dismissed EB-2 NIW Case: Chemistry

identifjling data deleted to 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Of$ce ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
prevent clearly unwarranted 
 U. S. Citizenship 
invasion of personal privacy 
 and Immigration 
Services 
mtIC COPY 
FILE: Office: NEBRASKA SERVICE CENTER Date: SEP 0 3 2009 
LIN 08 240 50883 
IN RE: 
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. $ 1 153(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. $ 103.5(a)(l)(i). 
ping Chief, Administrative Appeals Office 
Page 2 
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. 5 1153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner is a research and development chemist at Feed Energy Company, Des Moines, Iowa. 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 fiom the requirement of a job offer would be in the national interest of the 
United States. 
On appeal, the petitioner submits various exhibits and arguments fiom 
 of Apollo 
Beach, Florida. 
The term "attorney" means any person who is a member in good standing of the bar of the highest 
court of any State, possession, territory, Commonwealth, or the District of Columbia, and is not 
under any order of any court suspending, enjoining, restraining, disbarring, or otherwise restricting 
him in the practice of law. 8 C.F.R. 5 l.l(f). 
identifies himself as the petitioner's attorney of record, and claims to be a member 
in good standing of the Penns lvania bar. 
 The Disciplinary Board of the Supreme Court of 
Pennsylvania, however, lists 
 status as "inactive": http://www.padisciplinaryboard.org/ 
pa attorney info.~hp?id=57798&pdcount=O (printout added to record July 14, 2009). On July 14, 
2009, the AAO wrote to instructing him to provide documentation to establish that he is 
currently entitled to he AAO has received no response to this request. Because Mr. 
has given us no evidence that he is a member in good staiding of the bar bf the highest court 
of any State, possession, territory, Commonwealth, or the District of Columbia, he has not shown 
that he meets the definition of an "attorney" at 8 C.F.R. 5 1 .l(f). Therefore, the AAO considers the 
petitioner to be self-represented. While 8 C.F.R. 5 103.3(a)(2)(x) requires that a copy of the decision 
must be served on theaffected party and the attorney or representative of record, this regulation does 
not apply here because has not shown that he is an attorney, and has not claimed that he 
otherwise qualifies as a representative under 8 C.F.R. 5 292.l(a). 
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. 
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, 10 1 st Cong., 1 st Sess., 1 1 (1 989). 
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] 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 (Comrnr. 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 future benefit to the national 
interest. The petitioner's subjective assurance that the alien will, in the hture, serve the national interest 
cannot suffice to establish prospective national benefit. The inclusion of the term "prospective" is used 
Page 4 
here to require future contributions by the alien, rather than to facilitate the entry of an alien with no 
demonstrable prior achevements, and whose benefit to the national interest would thus be entirely 
speculative. 
We also note that 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 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. 
The petitioner filed the petition on August 29, 2008. 
 In a statement accompanying the initial 
submission, 
 indicated that the petitioner, in his research, seeks to understand the cause(s) 
of the astringency, or bitter taste, of so milk, in order to remedy this problem and thereby increase 
public acceptance of the product. asserted that isoflavones have previously been posited 
as the cause, but that the petitioner's research suggests that the blame lies with phytic ions. 
stated that a published article by the petitioner on this subject has been cited six times. A 
printout from the Google Scholar database (htt~:l/scholar.~oo~le.com) shows only five citations. 
- - 
The printout lists six citing articles, but one article is listed twice. The petitioner submitted copies of 
other published articles, but did not claim any citations of those articles. 
The petitioner submitted letters from two witnesses, both on the faculty of Iowa State University, 
Arnes. When the witnesses wrote their letters in December 2007, the petitioner was a postdoctoral 
research associate at the university. (The letters originally accompanied an earlier, denied petition.) 
Assistant Professor- stated that the petitioner "has added considerably to an 
understanding of the nature of the astringency of soymilk." 
praised the petitioner's "level of insight into the food chemistry of the 
soybean," and stated that the petitioner's "ideas about the relationship between isoflavones and the 
sensation of astringency in soy products . . . , in part, informed the design of my own study." Prof. 
asserted that the petitioner "is an internationally known scientist," but the record does not 
support this claim except insofar as the five citations of the petitioner's work originate from more 
than one country. 
The petitioner's waiver claim rests exclusively on his research regarding the flavor of soy milk. He 
did not, however, demonstrate that he continues to perform such research. On his rdsumd, the 
petitioner described the responsibilities of his position at Feed Energy Company as "Feed 
production, product development, develop value-added products, feed quality control, feeding 
management etc." The petitioner submitted nothing from Feed Energy Company or any other source 
to indicate that Feed Energy Company is involved in the study or production of soy milk. 
