The Petitioner, a mechanical engineering researcher, 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 of the Texas 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 submits 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 nova 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) 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 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 In announcing this new framework, we vacated our prior precedent decision, Matter ofNew York State Department of Transportation, 22 T&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSD01).
See also Poursina v. USCIS, No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCTS' decision to grant or deny a national interest waiver to be discretionary in nature).
Dhanasar states that after a petitioner has established 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 record indicates that the Petitioner qualifies as a member of the professions holding an advanced to waive the requirements of a job offer and thus of a labor certification.
Analysis
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 associate in the Department of Mechanical and The remaining issue to be determined is whether the Petitioner has established that a waiver of Industrial Engineering at c=J.5 He previously served as doctoral researcher at D 2012 until May 2018. A. SubstantialMeritandNationalImportanceoftheProposedEndeavor The Petitioner indicated that he intends to continue his research aimed at "theI Inetworks of biological organs, real rock reservoirs, and chemical I from August
Iof Iin order to ~e_x_p-lo-r~ethe effects of nanoparticlesl ~ in those structures." In addition, he stated that his proposed work "will focus on understanding the physics of nanoparticle_ _ _ _mechanisms."
The Petitioner further explained that his proposed research inv)-LL'......_.,.___..._ _ - - , . _ J behavior of ~nanoparticles in real rock structures," "design and development of to study drug prior to clinical trials," and "design and development o f ~ - - - - - ~ e f f i c i e n t chemical The record demonstrates that the Petitioner's proposed endeavor has substantial merit and national importance. For example, the record includes a letter~ Ichair of the Department of Mechanical and Industrial Engineering proposed research seeks to advance "the design and development ofl Idevices for use in the oil and gas sector." The Petitioner also presented information from the U.S. Energy Information Administration relating to the amount of petroleum imported and exported by the United States in 2017. In addition, the Petitioner provided documentation indicating that the benefit of his proposed research has broader implications, as the results are disseminated to others in the field through scientific journals and conferences. As the Petitioner has documented both the substantial merit and national importance of his proposed nanoparticlel Imechanism research, he has established that he meets the first prong of the Dhanasar framework.
B. Well Positioned to Advance the Proposed Endeavor
The second prong shifts the focus from the proposed endeavor to the Petitioner. The record includes documentation of his curriculum vitae, academic credentials, published articles, conference See Dhanasar, 26 T&N Dec. at 888-91, for elaboration on these three prongs.
presentations, awards, and research fonding. He also offered evidence of articles that cited to his published work, and letters of s1rpport discussing his graduate work under the guidance of□ I Iandl atC] The Petitioner contends on appeal that his education, research experience in his specialty, published work, citation evidence, recommendation letters from independent references, awards, and research fonding demonstrate that he is well positioned to advance his proposed endeavor. For the reasons discussed below, the record supports 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 projects at c=J6 characterization ofPast record does not show influence or success
University of
"was able to manufacture hi of time than previously thought necessary." in [the Petitioner's] work was his addition o ~--,--,--.,....-----__._,modifiers that enabled users to manipulate the water contact angle to adjust the level o .__=-....,.....,-----=-_,exhibited by the material," but he did not provide specific examples indicating that the Petitioner's work has affected production methods in thel Imanufacturing industry or otherwise constitutes a record of success in his field.
For example, regarding the Petitioner's work involvin, fabrication and devices,I _professor at the h
Likewise,I Isenior research engineer atI
Regarding the Petitioner's "overall citation record,"! lprofessor at the University I Iindicated that the Petitioner's "work has been cited over twenty times collectively. This is above the average for research in an engineering field . . .." As it relates to the citation of the Petitioner's work, the record includes June 2018 information from Google Scholar indicating that his three highest cited articles, entitled I
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~' each received 20, 3, and 1 citation(s), respectively. The Petitioner does not specify how many citations for each of these individual articles were self-citations by him or his coauthors. Moreover, in response to the Director's request for evidence (RFE), the Petitioner submitted an updated Google Scholar list (dated April 24, 2019) reflecting a moderate increase of citations to his individual articles. He did not demonstrate how many of these additional citations occurred in papers published prior to or at the time of initial filing. See 8 C.F.R. § 103.2(b)(l).
