DHANASAR

Cite as 26 I&N Dec. 884 (AAO 2016) Interim Decision #3882

Matter of DHANASAR, Petitioner

Decided December 27, 2016

U.S. Department of Homeland Security

U.S. Citizenship and Immigration Services

Administrative Appeals Office

USCIS may 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 he or she is well positioned to advance the proposed endeavor; and (3) that, on

balance, it would be beneficial to the United States to waive the job offer and labor

certification requirements. Matter of New York State Dep’t of Transp., 22 I&N Dec. 215

(Acting Assoc. Comm’r 1998), vacated.

ON BEHALF OF PETITIONER: Gerard M. Chapman, Esquire, Greensboro, North

Carolina

In this decision, we have occasion to revisit the analytical framework

for assessing eligibility for “national interest waivers” under section

203(b)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C.

§ 1153(b)(2)(B)(i) (2012). The self-petitioner, a researcher and educator in

the field of aerospace engineering, filed an immigrant visa petition seeking

classification under section 203(b)(2) of the Act as a member of the

professions holding an advanced degree. The petitioner also sought a

“national interest waiver” of the job offer otherwise required by section

203(b)(2)(A).

The Director of the Texas Service Center denied the petition under the

existing analytical framework, concluding that the petitioner qualifies for

classification as a member of the professions holding an advanced degree

but that a waiver of the job offer requirement would not be in the national

interest of the United States. Upon de novo review, and based on the

revised national interest standard adopted herein, we will sustain the appeal

and approve the petition.

I. LEGAL BACKGROUND

Subparagraph (A) of section 203(b)(2) of the Act makes immigrant

visas 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

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interests, or welfare of the United States.” Under subparagraph (A),

immigrant visas are available to such individuals only if their “services in

the sciences, arts, professions, or business are sought by an employer in the

United States.”

Before hiring a foreign national under this immigrant classification, an

employer must first obtain a permanent labor certification from the United

States Department of Labor (“DOL”) under section 212(a)(5)(A)(i) of the

Act, 8 U.S.C. § 1182(a)(5)(A)(i) (2012). See also 8 C.F.R. § 204.5(k)(4)(i)

(2016). A labor certification demonstrates that DOL has determined that

there are not sufficient workers who are able, willing, qualified, and

available at the place where the alien is to perform such skilled or unskilled

labor, and the employment of such alien will not adversely affect the wages

and working conditions of workers in the United States similarly employed.

In its labor certification application, the employer must list the position’s

job requirements consistent with what is normally required for the

occupation. See 20 C.F.R. § 656.17(h)(1) (2016). Moreover, the job

requirements described on the labor certification application must represent

the actual minimum requirements for the job opportunity. See 20 C.F.R.

§ 656.17(i)(1). That is, the employer may not tailor the position

requirements to the foreign worker’s qualifications; it may only list the

position’s minimum requirements, regardless of the foreign worker’s

additional skills that go beyond what is normally required for the

occupation. The employer must then test the labor market to determine if

able, willing, or qualified U.S. workers are available with the advertised

minimum qualifications. If such U.S. workers are found, the employer may

not hire the foreign worker for the position, even if the foreign worker

clearly has more skills (beyond the advertised qualifications). If the

employer does not identify such U.S. workers and DOL determines that

those workers are indeed unavailable, DOL will certify the labor

certification. After securing the DOL-approved labor certification, the

employer may then file a petition with DHS requesting the immigrant

classification.

Under subparagraph (B) of section 203(b)(2), however, the Secretary of

Homeland Security may waive the requirement of a “job offer”

(namely, that the beneficiary’s services are sought by a U.S. employer)

and, under the applicable regulations, of “a labor certification.” 8 C.F.R.

§ 204.5(k)(4)(ii). 1 That subparagraph states, in pertinent part, that the

1

While appearing to limit national interest waivers to only aliens possessing

exceptional ability in the sciences, arts, or business, 8 C.F.R. § 204.5(k)(4)(ii) was

superseded in part by section 302(b)(2) of the Miscellaneous and Technical Immigration

and Naturalization Amendments of 1991, Pub. L. No. 102-232, 105 Stat. 1733, 1743

(continued . . .)