The director denied the petition on September 22, 2008, stating that the petitioner's citation record 
does not readily suggest that the petitioner's work has been especially influential in the field. The 
director also found that the letters did not show the petitioner's impact outside of Iowa State 
University. 
On appeal, 
 argues that the director erred in using a "quantitative analysis" rather than "a 
more qualitative analysis of the citations to [the petitioner's] work . . . [and] of the entire file" 
(emphasis in original). With regard to the witness letters, cites Matter of Kwan, 14 I&N 
Dec. 175 (BIA 1972). The cited precedent decision concerns "information in an affidavit," whereas 
the witness letters are not sworn affidavits. 
 Furthermore, the director did not challenge the 
credibility of the witness letters as alleges. The director did not dispute the witnesses' 
factual assertions. Rather, the director found that the documentary evidence did not tend to support 
the witnesses' subjective assessments of the importance and influence of the petitioner's work. 
asserts that he does not specifically dispute the director's findings regarding the 
petitioner's citations, or regarding the witness letters; he goes so far as to concede "we do not 
specifically challenge the Director's denial." Rather, he asserts that, while each of the various 
exhibits has problems of its own, taken together they should establish that the petitioner is "more 
likely than not" eligible for the waiver, because the petitioner's burden of proof is only to show 
eligibility by a preponderance of evidence. The petitioner does not meet this burden, however, 
simply by asserting that even flawed evidence, when submitted in sufficient quantities, must 
eventually tip the scales in his favor. The petitioner has not shown that the submitted evidence either 
quantitatively or qualitatively establishes his eligibility for the benefit sought. 
asserts: "the Director cornplefely failed to ask whether commercial enterprise has 
expressed an interest in [the petitioner's] soybean work" (emphasis in original; footnote omitted). 
To establish this commercial interest, the petitioner submits a letter from 
Research and Development Director at Feed Energy Company, who states: 
-~ 
For more than thirty years, Feed Energy Company has been the premier supplier of 
energy solutions to the American livestock industry. . . . 
[W]e use cutting edge science to get the most nutrition, available calories, out of raw 
product possible. We knew of recent work undertaken by [the petitioner] . . . and his 
approach has influenced our approach to aqueous extraction process. 
Most soybean oil extraction is carried out by direct solvent extraction of uncooked 
soybean flakes. The use of a petroleum distillate containing about two-thirds n- 
hexane is typically used in the commercial extraction of soybean oil. . . . The 
Environmental Protection Agency has identified solvent emissions in oilseed 
extraction to be a significant source of air pollution. . . . To reduce hexane emissions, 
alternative methods for edible oil extraction have been proposed. The aqueous 
extraction process (AEP) . . . is one such alternative that we think holds promise. . . . 
Page 6 
Use of enzymes to assist this AEP increases the available calories. 
 But . . . 
developing the EAEP into a dependable process has, thus far, proved elusive. [The 
petitioner's] research showed that he knows how to find the enzymes necessary to 
improve available calories. And his pretreatment techniques increased the efficiency 
of his use of EAEP. 
. . . We are convinced . . . that [the petitioner] is singularly qualified to help Feed 
Energy Company timely achieve this goal [of environmentally responsible oil 
extraction]. Of course, his article concerns soybeans and our research concerns gums 
and soapstock, but there are sufficient similarities that we believe [the petitioner's] 
pretreatment-EAEP work will be applicable to our research. 
The above letter does not indicate that the petitioner continues to work with soy milk, and the record 
does not show that the petitioner solved the problem of soy milk astringency before he ceased 
working on the problem. Rather, the letter shows that the petitioner's current work is largely 
unrelated to the one issue (soy milk bitterness) that formed the cornerstone of the initial filing. The 
petitioner's heavy focus on the soy milk issue, coupled with his initial failure to disclose that he no 
longer performed such work, was misleading at best. Considering that the petitioner's initial 
submission contained no mention whatsoever of his work with aqueous extraction of vegetable oils 
using gums and soapstock, there can be no justifiable complaint that the director failed to take that 
work into account. 
The petitioner, in his initial filing, did not show that his work with soy milk was particularly 
important or influential in relation to the work of others working in the same area. Given the 
petitioner's cessation of that work, the petitioner cannot reasonably argue that his future work will 
continue to benefit the soy milk industry, and he has not shown that his past work in that area was of 
such a caliber that we can assume that the United States will see great benefit from his future work, 
whatever its nature. In terms of his current work, we note that the petitioner joined Feed Energy 
Company only about five weeks before he filed the petition, and there is no evidence that he had 
made significant progress in his new work during or since that time. 
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 fi-om 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. tj 136 1. 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.