sustained EB-2 NIW Case: Occupational And Environmental Medicine

(b)(6)
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W. , MS 2090 
Washington , DC 20529 -2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: APR 2 5 2014 OFFICE: NEBRASKA SERVICE CENTER FILE:, 
INRE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b )(2) of the Immigration 
and Nationality Act, 8 U.S.C. § 1153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. This is a non­
precedent decision. The AAO does not announce new constructions of law nor establish agency policy 
through non-precedent decisions. 
Thank you, 
.M !J-ttAd i1~ 
1~ Ron Rosenberg 
t Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office on appeal. We will sustain the 
appeal 
and approve the petition. 
The petitioner seeks to classify the beneficiary under section 203(b )(2) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. § 1153(b)(2), as a member of the professions holding an advanced 
degree. The petitioner, a public university, seeks to employ the beneficiary as a clinical professor in the 
petitioner's Division of Occupational and Environmental Medicine (OEM). The petitioner asserts that 
an exemption from the requirement of a job offer, and thus of a labor certification, is in the national 
interest of the United States. The director found that the petitioner qualifies for classification as a 
member of the professions holding an advanced degree but that the petitioner had not established that an 
exemption from the requirement of a job offer would be in the national interest of the United States. 
On appeal, the petitioner submits a statement, letters from officials of the petitioning employer and 
other witnesses, and background evidence. 
Section 203(b) of the Act states, in pertinent part: 
(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) ... 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. 
The director did not dispute that the beneficiary qualifies as a member of the professions holding an 
advanced degree. The sole issue in contention is whether the petitioner has established that a waiver of 
the job offer requirement, and thus a labor certification, is in the national interest. 
Neither the statute nor the pertinent regulations define the term "national interest." Additionally, 
Congress did not provide a specific definition of "in the national interest." The Committee on the 
Judiciary merely 
noted in its report to the Senate that the committee had "focused on national interest by 
(b)(6)
NON-PRECEDENT DECISION 
Page 3 
increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise .... " S. Rep. No. 55, lOlst Cong., 1st Sess., 11 (1989). 
Supplementary information to regulations implementing the Immigration Act of 1990, P.L. 101-649, 
104 Stat. 4978 (Nov. 29, 1990), published at 56 Fed. Reg. 60897, 60900 (Nov. 29, 1991), states: 
The Service [now U.S. Citizenship and Immigration Services (USCIS)] believes it 
appropriate to leave the application of this test as flexible as possible, although clearly 
an alien seeking to meet the [national interest] standard must make a showing 
significantly above that necessary to prove the "prospective national benefit" 
[required of aliens seeking to qualify as "exceptional."] The burden will rest with the 
alien to establish that exemption from, or waiver of, the job offer will be in the 
national interest. Each case is to be judged on its own merits. 
In reNew York State Dept of Transportation, 22 I&N Dec. 215, 217-18 (Act. Assoc. Comm'r 1998) 
(NYSDOT), has set forth several factors which must be considered when evaluating a request for a 
national interest waiver. First, a petitioner must establish that the alien seeks employment in an area of 
substantial intrinsic merit. !d. at 217. Next, a petitioner must establish that the proposed benefit will be 
national in scope. !d. Finally, the petitioner seeking the waiver must establish that the alien will serve 
the national interest to a substantially greater degree than would an available U.S. worker having the 
same minimum qualifications. !d. at 217-18. 
While the national interest waiver hinges on prospective national benefit, the petitioner must establish 
that the alien's past record justifies projections of future benefit to the national interest. !d. at 219. The 
petitioner's assurance that the alien will, in the future, serve the national interest cannot suffice to 
establish prospective national benefit. The term "prospective" is included here to require future 
contributions by the alien, rather than to facilitate the entry of an alien with no demonstrable prior 
achievements, and whose benefit to the national interest would thus be entirely speculative. !d. 
The regulation at 8 C.P.R. § 204.5(k)(2) defines "exceptional ability" as "a degree of expertise 
significantly above that ordinarily encountered" in a given area of endeavor . By statute, aliens of 
exceptional ability are generally subject to the job offer/labor certification requirement; they are not 
exempt by virtue of their exceptional ability. Therefore, whether a given alien seeks classification as 
an alien of exceptional ability, or as a member of the professions holding an advanced degree, that 
alien cannot qualify for a waiver just by demonstrating a degree of expertise significantly above that 
ordinarily encountered in his or her field of expertise. 
