dismissed EB-2 NIW Case: Wind Erosion Research

U.S. Citizenship 
and Immigration 
Services 
In Re: 9823287 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : OCT . 16, 2020 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a wind erosion 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 denied the petition, 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 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 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. -
(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). 1 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 2, 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 
1 In announcing this new framework. 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). 
2 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). 
2 
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. 3 
II. ANALYSIS 
The Director found that the Petitioner qualifies as a member of the professions holding an advanced 
degree. 4 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. 
From August 2008 until June 2015, the Petitioner worked as a graduate research assistant in the 
Department of Biological and Agricultural Engineering at! I He later ~s a postdoctoral 
research fellow in the Department of Earth and Environmental Science at L___JUniversity from 
October 2015 until July 2017. Since August 2019, the Petitioner has been employed as a mathematics 
teacher for.__ _______ ~ Public Schools in Maryland. 5 As outlined below, we agree with 
the Director that the Petitioner has not sufficiently demonstrated eligibility for a national interest waiver 
under the Dhanasar analytical framework. 
A. Substantial Merit and National Importance of the Proposed Endeavor 
The Petitioner indicated that he intends to continue his research aimed at using '---------' 
I I shelter for agricultural lands against wind erosion events," "open-source software packages 
for computational fluid dynamics (CFD) simulation in validating air and particle flow across 
I I" and '--------~---,-,and.__ _______ _. tracers for 
wind erosion" analyses. In addition, he stated that his roposed work involves "numerical and CFD 
simulation of wind erosion tracers in environmental conditions," "assessment of 
wind erosion in drylands durin environment using remote sensing," "air quality 
monitoring in areas affected b ~----' ' and "use of an open-source software package for analysis 
of remote sensing data for wind erosion research." The Petitioner further explained that his proposed 
research includes "development and creation of a mobile application for air quality monitoring, wind 
erosion, and remote sensing data consolidation." 
The record demonstrates that the Petitioner's proposed endeavor has substantial merit and national 
~rtance. For example, the record includes a letter I I professor of forestry at 
L_J explaining that the Petitioner's proposed research seeks to benefit our country "by solving 
problems of wind erosion which could cause land degradation, and crop destruction that could lead to 
hunger, along with health risks to humans and animals." In addition, the Petitioner submitted a letter 
3 See Dhanasar, 26 T&N Dec. at 888-91, for elaboration on these three prongs. 
4 The Petitioner received a Ph.D. in Biological and Agricultural Engineering from~---------~ in 
August 2015. 
5 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 former 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. 
3 
froml I Member of Congress, stating that the Petitioner's proposed work is aimed at 
"prevention of pollution that land degradation poses with '-------~ wind erosion, cattle 
feedlot, and dryland and agricultural land emissions during harvesting." He further asserted that the 
Petitioner's undertaking "offers the prospect of improved health and well-being of the American 
people." The Petitioner also presented articles about worsening soil erosion in the Western United 
States and its creation of more dust in the air, ecosystem losses attributable to desertification, smoke 
from U.S. wildfires as a health risk for millions of Americans, deteriorating air quality associated with 
wildfires in the West, and U.S. wildfire smoke death projections. Furthermore, the Petitioner provided 
documentation indicating that the benefit of his proposed research has broader implications, as the 
results are disseminated to others in the field through scientific journals and conferences. As the 
Petitioner has documented both the substantial merit and national importance of his proposed wind 
erosion research, he has established that he meets the first prong of the Dhanasar framework. 
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, peer review activity, 
and memberships. He also offered a list of articles that cited to his published work, and letters of 
~rt discussing his work under the guidance o±i I and .__ ________ ~at 
L_Jandl latl I University. 
The Petitioner contends on appeal that he has "continued his work and research without interruption 
to the present day notwithstanding his other work as a mathematics teacher." He asserts that he 
recently "had yet another manuscript accepted for publication in a leading scientific journal, and that 
he is currently finalizing the manuscript for another publication." Additionally, the Petitioner 
maintains that his research experience in his specialty, published work, and recommendation letters 
from experts in the field demonstrate that he is well positioned to advance his proposed endeavor. For 
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 lyiers su7porting the petition, several references discussed the Petitioner's research projects atO 
and University. 6 For example, regarding the Petitioner's work regardilg aerdynamics of 
wind erosion through!.__~----~~,.__ ______ __. adjunct faculty at stated that the 
Petitioner's findings "helped establish the effects of abrasion on simulated.__ ______ _. that 
represented --~-----c,J· His studies were important in establishing practices to minimize 
the e!lects of wind erosiot on agriculial lands and enab I[ ing] fanners to learn about controlling such 
phenomenon." Likewise, an adjunct professor atc=Jand a research agricultural engineer 
with the United States epartment of Agriculture, asserted that the Petitioner "gained valuable 
experience ... in wind erosion and CFD modeling research that has contributed significantly to our 
improved understanding of fundamental wind erosion causes and control." I land I I 
did not provide specific examples indicating that the Petitioner's work has affected wind erosion 
minimization practices or otherwise constitutes a record of success in his field. 