Furthermore, the Petitioner provided data from Clarivate Analytics regarding baseline citation rates and percentiles by year of publication for various research fields, including "Engineeri " ~ e n c e s , " and "Materials Science." The Petitioner claimed that his a er coauthored with L___J and others, entitled ranked among "the top 10% most-cited articles published in Engineering in 2013" based on the number of citations it has received (20) since that time. The Petitioner did not indicate whether he factored in any self-citations in determining this percentile ranking. Nor has he sufficiently explained his choice of the field of "Engineering," as opposed to "Materials Science" or "Geosciences," as the basis for comparison. Additionally, the documentation from Clarivate Analytics states that "[c]itation frequency is highly skewed, with many infrequently cited papers and relatively few highly cited papers. Consequently, citation rates should not be interpreted as representing the central tendency of the distribution."
The Petitioner's response to the Director's RFE included February 2019 information derived from "Microsoft Academic" that com ares his citation and ublication counts to those of other researchers in the areas of Again, 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 (February 11, 2019) post- dates the filing of the petition, and therefore the Petitioner has not shown that the 30 Google Scholar citations used in the Microsoft Academic percentile calculation occurred in papers published prior to or at the time of initial filing.Citation record not persuasive See 8 C.F.R. § 103.2(b)(l). Regardless, the Petitioner has not demonstrated that the number 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.No interest from users, customers or investors
The Petitioner maintains on appeal that he has a stronger citation record than Dr. Dhanasar, the petitioner in our Dhanasar precedent decision. While we listed Dr. Dhanasar'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, in ~-------------~
I p. 6 our precedent decision 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 fonding from government entities such as NASA and AFRL, position him well to continue to advance his proposed endeavor of hypersonic techno~esearch." Id. at 893. Further, as it relates to the Petitioner's education, while his Ph.D. frorrL_Jrenders 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. whether a petitioner is well positioned to advance his proposed endeavor, and education and citations are merely two factors among many that may contribute to such a finding.
Additionally, the Petitioner asserts that his "research has been fonded by government and industry alike." He presented five research papers that he coauthored wit~ lorl Iand others in which the "Acknowledgements" section noted that their work was supported by the National Science Foundation or the Advanced Energy Consortium. These articles, however, do not identify who among their authors was primarily responsible for securing the fonding for the research projects. In Dhanasar, the record established that the petitioner "initiated" or was "the primary award contact on several fonded grant proposals" and that he was "the only listed researcher on many of the grants." Id. at 893, n.11. Here, the record does not show that the Petitioner (rather than one of his professors or coauthors) was mainly responsible for obtaining fonding for their research projects.
The record also includes a Best Pa er Award from American Society of M e c h a n i c ~ ,....l..!;..A;:;.::S::.;:;M=E'-'=================,!;...;!;.;fo:::.::r....:t:.!.!h;.:::.e~P-=e:.:c:ti~ti~o:.!.!..:;'ner's paper, entitled' that he coauthored with p. 7 show that his work constitutes a record of success or progress in advancing research relating to the effects of nanoparticles as I Iin biological organs, real rock reservoirs, and chemical I 1- As the record is insufficient to demonstrate that the Petitioner is well positioned to advance his proposed research endeavor, he has not established that he satisfies the second prong of the Dhanasar framework.
C. Balancing Factors to Determine Waiver's Benefit to the United States
As explained above, 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. Here, the Petitioner claims that he is eligible for a waiver due to his education, research experience and accomplishments, the importance of his field, and the impracticality of labor certification. However, as the Petitioner has not established that he is well positioned to advance his proposed endeavor as required by the second prong of the Dhanasar framework, he is not eligible for a national interest waiver and further discussion of the balancing factors under the third prong would serve no meaningful purpose.
Conclusion
As the Petitioner has not met the requisite second prong of the Dhanasar analytical framework, we find that he has not established 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.