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Secretary “may, when the [Secretary] 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.”2 Section 203(b)(2)(i) of the Act.

USCIS may grant a national interest waiver as a matter of discretion if

the petitioner satisfies both subparagraphs (A) and (B). Thus, a petitioner

who seeks a “national interest waiver” must first satisfy subparagraph (A)

by demonstrating that the beneficiary qualifies as a member of the

professions holding an advanced degree or as an individual of

exceptional ability. See 8 C.F.R. § 204.5(k)(1)–(3) (providing definitions

and considerations for making such determinations); see also section

203(b)(2)(C) of the Act (providing that possession of requisite academic

degree or professional license “shall not by itself be considered sufficient

evidence of exceptional ability”). The petitioner must then satisfy

subparagraph (B) by establishing that it would be in the national interest

to waive the “job offer” requirement under subparagraph (A). 3 See

8 C.F.R. § 204.5(k)(4)(ii). This two-part statutory scheme is relatively

straightforward, but the term “national interest” is ambiguous. Undefined

by statute and regulation, “national interest” is a broad concept subject to

various interpretations.

In 1998, under the legacy Immigration and Naturalization Service, we

issued a precedent decision establishing a framework for evaluating

national interest waiver petitions. Matter of New York State Dep’t of

Transp. (“NYSDOT”), 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998).

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(“MTINA”). Section 302(b)(2) of MTINA amended section 203(b)(2)(B)(i) of the Act

by inserting the word “professions” after the word “arts,” and thereby made the national

interest waiver available to members of the professions holding advanced degrees in

addition to individuals of exceptional ability.

2

Pursuant to section 1517 of the Homeland Security Act (“HSA”) of 2002, Pub. L. No.

107-296, 116 Stat. 2135, 2311 (codified at 6 U.S.C. § 557 (2012)), any reference to the

Attorney General in a provision of the Act describing functions that were transferred

from the Attorney General or other Department of Justice official to the Department of

Homeland Security by the HSA “shall be deemed to refer to the Secretary” of Homeland

Security. See also 6 U.S.C. § 542 note (2012); 8 U.S.C. § 1551 note (2012).

3

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 of exceptional 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.

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The NYSDOT framework looks first to see if a petitioner has shown that the

area of employment is of “substantial intrinsic merit.” Id. at 217. Next, a

petitioner must establish that any proposed benefit from the individual’s

endeavors will be “national in scope.” Id. Finally, the petitioner must

demonstrate that the national interest would be adversely affected if a labor

certification were required for the foreign national. Id.

Based on our experience with that decision in the intervening period, we

believe it is now time for a reassessment. While the first prong has held up

under adjudicative experience, the term “intrinsic” adds little to the analysis

yet is susceptible to unnecessary subjective evaluation. 4 Similarly, the

second prong has caused relatively few problems in adjudications, but

occasionally the term “national in scope” is construed too narrowly by

focusing primarily on the geographic impact of the benefit. While

NYSDOT found a civil engineer’s employment to be national in scope even

though it was limited to a particular region, that finding hinged on the

geographic connections between New York’s bridges and roads and the

national transportation system. Certain locally or regionally focused

endeavors, however, may be of national importance despite being difficult

to quantify with respect to geographic scope.

What has generated the greatest confusion for petitioners and

adjudicators, however, is NYSDOT’s third prong. First, this prong is

explained in several different ways within NYSDOT itself, leaving the

reader uncertain what ultimately is the relevant inquiry. We initially state

the third prong as requiring a petitioner to “demonstrate that the national

interest would be adversely affected if a labor certification were required.”

NYSDOT, 22 I&N Dec. at 217. We then alternatively describe the third

prong as requiring the petitioner to demonstrate that the individual

“present[s] a national benefit so great as to outweigh the national interest

inherent in the labor certification process.” Id. at 218. Immediately

thereafter, we restate the third prong yet again: the petitioner must establish

that the individual will “serve the national interest to a substantially greater

degree than would an available U.S. worker having the same minimum

qualifications.”5 Id. Finally, in what may be construed as either a fourth

restatement of prong three or as an explanation of how to satisfy it, we state

that “it clearly must be established that the alien’s past record justifies

projections of future benefit to the national interest.” Id. at 219. A footnote

4

Cf., e.g., 24/7 Records, Inc. v. Sony Music Entm’t, Inc., 514 F. Supp. 2d 571, 575

(S.D.N.Y. 2007) (“‘Intrinsic value’ is an inherently subjective and speculative concept.”).

