilized, or applauded in the field beyond being cited by others in their published works.Citation record not persuasive
AdditionallyJ fstated thatthe Petitioner's "study onl Iin spark ignition engine fuel was divided into two parts, the first concerning automation ofthe process offinding new ._____,...._ ___._t..,.o'""'b""'e.......,used as fuels and the second examinin~ land the factors necessary ~f_o_.__ _ _ _ ._t_o~havel !pressures comparabl~with garoline," and he "proposed that the best .__________. forsparkignitionenginefuelha volumesofnomorethan40%,asthese I provide the optimal conditions of volatility, water tolerance, and kinematic viscosity to safely power spark ignition engines." While she summarized the research and indicated the Petitioner's proposa~ _ Idid not explain how this work has affected the industry or otherwise represents a record of success or progress rendering the Petitioner well positioned to advance his proposed endeavor.Past record does not show influence or success The record also includes exam les ofvarious artial articles which cited to the Petitioner's co-authored ' Environmental Pro ress & Sustainable Ener
For instance in the article entitled
.___ _ _ ____,....--------,.---------' (Applied Energy), the authors identified the Petitioner's research o n ~ - - - - - ~ extraction of biocrude oil by comparing biocrude oil yield and lipid This aiiicle, however, does not distinguish or highlight the Petitioner's work from the 81 rrfrn inh i1 imilr1inh i1ni1
-------i..----r----1----....1 (PLOSONE),theauthorsindicatedthePetitioner'sstudyof .___ _ _ ~ under~---~conditions withl differentiate the Petitioner's paper from the 116 other papers referenced in the article. I
O
Regarding the Petitioner's overall citation record, as indicated above, several of his reference papers commented on his citation numbers. For example, "[the Petitioner] has received, according to G o ~ Scholar, 35 citations, which manifests the importance ofhis researchin the scientific community''L_j I, "[the Petitioner's] impressive citation statistics do not come as a surprise given his much- appreciated publications" and "[h]e has accumulated over thi1iy references from his peers"I....____.
I ~' and "[the Petitioner's] articles detailing these studies have been recognized by his peers and cited in other published papers over 35 times at present" and "[e]ach ofthese citations is an indication of the observed influence [the Petitioner] has had upon his peers".....,__ _ _ _ _ ~ I I. As it relates to the citation of the Petitioner's work, the record includes information from Google Scholar indicating that his highest cited article published in Environmental Progress & Sustainable Energy garnered 31 citations with his remaining five articles receiving two or less, Although we discuss representative sample articles here, we have reviewed and considered each one. ldeprivation. This article, however, does not p. 5 respectively. ThePetitionerdoesnotspecifyhowmanycitationsforeachoftheseindividualarticles Furthermore, the Petitioner provided data from Clarivate Analytics regarding baseline citation rates and percentiles by year of publication for the engineering research field. The Petitioner claims that his Environmental Progress & Sustainable Energy paper ranked among "the top 10% most-cited aiiicles published in Engineering in 2013" based on the number ofcitations it has received (31) since thattime. ThePetitionerdidnotindicatewhetherhefactoredinanyself-citationsindeterminingthese percentilerankings. Inaddition,theClarivateAnalyticscitationdataisfromFebruary11,2019,and therefore does not capture citations that occurred after early 2019, while the Petitioner's Google Additionally, the Petitioner presented an article in Scientometrics written by Lutz Bornmann and Werner Marx, entitled "How to evaluate individual researchers working in the natural and life sciences meaningfully? A proposal of methods based on percentiles of citations." This article presents recommendations for "how to evaluate individual researchers in the natural and life sciences" for purposesoffundingandpromotionorhiringdecisions. Theauthorsstatethat"publicationswhichare among the 10% most cited publications in their subject area are as a rule called highly cited or excellent"andthat"thetop 10%basedexcellenceindicator"shouldbegiven"thehighestweightwhen comparing the scientific performance of single researchers." While the authors offer proposed methods for bibliometric analysis of research performance, the record does not indicate that their methods have been accepted and implemented by the academic community. Moreover, with regard to citation information from Google Scholar, the authors advise against "using Google Scholar (GS) as a basis for bibliometric analysis. Several studies have pointed out that GS has numerous deficiencies for research evaluation."
In response to the Director's request for evidence, the Petitioner presented a line chart (2013-2019) that he claims were derived from "Microsoft Academic." While he contends that this chart compares his citation and publication counts to those of other researchers in the field, the Petitioner did not indicate whether he factored in any self-citations in compiling his percentile rankings from Microsoft Academic. Moreover, the date of collection of the percentile rankings post-dates the filing of the petition, and therefore the Petitioner has not shown that the citation and publication counts used in 1he M i c r o s o f t A c a d e m i c p e r c e n t i l e c a l c u l a t i o n o c c u r r e d i n p a p e r s p u b l i s h e d p r i o r to o r a t t h e t i m e o f i n i t i a l filing.Not eligible at the time of filing See8C.F.R. § 103.2(b)(1). Regardless,thePetitionerhasnotdemonstratedthatthenumber of citations received by his published articles reflects a level of interest in his work from relevant parties sufficient to meet Dhanasar's second prong.
