The Petitioner, a microelectromechanical systems (MEMS) 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 approved the immigrant petition, but subsequently issued a notice of intent to revoke (NOIR) and later revoked the approval of the petition, concluding that U.S. Citizenship and Immigration Services (USCIS) had approved the petition in error. Specifically, the Director determined that although the Petitioner qualified for classification as a member of the professions holding an advanced degree, he had not established that a waiver of the required job offer, and thus o f 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 nova review, we will dismiss the appeal.
Law
The Secretary of Homeland Security "may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any petition ...." Section 205 of the Act, 8 U.S.C. § 1155. By regulation this revocation authority is delegated to any USCIS officer who is authorized to approve an immigrant visa petition. 8 C.F.R. § 205.2(a). USCIS must give the petitioner notice of its intent to revoke the prior approval of the petition and the opportunity to submit evidence in opposition thereto, before proceeding with written notice of revocation. See 8 C.F.R. § 205.2(b) and (c). The Board of Immigration Appeals has discussed revocations on notice as follows :
[A] notice of intention to revoke a visa petition is properly issued for "good and sufficient cause" where the evidence of record at the time the notice is issued, if p. 2 unexplained and unrebutted, would warrant a denial of the visa petition based upon the petitioner's failure to meet his burden of proof. The decision to revoke will be sustained where the evidence of record at the time the decision is rendered, including any evidence or explanation submitted by the petitioner in rebuttal to the notice of 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 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 eligibility the requested immigration benefit. Id. at 589.
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). intention to revoke, would warrant such denial.
Dhanasar states that after a petitioner has established Matter o f Ho, 19 I&N Dec. 582, 590 (BIA 1988) (citing Matter o f Estime, 19 I&N Dec. 450 (BIA 1987)). Upon the proper issuance of a notice of intent to revoke for good and sufficient cause, the petitioner bears the burden of proving 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 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 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 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 workin as a ostdoctoral research associate in the Department ofElectricalandComputerEngineeringat~-~-.----------,.---~ Hisresponsibilities included "design, fabrication and characterization o f ~ - - - - - - - ~ devices forl I applications." In response to the Director's NOIR, the Petitioner provided a June 2019 letter from I !indicating that he joined the company in January 2018 as a Foundry MEMS Research and Development Engineer. This letter farther stated that he has been "working on the development of cutting-edge MEMS fabrication technologies for the development of the next generation of MEMS sensors." In Julr 2019, the Petitoner began serving as a Senior Device Engineer atl I to waive the requirements of a job offer and thus of a labor certification.
Analysis
I _His work for this company involves maximixing its "MEMSI !performance The remaining issue to be determined is whether the Petitioner has established that a waiver of See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs.
The Petitioner received a Ph.D. in Electrical Engineering from the University o ~ ~ - - - - - - ~ I in August 2015. p. 4 as required byl Iby, for instance, increasing the._l_ _ _____.I quality factor using both novel device A. SubstantialMeritandNationalImportanceoftheProposedEndeavor The Petitioner indicated that he intends to continue his work "involving the design, fabrication, characterization, and optimization ofMEMS devices." He asserted that his proposed research is aimed at the development of next-generation MEMSI I The Petitioner farther explained that l Iaddress critical! ~equirements for devices wherel I must coexist to enable high speed operation. Such applications includd I II
In the decision revoking the approval of the petition, the Director determined that the Petitioner had not demonstrated the substantial merit and national importance ofhis proposed endeavor. The Director stated that the Petitioner had not submitted supporting evidence demonstrating that his "proposed endeavor has substantial merit." Additionally, the Director concluded that the record lacked information relating to the potential prospective impact ofthe Petitioner's endeavor aimed at researching MEMS□ technologies.
With respect to the endeavor's substantial merit, the Petitioner submitted letters of slpport tscussing the merit of his proposed research. For exampleJ Iprofessor at asserted that "MEMS have been identified as one ofthe most significant emerging technologies ofthis century. They are widely utilized in a variety of domains, including automotive, healthcare, electronics, and oil and gas industries, which indicates that this topic is critical to the scientific advancement of the United States." The record also includes information from the U.S. Defense Advanced Research Projects Agency (DARPA) and Sandia National Laboratories discussing the value of MEMS to our country's national security. The letters of support and other corroborating evidence in the record are sufficient to demonstrate that the Petitioner's proposed research aimed at advancing MEMS technologies has substantial merit.