The petitioner filed the Form I-140. Immigrant Petition for Alien Worker, on October 1, 2012. In an 
accompanying letter, Professor :::hief ofthe petitioner's Division of Occupational and 
Environmental Medicine, stated: 
[The beneficiary] is a highly recognized figure in the field of Occupational and 
Environmental Medicine. . 
. . He has developed model medical surveillance 
(b)(6)
Page 4 
NON-PRECEDENT DECISION 
programs, immunization programs, and post-exposure and emergency respo~se 
programs for infectious agents in health care facilities, laboratory animal research, 
and other work settings. Some of these are now in widespread utilization both 
nationally and internationally .... He is the past President and continues to serve in 
various leadership capacities in the 
which is the leading association dedicated to improving the 
practice of occupational and environmental health. He continues to consult with a 
broad range of university institutions, private companies, and governmental bodies on 
both the enhancement of measures promoting health in the workplace as well as 
dealing with workplace-related illnesses and healthcare policies. 
. . . [The beneficiary] has been a leading figure in certain specific initiatives to 
develop national programs in the field ofoccupational and environmental health. In 
the aftermath of a widely publicized incident in San Francisco harbor, he developed 
medical surveillance standards for marine pilots serving coastal communities. This 
study was undertaken at the request of the U.S. National Transportation Safety Board 
(NTSB) and resulted in [the beneficiary] formulating recommendations on new 
approaches to medical surveillance of boat pilot health and capabilities. . . . At 
present, his recommendations are in the process of implementation by 
the American Marine Pilot Association and 
the U.S. Coast Guard, so as to establish without question the national importance and 
reach of his work. 
In addition, [the beneficiary] has done nationally important work in the development 
of scalable emergency response to local and regional exposures to infectious agents, 
on standards related to dealing with violence against home health and hospice 
workers, on modeling responses to the SARS [Severe Adult Respiratory Syndrome] 
virus, on initiatives to deal with various other communicable diseases (most notably, 
HlNl ), and on developing protocols and programs dealing with structuring hospital 
emergency operations and hospital command systems in the event of healthcare crises 
stemming from workplace activity, including health care provider exposures through 
the care of the public, especially in outbreak situations .... 
He is engaged in a wide range of services related to developing high and beneficial 
standards of health and safety at the workplace. At core, his work deals with the 
prevention and management of illness, injury, or disability that is related to the 
workplace. In addition to developing a broad range of healthcare standards, 
protocols, and initiatives within the system, he has and 
continues to perform scholarly and public policy work of national importance. He 
has done specific research studies that have resulted in new protocols, standards of 
conduct, screening procedures, and preventive and therapeutic initiatives that address 
various workplace-related illnesses, injuries, and disabilities. He has and continues to 
work with various international organizations- most notably, the International Labor 
(b)(6)
PageS 
NON-PRECEDENT DECISION 
Organization (ILO) - as well as federal, state, academic, and professional 
organizations to develop standards and approaches related to the physical, mental, 
and social well-being of workers .... His contributions are not speculative; rather, he 
has an established record of achievement and professional attainment that has 
contributed to the enhancement nationally of workplace standards and protocols 
related to the enhancement of worker healthcare .... 
[The petitioner's] Division of Occupational and Environmental Medicine ... has 
taken a leadership position in academic Occupational and Environmental Medicine 
since the passage of the OSHA Act 
[Occupational Safety and Health Act] .... 
While a principal accountability in [the beneficiary's] position is to provide direct 
clinical services to workplace related injuries and illnesses as well as to formulate this 
institution's policies and programs dealing with workplace related injury and illness, 
the work he is doing serves as a model and clinical laboratory to other institutions in 
the field of occupational and environmental healthcare concerns. We are a leading 
center of initiatives in the field of occupational and environmental health, and ... this 
forms the bases for [the beneficiary's] active participation in a multitude of initiatives 
on a national and global level to develop and implement programs of importance and 
sustenance related to workplace health and safety measures. 
