dismissed EB-2 NIW Case: Dairy Foods Technology

(b)(6)
DATE: 
MAY 15 2014 
INRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
U.S. Department ofHomelrind Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W ., 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. § 1153(b )(2) 
ON BEHALF OF PETITIONER: 
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 law 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, 
'Z---Ron Rosenb 
Chief, Administrative Appeals Office 
www.uscis.gov 
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Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office on appeal. We 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. At the time he filed the 
petition, the petitioner was a part-time graduate research assistant in dairy foods technology at 
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 the classification sought, 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 brief and supporting exhibits, most of which duplicate prior 
submissions. 
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 petitioner claims eligibility for classification as an alien of exceptional ability in the sciences. The 
record readily establishes that the petitioner, whose occupation requires at least a bachelor's degree and 
who holds a master's degree from qualifies as a member of the professions holding an advanced 
degree. An additional determination regarding the petitioner's claim of exceptional ability would be 
moot. 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. 
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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, 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 Dep 't 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 
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. !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 petitioner filed the Form I-140, Immigrant Petition for Alien Worker, on April 11, 2013. An 
introductory statement listed the supporting exhibits and stated, without elaboration, that the 
submitted evidence warrants approval of the waiver. 
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Several letters accompanied the petition, all from witnesses with ties to Dr. 
director of 's School of Animal Sciences, described the petitioner's studies and research at that 
institution: 
[The petitioner's] Master's thesis ... research examined the use of low sonication 
conditions to enhance growth characteristics of bacteria cultures used to manufacture 
yogurt. This was a very unique, cutting edge technique for enhancing growth of 
bacteria cultures commonly used for making yogurt. 
[The petitioner] was accepted into a PhD program in functional dairy foods 
technology in the School of Animal Sciences in May 2011. While numerous students 
complete Master's degrees in the functional dairy foods lab, very few are awarded the 
opportunity to continue their training by pursuing a PhD in the same lab. This is one 
indication of his exceptional ability and reputation compared to others similarly 
employed in the functional dairy foods industry. His current research program is also 
very groundbreaking; using nanoparticles to reduce the sodium content of cheddar 
cheese and butter. 
(The petitioner] has several peer-reviewed research publications in scientific journals. 
He has made several presentations of his research findings at national and 
international scientific meetings .... 
He has also won several awards for the 
was awarded first place at the 2012 
uality and innovation of his research. He 
student research competition; 2"d place at the 
development competition in 2009; 41h place at the 2010 
graduate 
food product 
graduate student research competition and 5th place at the 2011 
graduate student competition. 
Regarding the awards identified above, the petitioner submitted printouts from the '' s web site, 
identifying the petitioner as a "runner-up" in 2010 and 2011, but no evidence to confirm his claimed 
first place award in 2012. The petitioner also did not document his claimed second place award 
from in 2009. These two claimed awards also do not appear in the petitioner's exhibit list. Not 
every witness mentioned the petitioner's awards, but those that did mentioned only his runner-
up showings in 2010 and 2011. Dr. is the only witness to claim that the petitioner won first 
place at the 2012 competition. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 
22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 
190 (Reg'l Comm'r 1972)). 
Dr. asserted: "While numerous students complete Master's degrees in the functional dairy foods 
lab, very few are awarded the opportunity to continue their training by pursuing a PhD in the same 
(b)(6)
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lab." This is an objective, empirical claim, but the record contains no evidence to support it, such as 
documentation of the number of master's students in the lab and the number of those who continue 
in a doctoral program there. See Matter of Soffici, 22 I&N Dec. at 165. Even if the ratio of the 
second group to the first group were low, the petitioner would also need to establish how many of 
the master's students sought to remain there for their doctoral studies. A low number of students 
remaining in the lab for doctoral studies does not, by itself, establish that other students had sought, 
without success, to remain there. 
Dr. 
Dr. 
associate professor at stated: 
In January 2009 [the petitioner] officially became my graduate research assistant. ... 
