dismissed EB-2 NIW Case: Biology

(MATTER OF U-0-A-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision.of the 
Administrative Appeals Office 
DATE: OCT. 12,2016 
PETITION: FROM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an associate professor of Biology, seeks classification as a member of the professions 
holding an advanced degree. See section 203(b)(2) ofthe Immigration and Nationality Act (the Act), 8 
U.S.C. § 1153(b )(2). The Petitioner also seeks a national interest waiver of the job offer requirement 
that is attached to this immigrant classification. See section 203(b )(2)(B)(i) of the Act, 8 U.S.C. 
§ 1153(b)(2)(B)(i). U.S. Citizenship and Immigration Services (USCIS) may grant this discretionary 
waiver of the required job offer, and thus of a labor certification, when it is in the national interest to do 
so. 
The Director, Texas Service Center, denied the petitiOn. He subsequently granted a motion to 
reconsider and issued a new decision concluding that the Petitioner had not demonstrated that his 
proposed employment was national in scope or that "a waiver of the job offer and labor certification 
requirement will be in the national interest ofthe United States." The Petitioner filed an appeal which 
we rejected. We reopened the matter on our own motion pursuant to 8 C.F.R. § 103.5(a)(5)(ii) and 
provided him an opportunity to submit a brief within 30 days. As the Petitioner did not respond, we 
will base our decision on the existing record. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
To establish eligibility for a national interest waiver, a petitioner must first demonstrate his or her 
qualification for the underlying visa classification, as either an advanced degree professional or an 
individual of exceptional ability in the sciences, arts, or business. Because this classification requires 
that the individual's services be sought by a U.S. employer, a separate showing is required to establish 
that a waiver of the job offer requirement is in the national interest. 
Section 203(b) of the Act states, in pertinent part: 
r 
\ 
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens 
of Exceptional Ability.,-
Matter ofU-O~A-
(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) National interest waiver .... the Attorney General may, when the Attorney 
General deems it to be in the national interest, waiye 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.CJ 
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). 
i 
Matter ofNew York State Dep't ofTransp., 22 I&N Dec. 215,217-18 (Act. Assoc. Comm'r 1998) 
(NYSDOT), set forth several factors which must be considered when evaluating a request for a national 
interest waiver. First, a petitioner must demonstrate that he or she seeks employment in an area of 
substantial intrinsic merit. !d. at 217. Next, a petitioner must show that the proposed benefit will be 
""' national in scope. !d. Finally, the petitioner seeking the waiver must establish that he or she will serve 
the national interest to a substantially greater degree than would an available U.S. worker having the 
same minimum qualifications. !d. at 21 7-18. 
While the national interest waiver hinges on prospective national benefit, a petitioner's assurance that 
he or she will, in the future, serve the nationa~ interest cannot suffice to establish prospective national 
benefit. !d. at 219. Rather, a petitioner must justify projections of future benefit to the national 
interest by establishing a history of achievement with some degree of influence on the field as a 
whole. !d. at 219, n. 6. 
1 Pursuant to section 1517 of the Homeland Security Act of 2002 ("HSA"), Pub. L. No. I 07-296, 116 Stat. 2135, 2311 
(codified at 6 U.S.C. § 557 (2012)), any reference to the Attorney General in a provision of the Act describing functions 
that were transferred from the Attorney General or other Department of Justice official to the Department of Homeland 
Security by the HSA "shall be deemed to refer to the Secretary" of Homeland Security. See also 6 U.S.C. § 542 note 
(2012); 8 U.S.C. § 1551 note (2012). 
2 
(b)(6)
Matter ofU-0-A-
II. ANALYSIS 
The record establishes that the Petitioner is a member of the professions holding an advanced degree, 
that his work as a professor is in an area of substantial intrinsic merit, and that the proposed benefits 
of his research will be national in scope.2 It remains, then, to determine whether he will benefit the 
national interest to a greater extent than an available U.S. worker with the same minimum 
qualifications. 
At the time of filing the Form I-140, Immigrant Petition' for Alien Worker, the Petitioner was 
employed as an associate professor of biology at The record includes evidence of 
his academic credentials and professional memberships, along with notes and evaluations from 
students. The Director thoroughly and specifically discussed the submitted evidence, explained why 
the materials did not warrant approval of the petition and, in a request for evidence, provided 
examples of the kind of materials that could establish eligibility. On appeal, the Petitioner contends 
that his "application was greatly mishandled by the reviewer," but does not specifically address how 
the Director erred in his findings. Regardless, for the reasons discussed below, the record does not 
establish that his work has influenced the field as a whole as required under the third prong of the 
NYSDOT analytical framework. Without such a showing, employment in a beneficial occupation 
does not, by itself, qualify the Petitioner for the national interest waiver. 