A webpage accompanying the Clarivate Analytics information states that its citation "data is updated six times a year' (every two months). were self-citations by him or his coauthors.
Scholar citation report is dated May 6, 2019. contemporaneous with the Petitioner's Google Scholar data, he has not shown thatthe former provides a proper analysis of his citation record. Moreover, the documentation from Clarivate Analytics states that "[c]itation frequency is highly skewed, with many infrequently cited papers and relatively few highlycitedpapers. Consequently,citationratesshouldnotbeinterpretedasrepresentingthecentral tendency of the distribution."
The Petitioneronly providedpartialcopies ofhis articles withoutthe referencepages.
Because the Clarivate Analytics data is not
The record also includes information about Fuel and Destination and Water Treatment in which the Petitionerhaspublishedhiswork. Thatapublicationbearsahighjournalrankingorimpactfactoris reflective of the publication's overall citation rate. It does not, however, show the influence of any particular author or otherwise demonstrate how an individual's research represents a record ofsuccess in the field.
Further, as it relates to the Petitioner's education, while his doctoral degree froml.___ _ _ _ ___. University renders him eligible for the underlying EB-2 visa classification, he has not shown that his academic accomplishments by themselves are sufficient to demonstrate that he is well positioned to advance his proposed endeavor. In Dhanasar, the record established that the petitioner held multiple graduate degrees including "two master of science degrees, in mechanical engineering and applied physics, as well as a Ph.D. in engineering." Id. at 891. We look to a variety offactors in determining whether a petitioner is well positioned to advance his proposed endeavor and education is merely one factor among many that may contribute to such a finding.
The Petitioner also submitted "Acknowledgements" sections of his published articles noting that the work was supported by various entities, such as U.S. Department of Energy, U.S. National Science the Petitioner's research "resulted in the reception ofconsiderable grants from federal organizations" .___ _ _ _ _ _ _ _ _ __., and" the Petitioner's] work . . . was supported by numerous agencies withintheU.S.government".__________, Therecord,however,doesnotincludecopiesofthe researchgrants. InDhanasar,therecordestablishedthatthepetitioner"initiated"orwas"theprimary award contact on several funded grant proposals" and that he was "the only listed researcher on Janyl of the grants." Id. at 893, n.11. Here, the record does not show that the Petitioner (rather tha ' - - - - ~ ~ was mainly responsible for obtaining funding for the research projects.
I
The record demonstrates that the Petitioner has conducted and published research while a t ~ State University andl IUniversity, but he has not shown that this work renders him well positioned to advance his proposed research. While we recognize that research must add information to the pool ofknowledge in some way in order to be accepted for publication, presentation, funding, or academic credit, not every individual who has performed original research will be found to be well positioned to advance his proposed endeavor. Rather, we examine the factors set forth in Dhanasar to determine whether, for instance, the individual's progress towards achieving the goals of the proposed research, record of success in similar efforts, or generation of interest among relevant parties supports such a finding. Id. at 890. The Petitioner, however, has not sufficiently demonstrated that his published work has served as an impetus for progress in the or that it has generated substantial positive discourse in the industry. Nor does the evidence otherwise show that his work constitutes a record of success or progress in advancing research relating to chemical engineering.
R On appeal, the Petitioner provides anotherletter frmtj Iand a letter from the U.S. Department ofEnergy, post- datingtheDirector'sdecision. However,wewillnotconsiderthisevidenceforthefirsttimeonappealasitwasnotpresented beforetheDirector. SeeMatterofSoriano, I9I&NDec.764,766(BIA 1988)(providingthatif"thepetitionerwasputon notice ofthe required evidence and given a reasonable opp01iunity to provide it for the record before the denial, we will not consider evidence submitted on appeal foranypurpose" and that "we will adjudicate the appeal based on thereconl of proceedings"before the Chief); see alsoMatterofObaigbena, 19 I&NDec. 533 (BIA 1988).Evidence submitted too late
Foundation,andtheBureauofReclamation. Inaddition,severalofthereferencelettersclaimedthat p. 7 As the record is insufficient to demonstrate that the Petitioner is well positioned to advance his proposed endeavor, he has not established that he satisfies the second prong of the Dhanasar framework. Accordingly,thePetitionerhasnotdemonstratedeligibilityforanationalinterestwaiver. Further analysis of his eligibility under the third prong outlined in Dhanasar, therefore, would seive no meaningful purpose.
Conclusion
As the Petitioner has not met the requisite second prong of the Dhanasar analytical framework, we conclude that he has not demonstrated that he is eligible 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.
ORDER: The appeal is dismissed.