dismissed EB-2 NIW Case: Agricultural Engineering

(b)(6)
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DATE: OCT 2 1 2013 OFFICE: NEBRASKA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigr ation Services 
Administrative Appeals Offi ce (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washingt on, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
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: 
SELF- REPRESENTED 
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 Jaw 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:ljwww.uscis.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, 
~~~CV'---' 
~on RosenberN 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. The 
matter is now before the AAO on appeal. The AAO will dismiss the appeal. 
The petitioner seeks classification under section 203(b)(2) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(b)(2), as an alien of exceptional ability in the sciences. The petitioner seeks 
employment as an agricultural engineer. At the time he filed the petition, the petitioner was a 
postdoctoral agricultural scientist at the - ========== 
North 
Dakota. In November 2012, filed a nonimmigrant petition on the petitioner's 
behalf (Form I-129 receipt number , the subsequent approval of which permits the 
petitioner to work for the university until November 24, 2015. 
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 statement and several exhibits relating to his work. 
Before the filing of the appeal, attorney represented the petitioner. Mr. 
prepared statements submitted with the petition and in response to a request for evidence (RFE). 
Subsequently, however, Mr. did not prepare or sign the Form I-290B Notice of Appeal and the 
petitioner mailed the appeal from his own Kansas address. The petitioner, on appeal, refers to past 
actions by Mr. but offers no indication that Mr. still actively represents him in this 
proceeding. Form I-290B advises that attorneys "must attach a Form G-28, Notice of Entry of 
Appearance as Attorney or Representative" to the appeal, as required by the U.S. Citizenship and 
Immigration Services (USCIS) regulation at 8 C.P.R.§ 292.4(a). The appeal does not include this form. 
Therefore, the record contains no indication that Mr. is still the petitioner's attorney of record. 
The AAO will therefore consider the petitioner to be self-represented, and the term "prior counsel" shall 
refer to Mr. 
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. 
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(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 found that the petitioner qualifies as a member of the professions holding an advanced 
degree, and stated that "whether or not the petitioner may also be eligible as an alien of exceptional 
ability . .. is moot." The petitioner has not contested this conclusion (which is separate from, and does 
not affect, the is~ue of eligibility for the national interest waiver). 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 
increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise .... " S. Rep. No. 55, 101st 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 D ept 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 
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contributions by the alien, rather than to facilitate the entry of an alien with no demonstr able prior 
achievements, and whose benefit to the national interest would thus be entirely speculative. !d. 
The USCIS 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. 
The director did not dispute that the petitioner's work, conducting agricultural research for 
dissemination throughout the scientific community, has substantial intrinsic merit and produces 
benefits that are national in scope. The issue is whether the petitioner has met the third prong of the 
NYSDOT national interest test by establishing a level of impact and influ ence in his field that 
warrants a national interest waiver. 
The petitioner filed the Form I-140 petition on January 20, 2012. In an accompanying introductory 
statement, prior counsel stated: 
Petitioner has made significant contributions in the field of 
agricultural engineering. 
In particular, Petitioner has made pioneering research in the area of assessing crop 
residue cover by developing more effective remote sensing methods ... . Petitioner ' s 
doctoral dissertation on the temporal changes in Kansas streams was one of the first 
attempts to link agricultural watershed land and water uses and their effects on the 
aquatic ecosystem. Moreover, this dissertation research has erased the boundaries 
between pure hydrology and biology. Lastly, as a follow up to Petitioner 's research 
on the role of crop selection and sequencing in the conservation of agricultural 
systems, Petitioner is currently working on an ambitious project to evaluate the 
changes in crop diversity in the U.S. over time and the potential causes and impacts 
of these changes. The product of Petitioner 's current research would be a map of the 
crop diversity index of the U.S. which would be used [by] policy maker s in drafting 
federal agricultural programs and in managing the agricultural sector. 
... [T]he fact that Petitioner is working for the under an H-lB visa is a strong 
indication that his employment would serve the national interest to a substantially 
greater degree than would an available U.S. worker having the same minimum 
qualifications .... The provides leadership on issues of food, agriculture and 
natural resources and implements agricultural policies. The is the principal in­
house scientific research arm of the The is the principal in-house 
scientific research arm of the ... By being part of the elite scientific team at 
and contributing to its research priorities, Petitioner has already been serving the 
national interests at the highest levels. 
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The petitioner's employment with the alone is not evidence of eligibility for the national 
interest waiver. There exists no blanket waiver based on employment with the 
Prior counsel stated: "it took more than 9 months to find Petitioner by means of an international job 
search. Should a labor certification be required, it would be reasonable to expect the same 
difficulties." A lack of qualified United States workers who seek the position would be grounds for 
approving the labor certification, rather than denying it or delaying the process. 