[The petitioner's] research determined that the sonication pasteurization method was 
more effective than the industrial pasteurization method in lowering coliform 
bacterial counts and total aerobic bacterial counts. It indicated that the whole milk 
processed by sonication is microbially safer to drink than the milk processed by high 
temperature and short time pasteurization method .... 
Also, he has worked on the application of mild sonication to improve the probiotics 
survival characteristics (tolerance [of] bile and acid fluids) of yogurt culture bacteria 
Streptococcus thermophiles ST-M5 and Lactobacillus bulgaricus LB-12. The results 
demonstrated that the application of mild sonication intensities improved some 
probiotics characteristics of the culture used in the yogurt manufacture, which also 
positively influence human health .... 
Additionally, his current PhD research work in the development of a nanosalt by the 
application of nanotechnology to reduce the sodium in dairy products is likely to have 
a significant impact on the development and production of healthier products. 
stated: 
I am currently a Research Microbiologist at [the] 
since 2011. Before this osition, I was an Associate Professor in the Department of 
Food Science at for 7 years .... 
[The petitioner] is [a] very sharp, dedicated and capable scientist. ... The 
significance of [the petitioner's] work is rooted in his abilities to address old 
problems (dairy products with high sodium content and yogurt culture survival to the 
gastro intestinal conditions) with new approaches, based on the integration of his 
research expertise in different fields of processing functional dairy products, which 
are foods that go beyond simple nutrition and have specific targeted action, such as 
the enhancement of a certain physiological function or the reduction of cancer risk 
and cardiovascular disease .... 
(b)(6)
Page 6 
NON-PRECEDENT DECISION 
With [the petitioner's] contributions, important advances were made in the field of 
processing functional dairy products (the enhancement of yogurt culture bacteria to 
tolerate probiotic characteristics and the use of nanotechnology to reduce sodium in 
dairy products). 
Dr. assistant professor at "provided assistance [to the petitioner] in 
equipment and characterization of nanoparticles" in 2012. Dr. praised the petitioner's 
"willingness to develop new ideas and obtain solution[s] to important research issues," and stated 
that the petitioner's "unique cross-disciplinary background ... provides him with the skills to make 
noticeable advances in the field." 
Professor _ executive director of International Programs at stated that the 
petitioner's "multidisciplinary approach to his training and education makes him stand out from his 
peers." Prof. asserted that the petitioner's most recent research "is a significant contribution 
to the dairy industry in the production of low sodium dairy products." 
Dr. scientific director of earned both of his degrees (a 
bachelor's degree in animal science and a doctorate in reproductive physiology) at Dr. 
discussed the petitioner's work in general terms, and concluded "that he has had a 
significantly higher impact in research in the field of Processing of Functional Dairy Products, 
compared to those equally employed in the same field." Dr. did not claim, and his 
curriculum vitae does not reflect, any specialized training or expertise in food science; his "areas of 
research and interest include in vitro fertilization, microsurgical procedures and embryo transfers in 
humans." 
The initial witness letters do not establish the extent, if any, of the petitioner's impact beyond 
The petitioner submitted copies of three ·ournal articles, all published in 2012. Two articles 
appeared in the third in 
The petitioner also documented 12 conference presentatiOns. 
The director issued a request for evidence on May 24, 2013. The director quoted from some of the 
witness letters, and stated: "The record ... does not demonstrate that you pioneered novel 
discoveries or that you are more skilled than others who perform the same or similar work. ... [T]he 
record lacks any demonstrable prior achievements" that would demonstrate eligibility for the waiver. 
The director stated that the petitioner "must be able to demonstrate ... a degree of influence on the 
field" to set him apart from others in that field. 
In response, the petitioner submitted two new witness letters; copies of two previously submitted 
letters; a certificate naming the petitioner "3rd Place Winner" of the ' 
and a July 21, 2010 story from An 
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accompanying statement quoted from the various exhibits and stated that "the record clearly 
indicates, that [the petitioner] has a degree [of] influence in the field that distinguishes him from 
other Functional Dairy Food Researchers with comparable academic and professional 
qualifications." 
