sustained EB-2 NIW Case: Food Science

U.S. Citizenship 
and Immigration 
Services 
MATTER OF G-D-K-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE : OCT . 23, 2019 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner , a foodbome pathogen 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 a 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 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 . Matter of 
Dhanasar , 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 interest. 
On appeal , the Petitioner submits a brief asserting that he is eligible for a national interest waiver under 
the Dhanasar framework. 
Upon de novo review, we will sustain 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: 
Matter of G-D-K-
(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. 1 Dhanasar states that after EB-2 eligibility has been established, users 
may, as a matter of discretion, grant a national interest waiver when the below prongs are met. See 
also Poursina v. USCIS, No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USeIS' decision 
to grant or deny a national interest waiver to be discretionary in nature). 
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, users 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 
Matter of G-D-K-
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. 2 
II. ANALYSIS 
The Director found that the Petitoner qualifies as a member of the professions holding an advanced 
degree. 3 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. 
At the time of filing, the Petitioner was a postdoctoral research associate in the Department of Plant 
Science and Landscape Architecture at the University of I I. In June 2018, the 
Petitioner accepted a position as an Assistant Professor of Food Safety Microbiology at the University 
ofl r For the reasons discussed below, we find the Petitioner has established eligibility for a 
national interest waiver under the analytical framework set forth in Dhanasar. 
A. Substantial Merit and National Importance of the Proposed Endeavor 
The Petitioner indicated that he intends to continue his research aimed at ensuring a healthy food 
system and sustainable crop production methods. He farther explained that his proposed work relates 
to "understanding foodbome pathogen survival in the environment, internalization in produce, and 
resistance to sanitizers." In addition, the record includes information from the I , I 
at the University of I I stating that the Petitioner's proposed research focuses on improving "the 
microbiological safety of produce commodities," understanding "bacterial persistence in processing and 
agricultural environments," developing "antimicrobial alternatives to chlorine," and analyzing "bacterial 
stress response to sanitizers." The record also contains articles about the challenges presented by 
foodborne illness, the benefits of effective food safety practices, and the high costs associated with 
food recalls in the United States. Accordingly, the information and evidence shows that Petitioner's 
proposed research relating to foodborne pathogens has substantial merit. 
To satisfy the national importance requirement, the Petitioner must demonstrate the "potential 
prospective impact" of his work. The record includes letters of support discussing how the Petitioner's 
proposed work stands to advance development of improved methods for eliminatin foodborne 
pathogens and preventing bacterial contamination in the food industry. '"'Fa....o=r'---"'in=s"""t=an=c=e"-'-'-____ ...,. 
I I Vice President of Scientific and Regulatory Affairs at the 
I stated that the Petitioner's research "discoveries improve food sa .... fi-et_y_1 __ n_t_h_e_U_n-it-ed-S-ta_t_e-s'_,' 
and "prevent outbreaks of food-borne pathogens, protecting Amerifan health and businesses." 
Similarly,~ ________ _, a research microbiologist with the_ I and 
2 See Dhanasar, 26 T&N Dec. at 888-91, for elaboration on these three prongs. 
3 The Petitioner received a Ph.D. in food science and technology from I l in 2011. 
4 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 consider information about his 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 framework. 
3 
Matter of G-D-K-
,__ _____ __.I at the U.S. Food and Drug Administration (FDA), asserted that the Petitioner's work 
advances "agricultural practices to improve food safety and protect the health of U.S. citizens. His 
research also increases the profitability of the produce industry by improving the control of the 
microbiological quality of the produce and preventing outbreaks of foodbome diseases and recalls." 
Furthermore, the Petitioner has submitted documentation indicating that the benefit of his proposed 
research has broader implications for the field, 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 research, we agree with the Director's finding that the 
Petitioner 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 
his curriculum vitae, academic records, invention disclosures, published and presented work, and 
documentation of articles that cited to his research findings. In addition, the Petitioner offered letters 
from a wide variety of industry experts describing his expertise in foodbome pathogen research and his 
past record of success in that field. 