Furthermore, the record shows that the nine-month job search pertained to a two-year postdoctoral 
position at the ~ Montana. 
Such a position is inherently temporary, and constitutes advanced on-the-job training rather than a 
career position. The petitioner, in fact, left his position at the before he filed the petition. 
Prior counsel ' s claims about the difficulty of filling the position are irrelevant to the waiver 
application, because granting the waiver would not return the petitioner to this temporary training 
position. 
In a statement submitted with the petition, the petitioner stated: 
I believe that my purpose in life is to help the farmers who feed the world. Therefore, 
I will be instrumental in improving the lives of the farmers through researches and 
activities promoting sustainable agriculture and improved production practices, and 
empowering them through informed decision making and management. My research 
interest is anchored around this main goal supported by four major topics: soil and 
water conservation, geospatial analysis, watershed modeling, and extension outreach. 
The petitioner provided details regarding these four research areas, for instance: "The most recent 
research I conducted was focused on applying remote sensing techniques to quantify crop residue 
cover on the field for soil and water conservation, carbon cycle modeling, and biofuel applications ." 
The petitioner submitted nine witness letters. Before retiring in 2010, Professor 
supervised the petitioner's doctoral studies at Prof. stated that the 
petitioner's "graduate work was one of the first attempts to link agricultural watershed land and 
water uses and their effects on the aquatic ecosystem," and that his "contributions to this Important 
work during his doctoral program were substantial for adding understanding to the effects of 
changing conditions in watersheds brought about by changes [inJ agricultural land and water use on 
streamflow." Regarding the petitioner's more recent work, Prof. stated: "I am less familiar 
with [the petitioner's] work that he has done for the but I know that all of it has been deemed 
to be in the national interest by the federal government." 
The remaining witnesses worked or collaborated with the petitioner at the either at the 
in Montana (where the petitioner worked from June 2009 to June 2011), or at the in North 
Dakota. 
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Dr. supervisory research agricultural engineer at the and the petitioner's 
direct supervisor there, stated: 
[The petitioner's] postdoctoral research in Montana was on multispectral 
remote sensing techniques and the use of a special ratio of specific spectral 
wavelengths called the cellulosic adsorption index (CAI). [The petitioner] used the 
CAl to evaluate post-harvest plant residues, with emphasis on dryland and irrigated 
cropping systems in North Dakota. [The 
petitioner] worked directly with several other scientists on this research across 
the nation, and he directly contributed to and complemented ongoing US government 
research in His 
research findings are proving to be a valuable tool in the timely and large-scale 
assessment of compliance of various conservation tillage practices promoted by 
USDA farm programs and to indicate the scale of potential impacts of adverse 
conditions such as drought. [The petitioner ' s] results are also being reviewed for use 
in assessing national agricultural carbon sequestration programs , rangeland fuel load 
assessments for wildfire management, and potential dryland biofuel production in the 
Northern Great Plains region. . 
. . He has two scientific papers approved for 
publication and one in draft as a result of this work. 
Dr. now an associate professor al previously worked for 
the where he collaborated with the petitioner. Dr. asserted that the 
petitioner's "research in Montana has comprised both excellence in science and answers to practical 
problems . . .. The immediacy of results that should now be available due to [the petitioner's] 
research will enhance development, profitability, and sustainability of second generation biofuels. " 
Dr. , research soil scientist at the 
useful in data analysis and in planning data 
essentially nonexistent at present." 
stated that the petitioner's "findings will be 
acquisition programs for crop residue, which are 
Dr. of the Colorado, collaborated 
with the beneficiary in "the measuring of crop residue cover in harvested plots using remote sensing 
techniques ." Dr. asserted that the petitioner's "research provides us with a new quick remote 
method for measuring the amount and the type of crop residues left in the field," which "is of great 
value to managers and policy makers in the Bread Basket of the USA but also could provide critical 
information regarding potential for droughts and famines in other parts of the world." 
Dr. rangeland scientist and project director at the and the petitioner's 
immediate supervisor there, stated: 
(The petitioner's] postdoctoral research focuses on using Geographic Information 
Systems (GIS) and database management techniques to evaluate national changes in 
crop diversity over time. Addressing major agricultural issues in the future will 
require research that moves beyond small research plots to the landscape, regional or 
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even national levels. [The petitioner's] unique blend of GIS and database 
management skills as well as a biological understanding of natural resources that 
make him uniquely qualified to address these problems .... 
The major project he is working on is evaluating changes in crop diversity over time 
at the national level. ... [The petitioner] is leading a team that is evaluating the 
spatial and temporal changes in crop diversity, and also determining potential causes 
and impacts of these changes .... 
[The petitioner] is also working on a project to develop a 'natural beef system for the 
... [which] may provide a source of employment 
and a healthier food alternative. 
