dismissed EB-2 NIW Case: Industrial Hygiene

U.S. Citizenship 
and Immigration 
Services 
MATTER OF C-W-K 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 13,2017 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an industrial hygiene 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). After the 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 tlie 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. Matter ofDhanasar, 26 I&N Dec. 884 (AAO 2016). 
The Director of the Texas Service Center denied the Form I-140, Immigrant Petition for Alien 
Worker, finding that the Petitioner qualified for classification as a member of the professions 
holding an advanced degree, but that he had not established that a waiver of the required job offer, 
and thus of the labor certification, would be in the national intere~t. The matter is now before us on 
appeal. In March 201 7, we issued a request for evidence (RFE) asking the Petitioner to provide 
evidence satisfying the three-part framework set forth in Dhanasar. 
In support of his appeal, the Petitioner submits additional documentation and argues that he IS 
eligible for a national interest waiver under the new framework. Specifically, he notes his research 
examining the role of silica in industrial health, as well as his role as a mentor with a high school 
science specialty program. 
Upon de novo review, we will dismiss the appeal. 
I. 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 indiyidual'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. 
Matter ofC-W-K-
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 of the United States, and whose services in 
the sciences, arts, professions, or business are sought by an employer in the 
United States. 
(B) Waiver of job 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 recently 
set forth a new framework for adjudicating national interest waiver petitions. See Dhanasar, 26 I&N 
Dec. 884.1 Dhanasar' states that after EB-2 eligibility has been established, USCIS may, as a matter 
of discretion, grant a national interest waiver when the below prongs are met. 
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. 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 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 I&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
2 
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Matter ofC-W-K-
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 
Un~ted States to waive the requirements of a job offer and thus of a labor certification. 2 
II. ANALYSIS 
The Petitioner obtained a Ph.D. in environmental health sciences in 201 0 from 
Accordingly, the Director determined that the 
Petitioner qualified for classification as a member of the professions holding an advanced degree. 
The sole issue to be determined is whether the Petitioner has established that a waiver of the 
requirement of a job offer, and thus a labor certification, would be in the national interest. 
A. Substantial Merit and National Importance of the Proposed Endeavor 
In the initial filing, the Petitioner indicated that he is employed by and he aims to 
continue research relating to "the anticipation, recognition, control, and prevention of the causes of 
silicosis" a disease described as "the most common occupational lung disease caused by inhalation 
of respirable crystalline silica (RCS)." The Petitioner explains that silicosis is the fibrotic 
pneumoconiosis that is caused by the inhalation of fine particles of crystalline silicon dioxide, and that 
exposure to large amounts of free silica can pass unnoticed because it is an odorless nonirritant that has 
no immediate noticeable effect. He describes how he aims to help protect the American worker from 
developing silicosis by improving the occupational health standards from silica exposure and 
continuing to expand his research applying. 
techniques to sampling to influence worker safety policies. 
\ 
We find that the Petitioner's proposed research, which aims to improve the industry safety standards of 
workers exposed to harmful materials, has substantial merit. The Petitioner provided letters from 
colleagues and professors discussing the critical need to develop methods to discern and combat 
cumulative exposure to environmental contaminants, particularly silica. The letters describe the 
importance of developing industrial hygiene detection and disposal methods and affirm that the 
Petitioner's proposed work stands to assist industries in controlling worker exposure to harmful 
irritants, and discussing the formidable health and financial costs of silica exposure to the industrial 
worker. For example, associate service fellow at the 
, notes that the proposed research "will 
2 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
3 
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Matter ofC-W-K-
offer protection against the deadly silicosis and will no doubt benefit the U.S. workers by saving 
countless lives." 