We note that on motion, as in the initial filing, the Petitioner relied on his advanced degree, salary, 
professional memberships, and "other comparable evidence" to establish eligibility for a 
national 
interest waiver. Educational degrees, high salary, and professional memberships are elements that 
can contribute toward a finding of exceptional ability. See 8 C.F.R. § 204.5(k)(3)(ii)(A), (D), and 
(F), respectively. As the Petitioner qualifies for the classification sought as a member of the 
professions with an advanced degree, the issue of exceptional ability is moot. However, pursuant to 
section 203(b )(2)(A) of the Act, foreign nationals of exceptional ability are also generally subject to 
the job offer/labor certification requirement; they are not exempt by virtue of their exceptional 
ability. NYSDOT, 22 I&N Dec. at 218, 222. Whether a given individual seeks classification as a 
foreign national of exceptional ability, or as a member of the professions holding an advanced 
degree, that individual cannot qualify for a waiver based on a degree of expertise significantly above 
that ordinarily encountered in his field of expertise. The national interest waiver is an additional 
benefit, separate from the classification sought, and therefore eligibility for the underlying 
classification does not demonstrate eligibility for the additional benefit of the waiver. In other 
words, even if the Petitioner had established that he qualifies as an individual of exceptional ability, 
he must still show that he meets all three prongs of the NYSDOT analytical framework. 
2 Regarding the second prong of the NYSDOT analytical framework, the Director correctly found that the proposed 
benefits of teaching alone would not be national in scope. The Petitioner, however, submitted sufficient documentation 
to demonstrate that the proposed benefits of his research are national in scope. Therefore, the Director's finding on this 
issue is withdrawn. 
3 
(b)(6)
Matter of U-0-A-
The Petitioner is a member of both the and the 
and presented three abstracts at meetings while a student. There is 
also evidence of one undated, unpublished manuscript draft and a published journal article which, as 
indicated by the Director, was not submitted for publication until after the initial submission of the 
petition: Eligibility must be established at the time of filing. 8 C.F.R. §§ 103.2(b)(l), (12); Matter 
of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). A petition cannot be approved at a future 
date after the petitioner becomes eligible under a new set of facts. Matter of Izummi, 22 I&N Dec. 
169, 175 (Comm'r 1998). Regardless, the above materials do not demonstrate that the Petitioner has 
influenced his field. For example, while publications and presentations may demonstrate that his 
research findings were shared with others and may be acknowledged as original based on their 
selection to be presented or published, they do not establish that those findings have had an impacf 
on the field as a whole. 
The record also contains one reference letter from a microbiology professor at 
who indicated that the Petitioner "is a very resourceful 
individual" who, if "given the right tools, [] is geared towards achieving greater heights in this 
profession." The author also states that "[h]e is making enormous contributions to the scientific 
community here in the United States and in the world at large," but does not provide any additional 
information regarding the Petitioner's contributions. Statements made without supporting 
documentary evidence are of limited probative value and are not sufficient for purposes of meeting 
the burden ofproofin these proceedings. Matter ofSoffici, 22 I&N Dec. 158, 165 (Assoc. Comm'r 
, 1998) (citing Matter ofTreasure Craft of California, 14 I&N Dec. 190 (Reg'! Comm'r 1972)). 
Under the third prong of the NYSDOT analytical framework, a petitioner must demonstrate that he or . . 
she will serve the national interest to a substantially greater degree than would an available U.S. 
worker with the same minimum qualifications. In order to make such a showing, a petitioner must 
have a past record that "justifies projections of future benefit to the national interest" by exhibiting 
"some degree of influence on the field as a whole." !d. at 219, n. 6. The submitted materials do not 
set the Petitioner apart from other competent and qualified professors, nor do they establish that his 
work has resulted in significant benefits beyond his own students and his own classroom. Without 
evidence demonstrating !hat his work has affected the field as a whole, employment in a beneficial 
occupation such as a professor does not qualify the Petitioner for the national interest waiver. 
III. CONCLUSION 
A plain reading of the statute indicates that it was not the intent of Congress that every advanced 
degree professional or individual of exceptional ability should be exempt from the requirement of a 
job offer based on national interest. For the reasons discussed above, we find the-record insufficient 
to confirm that the Petitioner's past record of achievement is at a level sufficient to waive the job 
offer requirement which, by law, attaches to the visa classification sought. Considering the record, 
he has not established by a preponderance of the evidence that a waiver of the requirement of an 
approved labor certification will be in the national interest of the United States. Accordingly, the 
4 
Matter of U-0-A-
Petitioner has not met his burden to establish eligibility for the immigration benefit sought. Section 
291 ofthe Act, 8\U.S.C. § 1361; Matter o.fOtiende, 26 I&N Dec. 127, 128 (BIA 2013). 
ORDER: The appeal is dismissed. 
Cite as Matter o.fU-0-A-, ID# 113065 (AAO Oct. 12, 2016) 
5