Dr. laboratory director and research leader at the is Dr. s 
supervisor, stated that the petitioner's "research skills and knowledge are rare in the United States" 
and that the petitioner's "research on understanding how to maintain crop diversity nationwide and 
on developing tools to better manage crops for both food and bioenergy will benefit the nation 's 
farmers and ranchers." 
Dr. an ecologist at the stated that he and the petitioner "have planned 
to collaborate together with other and university scientists on future research projects." Dr. 
asserted that the petitioner's "recent publications ... are a testament to his ingenuity in 
advancing the science pertaining to soil and water conservation in managed agricultural lands." 
Dr. research agronomist at the 
stated: 
I am impressed with the breath [sic] of [the petitioner's] technical expertise and 
insights. He is one of the brightest young scientists with whom I have worked. His 
research involves characterizing and modeling agricultural systems to identify and 
evaluate crop and soil management practices that will be sustainable with expected 
shifts [in] weather patterns. The analytical tools developed by [the petitioner] are 
very sophisticated and have contributed significantly to our understanding of the 
conservation practices that enhance soil carbon sequestration and enhance soil and 
water quality. With his broad technical background, he has been able to integrate 
physical models and statistical methods and to develop innovative algorithms for 
accurate! y assessing the growth and development of agricultural crops. [The 
petitioner's] work will significantly enhance the capability of the action 
agencies to monitor and forecast the effectiveness of soil and water conservation 
practices nationwide . 
. . . Traditional remote sensing methods have had limited success discriminating crop 
residues from soils. (The petitioner] and I worked together to develop remote sensing 
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approaches that are robust and well-suited for assessing crop residue cover and soil 
tillage intensity in the 
These contributions to remote sensing technology and agriculture are far above those 
expected of a minimally qualified professional in his position. His list of scientific 
publications in respected peer-reviewed journals is outstanding. 
The petitioner submitted copies of two journal publications, one from the Philippine Journal of 
Agricultural and Biosystems Engineering, 2008, and one from the Agronomy Journal in 2012. 
Three of the petitioner's witnesses, including Dr. are co-authors of the 2012 article. The 
petitioner also submitted evidence showing that the had 
accepted one of the petitioner's manuscripts for future publication. Dr. and Dr. 
were co-authors of that article as well. The petitioner was also one of nine authors of an unpublished 
manuscript that Dr. had submitted for publication in 
in late 2011. The petitioner did not show whether the journal had accepted the paper for 
publication; his own curriculum vitae listed the paper as "in review." The petitioner's curriculum 
vitae also identified ten other "technical papers," including his master's thesis, doctoral dissertation , 
and conference presentations. 
The petitioner's initial submission did not establish interest in his work outside of the and the 
witness (Dr. who most highly praised the petitioner's published work was a co-author of 
two of the three articles that journals had accepted for publication. (That witness, on his own 
curriculum vitae, claimed authorship of 110 journal articles.) The director issued a request for 
evidence on July 30, 2012, instructing the petitioner to "establish ... a past record of prior 
achievement that justifies projections of future benefit to the national interest." The director 
specifically requested evidence of the citation history of the petitioner's published work. In 
response, prior counsel stated: "The quantity of Petitioner's work might be modest but the quality is 
beyond question and is of major significance to his field." 
Prior counsel repeated the assertion that "[a ]gricultural engineers with PhDs, like Petitioner, are very 
difficult to find," a claim which would work in the petitioner's favor for positions that require that 
degree. The Department of Labor tests claims of worker shortages through the labor ce'rtification 
process, and thus such a shortage would be grounds for approving, rather than waiving, the job offer 
requirement. See NYSDOT, 22 I&N Dec. 218, 220 and 222. 
Prior counsel again described the petitioner's various projects and accomplishments, but such 
descriptions do not establish their significance relative to the work of other researchers in the 
petitioner's specialty. 
The petitioner submitted a printout from the Google Scholar search engine, identifying six citations 
of the petitioner's doctoral dissertation. One citation was a self-citation in a conference paper, and 
four of the remaining five citations appeared in papers by students and/or faculty members of 
where the petitioner wrote the dissertation. 
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The petitioner submitted copies of electronic mail messages from other researchers, who had various 
questions or requests for the petitioner regarding his work. The petitioner did not establish that such 
correspondence is unusual in the field, or otherwise demonstrates the impact of his work. One 
correspondent wrote to request a reprint of one of the petitioner's articles, which suggests that the 
person making the request had not yet read that article. 
The petitioner submitted copies of two new publications. One is the article from the 
that the petitioner had previously identified as awaiting publication. The 
other paper appeared in February 2012 edition of the an internal 
newsletter. 