Several other letters accompanied the initial filing of the petition. Professor who 
holds professorships at the petitioning institution and the and also 
directs the Health Services Department at stated that the 
beneficiary "has made important advances in our ability to take preventive action and respond 
appropriately to many infectious agents." Prof. stated that the beneficiary's "leadership in 
professional organizations and government service ... reflect his status in the occupational medicine 
community." 
president of the 
stated: 
[The beneficiary] serves as a member of our 
One of the oversigned responsibilities of the Board is an annual determination of each 
licensee's physical and mental fitness to serve as a ..... In the 
aftermath of the allision with the San Francisco-Oakland 
Bay Bridge and resulting release into the Bay of over 
the Board's Incident Review Committee conducted an investigation of 
the incident and determined that there had been pilot error. The pilot navigating the 
vessel had health problems that were not known to the Board, and that likely affected 
his judgment and ability to navigate. . . . [T]he Board determined that it should 
(b)(6)
Page 6 
NON-PRECEDENT DECISION 
conduct a review of its pilot fitness standards and procedures and make changes if 
appropriate. 
[The beneficiary] was engaged by the Board to perform a thorough examination of 
the Board's pilot fitness standards and fitness oversight procedures and to make 
recommendations for improvements. His report and recommendations . . . for~ a 
foundation upon which the Board is making important changes to its pilot fitness 
oversight. ... 
Those changes, presently the subject of administrative rulemaking, already have 
attracted considerable attention among pilotage regulators and pilots on the Pacific 
Coast and across the United States. The changes will become a template and likely 
will be followed by regulators in many other ports. [The beneficiary's] work is of 
national significance. 
The cover page of the . 
bears the beneficiary's name, confirming 
the beneficiary's major role in preparing the study. 
Professor of stated: "Through his involvement in 
professional organizations [the beneficiary] has gained a national reputation as a person of high 
integrity, well organized, a good thinker, and a person who gets things done. This is evidenced by 
his rise to leadership in all the different organizations he has been involved with." 
Dr. 
the 
, associate professor and director of the Occupational Health Nursing Program at 
, stated: 
[The beneficiary] is a superb and renowned figure working in the field of 
occupational and environmental health .... 
[The beneficiary's] work focuses on enhancing standards of safety, health, and 
healthcare prevention in the workplace. He has performed valuable studies bn 
clinical response protocols to the HlNl Influenza Pandemic, developed a SARS 
Occupational Response protocol, and his work with the Board of Pilot 
Commissioners is already leading to national change in medical surveillance 
regulations. [The beneficiary's] work related to SARS and HlNl is highly regarded 
and used throughout the country by healthcare institutions to design strategies to 
prevent exposure risk. In addition, I would like to draw particular attention to [the 
beneficiary's] work to curb violence against home health and hospice workers .... 
His groundbreaking work provided an analysis of the policies and practices of home 
health care and hospice agencies so as to develop appropriate initiatives to recognize, 
address, and ultimately minimize the threats to this particular occupational group. 
His study acts as foundational work to continuing research, and fills out the nature of 
(b)(6)
Page 7 
Dr. 
NON-PRECEDENT DECISION 
violence in the health care sector to home care and hospice workers. There is no 
other work in the literature on this topic. 
executive director of the 
stated: 
The clinic at [the petitioning university] was a founding member of (The 
beneficiary] has demonstrated a commitment to principles, and has worked to 
strengthen the clinical program at [the petitioning university] since his arrival there . 
. . . I have worked closely with [the beneficiary] over the past six years on a number 
of projects important to both . and to the overall OEH issues. This has included 
such varying issues as the American Conference of Governmental Industr~al 
Hygienists threshold limit values, developing the plan to work in the Gulf Coast'to 
help improve the OEH infrastructure, the patient bill of rights, discussions 
over the need and limitations of mandatory vaccines for health care workers, 
recruiting students into OEH careers, and maintaining standards for all OEH 
professionals. I work with any number of academics who write about these issues 
and others. [The beneficiary] goes a step further and works to implement them. 
Dr. associate professor and medical director of Occupational Health at 
, served with the beneficiary on the Board of Directors and, like the beneficiary, 
previously served as its president. Dr stated: 
[The beneficiary] has already made great contributions to the field of OEM before he 
came to the U.S. from Canada, where he held leadership roles in occupational health 
at provincial and national levels. In addition to this experience in health policy 
development, he gained special operational expertise from his experience in guiding 
Canada's response to the SARS epidemic .... 
