dismissed EB-2 NIW Case: Agricultural Economics

(b)(6)
DATE: JAN 2 3 2015 OFFICE: TEXAS SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
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 
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. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http:Uw ww.usci s.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
tN� (Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. We will 
dismiss the appeal. 
The petitioner seeks classification under section 20 3(b )(2) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. § 115 3(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as a research economist for affiliated 
with _ 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 has 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 short statement, asserting that the director erred in denying the 
petition because the petitioner has more citations to his published work than others who have received 
the national interest waiver. 
I. Law 
Section 20 3(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 petitioner 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. 
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Page3 
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 
increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise .... " S. Rep. No. 55, lOl st Cong., 1st Sess., 11 (1989). 
Supplementary information to regulations implementing the Immigration Act of 1990, Pub. 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 Dep 't 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.F. 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. 
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II. Analysis 
The petitioner filed the Form I-140, Immigrant Petition for Alien Worker, on June 24, 2013. An 
accompanying introductory statement reads, in part: 
• [THE PETITIONER] IS AN INTERNATIONALLY-CITED RESEARCHER, 
already cited in numerous peer reviewed articles by researchers in Europe, North 
America, and South America as well as by researchers at the US Department of 
Agriculture and the International Food Policy Research Institute 
• Due to his success, [the petitioner] has been called upon to serve as a Peer 
Reviewer 
• [The petitioner's] case is suppo rted by a winner of the 
• Burden of Proof is only "PREPONDERANCE OF THE EVIDENCE. " 
.. . [The petitioner] has extensive research experience in the nationally crucial field of 
agricultural economics research, specifically in international agricultural trade and 
agricultural risk management. As noted in the attached exhibits, his research has 
impacts not only on our country's agricultural industry, but also on America's 
transportation and fuel industries .... 
As evidence of the influence of his work, [the petitioner's] research has already been 
cited in numerous peer-reviewed articles by researchers in Europe, North America, 
and South America as well as by researchers at the US Department of Agriculture and 
the International Food Policy Research Institute .. .. [The AAO previously approved 
a national interest waiver petition for] a researcher with a comparable number of 
citations as [the petitioner] ... . 
The latest project which has been working on is the 
development of the federal crop insurance program for sugar beets for energy 
biofuels. [The petitioner] is currently the lead researcher in this project. 
(Emphasis in original.) The initial submission included the claim that the petitioner's peer review 
work "is .. . evidence of the fact that he is consider[ed] to be a true leader in this field." The 
petitioner submitted no documentary evidence from journal publishers to show that his participation 
in peer review demonstrates that "he is consider[ed] to be a true leader in this field." The submitted 
evidence regarding the petitioner's peer review work consists of printouts of two electronic mail 
messages. An October 23, 2010 message from an editor of reminded the 
petitioner that the due date of a review was approaching. A January 25, 2012 message from an 
editor of, invited the petitioner to review a manuscript 
for that publication. The 2012 message began: "In view of your expertise I would be very grateful if 
you could review the following manuscript." The term "expertise," in the sense of subject matter 
knowledge, does not imply, and is not synonymous with, being "a true leader in [a given] field." 
The 2012 message indicated that the petitioner could "decline the assignment " if he did "not feel 
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qualified. " The petitioner's initial submission did not show whether he accepted or declined the 
assignment. 
The introductory statement included the claim that "[i]n recognition of [the petitioner's] outstanding 
work, he has been admitted into the 
and the Research Forum, all internationally 
known and respected scientific organizations that require outstanding achievements of their 
members. (See Exhibit 7)." Exhibit 7 is the petitioner's resume. This document is not evidence that 
those organizations require such achievements, nor is it evidence of the petitioner's membership in 
the organizations. It is, rather, a claim of such membership, with no mention of membership 
requirements. 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 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 
1972)). 
The petitioner submitted copies of three award certificates: 
• A "Certificate of Recognition " from the 
"For writing an honorable mention 
• The' from the 
Research Forum; and 
• The' rom the Research F orurn. 
Evidence of recognition for achievements and significant contributions to the industry or field by 
peers, governmental entities, or professional or business organizations can form part of a claim of 
exceptional ability under 8 C. F.R. § 204.5(k)( 3)(ii)(F). Exceptional ability, in turn, does not ensure 
approval of the national interest waiver. The petitioner has not established the significance of his 
three awards, all of which he received while he was a graduate student. 