5

Other, slight variations of the third prong emerge later in the decision. See

NYSDOT, 22 I&N at 220 (“to a greater extent than U.S. workers”); see also id. at 221

(“considerably outweigh”).

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to this statement clarifies that USCIS seeks “a past history of demonstrable

achievement with some degree of influence on the field as a whole.” Id. at

219 n.6. Although residing in footnote 6, this “influence” standard has in

practice become the primary yardstick against which petitions are

measured.6

Second, and a more fundamental challenge than parsing its several

restatements, NYSDOT’s third prong can be misinterpreted to require the

petitioner to submit, and the adjudicator to evaluate, evidence relevant to

the very labor market test that the waiver is intended to forego. The first

iteration of prong three, that the national interest would be adversely

affected if a labor certification were required, implies that petitioners

should submit evidence of harm to the national interest. The third iteration,

that the individual will serve the national interest to a substantially greater

degree than would an available U.S. worker having the same minimum

qualifications, suggests that petitioners should submit evidence comparing

foreign nationals to unidentified U.S. workers. These concepts have proven

to be difficult for many qualified individuals to establish or analyze in the

abstract. It has proven particularly ill-suited for USCIS to evaluate

petitions from self-employed individuals, such as entrepreneurs. In

NYSDOT, we even “acknowledge[d] that there are certain occupations

wherein individuals are essentially self-employed, and thus would have

no U.S. employer to apply for a labor certification.” Id. at 218 n.5.

Nonetheless, we did not modify the test to resolve this scenario, which

continues to challenge petitioners and USCIS adjudicators. Lastly, this

concept of harm-to-national-interest is not required by, and unnecessarily

narrows, the Secretary’s broad discretionary authority to grant a waiver

when he “deems it to be in the national interest.”

II. NEW ANALYTICAL FRAMEWORK

Accordingly, our decision in NYSDOT is ripe for revision. Today, we

vacate NYSDOT and adopt a new framework for adjudicating national

interest waiver petitions, one that will provide greater clarity, apply more

flexibly to circumstances of both petitioning employers and self-petitioning

6

While this “influence” standard rests upon the reasonable notion that past success will

often predict future benefit, our adjudication experience in the years since NYSDOT has

revealed that there are some talented individuals for whom past achievements are not

necessarily the best or only predictor of future success.

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individuals, and better advance the purpose of the broad discretionary

waiver provision to benefit the United States.7

Under the new framework, and after eligibility for EB-2 classification

has been established, USCIS may grant a national interest waiver if the

petitioner demonstrates by a preponderance of the evidence:8 (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. If these three elements are satisfied, USCIS

may approve the national interest waiver as a matter of discretion.9

The first prong, substantial merit and national importance, focuses on

the specific endeavor that the foreign national proposes to undertake. The

endeavor’s merit may be demonstrated in a range of areas such as business,

entrepreneurialism, science, technology, culture, health, or education.

Evidence that the endeavor has the potential to create a significant

economic impact may be favorable but is not required, as an endeavor’s

merit may be established without immediate or quantifiable economic

impact. For example, endeavors related to research, pure science, and the

furtherance of human knowledge may qualify, whether or not the potential

accomplishments in those fields are likely to translate into economic

benefits for the United States.

In determining whether the proposed endeavor has national importance,

we consider its potential prospective impact. An undertaking may have

national importance for example, because it has national or even global

implications within a particular field, such as those resulting from certain

improved manufacturing processes or medical advances. But we do not

evaluate prospective impact solely in geographic terms. Instead, we look

for broader implications. Even ventures and undertakings that have as their

focus one geographic area of the United States may properly be considered

to have national importance. In modifying this prong to assess “national

7

Going forward, we will use “petitioners” to include both employers who have filed

petitions on behalf of employees and individuals who have filed petitions on their own

behalf (namely, self-petitioners).