In his current position, he provides an essential service at the local level, directing the 
employee health programs that ensure the health and safety of healthcare workers at 
the [petitioning] medical center. . . . He is particularly interested in reducing the 
impact of chemical, biological and physical agents, and has active roles in various 
institutional, governmental, and service organizations. Among these is his work to 
direct the national needle-stick "PEP" hotline, which provides real-time access to 
guidance from content experts for immediate evaluation and treatment of healthcare 
workers and emergency response personnel who may have suffered exposure to 
infectious agents. His leadership at the national level is also exemplified by his 
recent service as President of the 
where he was influential in reviewing the 
List, a resource that is recognized internationally as a useful guide to the initial 
clinical assessment of workers with hazardous chemical exposures. 
(b)(6)
NON-PRECEDENT DECISION 
Page 8 
Professor chair of the Department of Occupational Health Sciences at the 
_ and board president of the credited the 
beneficiary with "important teaching contributions to the Occupational Medicine Residency at his 
institution," and stated that the beneficiary "will be chairing an upcoming national meeting in 
November of 2013 on occupational and environmental factors in neurologic disease and updates in 
occupational and environmental medicine." 
Some of the witnesses' claims lack corroboration. For example, Prof. had asserted that the 
beneficiary's "recommendations are in the process of implementation by ... the American Marine 
Pilot Association and the U.S. Coast Guard," but the record contains no evidence from those entities 
to corroborate that claim. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 
22 I&N Dec. 158, 165 (Comrn'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 
190 (Reg'l Comm'r 1972)). 
Other claims are better SUQEorted. The petitioner submitted copies documentation showing a one-
year grant from the and a subcontract from the 
to study "Violence Among Home Health and Hospice Care Workers." The 
petitioner also submitted documentation of conference presentations and courses arising from the 
beneficiary's work, as well as partial copies of reports and articles written by the beneficiary. 
published by the , credited no author, 
but identified the beneficiary as one of several "Experts appointed after consultation with the 
Employers' group" who participated in a March 2000 meeting that finalized and ado ted the code. 
The record also identified the beneficiary as chair of the . 
, and confirmed his membership 
on several other committees. 
The director issued a request for evidence on January 30, 2013. The director requested 
"documentary evidence to establish that [the beneficiary has] a past record of specific prior 
achievement that justifies projections of future benefit to the national interest." The director 
specifically asked for copies of articles that cited the beneficiary's published work. 
In response, Prof. asserted that the petitioner's record of influential achievements includes 
isted - -
"five of [the beneficiary's] most important and influential studies," only one of which was pub ished 
as a journal article; the rest are reports and studies commissioned by particular organizations. One 
of those papers, published by the 
iclentifiP.cl the heneficiarv as one of 16 members of the Subcommittee on the 
(b)(6)
NON-PRECEDENT DECISION 
Page 9 
The director denied the petition on July 3, 2013, stating: 
The Service does not dispute that the beneficiary's services are beneficial to his 
institution and its clients/patients , but the beneficiary has not shown any measurable 
influence on the field at a national level. The record contains no indication as to what 
level of national benefit can be ascribed specifically to the beneficiary that would set 
him apart from other clinical professors. 
1 
Clinical patient treatment lacks national scope, as the direct benefits of this 
physician's service are limited to the physician's clientele. Published medical 
research has a wider effect, because research findings can be implemented by others, 
but the record contains limited information about the scope of the beneficiary's 
research activities. In addition there is no evidence to attest to the scope and nature of 
the beneficiary 's skill or record as a professor. ... 
The Service finds that it has not been demonstrated that the beneficiary's publishing 
history, in terms of numbers of published articles, exceeds that expected of successful 
scientists. Regarding influence on the field, the evidence submitted does not establish 
that the petitioner's [sic] research has been widely cited. 
On appeal, the petitioner states that the beneficiary "has developed a record of high achievement ," 
including the following "prominent achievements": 
[H]e is past President of his profession's leading professional association; he was one 
of nine experts chosen worldwide to serve on the Expert Committee of the 
in its promulgation of its code 
of practice entitled ' r, which has to varying 
degrees been adopted worldwide; he is the lead figure in developing medical 
surveillance and professional standards for maritime bar pilots who guide trade 
vessels to and from coastal and inland waters, which have now been developed into 
regulations; he has developed protocols on a wide range of workplace-related 
concerns that have been implemented throughout the country; and he is a senior 
educator and co-chair of one of the nation's leading conferences in Occupational 
Medicine. 