To satisfy the national importance requirement, the Petitioner must demonstrate the "potential prospective impact" of his work. As evidence that the benefit of his proposed research has broader implications in the field, the Petitioner submitted letters from several electrical engineering professors discussing the commercial benefits associated with his research aimed at the design, fabrication, characterization, and optimization ofMEMS devices. In addition, he presented information about the advantages associated with improvements inOtechnologies, as well as the applicability and impact of MEMS research to industry "sectors such as telecommunications, consumer electronics, transportation, building automation and healthcare." Furthermore, the Petitioner has submitted documentation indicating that the benefit of his proposed research has broader implications for the field, as the results are disseminated to others in the field through scientific journals and conferences. As the Petitioner has demonstrated both the substantial merit and national importance of his proposed As the Petitioner is applying for a waiver of the job offer requirement, it is not necessary for him to have a job offer from a specific employer. However, we will consider information about his research positions to illustrate the capacity in which he intends to work in order to determine whether his proposed endeavor meets the requirements ofthe Dhanasar analytical framework. geometries as well as advanced fabrication techniques." p. 5 research, we conclude that he meets the fust prong of the Dhanasar framework and withdraw the Director's determination on this issue. 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 presentations, and peer review activity. He also offered evidence of articles that cited to his published work, and letters of support discussing his graduate and postdoctoral research. For example, the record contains a November 2016 letter of support fro~ !Founder and Chief Technology Officer ofl I(a defunct company that ceased operations in 2017), stating that his company utilized "anl our.___ _ _ _ _ _ _ _ _ _ __, meters."7 work, citation evidence, development o~ of support were not sufficient to demonstrate that he is well positioned to advance his proposed endeavor. !detection technique developed by [the Petitioner] in The Director concluded that the Petitioner's published Is I Idetection technique, and letters The Petitioner contends on appeal that the Director erred in questiloning Te credibility ofD I Is claims relating to I I and its utilization of a detection technique developed by fhe Petitiorr. For example, the Petitioner points out that the Director incorrectly concludedthat.____~'s"leaseagreementismissingthesuitenumber."8 Basedontheinformation in the lease agreement, the National Science Foundation grant, a n d ~ Is October 2019 I letter, we withdraw the Director's finding questioning the credibility o .___ _ _ _ __,ts claims. Additionally, the Petitioner asserts that the Director erred in not considering evidence that post-dates the filing of the petition.Not eligible at the time of filing Eligibility, however, must be established at the time of filing. 8 C.F.R. § 103.2(b)(l); Matter ofKatigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). 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 I&N Dec. 114 (BIA 1981), that USCIS cannot "consider facts that come into being only subsequent to the filing of a petition." Id. at 176.
The Petitioner further argues that his research experience, published and presented work, citation evidence, recommendation letters from others in the field, commercialization ofhis MEMS research, and peer review service demonstrate that he is well positioned to advance bis proposed endeavor. For 7L ------~ L > !..!.I.~ = ~ as an associate professor arC:J,mjwas the Petitioner's Ph.D. advisor. The November 2016 letter · oJ.__ _ _ _ _,_ and was accompanied by a webpage describing the company's'.___ _ _ _ _ _ _ _ _ _ _ _. detector." In both the NOIR al}d the decision revoking the approval ofthe petition, the Director indicated that in March 2019 "USCIS attempted to accesJ tswebsite, but was unable to access the website to verify the information submitted" because the company's "website did not work." The Director also noted that an online search of Better Business Bureau records performed in March 2019 "revealed that a different business occupied the address" identified in s letter. The Director concluded that this information cast doubt on t~e credibility o.....__ _ _ _ _. s claims. In response to the Director's NOIR, the Petitioner provided s lease agreement for the address in question and a National Science F1mdation "stanrard grant" listing the company's address. He also submitted an October 2019 letter from( _ xplaining that_ I"went out ofbusiness in 2017."