8

Under the “preponderance of the evidence” standard, a petitioner must establish that

he or she more likely than not satisfies the qualifying elements. Matter of Chawathe,

25 I&N Dec. 369, 376 (AAO 2010). We will consider not only the quantity, but also the

quality (including relevance, probative value, and credibility) of the evidence. Id.

9

Because the national interest waiver is “purely discretionary,” Schneider v. Chertoff,

450 F.3d 944, 948 (9th Cir. 2006), the petitioner also must show that the foreign national

otherwise merits a favorable exercise of discretion. See Zhu v. Gonzales, 411 F.3d 292,

295 (D.C. Cir. 2005); cf. Matter of Jean, 23 I&N Dec. 373, 383 (A.G. 2002).

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importance” rather than “national in scope,” as used in NYSDOT, we seek

to avoid overemphasis on the geographic breadth of the endeavor. An

endeavor that has significant potential to employ U.S. workers or has other

substantial positive economic effects, particularly in an economically

depressed area, for instance, may well be understood to have national

importance.

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.

We recognize that forecasting feasibility or future success may present

challenges to petitioners and USCIS officers, and that many innovations

and entrepreneurial endeavors may ultimately fail, in whole or in part,

despite an intelligent plan and competent execution. We do not, therefore,

require petitioners to demonstrate that their endeavors are more likely than

not to ultimately succeed. But notwithstanding this inherent uncertainty, in

order to merit a national interest waiver, petitioners must establish, by a

preponderance of the evidence, that they are well positioned to advance the

proposed endeavor.

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. On the one hand, Congress clearly

sought to further the national interest by requiring job offers and labor

certifications to protect the domestic labor supply. On the other hand, by

creating the national interest waiver, Congress recognized that in certain

cases the benefits inherent in the labor certification process can be

outweighed by other factors that are also deemed to be in the national

interest. Congress entrusted the Secretary to balance these interests within

the context of individual national interest waiver adjudications.

In performing this analysis, USCIS may evaluate factors such as:

whether, in light of the nature of the foreign national’s qualifications or

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; 10

10

For example, the labor certification process may prevent a petitioning employer from

hiring a foreign national with unique knowledge or skills that are not easily articulated in

a labor certification. See generally 20 C.F.R. § 656.17(i). Likewise, because of the

nature of the proposed endeavor, it may be impractical for an entrepreneur or

(continued . . .)

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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. We

emphasize that, in each case, the factor(s) considered must, taken together,

indicate 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.

We note that this new prong, unlike the third prong of NYSDOT, does

not require a showing of harm to the national interest or a comparison

against U.S. workers in the petitioner’s field. As stated previously,

NYSDOT’s third prong was especially problematic for certain petitioners,

such as entrepreneurs and self-employed individuals. This more flexible

test, which can be met in a range of ways as described above, is meant to

apply to a greater variety of individuals.

III. ANALYSIS

The director found the petitioner to be qualified for the classification

sought by virtue of his advanced degrees. We agree that he holds advanced

degrees and therefore qualifies under section 203(b)(2)(A). The remaining

issue before us is whether the petitioner has established, by a

preponderance of the evidence, that he is eligible for and merits a national

interest waiver.

The petitioner proposes to engage in research and development relating

to air and space propulsion systems, as well as to teach aerospace

engineering, at North Carolina Agricultural and Technical State University

(“North Carolina A&T”). The petitioner holds two master of science

degrees, in mechanical engineering and in applied physics, as well as a

Ph.D. in engineering, from North Carolina A&T. At the time of filing the

instant petition, he also worked as a postdoctoral research associate at the

university. The record reflects that the petitioner’s graduate and

postgraduate research has focused on hypersonic propulsion systems

(systems involving propulsion at speeds of Mach 5 and above) and on

computational fluid dynamics. He has developed a validated computational

model of a high-speed air-breathing propulsion engine, as well as a novel

numerical method for accurately calculating hypersonic air flow. The

petitioner intends to continue his research at the university.

The extensive record includes: reliable evidence of the petitioner’s

credentials; copies of his publications and other published materials that

_______________________________

self-employed inventor, when advancing an endeavor on his or her own, to secure a job

offer from a U.S. employer.