In addition to his research activity, the Petitioner claims 
that he will continue his mentorship of 
students in the Emerging Scholars Program, Environ~ental Health Sciences Academy at 
and that his work with these high school students also has substantial merit and national 
importance. The Petitioner provides a brochure describing the Emerging Scholars Program as an 
opportunity for high school students to "work alongside faculty in environmental health sciences to 
conduct environmental health research relevant to the community." Dr. the 
faculty lead for the program and associate professor at describes how the 
Petitioner is responsible for mentoring students and helping students appreciate industrial hygiene 
practices. Program literature describes the Petitioner as a "mentor/research scientist," working with 
students to research issues such as analysis, silicosis, and air sampling. We find this 
proposed mentorship has substantial merit, as it provides valuable educational benefits to students 
involved in the program. 
To evaluate whether the Petitioner's work satisfies the national importance requirement, we 
requested evidence documenting the "potential prospective impact" of his work. In his response, the 
Petitioner provides a more detailed explanation of his mentorship of high school students in the 
Emerging Scholars Program. The record, however, does not establish that his mentorship and 
instruction would impact environmental health education more broadly, as opposed to being limited to 
the students at the institution where he serves. Accordingly, without sufficient documentary evidence 
of their broader impact, the aforementioned teaching activities do not meet the "national importance" 
element of the first prong of the Dhanasar framework.3 
Nonetheless, to the extent that the Petitioner proposes to conduct occupational hygiene research, we 
find the evidence sufficient to demonstrate that such research is of national importance. The record 
includes evidence that 2.3 million workers are exposed to respirable crystalline silica in their work 
places, including 2 million construction workers who drill, cut, or grind silica-containing materials 
such as concrete and stone. The Petitioner also states that, from 1968 until 2002, silicosis was 
recorded as the underlying or contributing cause of death for approximately 74 million workers in 
the United States. In addition, the Petitioner has offered documentation indicating that the proposed 
benefit of his industrial hygiene research has broader implications for the field, as the results are 
disseminated to others through education journals and conferences. As the Petitioner has 
documented both the substantial merit and national importance of his proposed research, he meets 
the first prong of the Dhanasar framework. 
3 Similarly, in Dhanasar, we determined that the petitioner's teaching activities did not rise to the level of having 
national importance because they would not impact his field more broadly. !d. at 893. 
4 
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Matter ofC-W-K-
B. Well Positioned to Advance the Proposed Endeavor4 
The second prong shifts the focus from the proposed endeavor to the Petitioner's qualifications. The 
Petitioner previously provided evidence of his published work, professional memberships, and 
academic credentials. In response to our RFE, the Petitioner additionally submits his CV and an 
updated report from As discussed below, we find the Petitioner has not 
demonstrated a record of success or progress in his field, or a degree of interest in his work from 
relevant parties, rising to the level of rendering him well positioned to advance his proposed research 
endeavor of developing industrial hygiene solutions to harmful particulates. See Dhanasar, 26 I&N 
Dec. at 890. 
As evidence that he meets this prong, the Petitioner points to his participation in two research 
studies: ' ' and " 
" and he provides a copy of each study's protocol. 
Both protocols list the Petitioner as one of six research scientists and state that his duties are to 
"assist Dr. in assessing and assigning exposures to respirable crystalline silica for the study 
cohort." While the record includes letters of recommendation emphasizing the importance of the 
Petitioner's role in these studies, these statements are not supported by the information in the 
protocols. Beyond assisting Dr. , the Petitioner's role in spearheading or developing the study 
or in furthering the research has not been sufficiently explained. Also, many of the statements refer 
to the potential future benefits ofthe Petitioner's work, yet they do not address how his role in either 
of these research projects represents a record of success in the field of industrial hygiene. For 
example, Dr. a consulting scientist with writes that the 
Petitioner developed a matrix that he used to calculate yearly average and cumulative exposure for 
the participating industrial workers and that his work on the industrial workers silicosis 
study and the pneumoconiosis study "could be helpful to improve the occupational 
health of U.S. workers and the U.S. economy by supporting new or updated OSHA health standards 
for silica." He does not, however, discuss whether the work has already yielded such results nor 
does he indicate whether the Petitioner's matrix has been replicated in other studies or has otherwise 
garnered interest in the field. 5 
Additionally, the Petitioner maintains that his work in the above studies has assisted in the 
development of a~final rule protecting workers 
from exposure to respirable crystalline silica. While he submits a copy of the final rule, he does not 
document his role in its development and the report does not reference the Petitioner, nor does it 
4 As the Petitioner's proposed mentorship activities do not satisfy the "national importance" element of the Dhanasar 
framework's first prong, we will limit the remainder of our analysis to his proposed research. 
