dismissed EB-2 NIW Case: Infection Control

U.S. Citizenship 
and Immigration 
Services 
In Re: 7650950 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR. 10, 2020 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a sterilization supervisor, seeks second preference immigrant classification as a 
member of the professions holding an advanced degree, as well as a national interest waiver of the job 
offer requirement attached to this EB-2 classification. See Immigration and Nationality Act (the Act) 
section 203(b)(2), 8 U.S.C. § 1153(b)(2). 
The Director of the Texas Service Center denied the petition and dismissed a subsequent motion, 
concluding 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 interest. 
On appeal, the Petitioner asserts that he is eligible for a national interest waiver. 1 
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 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 
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. -
1 We decline the Petitioner's request for oral argument. 8 C.F.R. § 103.3(b). 
(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 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). 2 Dhanasar states that after a petitioner has established 
eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) may, as matter 
of discretion 3, grant a national interest waiver if the petitioner demonstrates: (1) that the foreign 
national's proposed endeavor has both substantial merit and national importance; (2) that the foreign 
national is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be 
beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
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 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 
2 In announcing this new rramework. we vacated our prior precedent decision, Matter of New York State Department of 
Transportation. 22 l&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
3 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). 
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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 
to waive the requirements of a job offer and thus of a labor certification. 4 
II. ANALYSIS 
The Director found that the Petitioner qualifies as a member of the professions holding an advanced 
degree. 5 The remaining 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. 
At the time of filing, the Petitioner was working as a clerk in the College of Dental Medicine at 
I I University. After filing the petition, he presented a March 22, 2018 letter froml I 
University indicating that he was "being promoted to the position of Assistant Supervisor, Sterilization 
in the College of Dental Medicine, beginning on March 26, 2018." The record also includes a 
November 5, 2018 letter from I I stating that the Petitioner has worked for its I 
surgical center since June 19, 2018, but this letter did not identify his position or job dutie~s...,_ 6,----~ 
Regarding the Petitioner's claim of eligibility under Dhanasar' s first prong, he indicated that his 
proposed endeavor involves working "as an infection control manager and material scientist." He 
explained that his proposed work includes "microbiological studies and research activities in the field 
of microbiology," "pre-surgical and post-surgical management of patients," and "implementation of 
protocols for managing operating rooms." In addition, the Petitioner asserted that his undertaking is 
aimed at "surgical equipment acquisition and supply chain," "high level management of sterilization 
and infection control," "exposure and quality control procedures," and "education and training in 
infection control." He farther stated that he seeks to pursue a "Ph.D. in microbial science and infection 
prevention." 
The record includes a report indicating that increases in hospital acquired infections and advancements 
in sterilization and disinfection technologies are driving growth in the global infection control market. 
The Petitioner also provided an article discussing how improperly sterilized surgical instruments are 
harming U.S. patients. The record therefore supports the Director's determination that the Petitioner's 
proposed endeavor relating to infection control management has substantial merit. 
In denying the petition, the Director determined that the Petitioner had not demonstrated the national 
importance of his proposed endeavor. The Director stated that the Petitioner had not shown that his 
proposed activities as an infection control manager "have national implications or otherwise stand to 
4 See Dhanasar, 26 T&N Dec. at 888-91, for elaboration on these three prongs. 
5 The Petitio
1
er prernted the official academic record for his Bachelor of Dental Surgery degree (2010) from the 
University ot and an academic credentials evaluation indicating that the aforementioned degree is the foreign 
equivalent of the U.S. degree of Doctor of Dental Surgery. 
6 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 current and prospective positions to illustrate the 
capacity in which he intends to work in order to determine whether his proposed endeavor meets the requirements of the 
Dhanasar analytical framework. 
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impact the field more broadly, outside of [his employer]." In addition, the Director concluded that the 
Petitioner had not demonstrated that his proposed doctoral studies stand to "have a prospective 
potential benefit outside of the institution or university where he decides to study." For the reasons 
discussed below, we agree with the Director that the Petitioner has not sufficiently established the 
national importance of his proposed endeavor under the first prong of the Dhanasar analytical 
framework. 
In determining national importance, the relevant question is not the importance of the field, industry, 
or profession in which the individual will work; instead we focus on the "the specific endeavor that 
the foreign national proposes to undertake." See Dhanasar, 26 I&N Dec. at 889. In Dhanasar, we 
further noted that "we look for broader implications" of the proposed endeavor and that "[ a ]n 
undertaking may have national importance for example, because it has national or even global 
implications within a particular field." Id. We also stated that "[a]n 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." Id. 
at 890. 
To evaluate whether the Petitioner's proposed endeavor satisfies the national importance requirement 
we look to evidence documenting the "potential prospective impact" of his work. Although the 
Petitioner's statements reflect his intention to provide valuable infection control and sterilization 
services for his employer, he has not offered sufficient information and evidence to demonstrate that 
the prospective impact of his proposed endeavor rises to the level of national importance. 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. Id. at 893. Here, we find the record 
does not show that the Petitioner's proposed endeavor stands to sufficiently extend beyond his 
employers and their patients to impact his field or the U.S. healthcare industry more broadly at a level 
commensurate with national importance. 
Furthermore, with respect to the Petitioner's proposed pre-surgical and post-surgical management of 
patients, while this endeavor has substantial merit, the record does not establish that his clinical work 
would impact the field of surgery or the healthcare field more broadly, as opposed to being limited to 
the patients at medical center where he serves. Accordingly, without sufficient documentary evidence 
of its broader impact, the Petitioner's clinical work does not meet the "national importance" element 
of the first prong of the Dhanasar framework. 
Additionally, regarding the Petitioner's proposed work as a material scientist, a researcher in the field 
of microbiology, or a Ph.D. student in an academic program relating to microbial science and infection 
prevention, he does not discuss the capacity in which he will work in these areas or the specific nature 
of his future U.S. research endeavors. Nor has he identified the material science or microbiology 
research projects he is proposing to undertake or the capacity in which he intends to pursue those 
projects in the United States. Without additional information and evidence, the Petitioner has not 
demonstrated that his prospective work as a material scientist, microbiology researcher, or Ph.D. 
student stands to have broader implications rising to the level of having national importance. He 
therefore has not shown that this work satisfies the "national importance" requirement of Dhanasar' s 
first prong. 
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Finally, the Petitioner has not demonstrated that the specific endeavor he proposes to undertake has 
significant potential to employ U.S. workers or otherwise offers substantial positive economic effects 
for our nation. Without sufficient documentation regarding any projected U.S. economic impact or job 
creation attributable to his future work, the record does not show that benefits to the U.S. regional or 
national economy resulting from the Petitioner's activities would reach the level of "substantial positive 
economic effects," so as to demonstrate their national importance under the first prong of Dhanasar. Id. 
at 890. 
Because the documentation in the record does not establish the national importance of his proposed 
endeavors as required by the first prong of the Dhanasar precedent decision, the Petitioner has not 
demonstrated eligibility for a national interest waiver. Further analysis of his eligibility under the second 
and third prongs outlined in Dhanasar, therefore, would serve no meaningful purpose. 
III. CONCLUSION 
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, we find that 
he has not established he is eligible for or otherwise merits a national interest waiver as a matter of 
discretion. The appeal will be dismissed for the above stated reasons, with each considered as an 
independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
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