sustained EB-2 NIW Case: Metallurgical Engineering

U.S. Citizenship 
and Immigration 
Services 
MATTER OF F-E-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 20, 2017 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a metallurgical engineer, 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 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 otTer and thus of a labor 
certification. Matter ofDhanasar, 261&N Dec. 884 (AAO 2016). 
The Director of the Nebraska Service Center denied the Form l-140, Immigrant Petition for Alien 
Worker. The Director found that the Petitioner qualified for classification as a member of the 
professions holding an advanced degree, but that he had not established eligibility for a national 
interest waiver. 
The matter is now before us on appeal. In his appeal, the Petitioner contends that he is eligible for a 
national interest waiver based on his work developing mineral and mining safety processes with a 
focus on sustainable development. The Petitioner maintains that the Director placed undue emphasis 
on his citation history in analyzing his eligibility for the national interest waiver. 
Upon de novo review, we will sustain the appeal. 
I. LAW 
To establish eligibility for a national interest waiver, a petitioner must tirst 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. 
Matter of F-E-
Section 203(b) of the Act sets out this sequential framework: 
(2) Aliens who are members ofthe 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. ... 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. 
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 clarifies that, after EB-2 eligibility as an advanced degree professional or 
individual of exceptional ability has been established, USCIS may grant a national interest waiver if 
the petitioner demonstrates by a preponderance of the evidence: ( 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. If these 
three elements are satisfied, USCIS may approve the national interest waiver as a matter of 
discretion. 
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 
1 
In announcing this new framework, we vacated our prior precedent decision in Matter of New York State Department of 
Transportation, 22 l&N Dec. 215 (Act. Assoc. Comm 'r 1998) (NYSD07). 
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Matter of F-E-
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. ln 
performing this analysis, USC IS 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 otTer 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 
United States to waive the requirements of a job offer and thus of a labor certification. 2 
II. ANAL YSJS 
The Petitioner received a Ph.D. in metallurgical engineering from 
in Business Administration from 
continue his work as a metallurgical engineer and project manager with 
and a Master's 
He seeks to 
at its in The Director found that the Petitioner qualified as a member of 
the professions holding an advanced degree, but that he had not established eligibility for a national 
interest waiver. On appeal and in a supplemental brief tiled after publication of the Dhanasar precedent 
decision, the Petitioner contends that he is eligible for a waiver because his "pmticular expertise in 
mineral process engineering with a focus on sustainable development and his project management skills 
are of utmost importance to the future and security of the United States." 
A. Substantial Merit and National Importance of the Proposed Endeavor 
The Petitioner indicated on his petition that he specializes in "combining practice and theory to benefit 
the mining industry." The Petitioner maintained that his work aims to help the mining industry 
implement "sustainable , profitable, and envir01m1entally conscious practices to ensure the survival of 
the planet for future generations." He also explained that he intends to "design, implement, and manage 
multimillion dollar mining plans and projects" to ensure that mines operate at "maximum profitability 
with minimal negative impacts on the environment." He claims that his contributions will extend 
beyond the mine at which he works to the larger economy and environment. 
The Petitioner submitted documentation explaining that mining contributes hundreds of billions of 
dollars to the national gross domestic product annually,3 and that the where he is 
2 See Dhanasar, at 889-91 for elaboration on these three prongs. 
3 The Petitioner submitted several articles discussing the economic impact of the mining industry on the U.S. economy 
including a report prepared by the entitled , 
(2012) ," prepared in 2014 ; and the Final Rep011 from the 
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Matter of F-E-
currently employed, produces more than any mine in North America (902 million pounds in 
20 15). Furthermore, is the second largest in the world with $58.8 billion in assets 
and $150 billion in mineral reserves. He further attests that recently underwent a 
one billion dollar expansion project making it one of the largest hydrometallurgical processing plants in 
the world. 
The Petitioner stated that he intends to continue to lead multiple large-scale projects developing safe 
and environmentally sustainable mining practices, similar to his most recent project , a $10 million 
initiative to improve extraction processes. The Petitioner also described in detail how this 
work improves mining processes, advances metallurgical research, and ameliorates critical 
environmental problems. Specifically, he pointed to his development of a novel method to utilize 
activated carbon to reduce yield losses during the extraction of gold, his identification of the effects 
of carbon particle size and magnetic activated carbon, and his leadership in updating and validating 
recovery curves. He maintains that due to the significance of the to the 
mining industry in the United States, its impact on the U.S. economy, and the potential environmental 
risk that 
a mine of this scale represents, his proposed endeavor to continue developing safer and more 
productive mining processes, such as the ones noted above, should be considered nationally important. 
We agree. 
