dismissed EB-2 NIW Case: Agricultural Economics And Food Safety

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLTCCOPY 
FILE: 
IN RE: Petitioner: 
Benellciary: 
U.S. Department of Homeland Securit) 
lJ.~. Citi/enship and Immigration Scr\'icc'> 
(H/ice o/:ldlllinislmlh'e AjJjJt!u/s MS 2090 
Washington. DC 20529·2090 
u.s. Citizenship 
and Immigration 
Services 
Office: TEXAS SERVICE CENTER Date: DEC 2 8 2010 
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. § I I 53(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please tlnd the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specitlc requirements for tiling such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 1 03.5(a)( I lei) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
~
OefJ,Jr:JL 
Perry Rhew 
. Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
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. The AAO will 
dismiss the appeal. 
The petitioner seeks classification pursuant to section 203(b )(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.c. § I 153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner is a researcher in agricultural economics and food safety. At the time he filed the petition, the 
petitioner the' of Kentucky (UK), Lexington, Kentucky. 
He has since at Stillman University, Tuscaloosa, 
Alabama. The petitioner asserts that an 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. 
In this decision, the term "prior counsel" shall refer to ~ho represented the 
petitioner until and including the filing of the Form 1-290~ The term "counsel" 
shall refer to the present attorney of record, who filed the subsequent appellate brief. 
On appeal, the petitioner submits a brieffrom counsel. 
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. 
(8) 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 qualities 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 ofter requirement, and thus a labor certification, is in the national interest. 
Page 3 
Neither the statute nor the pertinent regulations definc the term "national interest." Additionally, 
Congress did not provide a specific detinition 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, 101 st Cong" 1 st Sess., 11 (1989). 
Supplementary information to regulations implementing the Immigration Act of 1990 (IMMACT), 
published at 56 Fed. Reg. 60897, 60900 (November 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 benefiC 
[required of aliens seeking to qualify as "exceptional."] The burden will rest with the 
alien to establish that exemption from, or waiver ot: the job offer will be in the 
national interest. Each case is to be judged on its own merits. 
Maller of New York Slale Dept. of Tranlporlalion, 22 I&N Dec. 215 (Commr. 1998), has set torth 
several factors which must be considered when evaluating a request for a national interest waiver. First 
it must be shown that the alien seeks employment in an area of substantial intrinsic merit. Next. it must 
be shown that the proposed benefit will be national in scope. 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. 
It must be noted that, while the national interest waiver hinges on prospective national benefit, it clearly 
must be established that the alien's past record justifies projections of future benefit to the national 
interest. The petitioner's subjective assurance that the alien will, in the future, serve the national interest 
cannot suffice to establish prospective national benefit. The inclusion of the term "prospective" is used 
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. 
We also note that the regulation at 8 C.F.R. § 204.S(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 1-140 petition on May 22, 2008. The petitioner's initial submission 
included research-related materials including a copy of his doctoral dissertation on the subject of 
Page 4 
"Consumer Economics and Environmental Design." Other materials (including conference 
presentations and published articles) concern aspects of dairy farming, food safety, and other topics. 
The petitioner also demonstrated his participation in peer review of manuscripts by other researchers. 
These materials establish the petitioner's activity in his field, but activity is not, on its face, evidence of 
eligibility for the waiver. The petitioner must show not only his involvement in this research, but also 
the impact or significance of his work. For that information, we tum to other materials in the record. 
Several witness letters accompanied the petition. Nearly all of the letters are from faculty members at 
Texas Tech University (TTU), where the beneficiary or at UK where he 
undertook his postdoctoral training. The only exception is 
at Jenkins ) Community Hospital. The petitioner identijies 
a medical doctor, claimed no expertise in agricultural ec,~n')mlics or food 
statistics and facts relating to agriculture and food safety, but did not discuss 
any petitioner's research work. Instead, _ simply predicted that the 
petitioner "will contribute tremendously to an improved environment." 