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cite his work; evidence of his membership in professional associations; and

documentation regarding his research and teaching activities. The

petitioner also submitted several letters from individuals who establish their

own expertise in aerospace, describe the petitioner’s research in detail and

attest to his expertise in the field of hypersonic propulsion systems.

We determine that the petitioner is eligible for a national interest waiver

under the new framework. First, we conclude that the petitioner has

established both the substantial merit and national importance of his

proposed endeavor. The petitioner demonstrated that he intends to continue

research into the design and development of propulsion systems for

potential use in military and civilian technologies such as nano-satellites,

rocket-propelled ballistic missiles, and single-stage-to-orbit vehicles. In

letters supporting the petition, he describes how research in this area

enhances our national security and defense by allowing the United States to

maintain its advantage over other nations in the field of hypersonic flight.

We find that this proposed research has substantial merit because it aims to

advance scientific knowledge and further national security interests and

U.S. competitiveness in the civil space sector.

The record further demonstrates that the petitioner’s proposed endeavor

is of national importance. The petitioner submitted probative expert letters

from individuals holding senior positions in academia, government, and

industry that describe the importance of hypersonic propulsion research as

it relates to U.S. strategic interests. He also provided media articles and

other evidence documenting the interest of the House Committee on Armed

Services in the development of hypersonic technologies and discussing

the potential significance of U.S. advances in this area of research and

development. The letters and the media articles discuss efforts and

advances that other countries are currently making in the area of hypersonic

propulsion systems and the strategic importance of U.S. advancement in

researching and developing these technologies for use in missiles, satellites,

and aircraft.

Second, we find that the record establishes that the petitioner is well

positioned to advance the proposed endeavor. Beyond his multiple

graduate degrees in relevant fields, the petitioner has experience conducting

research and developing computational models that support the mission of

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 funded by grants from the National Aeronautics and Space

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Administration (“NASA”) and the Air Force Research Laboratories

(“AFRL”) within DOD. 11 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 funding 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 funding from government entities such

as NASA and AFRL, position him well to continue to advance his proposed

endeavor of hypersonic technology research.

Third and finally, we conclude 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. As noted above, the petitioner holds three graduate

degrees in fields tied to the proposed endeavor, and the record demonstrates

that he possesses considerable experience and expertise in a highly

specialized field. The evidence also shows that research on hypersonic

propulsion holds significant implications for U.S. national security and

competitiveness. In addition, the repeated funding of research in which the

petitioner played a key role indicates that government agencies, including

NASA and the DOD, have found his work on this topic to be promising and

useful. Because of his record of successful research in an area that furthers

U.S. interests, we find that this petitioner offers contributions of such value

that, on balance, they would benefit the United States even assuming that

other qualified U.S. workers are available.

In addition to conducting research, the petitioner proposes to support

teaching activities in science, technology, engineering, and math (“STEM”)

disciplines. He submits letters favorably attesting to his teaching abilities at

the university level and evidence of his participation in mentorship

programs for middle school students. While STEM teaching has

substantial merit in relation to U.S. educational interests, the record does

not indicate by a preponderance of the evidence that the petitioner would be

engaged in activities that would impact the field of STEM education

more broadly. Accordingly, as the petitioner has not established by a

preponderance of the evidence that his proposed teaching activities meet

the “national importance” element of the first prong of the new framework,

we do not address the remaining prongs in relation to the petitioner’s

teaching activities.

11

Although the director of North Carolina A&T’s Center for Aerospace Research

(“CAR”) is listed as the lead principal investigator on all grants for CAR research, the

record establishes that the petitioner initiated or is the primary award contact on several

funded grant proposals and that he is the only listed researcher on many of the grants.

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IV. CONCLUSION

The record demonstrates by a preponderance of the evidence that:

(1) the petitioner’s research in aerospace engineering has both substantial

merit and national importance; (2) the petitioner is well positioned to

advance his research; and (3) on balance, it is beneficial to the United

States to waive the requirements of a job offer and thus of a labor

certification. We find that the petitioner has established eligibility for and

otherwise merits a national interest waiver as a matter of discretion.

In visa petition 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 (2012). The petitioner has met that burden.

ORDER: The appeal is sustained and the petition is approved.

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