5 As additional evidence regarding one of the above studies, on appeal, the Petitioner provides a copy of the 
'' However, he has not 
demonstrated how the report reflects a record of success or a level of interest in his work rendering him well positioned 
to advance the proposed endeavor. 
5 
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Matter ofC-W-K-
include documentation showing that the aforementioned studies were used in its development. 
Overall, the Petitioner's participation in these studies d()es not establish a record of success or 
progress in the field. The Petitioner has ,not submitted evidence establishing that this contribution to 
the projects served as an impetus for progress or generated positive interest among relevant parties in 
the broader academic community, industry, or government. Furthermore, the Petitioner has not 
established the significance of his r;ole in either of these studies to the extent that he should be 
credited with the success of the overall projects or any interest that they generated. 
The Petitioner also· contends that he played an important role in research evaluating automotive 
workers' exposure to hazardous materials, and provides a copy of a presentation which he co­
authored examining the exposure control matrix in the automotive body industry. The Petitioner 
notes that this poster was presented at the 
entitled " but he does not explain his 
specific role in the research or the significance of the study. , Dr. a professor of industrial 
hygiene at and the Petitioner's supervi~or, discussed this research method for 
assessing surface contamination in automotive body repair shops noting that the Petitioner's work 
"could help to reduce health risk for painters in automotive body shops." He did not explain whether 
the Petitioner's research, presented in 2003, has already had such an effect, has garnered interest 
from relevant parties, or otherwise demonstrates a record of success in the field. Dr. 
expectation regarding the possible future impact of the Petitioner's work is not evidence of his 
eligibility at the time of filing. 8 C.P.R.§ 103.2(b)(l). 
As another example of his past success, the Petitioner refers to his master's thesis work concerning 
treatment and treatment in South Korea. He refers to his 
research published in 
the which he claims 
was utilized to stabilize a large municipal treatment plant; however, he does not offer evidence to 
support his statements. 
The record also includes letters of support from the Petitioner's colleagues discussing his work in the 
area of industrial hygiene and attesting that he has played a role in advancing industrial hygiene and 
environmental safety practices. For example, professor and vice chair at 
stated that the Petitioner's work is 
"important for the determination of causes of various occupational diseases, and that his findings 
demonstrated that :'exposures to microbial contaminants during the restoration of affected 
area had adverse effects on the restoration workers' health." However, Dr. did not provide 
specific examples of how the Petitioner's research has impacted occupational disease prevention, 
treatment protocols, or environniental or industrial processes or otherwise constituted a record of 
success or progress, or how it has garnered interest in the field. Similarly, 
industrial hygienist with . attested 
that the Petitioner's findings "have the potential of influencing future treatment of the problem of 
silicosis," yet he did not explain the basis for his opinion · or offer evidence confirming his 
statements. 
6 
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Matter ofC-W-K-
The Petitioner additionally claims that he has demonstrated a record of success through his 
application of the DRIFTS infrared spectroscopy technique to measure the amount of· 
in in the presence of other particulate contaminates. Several letters describe the 
Petitioner's work as part of a group that used the DRIFTS technique to measure workers' exposure 
to potentially harmful wood dust. For example, Dr. , researcher in the exposure 
management branch of , explained that, in 2005, she worked on a team at responsible 
for developing a method for determining in the presence of other particulate 
contaminants. She noted that she became aware of the 2005 article " 
" co-authored by the Petitioner and published in 
She indicated that she met with the Petitioner several years later to discuss collaboration on a joint 
project. 