Another witness with questionable expertise in the 
TTU 
areas economic analysis, precision agll<;ImlJ't: 
statistical analysis," but he did not establish his own credentials in those areas. 
background (including grant funding from LV"l\JIC_'UI 
••••••••••• ) suggests that his work relates to the aerospace indlusltry. 
associate professor of design at ., called the petitioner "a promlSlng and 
distinguished scholar" and listed the titles of some of the petitioner's research articles, but otherwise 
provided no substantive information about the impact or importance of the petitioner's work. 
senior director of 
petitioner'S "major advisor" at _stated: 
for Financial Responsibility and the 
[The petitioner's 1 dissertation topic required the integration of a working knowledge of 
economic theory, statistical methodology and advanced data extraction techniques into 
an analysis of income and expenditures involving consumer spending behaviors. He 
accomplished all of them at an exceptionally high level of performance .... The findings 
of his study are of significant help to various government agencies at federal, state, and 
local levels, and for the business sector as well. They will provide valuable data for 
researchers, consultants, educators, planners, government oflicials, and others concerned 
with solving consumer problems. The results can also be of great help to develop useful 
programs by the education or community agencies that may help in reducing the teacher 
recruitment and retention problems facing the education sector in the U.S. 
associate dean for research 
•••••••• Iffered cornments similar to •••••• 
Page 5 
I became familiar with [the petitioner in] 200 I when I was on his dissertation committee 
during his graduate studies at Texas Tech University. His dissertation investigated 
expenditure behaviors of the United States consumers of manager and professional 
category, including teachers. In his research, he made one of the major scientific 
contributions primarily to identify and analyse emerging consumer issues and market 
practices that have the potential to have a significant impact on consumer outcomes. He 
determined factors affecting teacher recruitment and retention problems facing the 
education sector in the U.S. The results were significant and have important 
implications for various government agencies and business sectors as well. 
The petitioner submitted no evidence to show that any private or governmental organizations have, in 
fact. relied on the findings set forth in the petitioner's dissertation. 
Four UK faculty members provided letters. professor of farm 
management, supervised the beneficiary's postdoctoral at stated that the 
petitioner "has made significant contributions in the field of precision agriculture," but provided no 
examples. He claimed that the petitioner's "research work has been recognized both nationally and 
internationally," but did not elaborate except to state that the petitioner has obtained grant funding and 
presented his work at professional conferences._ did not state how reliance on grant funding 
and participation at conferences distinguishes the petitioner from others in his specialty. 
at UK, stated that the petitioner's postdoctoral "research has 
focused on precision agriculture, . livestock farming, and production economics. In some of his 
the results showed the potentiality of reducing environmental pollution in dairy farms."_ 
added that the petitioner "is currently involved in doing research on obesity issues to 
nv,~stilgate consumer behavior and their habits so that policy makers can design strategies to 
mitigate obesity incidences." that the petitioner'S "accomplishments ... have 
already had a strong impact on the field agncultural economics and consumer issues," but he did not 
elaborate on this point. 
stated that the petitioner "is particularly skilled in ... the use of 
information technology ... to improve the efficiency of US agriculture." discussed the 
advantages of this technology, but did not identify any of the petitioner'S achievements in that area. 
at UK and one of the petitioner's collaborators, stated: 
The results of some of his research indicated that precision agriculture is profitable with 
environmental friendly [sic]. In some areas of his research, he used a model to address 
optimal resource allocation while reducing environmental pollution. He evaluated 
alternative management practices as they affect dairy farming decisions, profitability, 
and nutrient balances leading to a better understanding of precision livestock farming 
and its impact on the environment. ... 
Page 6 
as 
His major role 
Management Section is to conduct research on obesity, 
addition to other assignments. 
In the 
Food and Agribusiness 
food safety and quality, in 
For the most part, the letters discussed above focus on the intrinsic merit of precision agriculture (and 
other areas where the petitioner has worked), with very little information about the petitioner's specific 
achievements and contributions. Those witnesses who did provide dctails speculated that the 
petitioner's work may have significant influence in the future; they did not provide any concrete 
examples of existing impact. 
The petitioner indicated that exhibit 15 of the initial submission consisted of "[ e ]vidence that [the 
petitioner's] research has been cited by other researchers in his field." The only material that appears to 
fit this description is the bibliography section of an article from Precision Agriculture '07, listing one of 
the petitioner's articles. The fragment submitted does not identify the article or any of its authors. 
Therefore, we cannot determine whether this is an independent citation or a self-citation by the 
petitioner and/or one of his collaborators. 
We note that the petitioner claims to be "a member of professional and/or academic organizations 
which required outstanding achievement by its members." The petitioner documented his membership 
in two agricultural economics associations (one national, one regional), but he did not show that either 
organization has any membership requirements at all other than payment of dues. If the organizations 
do require the level of achievement that the petitioner claims, the petitioner has submitted nothing to 
show it. 