The story reported on the petitioner's presentation at an annual meeting, regarding 
the use of sound waves to pasteurize milk using less energy, and at a lower temperature, than the 
conventional method. The story predated the filing of the petition by nearly three years, but the 
petitioner did not submit any evidence that milk producers have subsequently adopted the sonication 
method described in the petitioner's presentation. Without evidence of wider adoption, or 
continuing research based on the petitioner's findings, the article does not establish 
that the petitioner's work has influenced the field as a whole. 
The new witness letters, like most of those submitted earlier, are from faculty members. 
Professor stated that the petitioner's graduate research "showed that he was an 
outstanding, innovative and capable scientist," and "has contributed significantly to the scientific 
dairy food area .... His continued presence in the United States is vital to our research efforts in this 
field." Concerning the petitioner's latest work, Prof. stated that the petitioner's "sodium 
reduction alternative contributes significantly to the production of low sodium dairy products," but 
the record does not show that the petitioner's methods have led to the manufacture of such products. 
Dr. associate professor at and a co-author of two of the petitioner's three 
published articles, stated that the petitioner's various graduate projects, described above by other 
witnesses, "establish his ability to produce future benefits to the United States in the Processing of 
Functional Dairy Products." Dr. did not identify any product resulting from the petitioner's 
work that has reached the market, or 
any company that has sought to commercialize that work. The 
petitioner's research is practical rather than theoretical, but the record does not show that the 
petitioner's findings have been, or are being, put into practice outside of 
The director denied the petition on October 24, 2013, stating that the petitioner had satisfied the first 
two prongs of the NYSDOT national interest test, pertaining to intrinsic merit and national scope, but 
that the petitioner had not established his impact on the field. The director stated that the petitioner 
had not shown that other researchers have cited the petitioner's published work, and that the record 
does not corroborate the witnesses' claims regarding the importance of the petitioner's research. 
Concerning the witness letters, the director stated: 
With respect to support letters, while the opinions of experts in the field are not 
without weight, USCIS may, in its discretion, use as advisory opinions statements 
submitted as expert testimony (see Matter of Caron International, 19 I&N Dec. 791, 
795 (Comm'r 1988)). However, USCIS is ultimately responsible for making the final 
determination regarding eligibility for the benefit sought. While the letters bolster the 
beneficiary's research findings, they do not establish that the beneficiary's expertise 
serves the national interest better than another qualified U.S. worker in the same field. 
(b)(6)
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Page 8 
On appeal, the petitiOner submits a partial copy of his completed doctoral dissertation (dated 
December 2013, although he submitted it on November 25, 2013). Completion of the dissertation 
demonstrates progress toward the awarding of a doctorate, but a doctorate does not establish 
eligibility for the waiver. Under section 203(b )(2)(A), a member of the professions holding an 
advanced degree remains subject to the job offer requirement, and the petitioner did not yet hold a 
doctorate when he filed the appeal. A letter from Dr. indicates that the petitioner "will graduate 
... with a PhD in Dairy Foods Technology on December 13, 2013." 
Even if completion of the dissertation were a qualifying factor, the petitioner completed it after the 
petition's April 2013 filing date. An applicant or petitioner must establish thathe or she is eligible 
for the requested benefit at the time of filing the benefit request. 8 C.P.R. § 103.2(b )(1). 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). 
On appeal, the petitioner states: "The decision noted the minimal citations to the Petitioner's work 
diminished its importance to the scientific community. Enclosed with this appeal are four new 
citations to the Petitioner's research. rTabs 4-71." Tab 4 corresponds to a series of abstracts 
published in a supplement to the the petitioner is a co-author of one of 
the abstracts. The petitioner does not explain how the publication of his own abstract is a "citation 
to the Petitioner's research." 