The petitioner submitted a copy of an AAO appellate decision from 2005, approving a petition for 
another researcher. The 2005 decision included the following passage: "the documentation 
submitted on appeal reflects that one of the petitioner's articles had been cited 12 times by 
independent researchers as of the date of filing and a second article had been cited by four 
independent researchers as of the date of filing. " To support the claim that he has "a comparable 
number of citations, " the petitioner submitted a printout from the Google Scholar search engine, 
showing that nine of his articles and conference papers have received an aggregate total of 19 
citations since 2007. The total number of citations is comparable to the 2005 decision, but the 
petitioner arrived at that total through lesser citation of a higher number of papers. The most-cited 
piece, a conference presentation entitled had 
earned four citations since its 2007 publication. Furthermore, the petitioner identified only a fraction 
of the citing articles, and therefore he did not establish that all 19 of his documented citations were 
independent rather than self-citations. 
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Six letters accompanied the petitioner's initial submission. Dr. is a professor at 
where the petitioner earned his two gra uate degrees, and head of 
its Department of Agricultural Economics. Dr. asserted that the petitioner "conducted 
advanced and highly effective agricultural and applied economics research for numerous projects," 
which "was extremely helpful for a number of scientists in our organization and area of work. " Dr. 
provided details regarding several of the petitioner's graduate projects, including the 
following: 
While studying for his Masters, his thesis was fundamental in aiding the United States 
soybean industry by evaluating transportation improvements in Brazil and how these 
improvements would impact our nation's oilseed exporting industry .. .. 
Surprisingly, the results of his work demonstrated that proposed transportation 
improvements he analyzed would actually yield modest losses to the United States 
soybean industry. . . . His state of the art model assessed and indicated important 
considerations in the aspect of how U.S. producers should move in enhancing their 
exporting competitiveness .. .. 
Another important contribution of [the petitioner's] work was his study of how the 
impacts the world cotton trade, with more detailed 
analysis on the impacts of the U.S. cotton industry ... . 
In general, all scenarios suggested by [the petitioner's] work indicated that cotton 
exports to ports would increase considerably with the port of 
leading the way. On the other hand, the _ ports 
would decrease [their] participation in total U.S. cotton exports significantly. 
With regard to the petitioner's subsequent work for Dr. stated: 
The latest project which has been working on is the 
development of the federal crop insurance program for sugar beets for energy 
biofuels. [The petitioner] is currently the lead researcher on this project. 
.. . Currently, existing crop insurance programs do not insure sugar beets for energy 
which is a different variety from the beet used for sugar production. 
Dr. a professor at and a member of the on 
which shared the described the petitioner's projects in 
graduate school and afterwards in language similar to that found in Dr. ; letter. 
Dr. · another professor at stated: "Overall, [the petitioner] was one of the best 
graduate researchers I have known," and that the petitioner has created "an impressive body of novel 
research activity, " but Dr. did not provide any details about the petitioner's work at 
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Dr. asserted that the petitioner "is currently working on .a series of extremely challenging 
projects," but described only one of those projects, specifically "the development of the federal crop 
insurance program for sugar beets used for energy biofuels." 
Dr. , professor at the stated: 
[A]lthough I tried to recruit [the petitioner] to our program here in Georgia, I have 
never worked or collaborated with [the petitioner]. My knowledge of his research is 
based on his publications, conference presentations, and awards .... 
[The petitioner] has proven himself to be among the most creative and insightful 
researchers in the field of agricultural and applied economics. 
Dr. then discussed the petitioner's work on the sugar beet crop insurance project described 
above. In addition to using language similar to portions of Dr. letter, Dr. asserted 
that the petitioner's "participation in the development of the crop insurance program for sugar beets 
for energy will be fundamental towards efforts geared at attaining our nation's security goals. " 
Dr. professor at • , stated that he has met the petitioner at 
conferences but has not worked with him. Dr. deemed the etitioner to be "clearly among 
the best" researchers who are studying "the impact of the on the U.S. 
cotton exporting industry." 
All of the above letters discussing the petitioner's work on sugar beet crop insurance discussed the 
potential of sugar beets as a biofuel source, but provided no details about the petitioner's work on 
insuring the crop except to state that the etitioner is the lead researcher on the project. 
president of. stated: 
[The petitioner] is currently serving as the lead researcher in our firm for the 
development of insurance programs for bio-energy crops targeting fuel markets as a 
petroleum substitute/additive .. .. [The petitioner's] research will contribute to the 
expansion of risk management mechanisms available to the American biofuel 
industry. 
