dismissed EB-2 NIW Case: Animal Science

US. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Of$ce ofAdministrative Appeals 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. 5 1 1 53(b)(2) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 9 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. !j 103.5(a)(l)(i). 
wn F. Grissom 
Acting Chief, Administrative Appeals Office 
DISCUSSION: The Director, Nebraska 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. § 1153(b)(2), as a member of the professions holding an advanced degree. At the 
time he filed the petition, the petitioner was a postdoctoral research associate at Michigan State 
University. He is now an assistant professor of dairy nutrition at the University of Idaho. The petitioner 
asserts that an exemption fiom 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 fiom the requirement of a job offer would be in the national interest of the United States. 
On appeal, the petitioner submits materials relating to a new job offer. 
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 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. 
The regulation at 8 C.F.R. 5 204.5(k)(4)(ii) requires that a petitioner seeking to apply for the 
exemption must submit Form ETA-750B, Statement of Qualifications of Alien, in duplicate. The 
record does not contain this required document, and therefore the petitioner has not properly applied 
for the national interest waiver. The director, however, did not raise this issue. We will, therefore, 
review the matter on the merits rather than leave it at a finding that the petitioner did not properly 
apply for the waiver. 
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, lOlst Cong., 1st 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 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. 
Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Commr. 1998), has set forth 
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 hture 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. 4 204.5(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 offerllabor 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. 
Page 4 
The petitioner filed the petition on April 13, 2007. In a statement accompanying the initial filing, the 
petitioner stated: 
I have directed my research to the interrelationships between nutrition and disease, and 
have recently completed my doctoral studies in Animal Science at the University of 
Connecticut. My long-term research goal is to develop new methods and generate new 
data concerning the interactions between nutrient metabolism and health, and thus I have 
started utilizing emerging strategies to study the molecular components of macronutrient 
metabolism, which will hopefully lead to new information that can improve overall 
health. 
. . . [Alfter completing my Ph.D. I accepted a position as a research associate, in the 
esteemed Meadow Brook Laboratory, located in the Department of Large Animal 
Clinical Sciences at Michigan State University. . . . 
My graduate research work has focused on 1) studying associations between negative 
energy balance, lipid-energy metabolites, lipid-soluble vitamins, and pathogen 
prevalence and new intramamrnary infection occurrences during the periparturient 
period of dairy cows, and to evaluate the potential effect of breed on these associations, 
2) improving milk yield and quality (milk protein content) of high producing dairy cows 
through feeding diets in which differently processed grains were utilized, and 3) 
studying feeding behaviors of replacement nulliparous cows in response to different 
feeding diets. 
Several witness letters accompanied the petition; we will discuss examples of these letters here. All but 
two of the letters are from faculty members of the University of Connecticut. - 
stated: 
Mastitis is a disease of the mammary gland and leads to significant economic losses 
annually both nationally and internationally. It is a significant problem in the dairy 
industry that must be better understood. As part of his work, he undertook a tremendous 
number of very challenging biochemical analyses on a large group of animals. The 
tenacity with which he pursued his dissertation research was impressive and led to 
significant intellectual growth that has helped to establish him as an expert in the 
relationship between nutrition and mastitis development in dairy cattle. . . . 
I believe that he is an emerging scholar of international significance in the field of dairy 
cattle nutrition. At the same time, it is critical to note that he is also very knowledgeable 
in the discipline of statistical design and analysis of animal research. . . . Too often, 
scientists lack the statistical strength needed to truly advance the field; this is not the 
case with [the petitioner] and is one of the principal reasons that I enthusiastically 
endorse hs application. 
Page 5 
I was [the petitioner's] major advisor for his Ph.D. degree in the Department of Animal 
Science at the University of Connecticut. . . . One significant result of his research is the 
determination that the nutritional protein status of dairy cows affects immune status and 
risk of mastitis in the periparturient period. [The petitioner's] finding is, therefore, very 
important for animal health and productivity and can be the basis for nutritional 
modifications during this metabolically challenging period in the lactation cycle of the 
dairy cow. 
functional importance of energy and retinol binding protein on mastitis in the transition cow. . . . Thus, 
[the petitioner's] findings may be utilized by pharmaceutical companies in development of new 
treatments for prevention of mastitis." 