The Petitioner provided letters from colleagues and professors discussing the critical need for 
developing profitable mining 'methods that improve operational capabilities. The letters describe the 
importance of initiating sustainable mining practices and affinn that the Petitioner's work stands to 
significantly influence recovery procedures in the mining industry , reduce lead exposure, and 
exponentially reduce pollution for companies utilizing his methods . He provided several research 
reports from the 
and the 
outlining the importance of mine safety and sustainability to both U.S. national security interests and 
economic growth, and discussing the formidable cost of mining accidents to the economy as a whole. 
Therefore, the record sufficiently establishes that the proposed endeavor otlers positive economic 
effects and environmental consequences that reach beyond the Petitioner's employer to affect ·the 
mining industry more broadly, and therefore, the U.S. economy, due to the size and scope of the 
operation and the Petitioner's integral role in its safe and profitable operation . 
Therefore, given the importance of the to the mining industry generally, the essential role 
that the Petitioner stands to serve, and the potentially grave environmental and economic consequences 
of mining accidents, we find that the Petitioner's proposed work has both substantial merit and 
national importance. 
entitled ' published in 2002. 
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Matter ofF-E-
B. Well Positioned to Advance the Proposed Endeavor 
The Petitioner submitted his resume and educational credentials, documentation of his published and 
presented work, evidence of his peer review activities, and reference letters discussing his work in 
the field. As discussed below, given the Petitioner's notable experience on high-profile projects in the 
area of metallurgical engineering at one of the largest and most impactful mines in the world, we 
find that he is well positioned to advance his proposed endeavor. 
The Petitioner provided letters from colleagues and independent professionals attesting to the 
importance of his project management accomplishments. The Petitioner explained that one of his 
significant impacts on the field of metallurgical engineering was his development of a novel method 
to utilize activated carbon to reduce yield losses during the extraction of gold from gangue material. 
Chief Mining Engineer , described how the Petitioner's "outstanding 
contribution to science in the field of extractive metallurgy has had far reaching consequences and 
impact as well as a high degree of influence in the scientific community. " He stated that the 
Petitioner's work on the effects of activated carbon pmticle size and magnetic activated carbon 
effects on gold absorption and elution has "helped the mineral industr y to maximize recovery in such 
a manner that reduces gold losses through recovery." also explained that the 
Petitioner js the project manager for a $10 million project at to improve extraction 
processes which improved operations culminating in "huge savings" for the mine. He noted that the 
Petitioner "served as the project lead for updating and validating recovery curves that 
are over 15 years old, which will allow management to make strategic decisions about our business 
into the future." He also stated that the Petitioner has been "essential" to continuously improving the 
leaching process by monitoring and evaluating performance indicators which are "fundamentally 
critical to our extraction process ," culminating in "huge savings " for the mine given the 
capital intensity of the operation. 
Similarly, senior metallurgist and section head at described how the 
Petitioner developed "better recovery curves to accurately estimate the· amount of metal the 
company can expect to extract from different and varying ore minerology." 
characterized the Petitioner's work as "instrumental in the re-evaluation of the life of mine" resulting 
in " I 0 more years of life, which by implication , offers additional job security for 
employees. " also with discusses how the Petitioner 
successfully managed /led a multi-million dollar research and development project involving 
leaching methods , chemical analysis of the leaching heaps, using state-of-the-art . software for 
validating leach parameters. attests that the Petitioner ' s. work has led to "significant 
contributions" to efficient pulse planning, and enhancing the iron recovery needed for effective 
leaching of sulfide minerals thus "yielding great dividends." 
The Petitioner has also submitted evidence that his work has impacted metallurgical engineering 
processes at competing companies and with other scholars in the tield. senior 
engineer at stated that he encountered the Petitioner 's research in "technical 
journal publications ," and contacted the Petitioner directly to further inquire. He attested that the 
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Matter of F-E-
Petitioner's work, despite proprietary limitations, has "contributed immensely to my own research 
work in the powder metallurgy industry." also commended the Petitioner's "less aggressive 
method" of washing to reduce lead pollution in waste water. He indicated that the Petitioner's 
unique process improvement "produced a 2% reduction in the rejection rate of lead plated 
due to lead oxide contamination," and that his "significant contribution " has "culminated in 
exponential reduction of pollution. " 
a metallurgical engineering professor at the noted that the 
Petitioner's work on the effects of carbon particle size and magnetic activated carbon eflects on gold 
absorption and elution has "precisely addressed" an "age-old problem " of developing innovative 
ways to reduce gold losses through recovery, which is "significantly improving" mining procedures 
throughout the industry. Furthermore, associate professor of metallurgical 
engineering, explained how the Petitioner's work 
on the effects of current reversal on coated titanium anodes "breaks new ground in this field." He 
stated that it "helps to significantly improve coated material lifetimes of materials used in 
adverse/harsh industrial conditions " and in doing so "drastically reduce environmental pollution and 
hence improve companies ' profitability ." He maintained that this achievement "influences our 
entire field." also attested that he and his peers in the scientific community are using the 
Petitioner's work instructionally in their graduate level classes. 
