NIW Denial Reversed: How the AAO Weighed a STEM Ph.D. and Critical Technology Research

A researcher in wireless communications and networking obtained a favorable decision after both an initial national interest waiver (NIW) denial and an unsuccessful appeal. On 07/02/2025, the Administrative Appeals Office (AAO) granted his motion to reconsider and sustained the appeal. The decisive issue was the third NIW requirement: whether, on balance, waiving the job offer and related labor certification requirements would benefit the United States.

In Re: 39106520 is a non-precedent decision concerning one researcher’s record. It shows how the AAO weighed his doctorate, proposed work and ability to advance that work when reconsidering the third NIW requirement.

The research and the two earlier unfavorable decisions

At filing, the petitioner worked as a postdoctoral researcher at a university and held a Ph.D. in electrical engineering. A footnote on page 2 indicates that he subsequently worked at the same institution as an associate research professor. The public decision redacts the university's name and does not identify the petitioner.

Page 2 describes his proposed endeavor as exploring and advancing:

“cutting edge technologies in wireless communications and networking to guarantee top-tier communication quality across diverse applications.” (Decision, p. 2.)

USCIS initially accepted his eligibility for EB-2 classification as an advanced-degree professional but found that he had not established eligibility for the waiver. On appeal, the AAO also accepted his EB-2 eligibility and, unlike the initial adjudicator, found that he had established the national importance of the proposed endeavor and that he was well positioned to advance it. The AAO nevertheless dismissed that appeal because the third requirement remained unproven. The earlier appeal therefore did not reject the importance of his research or his ability to pursue it.

What remained to be shown under the third requirement

Page 1 sets out the three-part Dhanasar framework: substantial merit and national importance of the proposed endeavor; being well positioned to advance it; and the balancing inquiry. The third requirement is stated as:

“On balance, waiving the job offer requirement would benefit the United States.” (Decision, p. 1.)

Because the first two requirements had been accepted on appeal, reconsideration focused on the third. The petitioner argued that the AAO had not properly evaluated his doctorate, research involving critical and emerging technologies, and the relevant policy guidance.

The statutory foundation appears in INA § 203(b)(2)(B)(i), 8 U.S.C. § 1153(b)(2)(B)(i):

“Subject to clause (ii), the 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.”

The statute uses the discretionary word “may.” In this case, the AAO applied the Dhanasar framework to the petitioner's specific evidence.

Why the existing research position still mattered

The petitioner questioned why the earlier decision mentioned that he already held the research position in which he intended to continue his endeavor. The AAO explained its limited reason for considering that employment:

“we discussed the Petitioner's current employment only in the context of whether it would be impractical for him to obtain a labor certification, which is one of the named factors.” (Decision, p. 2.)

Although he argued that his existing position was irrelevant to whether labor certification would be impractical, the AAO found that he provided no explanation of why the process would be impractical in his circumstances. That weakness remained. The decision does not treat having a job as disqualifying an applicant from NIW consideration; the AAO continued to weigh other relevant factors.

What the technology evidence did—and did not—establish

In the earlier appeal, the AAO found that reports about the wireless industry and the previous administration's investments in advanced communications technology did not support the asserted urgency of the national interest in this particular endeavor. On reconsideration, the petitioner pointed to the National Science and Technology Council's identification of artificial intelligence and communications and networking technologies as critical and emerging technologies (CETs).

The AAO acknowledged that U.S. competitiveness in a STEM field such as the petitioner's could support the urgency analysis, describing it as a factor that:

“may be a factor in showing that the national interest in his work is sufficiently urgent.” (Decision, p. 2.)

This was one factor in the analysis. Inclusion of a technology on a list did not automatically establish all NIW requirements. The decision also does not establish that this petitioner conducted artificial intelligence research merely because his argument referred to artificial intelligence.

Why the doctorate and actual research supported a different result

The AAO placed greater weight on the connection between the petitioner's advanced STEM degree and his work. In discussing the USCIS Policy Manual, Volume 6, Part F, Chapter 5 that it relied on, the decision stated:

“an advanced STEM degree (particularly a Ph.D.) together with evidence of engagement in work furthering a CET are strong positive factors in determining whether the United States may benefit from a petitioner's contributions, regardless of the availability of other U.S. workers.” (Decision, p. 2.)

The analysis linked the degree to evidence of the work being pursued and considered the value of the petitioner's contributions even if other U.S. workers were available. The AAO then explained the combination that satisfied the third requirement in this record:

“Here, the Petitioner's Ph.D. in electrical engineering, proposed endeavor to continue research in a CET, and positioning to advance that endeavor are sufficient to support his eligibility under the third prong of the Dhanasar framework.” (Decision, p. 2.)

The AAO concluded that he qualified for EB-2 classification and merited a waiver of the job offer requirement and, consequently, labor certification. Its continuing concern about the explanation of labor-certification impracticality did not prevent those other factors, considered together, from supporting the third requirement.

What a motion to reconsider required

The procedural vehicle was a motion to reconsider. Page 1 explains that it must identify an incorrect application of law or policy and show that the prior decision was incorrect on the record that existed when that decision was made.

The rule cited by the AAO, 8 C.F.R. § 103.5(a)(3), states:

“A motion to reconsider must state the reasons for reconsideration and be supported by any pertinent precedent decisions to establish that the decision was based on an incorrect application of law or Service policy. A motion to reconsider a decision on an application or petition must, when filed, also establish that the decision was incorrect based on the evidence of record at the time of the initial decision.”

Reconsideration is therefore more than disagreement with the result or resubmission of the same application. Here, the petitioner challenged the earlier third-prong analysis by relying on the governing framework and policy, and the AAO reevaluated the record.

The result and its limits

The order on page 3 states:

“The motion to reconsider is granted and the appeal sustained.” (Decision, p. 3.)

The AAO found the petitioner eligible for EB-2 classification and the national interest waiver. Adjustment of status and issuance of a green card are separate steps. Other research plans and records may receive different assessments.

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