Tabs 6 and 7 correspond to grant applications that Dr. filed, seeking continued funding from 
the The applications list the publications that 
have already resulted from the funded research. Among these publications are articles that Dr. 
wrote with the petitioner. Dr. 's list of his own publications in a grant application 
does not show that other researchers have cited the petitioner's published work. 
Only one of "four new citations" is actually a ublished citation to the petitioner's published work. 
The citation appeared in an article in the 
The article has no date, and therefore it is not evident whether or not the article appeared 
before or after the petition's filing date. 
The petitioner quotes from previously submitted witness letters, and asserts that the director did not 
give sufficient consideration to those letters. The petitioner states: 
Matter of Caron International is distinguishable from the instant case as it deals with 
the definition of a "professional" and eligibility for an H-1 visa under the INA 'of 
1970. It does not address the scope of the present issues .... Accordingly, Matter of 
Caron is not controlling considering the evidentiary weight of the letters of support 
written on behalf of [the petitioner]. 
(b)(6)
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Page 9 
The specific issue in dispute in Caron is not the same as the issue in the present proceeding, but the 
reasoning behind Caron is not limited exclusively to the question of whether a given position 
requires a baccalaureate degree, and the petitioner has not explained why it should be limited in that 
way. Caron articulated the general provision that users may evaluate the content of witness letters 
as to whether they support the alien's eligibility, and that users may give less weight to an opinion 
that is not corroborated, in accord with other information or is in any way questionable. See id. at 
795; see also Matter of V-K-, 24 I&N Dec. 500, 502 n.2 (BIA 2008) (noting that expert opinion 
testimony does not purport to be evidence as to "fact"). See also Matter of Soffici, 22 I&N Dec. at 
165. In this instance, all of the witnesses are current or former LSU researchers. Therefore, the 
composition of the witness pool does not indicate that the petitioner's work has had impact or 
influence outside of LSU. 
One of the letters quoted on appeal is from Dr. who, as noted above, is not and does not 
claim to be a food scientist. The petitioner does not explain why this witness should be considered 
an authority in the petitioner's specialty. Another witness, Dr. claimed that the petitioner 
received an award that no other witness has mentioned, and whicfi the petitioner himself has neither 
claimed nor documented. More generally, the witnesses have described the potential significance of 
the petitioner's various research projects, but have not established that those projects have actually 
influenced the dairy industry with respect to, for instance, the pasteurization of milk. 
The petitioner states: "The denial also makes no mention of the national awards ... given by the 
Recognition for achievements and significant contributions to the field can 
provide partial support for a claim of exceptional ability under 8 C.P.R. § 204.5(k)(3)(ii)(F). 
Because section 203(b )(2)(A) of the Act subjects aliens of exceptional ability to the job offer 
requirement, partial evidence of exceptional ability is not prima facie evidence that the petitioner 
qualifies for the waiver. 
The petitioner has not established the significance of what he calls "national awards." In 2010 and 
2011, the petitioner was named as a "runner-up" behind the first, second, and third place awardees. 
The etitioner's 2013 third-place award is not national; it was from the 
of the rather than the national organization. As the petitioner acknowledges, ms 
recognitions from the are inherently limited to graduate students, and as such they do not 
establish or imply his standing in comparison to fully qualified, established professionals in his field. 
The record does not support the petitioner's assertion that "the record clearly indicates, that [he] has 
a degree of influence in the field that distinguishes him from other Functional Dairy Food 
Researchers with comparable academic and professional qualifications." 
The petitioner has not established a 
past record of achievement at a level that would justify a waiver of 
the job offer requirement. The petitioner need not demonstrate notoriety on the scale of national 
acclaim, but the national interest waiver contemplates that his influence be national in scope. NYSDOT, 
22 I&N Dec. 217, n.3. More specifically, the petitioner "must clearly present a significant bepefit to the 
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Page 10 
field of endeavor." /d. at 218. See also id. at 219, n.6 (the alien must have "a past history of 
demonstrable achievement with some degree of influence on the field as a whole."). 
As is clear from 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 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.