We find that the Petitioner's past experience renders him well positioned to advance his proposed 
endeavor. Numerous expert references identify specific examples of how the Petitioner's I I 
research has impacted his field and the produce industry. For example,I I a consumer 
safety officer at the FDA, indicated that the Petitioner's work confirmed that "foodbome pathogens such 
as I I can attach to dust and be transferred to produce surfaces." I I asserted that this 
"discovery is of particular interest to FDA as it demonstrates the need to consider dust in conducting 
foodbome pathogen risk assessments of growing operations, and FDA is currently integrating these 
findings into the development of new guidance federal doc~ents to help produce growers ... reduce the 
potential for contamination." Likewise,! J a food microbiologist with the FDA, stated 
that the Petitioner's findings "have been utilized by [FDA] to improve protection protocols forl I 
and better understand! I stress response and survival in low moisture foods. [The Petitioner's] 
research has had a direct impact on the FDA's ability to detect foodbome pathogens .... " 
In addition,! I Senior Microbiologist atl I discussed the 
Petitioner's research showing that I lean assume different ohenotvnif states in response to stress, 
stating: "His research is of great value to companies such a~ .... - _____ _._ developing and optimizing 
detection assays for foodbome pathogens as current traditional methods cannot detect these phenotypes 
which [the Petitioner] has demonstrated to be important." Similarly,! I a researcher at the 
Universit ofl !Agricultural Center, indicated that the Petitioner "identified ways that 
.__ ___ .,.........a::....:.v"""'o=id=s'-idetection and destruction to contaminate food supplies" and that she uses his "findings 
to advise rowers on methods for sample collection and water testing that can detect these 
altemative.__ ___ ...r-~~orphologies." 
Furthermore,! I Technical Services Manager at,__ ____ ~--~ a certified 
organic grower with farming operations in four states, asserted that the Petitioner "developed a produce 
sanitization method composed ofl I that have demonstrated antimicrobial 
efficiency against foodbome pathogens." I ~oted that this "method efficiently sanitizes 
4 
Matter of G-D-K-
produce without the use of conventional chlorine washes that generate byproducts with carcinogenic 
effects" and that "farms such as ours are able to use [the Petitioner's] work to ensure the safety of their 
produce." MoreoverJ I Senior Licensing Manager forl I (ndicated 
that his organization is working towards "establishing a company to sell the I produce 
washes developed by [ the Petitioner]. Our plans to commercialize [ the Petitioner's] research 
demonstrates its importance to the field .... "5 
Finally,~-------~ professor of horticulture at I I University, stated that the 
Petitioner's "record of impactful publications and presentations that have enabled growers to better 
conduct risk assessments and prevent contamination of their produce by foodbome pathogens 
demonstrates that he has made significant achievements in the field." As supporting documentation 
regarding the significance of his work, the Petitioner provided citation evidence showing that his findings 
have been cited by independent researchers in their published work. This documentation further 
corroborates that the Petitioner is well positioned to advance his proposed research in the United States. 
The Petitioner's experience and expertise in his field, published and presented work, citation evidence, 
record of success contributing to various research projects, inventions, and progress in foodbome 
pathogen research position him well to advance his proposed endeavor. Accordingly, we find 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. As a food science researcher, the Petitioner possesses considerable experience and expertise 
in foodbome pathology. The record also demonstrates the widespread benefits associated with research 
progress towards ensuring a healthy food system and sustainable crop production methods. In addition, 
the Petitioner has documented his past successes in advancing research relating to understanding 
bacterial contamination of produce and developing effective sanitization methods. Based on the 
Petitioner's track record of successful research and the significance of his proposed work to advance U.S. 
agricultural and food industry interests, we find that he offers contributions of such value that, on balance, 
they would benefit the United States even assuming that other qualified U.S. workers are available. 
III. CONCLUSION 
The Petitioner has met the requisite three prongs set forth in the Dhanasar analytical framework. We 
find that he has established he is eligible for and otherwise merits a national interest waiver as a matter 
of discretion. 
ORDER: The appeal is sustained. 
Cite as Matter ofG-D-K-, ID# 4698526 (AAO Oct. 23, 2019) 
5 The record includes documentation of three invention disclosures authored by the Petitioner. 
5