Outside of the University of Connecticut, Iowa State University Associate 
 stated: 
I have been acquainted with [the petitioner] since he came to the US and U Conn (2001) 
but [we] have really become scientific colleagues and friends the past 3-4 years through 
our communications and interactions at professional and scientific meetings. . . . [The 
petitioner] has an excellent command of nutrition in many species (both basic and 
applied), coupled to great foundations in immunology, and a diverse deep background in 
common sense management practices that tie these sciences together. What sets [the 
petitioner] apart from many others is that he knows and integrates all these areas well. 
I became acquainted with [the petitioner] during the National Meeting of [the] American 
Dairy Science Association several years ago. . . . [The petitioner's] dedication to 
research became apparent to me when he presented his research findings from the 
University of Connecticut. His presentations were well received by the audience and 
showed a great deal of careful experimental designs, scientific knowledge and 
importance to the field of dairy science. 
Numerous witnesses offered general praise for the petitioner's research abilities and dedication. 
On April 9, 2008, the director issued a request for evidence, instructing the petitioner to submit 
evidence of "a past record of specific prior achievement that justifies projections of future benefit to the 
national interest." The director also requested evidence of the petitioner's influence on his field, such as 
copies of other researchers' articles that contain citations of the petitioner's published work. 
By the time the petitioner responded to the request for evidence, he had left the University of Michigan 
and begun working at the University of Idaho. In a statement included with that response, the petitioner 
listed his various accomplishments, but did not establish that these achievements distinguish him from 
others in the field. The petitioner asserted that he had "been regularly assigned by the senior/section 
editors of the Journal of Dairy Science (JDS)" to review manuscripts submitted for publication in that 
journal. The record contains copies of correspondence, showing that the JDS Section Editor was Dr. 
who was, at the same time, the petitioner's supervisor at the University of Michigan. 
The petitioner's participation in peer review at the behest of his own supervisor does not establish the 
high standing in the field that the petitioner claims. 
The petitioner observed that the JDS "is the top-ranked dairy research journal in the world . . . with an 
impact factor of 2.284" (the petitioner's emphasis). The impact factor is calculated fiom citations of 
individual articles in a given journal, but the petitioner did not indicate that his own articles have been 
cited at significant rates. 
The petitioner documented his authorship of articles and his participation at numerous scientific 
conferences, but prolific output does not demonstrate or ensure significant impact or influence in the 
field. The materials do not show how the petitioner's work has affected dairy science or other aspects 
of animal research. Such influence is not self-evident from the material's very existence. 
The director denied the petition on September 10,2008, stating that the petitioner failed to demonstrate 
significant influence within his field. On appeal, the petitioner states that he "was offered a position, 
employed as a full time tenure-track Assistant Professor of Dairy Nutrition . . . at the University of 
Idaho." The petitioner discusses the university and his position there, and asserts that his teaching and 
research at the university will benefit the United States. Letters fiom University of Idaho faculty 
members provide more information about the appointment. 
An applicant or petitioner must establish that he or she is eligible for the requested benefit at the time of 
filing the application or petition. 8 C.F.R. 5 103.2(b)(l). Therefore, subsequent events cannot cause a 
previously ineligible alien to become eligible after the filing date. See Matter of Katigbak, 14 I&N Dec. 
45,49 (Regl. Commr. 1971). At the time he filed the petition, the petitioner was a postdoctoral research 
associate at Michigan State University; the record contains relatively little information about his 
activities there. The tenure-track job offer from the University of Idaho is dated September 8, 2008, 
nearly a year and a half after the petition's April 2007 filing date. Even if the petitioner had shown that 
this job offer makes him eligible for the waiver, which the petitioner has not done, we cannot find that it 
retroactively qualifies him under a petition filed long before the job offer was made. 
We note that Form 1-140 includes the question: "Has any immigrant visa petition ever been filed by or 
on behalf of this person?'The petitioner originally answered "Yes," then obscured that answer with 
correction fluid and answered "No." USCIS records show that a member of the petitioner's family filed 
a Form 1-130 immediate relative petition (receipt number EAC 06 090 50135) on the petitioner's behalf 
in February 2006. The Vermont Service Center approved the petition in June 2006. Thus, another 
immigrant visa petition had been not only filed, but approved, before the petitioner filed the present 
Form 1-140 petition on his own behalf in April 2007. So long as the immediate relative petition remains 
valid, another avenue of immigration remains open to the petitioner. 
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. fj 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.