We agree that this conclusion was in error. The lease agreement lists the suite number as "300." p. 6 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 getition several references discussed the Petitioner's research projects at I lD
University o an Pol technic. work involving identification o For exam le, regarding the Petitioner's for robotic applicationsc=J ._______---.,I assistant professor of mechanical engineering at.___ _ _ ~University, stated that the Petitioner applied "the nonlinear least square method to identify the properties of thel I materials, which enabled a more precise identification oft Iparameters. [The petitioner] also developed an experimental setup, which allowed him to confirm the performance ofhis model." While I Iasserted that the Petitioner's "identification scheme eliminates the previous challenges and provides a more comprehensive understanding ofl Icharacteristics," he did not provide specific examples indicating that the Petitioner's methodology has been implemented in the robotics industry or otherwise constitutes a record of success in the field.Past record does not show influence or success
With respect to the Petitioner's Ph.D. studies at University ofl l a n d C ] I Istated that the Petitioner "developed a novel platform to obtain mass concentration ofl Additionally,~------~ professor atl IUniversity, asserted that the Petitioner "developed and integrated I Imass balances inl I .___ _ _ _ -.========...:.i=n...:.r...:.e.:..:.al:......:..:ti=m.::..:...e." advantage o~ Ito develop a novel method for m e a s u r i n g ~ - - - - - - - ~ andl Iand that this "platform demonstrated up to ten times better sensitivity when operating in aqueous solutions." also indicated that he "utilized [the Petitioner's] research at my "1-""-'....................___ _ ...,__ _ _., which I founded in 2011," but the record does not show that the Petitioner's.___ _ _ _ _ _. detection technique has been utilized beyond his Ph.D. supervisor's company or has otherwise attracted a level of interest in the field that renders him well positioned.
In addition, I Iasserted that the Petitioner "took
I Iimpactors, which provided real time information on mass concentration ofl separated by size."11 I Icontends that the Petitioner's work is significant for numerous domains, particularly in the pharmaceutical industry," but he did not offer examples of how the .-""-LL.U.l......,.,_......,.'-'>.ULJ."'i' a sampling o f these letters, we have reviewed and considered each o " " n ~ e · ~ - - - - - - - - - - - , the Petitioner and three others authored a a er on this to ic entitled L_________________________,------,__J(2013). Asdocumentationof interest in his work the Petitioner submitted a July 2013 email from.___ _ _ __. a product planning manager with ~ - - ~ - - - - - ~ - - - - asking the Petitioner for a copy of the aforementioned paper. In two subsequent emails t-L-----,1'-------'-jstated tha~ hs looking for sensor solutions to detectl I' and requested th:it be an,d "continue the conversations on this issue" and ·'keep in touch." I
With regard tci.___ _,kletter, the Director's decision stated: "Because the signature on the letter was digitally rendered, USCTS cannot consider the content of the letter as credible." As the basis for this detennination, the Director references USCTS Policy Memorandum PM-602-0005.1, Signatures on Paper Applications, Petitions, Requests, and Other Documents Filed with U.S. Citizenship and Immigration Services (Feb. 15, 2018), https://www.uscis.gov/sites/default/ files/USCTS/Laws/Memoranda/2018/2018-02-16-PM-602-0134.1-Signatures-on-Paper-Applications-Petitions-Requests- and-Other-Documents.pdf This memorandum "provides the current USCTS policy regarding the signature requirement for applications, petitions, requests, and other documents that require a signature prior to filing with USCIS." We do not interpret this policy to govern reference letters that are submitted as evidence in support of a petition. Accordingly, we withdraw the Director's determination on this issue.
I
Petitioner's findings have been implemented, utilized, or applauded m the MEMS field or the pharmaceutical industry. the Petitioner's research involving the sens1t1v1ty enhancement of MEMS!.___ _ ___. r'-------,......l'L ------------' assistant professor of electrical and computer engineering at Universit indicated that the Petitioner "effectively demonstrate[d] the capability of .______________________.in increasing sensitivity by up to 4 orders of ma nitude." also noted that he cited to the Petitioner's findin sin a a er, entitled ,12
.___ _ _ ~ s paper, however, does not distinguish or highlight the Petitioner's work from the 40 other articles he cited to in his paper. With regard to the Petitioner's work on .___ _ _ _ _ _ _ --;:::::====;---r--------____.D I lthe Petitioner's postdoctoral research "successfully developed and fabricated J could very well compete with itsl supervisor at I I asserted that the Petitioner Ias small as 0.0lmm2, that !counterparts in terms of efficiency." I I ,...u.i.~w.1...-...ii..iu..i..lo.L....1.JLJ.-'IJ.----U.u..._~u.J.J.!w..u..J...._.J..-"1.1..J..U"------"'u..z.._.ll....l.l-.h a new class ofI I ._ _ ---~ ------~ ---------" and produced a mathematical model in order to maximize.___ _ _ _ _ ____. coupling and therefore efficiency of the acoustic link. Additionally, he developed two novel MEMS fabrication processes for the making oj I...."I, Idid not provide specific examples indicating that the Petitioner's work has affected the MEM"sl industry, has served as an impetus for progress or generated positive discourse in his field, or otherwise I represents a record of success or progress rendering him well positioned to advance his proposed As it relates to the citation of the Petitioner's work, the record includes December 2016 information from Goo2:le Scholar indicatin2: that his three hi2:hest cited articles. entitled I t and ICitation record not persuasive
/------~------------' '--------------------------' endeavor.