[The petitioner] is also currently spearheading the development of multiple crop 
insurance programs to areas currently underserved by the industry, particularly in the 
fresh fruit and vegetable sectors ... . [The petitioner's] analytical capabilities are a 
fundamental component of our organization's capacity to develop and provide risk 
management mechanisms for this underserved sector. 
... He possesses expertise in time series and structural econometric analysis in 
addition to quadratic programming and simulation analysis. Each of these skills is 
important in our field of research and in the risk management industry. 
(b)(6)
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The director issued a request for evidence (R FE) on August 5, 2013. The director determined that 
the petitioner had met the first two prongs of the NYSDOT national interest test concerning intrinsic 
merit and national scope, but had not satisfied the third prong with evidence of the impact of his 
work. The director discussed the petitioner's awards and quoted from selected witness letters, but 
concluded that the petitioner had not established influence on his field. In forming this conclusion, 
the director found that no one paper by the petitioner showed heavy or frequent citation. The 
director also found that the petitioner had failed to support claims regarding the significance of his 
two documented instances of peer review work and the membership requirements of the associations 
named above. 
In response, the petitioner submitted a statement disputing, but not refuting, some of the director's 
determinations. For instance, the statement indicates that the petitioner "has served as a peer 
reviewer many times, " although the petitioner has documented only two such instances. The 
petitioner submitted additional evidence regarding his peer review work, most of which relates to the 
two instances documented previously. These materials concern the peer review process that was 
already underway, and do not show why or how the petitioner was selected as a peer reviewer. 
Materials relating to peer review of a third manuscript show that Dr. was the designated 
reviewer for that manuscript. Dr. added a notation that he had the petitioner read the paper 
as well. Thus, in this third instance, it was not the publishers or editors, but one of the petitioner's 
own professors, who invited him to help with the peer review of the paper. 
The third paper dealt with ' In his notes, Dr. stated: "[the 
petitioner,] an ag econ phd student from that area in Brazil looked at this [manuscript]." This 
identification of the petitioner suggests two things: first, Dr. did not presume that the editors 
would recognize the petitioner's name; and second, he chose to involve the petitioner because he is 
"from that area in Brazil " and therefore familiar with the subject matter. 
Much of the RFE response statement, and several accompanying supporting exhibits, dealt with the 
general premise that the United States should revise its immigration laws in order to be more 
accommodating to highly skilled workers. The authority to reform basic immigration laws rests with 
Congress, not with USCIS. 
The petitioner submitted updated information, showing that the total number of citations of his work 
had increased by two, from 19 to 21, spread over ten papers. His most-cited paper had five citations; 
seven of 17 identified papers showed no citations. The petitioner offered no evidence to show how 
this cumulative citation rate, with an average of roughly 1.24 citations per paper, ranks in his field. 
The petitioner submitted a printout showing that one of his articles has been downloaded 1,970 times 
since May 2008. The printout did not distinguish unique downloads from repeat downloads, and 
because the petitioner presented the data in isolation, there is no means to compare this figure to 
those for other articles published in the petitioner's specialty. 
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The petitioner submitted letters from the 
_ 
Research Forum, stating that each meeting 
includes "100-125 research paper presentations." The statement submitted with the RFE response 
contended that "each of [the petitioner's]' . is strong evidence that even when 
compared to other highly-skilled researchers ... , [the petitioner's] expertise places him among the 
very best." The petitioner did not demonstrate how Forum attendees compare with the field as a 
whole, and therefore the assertion that they represent an elevated standard is unfounded. 
Furthermore, the petitioner received only one from the Research 
Forum; the other award was a more narrowly focused' 
" chosen not from among all "1 00-125 research paper presentations, " but from that 
unquantified subset of papers dealing with agricultural and rural transportation. The awards are not 
evidence that the petitioner's work has had an impact beyond those individual conferences. 
The petitioner submitted new letters from three of the individuals who had previously provided 
letters with the initial submission. Dr. stated: 
Quite frankly, knowing of [the petitioner's] level of success I find the issuance of an 
RFE to be quite surprising .... 
By any real-world standard, [the petitioner] is among the most productive top 
researchers in our field. Evidence of this is the fact that his publications have already 
been cited many times ... . [The petitioner's] citations and downloads underscore the 
fact that he is among the most effective researchers in our field. 
Dr. stated that the petitioner "has been so successful that his work has already been cited by 
scientists more than thirty times, and his impact continues to increase. Given that citations are the 
hallmark of a researcher's impact, it is clear evidence that he has generated contributions of major 
significance that have been widely recognized in our field." 