On July 8, 2009, the director informed the petitioner that the director would deny the petition unless the 
petitioner submitted additional evidence to meet the guidelines set forth in Maller olNew York State 
Dept. (!l Transportation. The director noted the petitioner's "supporting letters are [mostly] from 
research associates, professors, and/or colleagues of the petitioner [and] speak more to the importance 
of the field of endeavor" than "to the petitioner's contributions to the field as a whole." The director 
stated that any further "evidence should clearly demonstrate the significance of the petitioner's efforts in 
the field." 
In response, prior counsel stated that the petitioner 
Was the FIRST ever to successfully investigate and discover that using variable rates 
of fertilizer, [soil! types and irrigation levels produced higher yield per acre 
compare with uniform application of inputs .... [The petitioner's] research has 
enjoyed widespread implementation and acceptance by both the scientific and 
agricultural community. Presently more than 200 farmers in the Corn Belt section 
of this country have begun utilizing [the petitioner's[ method .... 
Page 7 
Another notable discovery of [the petitioner] involves the United States almond trade 
with India .... After lengthy negotiations between the United States and India which 
centered around [the petitioner's] research, India agreed to revise its' [sic] plant 
quarantine regulations causing the United States profit on this import to increase $100 
million dollars [sic 1 annually .... 
As established in the original submission as of May 2008, [the petitioner's] original 
scholarly work had been cited many times by other researchers in his field. Since that 
time [the petitioner"s] prestige and recognition in his field has continued to expand . 
. . . [The petitioner's] citation record to date ... now exceeds 100. 
(Emphasis in original.) The petitioner did not submit documentary evidence to support prior 
counsel's claims. The unsupported assertions of counsel do not constitute evidence. See Maller oj" 
Obaigbena. 19 I&N Dec. 533, 534 n.2 (BIA 1988); Matter oj" Laureano, 19 I&N Dec. 1, 3 n.2 (BIA 
1983); Maller oj" Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
Review of the record does not support prior counsel's claim that the initial submission showed "many" 
citations of the petitioner's work. As noted above, we can identify only one such citation. The 
accompanying exhibit index - which elsewhere describes individual exhibits in detail - refers only to 
"[e]vidence that [the petitioner's] work has been cited by other researchers." Therefore, the index did 
not identify specific, individual citations that are now missing from the record. Between the initial 
submission and prior counsel's subsequent letter, there is a clear pattern of referring to the petitioner"s 
citation history in very vague and general terms, without ever identifying the "other researchers" who 
are said to be citing the petitioner's work. 
The petitioner discussed what he considered his "most significant professional accomplishments." The 
petitioner claimed "quite substantial" accomplishments in implementing precision agriculture and 
precision livestock production, including a study that showed the advantages of sub-surface drip 
irrigation. The petitioner does not claim to have devised or improved that technique, only to have 
studied it. 
The petitioner described other projects: 
[T]here risk management areas were tackled: a) examining poor yielding areas which do 
not cover operating costs ... b) examining the use of yield maps along with economic 
criteria in correctly choosing land to enroll in Conservation Reserve Program ... and c) 
examining the use of risk maps for various production practices in order to manage risk. 
. . . The results indicated that the project was well received by participants and 
accomplished the goal of providing decision aids useful in applying precision agriculture 
techniques in the reduction of risk .... 
Page 8 
[Another] study was to compare and contrast profitability of different dairy management 
practices while reducing environmental pollution due to nitrogen and phosphorus 
balances .... [T]he results indicated that productivity of crops increased with higher 
alfalfa quality. The dairy farm as a whole realized a higher profit than traditional 
methods . 
. . . I investigated the effect of phytosanitary practices imposed by [the] Indian 
Government on almond[s] shipped from [the] United States of America .... My 
research examined the impact of phytosanitary protocol of almond trade between the US 
and India and what would be the economic benefit if sanitary procedures are removed. 
The results indicated that ... India would increase its almond imports by over 20,000 
tons worth more than US $100 million a year if phytosanitary protocols are eliminated. 
Simply describing the petitioner's work does not establish its importance, and the petitioner's 
estimation of the significance of his own work clearly lacks the required objectivity. 
The petitioner submitted evidence of his continuing professional activity (including new published work 
and ajob otTer letter fro~ and additional witness letters. All of the new letters arc 
from UK faculty members, most of whom had provided letters with the initial filing. Therefore, the 
new letters are not direct evidence that the beneficiary's work at UK has attracted any attention outside 
of his own circle of colleagues and collaborators . 