~ - - - ~ I ' each received 25, 14, and 9 citations, 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 NOIR and in support of the appeal, the Petitioner submitted updated Google Scholar lists (dated June 2019 and October 2019) reflecting an increase of citations to his individual articles. He did not demonstrate how many of these additional citations occurred in paperspublishedpriortooratthetimeofinitialfiling. See8C.F.R.§103.2(b)(1).
The record includes a copy ofl Is paper in which he references the Petitioner and IEEE Electron Device Letters and three additional papers by different researchers as examples of ways that mechanical systems "can be used for the implementation of high performance sensors."
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 claimed that three of his papers ranked among "the top 10% most-cited articles published in Engineering" based onthenumberofcitationsreceivedsincetheirpublication. ThePetitionerdidnotindicatewhetherhe factored in any self-citations in determining this percentile ranking. In addition, because the Petitioner has not shown that the Clarivate Analytics data is contemporaneous with the Petitioner's Google Scholar data, he has demonstrated that the 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 highly cited papers. Consequently, citation rates should not be interpreted as representing the central tendency of the distribution."
Additionally, the Petitioner presented an article in Scientometrics written by Lutz Bornmann and Wemer 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 purposes of funding and promotion or hiring decisions. The authors state that "publications which are among the 10% most cited publications in their subject area are as a rule called highly cited or excellent" and that "the top 10% based excellence indicator" should be given "the highest weight when 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. Regardless, the Petitioner's field of electrical engineering does not fall under "the natural and life sciences." 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."
The Petitioner's response to the Director's NOIR included May 2019 information derived from "Microsoft Academic" that compares his citation and publication counts to those of other researchers in the areas of "Microelectromechanical Systems, Microstructure, Electrical Engineering, Physics, Material Science, Thin Film." 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" ofthe percentile rankings (May 21, 2019) post-dates the filing ofthe petition, and therefore the Petitioner has not shown that the 243 Google Scholar citations used in the Microsoft Academic percentilecalculationoccurredinpaperspublishedpriortooratthetimeofinitialfiling. See8C.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 record also includes examples of various articles which cited to the Petitioner's work. ______________________ For instance, he provided an article entitled, .__ __.
._______~_____________,(Journal ofMicromechanics andMicroengineering), in which the authors cited to the Petitioner's paper in Sensors IEEE International Conference. The article's authors identified the Petitioner's paper as one of five that "reported specific chemical functionalization and/or biological detection on theirl Isensors." This article, however, does not distinguish or highlight the Petitioner's work from the 40 other papers referenced in the article.
Another article presented by the Petitioner, entitled.___ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ___. (Applied Physics Reviews), cites to the Petitioner's paper in IEEE Electron Device Letters. In this review article, the authors referenced the Petitioner's work, stating that it "increased the sensitivity of -.___ _ _ _ _ _ _ _ _ _ _, using the I I I IThis article in Applied Physics Reviews, however, does not differentiate the Petitioner's paper from the 383 other papers referenced in the article.
With respect to the documentation reflectin that the Petitione.i,....u.a.:,_..u..u..ii...u,ted his work at engineering '--------------'
Con and the 2016I I Workshop in.___ _ _ _ ....., we note that many professional fields regularly hold meetings and conferences to present new work, discuss new findings, and network with other professionals. Although presentation of the Petitioner's work indicates that he shared his original findings with others, he has not shown that the number of citations received by his articles or the level of interest they generated is sufficient to demonstrate that he is well positioned to conferences such as the 2013 IEEE _____________ p. 10 a record of success in his field or that it is otherwise an indication that he is well positioned to advance his research endeavor. The record demonstrates that the Petitioner has conducted, published, and presented research relating to his graduate and postdoctoral work, 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 of knowledge in some way in order to be accepted for publication, presentation, fonding, 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 and presented work has served as an impetus for progress in the electrical engineering field or that it has generated substantial positive discourse in the sensing applications industry. Nor does the evidence otherwise show that his work constitutes a record of success or progress in advancing research relating to MEMS. As the record is insufficient to demonstrate that the Petitioner is well positioned to advance his proposed research endeavor, we agree with the Director that the Petitioner has not established 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 the impracticality of labor certification, his expertise in the field, and the importance of his research. 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 farther 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 conclude that he has not established he is eligible for or otherwise merits a national interest waiver as a matter of discretion. The revocation of the previously approved petition is affirmed for the above stated reasons, with each considered as an independent and alternative basis for the decision.
ORDER: The appeal is dismissed.