a senior research engineer at described how the Petitioner's 
work has influenc~d his own research. He explained that the Petitioner developed a novel method to 
clean lead anodes in the electromining industry that "enhances lead anode life and 
. significantly reduced the lead footprint. " He stated that "lead poisoning is a global environmental 
hazard as prolonged exposure can lead to fatalities and/or debilitating chronic illnesses with 
associated enormous social cost," and that the Petitioner work "reduces lead exposure " and "has 
broken 
new ground in the field." 
Acknowledging the letters but focusing primarily on the number of citations , the Director stated that 
the Petitioner had not demonstrated that his contributions "have enjoyed widespread implementation 
in the field." 4 Under Dhana sar, the relevant inquiry is whether the Petitioner has established that h e 
is well positioned to advance the proposed endeavor. On appeal , the Petition er contends that his lack 
of citation history is not an accurate reflection of his influence and achievement within the broader 
field of metallurgical engineering because he works for a private company that funds and "owns" his 
research, making it "proprietary in nature, and therefore unlikely to result in well-cited journal 
publications." He also reiterates that his proposed endeavor is primarily project management , not 
research. 
4 The analytical framework in place at the time of the Director's decision was Matter (){ New York State Department of 
Transportation , 22 I&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSD07) , under which a petitioner was required to 
establish some degree of influence on the field as a whole. 
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Matter of F-E-
Supporting the Petitioner ' s claim on appeal, an engineer at a competing company, discusses 
the differences between industrial application research, which is driven by needs in the industry, and 
pure academic research, which is motivated by the researcher's own inclinations. He states that the 
results of the Petitioner's research are delivered directly to the organizations that request and fund 
the work, and have "proprietary limitations ," preventing publication of key technological 
information. He further explains that the impact of industrial research is best measured by its direct 
practical use, rather than its use by academic researchers. states that "due to the efforts by 
sponsoring organizations to maintain secrecy , most of [the Petitioner ' s) works are held as "trade 
secrets." However, the Petitioner "continues to demonstrate his scholarly attributes and high degree 
of inf1uence in his field by developing solutions to very complicated technical problems within his 
industry." 
While a strong citation history can be useful in establishing the inf1uence or significance of an 
individual's work within the broader field, the evidence in the aggregate supports the Petitioner's 
affirmation that his past work has found practical application in industry settings , rendering him well 
positioned to advance the proposed endeavor. The submitted letters describe with specificity how 
his work has been used by his employer who relies upon him to manage multi-million dollar projects 
at the in North America, as well as how his work has impacted other independent 
mmmg companies. Thus, the significance of his leadership role in research projects and, most 
importantly, his track record managing large scale mining projects, position him well to continue to 
advance his proposed endeavor of developing and implementing sustainable mining techniques. 
C. Balancing Factors to Determine Waiver's Benefit to the United States . 
Third and finally, we conclude 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 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. 
As noted above, the Petitioner holds a Ph.D. in metallurgical engineering, along with considerable 
experience and expertise in field. He has established a proven record of innovation and leadership 
developing cutting-edge mining processes that further productivity while minimizing environmental 
impact, and he has documented his past success advancing high-profile projects such as spearheading 
multi-million dollar projects that enable the mineral industry to maximize recovery while reducing 
gold losses and lead exposure resulting in reduction of pollution for companies utilizing his methods. 
The Petitioner notes that his leadership experience developing and improving intricate mining 
processes, his record of proven innovation, and his ability to use creative thinking to solve technical 
and multifaceted problems in the mining industry cannot be articulated on an application for labor 
certification because such requirements are not customaril y required for the occupation of a 
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Matter of F-E-
metallurgical engineer. 
qualifications. 
They would be considered narrowly tailored to the Petitioner's 
Furthermore, numerous experts in the field attested to their use of the Petitioner's work in their own 
metallurgical engineering research, extending the benefits of the Petitioner's work beyond any one 
employer. Because of his demonstrated history of managing large-scale mining projects that 
improve both the safety and environmental sustainability of mining operations, we find the Petitioner 
offers contributions of such value that the United States will benefit from his work even assuming 
that other qualified U.S. workers were available. 
III. CONCLUSION 
The Petitioner has met the requisite three prongs set forth in the Dhanasar analytical framework. We 
find that he has established eligibility for and otherwise merits a national interest waiver as a matter 
of discretion. 
ORDER: The appeal is sustained. 
Cite as Matter of F-E-, ID# 46885 (AAO Mar. 20, 2017) 
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