The director denied the petition on November 9, 2012, stating that the evidence of record did not 
show "widespread implementation [of the petitioner's work] in the field." The director found the 
citation of the petitioner's work to be minimal, and indicated that the petitioner had not established 
the influence of his work beyond the collaborators who had provided witness letters. 
On appeal, the petitioner submits copies of correspondence, articles, and conference presentation 
materials, some of which duplicate previously submitted exhibits. The petitioner asserts that "the 
impact of [his] research should not be solely judged by citations." The director did not base the 
decision entirely on the petitioner's citation record, but the low citation rate of the petitioner's work 
is consistent with the overall finding that the petitioner had not established the impact of that work. 
The petitioner stated: 
A vital key in asserting the importance of this position is the timing when I was hired 
at the [in] 2011. This was also during the time when the 
federal budget was cut, ten experiment stations were shut down, hundreds of 
government employees were displaced, and early retirement and buy-out were offered 
to employees in the ... This condition alone could justify the third NYSDOT 
test whereby I was hired despite the budget and human resource challenges haunting 
the [at] that time. 
The petitioner's hiring is not, itself, evidence of his impact or influence on the field. The petitioner 
has not shown that the budget issues that he discussed had any impact on the s hiring of 
postdoctoral researchers. Some of the submitted evidence concerned preparations for a possible 
federal government shutdown, with employee furloughs, in early 2011, but the shutdown and 
furloughs never took place. Other materials indicate that budget cuts led the to offer early 
retirement and buyouts to employees, but these options would not have been available to short-term, 
temporary employees. Therefore, the petitioner did not show that his hiring at the in mid-
2011 constituted an unusual vote of confidence on the s part. 
The petitioner states that various circumstances limited his ability to produce published work. An 
October 2010 performance appraisal included an explanatory memorandum from Dr. 
explaining why the beneficiary received a "fully successful" rating (the middle rating out of three) 
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under "Demonstrated Research Accomplishments /hnpact" even though he did not produce the 
publications required for such a rating. Dr. stated that the petitioner "has done very well in 
the collection and processing of data, but has not had the time to write .... I think the demands that 
were placed on [the petitioner] were probably unreasonable ." 
The director did not find that the quantity of the petitioner's published output was the basis for 
denial of the petition. Regardless, the petitioner has not established that the published work 
influenced the field. 
The petitioner submits a new letter from another scientist at the Writing after the 
petitioner's departure from that laboratory, Dr. a research soil scientist, asserts that the 
petitioner "was a valuable team member" "[ d]uring his tenure at " Dr. states: 
· [The petitioner's] work on remote sensing of crop residue has garnered the attention 
of the scientific community as shown by an invited presentation to a regional 
meeting in 2012, and the selection of a photograph of 
[the petitioner's] research on the cover of ... With time, [the 
petitioner's] research article will likely be highly cited by other scientists working in 
the area of crop residue remote sensing. 
In addition to [the petitioner's] excellent remote sensing work, he has conducted 
groundbreaking analyses tracking long-term trends in major commodity crops 
throughout the U.S. using 
Agricultural Census data. His findings, which are currently being prepared in journal 
article form for submission to clearly document changes in 
cropping system diversity since 1978. Such information will almost certainly be 
useful to policymakers when crop diversity trends are geographically related to the 
presence of herbicide-resistant weeds, an issue of increasing concern throughout 
much of the U.S. Com Belt. 
Dr. speculates about the possible future citation of one of the petitioner's articles, and then, in 
the second quoted paragraph, refers to an area of research not previously discussed in the record. 
The record contains nothing to show that the petitioner's work at will be 
similar to the earlier efforts that formed the basis of the waiver claim. 
A November 19, 2012 letter from secretary/treasurer of the 
thanked the petitioner for a presentation that he 
made on October 11 of that year. The petitioner has not established that this presentation "garnered 
the attention of the scientific community" to a greater extent than other presentations at regional 
gatherings. Further, the event took place well after the petition's January 2012 filing date. An 
applicant or petitioner must establish that he or she is eligible for the requested benefit at the time of 
filing the benefit request. 8 C.F.R. § 103.2(b)(l). USCIS cannot properly approve the petition at a 
future date after the petitioner or beneficiary becomes eligible under a new set of facts. See Matter 
of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). 
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Other exhibits, including requests for reprints and for the petitioner's participation in peer review, 
also postdate the filing of the petition. The petitioner has not established that such correspondence 
reflects that he has been an influential figure in his field, beyond the substantial prospective benefit 
that is a basic requirement for the classification he seeks, and which does not entail a waiver of the 
job offer requirement. The petitioner has not shown that his work for a government agency has 
significantly affected the policy or practices of that agency, and many witnesses discuss the 
importance of his work by speculating about the results it might eventually produce rather than 
pointing to known, existing effects . 
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 ofthe United States. 
The AAO 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.