The petitioner contends that "the beneficiary's services are definitely national in scope" and that the 
director "rather arbitrarily limited the discussion to the alien beneficiary's patient-centered clinical 
work, rather than considering the full scope of his services." 
The record supports the petitioner 's assertion that the director gave undue emphasis to the 
beneficiary's clinical duties as a physician. The beneficiary is a qualified physician, but the 
petitioner had not based the waiver application on the beneficiary's treatment of individual patients, 
or on his routine duties as a university professor. Instead, the waiver request hinges on the 
(b)(6)
NON-PRECEDENT DECISION 
Page 10 
beneficiary's wider efforts as a prominent figure in the OEM field. The director, in the decision, did 
not acknowledge the beneficiary's leadership roles in national organizations. The director 
acknowledged that the petitioner had submitted 
witness letters, but did not discuss the contents of 
those letters. 
Three prior witnesses provide new letters on appeal. Prof. draws attention to the beneficiary's 
leadership positions in committees and organizations such as the and asks "why this very 
impressive range of activities was simply not mentioned at all in the denial." 
Prof. stated: "I would like to focus on [the beneficiary's] work in developing standards and 
protocols 
that are being implemented on a national basis to enhance the safety of bay pilots." The 
appeal includes a copy of proposed regulations for the 
The accompanying Internal Statement of Reasons indicates 
that "the Board relied on [the beneficiary's] study," and stated: "A copy of the study is posted under 
the 'Regulations' tab on the Board's website." 
Letters submitted with the initial filing of the petition in October 2012 had indicated that the 
proposed regulations were in development. The Board issued the Notice of Proposed Rulemaking 
on July 26, 2013, 23 days after the denial of the petition and a week before the filing of the appeal. 
The regulations, issued at the state level, would affect nautical traffic at three named bays on the 
California coast. In a new letter submitted on appeal, Mr. claimed that the National 
Transportation and Safety Board and the U.S. Coast Guard have adapted the beneficiary's work for 
wider use, but the record contains no evidence from those entities or any other national-level body to 
confirm consideration of the study's recommendations, and no witness claimed authority td speak on 
behalf of those entities. 
Although some witnesses' claims lack corroboration , the record offers better support for other 
claims, such as Prof. assertion that the beneficiary has played a prominent role in national 
and international organizations such as the and the 
Dr. in her second letter, stated: 
It is important to note that while many scientific disciplines publish their findings in 
presentations and academic journals, those who practice in the field of Occupational 
Medicine strive to translate their findings into policy-oriented results that affect entire 
and, often large, groups of people. 
When judged in this light, it is immediately apparent that [the beneficiary] is one of 
the most successful, influential, and respected Occupational Medicine physicians in 
North America. . . 
. [H]e was a major architect in the development of various 
initiatives adopted by the 
(b)(6)
Page 11 
NON-PRECEDENT DECISION 
While [the beneficiary] may not have published in his own name articles in peer 
reviewed publications, over the years, he has developed standards and policies -
many of which have been adopted by the -that profoundly and beneficially 
affect the nation as a whole in developing safer workplace standards and procedures. 
The record does not support all of the claims put forth by the petitioner and by witnesses, but it supports 
enough of them to establish that the beneficiary has, for several years, played an active role at the 
highest levels of the OEM community, influencing national and international policy. The petitioner has 
established, by a preponderance of evidence, that the benefit from the beneficiary's employment is 
national in scope, and that the beneficiary's achievements have significantly influenced the field as a 
whole. The director's decision did not focus on this evidence, instead emphasizing elements such as 
clinical work that the petitioner had not claimed as favorable factors. 
The evidence in the record establishes that the OEM community recognizes the significance of the 
beneficiary's past and present endeavors, beyond the intrinsic importance of the overall field. The 
benefit of retaining the beneficiary's services outweighs the national interest that is inherent in the labor 
certification process. Therefore, on the basis of the evidence submitted, the petitioner has established 
that a waiver of the requirement of an approved labor certification will be in the national inte,rest of the 
United States. 
In visa petition 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; Matter of Otiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, the petitioner has met that burden. 
ORDER: The appeal is sustained. The petition is approved.