This led her team to test and verifY the method for determining in a coordinated 
research endeavor between and the Petitioner's laboratory during which he was responsible 
for preparing samples. The results of this study were published in two journals: the 
in 2013 and the m 
2015. Dr. did not explain the significance of the Petitioner's role in sample preparation or 
provide further detail about the importance of the study's findings. 6 Overall, Dr. did not 
sufficiently explain how the Petitioner's individual role in these joint laboratory projects has 
generated positive interest in his work among relevant parties or reflects a record of success in his 
area of research. Finally, Dr. stated that the Petitioner's research, published in 2005, is in 
"the process of becoming widely recognized," but she did not elaborate on the recognition it is 
receiving nor does the record include sufficient documentation to support her assertion. 
Similarly, a chartered chemist with the and 
an associate service fellow with the both describe working with the 
Petitioner on a DRIFTS project measuring However, they do not provide sufficient 
detail regarding the Petitioner's individual role in the study, or its significance to the field of 
industrial hygiene, to establish that this experience renders the Petitioner well positioned to advance 
his proposed endeavor. 
Finally, on appeal, the Petitioner contends that he "found a software inconsistency" between two 
spectrometers which resulted in different conversion equations in DRIFTS studies, and reported it to 
their manufacturer, He does not explain why this finding is significant or 
whether it impacted subsequent studies. While the record includes a letter explaining the calibration 
issue from addressed to the Petitioner's supervisor, Dr. the 
Petitioner is not mentioned. 
While we recognize that research must add information to the pool of knowledge 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 or her 
6 The record does not reflect that the journal articles have been frequently cited, nor has the Petitioner provided other 
evidence demonstrating the success of the research. 
Matter ofC-W-K-
proposed research. 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. 
!d. at 890. The evidence discussed above is insufficient to demonstrate a record of success or 
progress or a degree of interest from relevant parties that render the Petitioner well positioned to 
advance his proposed endeavor. For this reason, the Petitioner 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 
Third and finally, we conclude that on balance, the Petitioner has not established that it would be 
beneficial to the United States to waive the requirements of a job offer and thus of a labor 
certification. 7 While some of the Petitioner's knowledge and experience may exceed the minimum 
requirements for his occupation and therefore could not be easily articulated on an application for 
labor certification, he has not demonstrated, as claimed, that he presents benefits to the United States 
through his proposed endeavor that outweigh those inherent in the labor certification process. 
On appeal, the Petitioner maintains that granting the waiver would serve the national interest because 
his presence would help to ameliorate a shortC;tge of industrial hygiene professionals. We note, 
however, that the U.S. Department of Labor addresses worker shortages through the labor 
certification process and the Petitioner has not demonstrated that obtaining a labor certification 
would be impractical, nor has he shown an urgent national interest in his research. In addition, the 
Petitioner has not shown that he offers contributions of such value that, over all, they would benefit 
the nation even if other qualified U.S. workers were available. In sum, the Petitioner has not 
established that, on balance, it would be beneficial to !he United States to waive the requirements of 
a job offer and thus of a labor certification. The Petitioner, therefore, has not met the third prong of 
the Dhanasar framework. 
III. CONCLUSION 
As the Petitioner has not met the requisite three prongs set forth in the Dhanasar analytical framework, 
we find that he has not established eligibility for or otherwise merits a national interest waiver as a 
matter of discretion. 
ORDER: The appeal is dismissed. 
Cite as Matter ofC-W-K-, ID# 330051 (AAO June 13, 2017) 
7 The labor certification process is designed to certify that the foreign worker will not displace, nor adversely affect the 
wages and working conditions of, U.S. workers who are similarly employed. Job requirements must adhere to what is 
customarily required for the occupation in the United States and may not be tailored to the foreign worker's 
qualifications or unduly restrictive, unless adequately documented as arising from business necessity. 
8