Mr. claimed that "very few researchers in the field of agricultural economics are as widely 
cited or have worked on such advanced projects as [the petitioner] for this point in his career." 
All three of these individuals claimed that the petitioner's citation record distinguishes him in his 
field. Dr. for example, claimed that the petitioner's "number of citations easily surpasses a 
large majority of his professional peers." This is not a matter of opinion, subject to expert 
evaluation, but rather a claim regarding objective and verifiable facts. Nevertheless, the petitioner 
did not submit any citation figures for other researchers to support the above claims. 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 (Comm'r 1998) (citing 
Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
Furthermore, the petitioner's own evidence placed the number of citations at 21 at the time, rather 
than "more than thirty" as Dr. claimed, a discrepancy that would affect how the petitioner 
ranks in terms of overall citation histories. Citation of published work provides a relatively objective 
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way to measure a given researcher's impact, but this does not invariably establish or imply that a 
citation history "is clear evidence that [one] has generated contributions of major significance that 
have been widely recognized in [one's] field." 
The new letters also indicated that current immigration policy does not do enough to ensure that 
talented researchers remain in the United States. Nevertheless, USCIS adjudicators are bound by 
existing law and policy and do not have the discretion or authority to disregard that law or policy. 
The director denied the petition on June 30, 2014, stating that the petitioner had not satisfied the 
third prong of the NYSDOT national interest test. The director described the submitted evidence and 
quoted from several of the submitted letters, and found that the letters contained uncorroborated 
claims regarding the significance of the petitioner's published work and his citation record. The 
director also stated that the petitioner's general arguments about the importance of immigration 
reform do not establish the petitioner's individual eligibility for the benefit sought. 
On Part 3, line 1 of Form I-290B, Notice of Appeal or Motion, the petitioner checked box "c, " 
indicating: "No supplemental brief and/or additional evidence will be submitted. " Therefore, the 
one-page statement submitted with the appeal form constitutes the entire appeal. The substantive 
portion of that statement reads: 
In its decision the Texas Service Center failed to properly apply the criteria 
promulgated by the landmark New York State Department of Transportation 
(NYSDOT) case. Due to its failure to properly apply the NYSDOT criteria the Texas 
Service Center erroneously denied a strong NIW case submitted by a PhD researcher 
whose number of citations exceeds that of other petitioners who[ se] cases have been 
approved .... 
The letter, the spirit, and the Public Policy that are the basis of the National Interest 
Waiver (NIW) all support an approval of [the petitioner's] Form I-140 petition. 
The submitted statement did not allege any specific error in the director's decision, except to assert 
that USCIS has approved waivers for researchers with fewer citations than the petitioner. The 2005 
appellate decision reproduced in the record advised that unpublished decisions, such as the 2005 
decision itself, have no precedential weight or authority. The regulation at 8 C.F. R. § 10 3.3(c) gives 
such authority only to decisions published and designated as precedent decisions. The 2005 decision 
is not binding on USCIS employees in other proceedings such as the matter presently at hand. The 
2005 decision included no finding that the existence of 16 or more independent citations should 
invariably result in the approval of a given petition. Rather, that decision rested on a number of 
factors apart from the number of citations. The petitioner, however, did not claim any direct 
parallels with the 2005 case except for the citation numbers. 
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III. Conclusion 
The petitioner has not established a past record of achievement at a level that would justify a waiver of 
the job offer requirement. The petitioner need not demonstrate notoriety on the scale of national 
acclaim, but the national interest waiver contemplates that his influence be national in scope. NYSDOT, 
22 I&N Dec. at 217, n.3. More specifically, the petitioner "must clearly present a significant benefit to 
the field of endeav<;>r." /d. at 218. See also id. at 219, n.6 (the alien must have "a past history of 
demonstrable achievement with some degree of influence on the field as a whole"). 
As is clear from the statute, it was not the intent of Congress that every person qualified to engage in a 
profession in the United States should be exempt from the requirement of a job offer based on national 
interest. Likewise, it does not appear to have been the intent of Congress to· grant national interest 
waivers on the basis of the overall importance of a given profession, rather than on the merits of the 
individual alien. On the basis of the evidence submitted, the petitioner has not established that a waiver 
of the requirement of an approved labor certification will be in the national interest of the United States. 
We will dismiss the appeal for the above stated reasons. 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 not 
met that burden. 
ORDER: The appeal is dismissed.