6 While we discuss a sampling of these letters, we have reviewed and considered each one. 
4 
With respect to the Petitioner's research relatin to aerodynamic parameters for I O 0 
windbreaks, I I professor at stated that the Petitioner's work assessed "the 
importance of maintaining such ~------~ for protecting agricultural lands from wind 
erosion" and determined "the relative sheltering efficiencies of I I barriers from wind 
erosion through characterization of particulate matter (dust) em1ss10ns that passed through the 
windbreak." I I further indicated that the Petitioner has extended these "studies by adapting 
novel techniques in his numerical modeling simulation and validation experiments," but he does not 
explain how the Petitioner's work has been implemented, utilized, or applauded by others in the field. 
Regarding the Petitioner's work involving anthropogenic factors on sediment transport processes in a 
I I in the I I Desert,! I assistant professor atll 
University, asserted that the Petitioner's work investigated the applicability of using c::::=J I I and I tracers br aeolian sediment transport ... to monitor landscape responses to 
disturbances." WhilJ,__ __ _. tated that this work answered "a series of key questions relating to the 
interactions among fire, vegetation, and sediment transport processes inl I systems and 
[their] implications on ecosystem degradation and air quality," he did not offer examples of how the 
Petitioner's research has influenced the agricultural industry, has served as an impetus for progress or 
generated positive discourse in his field, or otherwise represents a record of success or progress 
rendering him well positioned to advance his proposed endeavor. 
As it relates to the citation of the Petitioner's work, his appellate submission includes a self-compiled 
citation list for eight of his research papers, but he did not offer supporting evidence to corroborate his 
assertions. 7 This self-compiled information lacks probative value and does not demonstrate citations 
to his work by others in the field. Moreover, the record does not include comparative statistics 
indicating how often other wind erosion researchers are cited, nor has the Petitioner otherwise 
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. 
Additionally, while the Petitioner contends that he has been "preparing and filing proposals for 
scientific research funding," he does not offer evidence showing that he has been the recipient of any 
scientific research grants. In Dhanasar, the record established that the petitioner "initiated" or was 
"the primary award contact on several funded grant proposals" and that he was "the only listed 
researcher on many of the grants." Id. at 893, n.11. Here, the record does not show that the Petitioner 
has received funding for his research proposals or future projects. With respect to the Petitioner 
obtaining a research position at a U.S. university or research institute, the record does not contain 
documentation from any such organization identifying the specific research projects he intends to 
pursue on the organization's behalf. Without sufficient evidence demonstrating the means or financial 
support to undertake his proposed wind erosion research in the United States, the Petitioner has not 
shown that his plan for future activities renders him well positioned to advance his proposed 
endeavor. 8 
7 For example, he did not present copies of the articles that cited to his work or other supporting evidence in the form of 
citation results from databases or search engines (such as Scopus, Web of Science, or Google Scholar). In addition, many 
of the claimed citations are self-cites by the Petitioner or his coauthors. Furthermore, many of the listed citations occurred 
in papers published after the petition's filing date. See 8 C.F.R. § I 03 .2(b )(I). 
8 As previously noted, the Petitioner indicated that he is presently working full-time as a mathematics teacher fore=] 
5 
Regarding his peer review activity, the Petitioner provided emails inviting him to review manuscripts 
submitted to Aeolian Research, Land Degradation and Development, Scient[fic Reports, Catena, 
Biosystems Engineering, and Applied Engineering in Agriculture, but he did not provide evidence 
showing that he completed these reviews. Regardless, the Petitioner has not demonstrated that 
occasional participation in the widespread peer review process represents 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 Petitioner also submitted documentation of his membership in the Philippine Institute of Chemical 
Engineers, the American Society of Agricultural and Biological Engineers, the American Geophysical 
Union, and thd Philippine Student Association. He also presented his certificates of membership 
for the Phi Kappa Phi Honor Society and the Alpha Epsilon Honor Society. The record, however, 
does not include evidence demonstrating the significance or level of distinction of these memberships 
in his field. Nor has the Petitioner established that his memberships are sufficient to show a record of 
success in his research or a level of interest in his work from relevant parties signifying that he is well 
positioned to advance his proposed wind erosion research. 
The record demonstrates that the Petitioner has conducted, published, and presented research during 
his graduate studies and professional career, 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 agricultural engineering 
field or that it has generated substantial positive discourse in the environmental science community. 
Nor does the evidence otherwise show that his work constitutes a record of success or progress in 
advancing research relating to wind erosion. As the record is insufficient to demonstrate that the 
Petitioner is well positioned to advance his proposed research endeavor, he 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 
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 importance of his 
field and the impracticality of labor certification. 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 . 
.__ ____ ___.!Public Schools. He has not shown that the remaining time he plans to devote to wind erosion research 
is sufficient to render him well positioned to advance his proposed endeavor. 
6 
III. 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 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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