•••••• second letter on the petitioner's behalf is similar to the petitioner's own statement 
describing details of the petitioner's work without showing the greater importance or impact of that 
work, or showing the extent of the petitioner's original innovations as opposed to his study of methods 
devised by others. 
also described the petitioner's projects, and claimed that "India revised its plant 
quarantine regulations to lessen its tight import regulations." The record contains no documentary 
evidence to confirm this claim, or to show that the petitioner's work played any part in the "intensive 
negotiations" said to have led to that result. (Other witness letters' restrictive policy but 
give no indication that India has changed or revoked that policy.) claimed that the 
petitioner's "career as a researcher has already had a strong impact on the field of agricultural 
economics and consumer issues;' but the record does not show that researchers at other institutions 
share this opinion . 
••••• second letter is mostly identical to his first letter, with several sentences added at the end. 
S 7 I stated that the petitioner's research "topics are very important to the future of our agricultural 
industry and we need more researchers focusing on these topics. [The petitioner] has been helping a 
great deal in this area." As with his first letter, this second letter emphasizes the importance of the field 
of research rather than the value of the petitioner's specific contributions in that field. 
Page 9 
UK Extension deemed the petitioner to be "creative, productive and 
experienced," and stated that the petitioner has demonstrated the effectiveness of precision agriculture. 
As with other witnesses, did not show that the petitioner is responsible for any significant 
ideas or developments in precision agriculture, only that the petitioner has studied its implementation. 
discussed the 
petitioner's research findings and stated that his "contributions in these fields are significant." 
The opinions of experts in the field are not without weight and we have considered them above. 
USCIS may, in its discretion, use as advisory opinions statements submitted as expert testimony. 
See Maller of Caron International, 19 I&N Dec. 791. 795 (Comm'r. 1988). However, USClS is 
ultimately responsible for making the final determination regarding an alien's eligibility for the 
benefit sought. Id. The submission of letters from experts supporting the petition is not presumptive 
evidence of eligibility; USCIS may, as we have done above, evaluate the content of those letters as 
to whether they support the alien's eligibility. See id. at 795. USCIS may even give less weight to 
an opinion that is not corroborated, in accord with other information or is in any way questionable. 
Id. at 795; see also Maller of Soffici, 22 I&N Dec. 158, 165 (Comm'r. 1998) (citing Maller of 
Treasure Craji ofCalifiJrnia, 14 I&N Dec. 190 (Reg'1. Comm'r. 1972)). 
The letters considered above primarily contain bare assertions of widespread recognition and vague 
claims of contributions. On those occasions when witnesses provided specific examples of how the 
petitioner's contributions have influenced the field, the examples relate to small-scale experimental 
projects rather than widespread implementation, and the emphasis is on the petitioner'S study of 
various methods rather than the innovation that produced those methods. Witnesses contradicted 
one another on whether India has adopted the petitioner's recommendations regarding almond 
import restrictions. The petitioner did not submit letters from independent references who affirm 
their own reliance on the beneficiary'S work or who were even simply familiar with his work 
through his reputation. The petitioner also failed to submit corroborating evidence to lend weight to 
the reference letters. 
The director denied the petition on November 24, 2009, stating that the new witness letters lacked 
empirical support. The director noted that the petitioner "failed to produce documentation of these 100 
or more citations" claimed by prior counsel. 
On appeal. counsel maintains that the petitioner's "research 
_has been groundbreaking." Counsel goes on to describe this 
~objective evidence of its importance despite being advised, repeatedly, that the lack of such 
evidence was a critical flaw in the petition. If the director denied the petition for lack of corroboration, 
the petitioner cannot remedy this with more uncorroborated claims. Several of the uncorroborated 
claims on appeal appear simply to repeat statements from witness letters, sometimes transforming 
statements of future potential into claims of realized fact. For example, counsel claims that the 
petitioner's study of almond imports "cause[d] the United States profit on this import to increase $100 
Page 10 
million dollars [sic] annually," Counsel cites no source for this figure, although earlier submissions 
contained the speculation that a change in India's import policy could result in such an increase. 
Counsel makes no attempt to document prior counsel's claim of over 100 citations of the petitioner's 
published work. Counsel does not mention citations at all, and appears instead simply to have 
abandoned that unsupported claim. 
Because the petitioner has essentially forfeited multiple opportunities to submit documentary evidence 
to support his claims and those of his close associates, we must assume that the petitioner is either 
unwilling or unable to submit such evidence. We agree with the director's decision to deny the petition. 
As is clear from a plain reading of 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. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act. 
8 U .S.c. § 1361. The petitioner has not sustained that burden. 
This decision is without prejudice to the filing of a new petItIon by a United States employer 
accompanied by a labor certification issued by the Department of Labor, appropriate supporting 
evidence and fee. 
ORDER: The appeal is dismissed.