dismissed EB-2 NIW Case: Demography

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, D.C. 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. 8 1 153(b)(2) 
ON BEHALF OF PETITIONER: 
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. 8 103.5 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. 9 103.5(a)(l)(i). 
Administrative Appeals Office 
DISCUSSION: 
 The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal 
will be dismissed. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. 8 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 fellow at Mississippi State 
University (MSU). 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 a brief fiom counsel and further documentation. 
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 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. 6 204.5(k)(2) defines "exceptional ability7' 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. 
Several letters accompanied the petitioner's initial submission. Professor Emeritus was 
formerly the petitioner's advisor during the petitioner's doctoral studies at the University of Wisconsin- 
Madison. 
[The petitioner's] dissertation research involves the incorporation of environmental 
(natural and built) variables into small-area population forecasting models. . . . In many 
states, as here in Wisconsin, there is state legislation (that generally goes by the rubric 
"Smart Growth" legislation) that demands of local planners a set of population and 
economic forecasts to be carried out in the development of "Smart Growth" 
comprehensive land use plans. Sadly, such legislation rarely includes any instructions 
on how these forecasts should be carried out. . . . [The petitioner's] dissertation is an 
attempt to fill this gap. . . . 
In terms of substantive research expertise, [the petitioner] has established himself [as] a 
solid spatial demographer. His research achievements are well recognized in the field of 
spatial demography. . . . 
[H]e presently is collaborating with me, 
 (Oregon State) and = 
(Loyola University) on a migration project that models county-to-county 
migration flows. 
I would summarize [the petitioner's] skills and work habits by saying that he exceeds 
any graduate researcher I have worked with in terms of initiative, self-drive, and 
intellectual curiosity. 
Although several theories have been offered to explain the mechanism of population 
change, along with numerous empirical studies, much of this vast literature is scattered 
across several disciplines. . . . [The petitioner] proposed an interdisciplinary approach to 
integrate different disciplines' strengths. . . . [The petitioner's] approach is an effective 
blend of environmental studies and applied demography. . . . 
[The petitioner's] research also provides a systematic theoretical framework for 
understanding population change, by offering a holistic, comprehensive, and rational 
approach to study population change. . . . 
Although environmental demography as [a] field is still a new idea, I believe [the 
petitioner] has the strong potential to effectively promote this new area in social science 
and become a very successful environmental demographer. 
I have worked closely with [the petitioner] in the past year, and I am very much 
interested in continuing my support to and collaboration with him. In fact, I am in the 
process of considering to promote him to a status of research assistant professor. . . . 
I am [the petitioner's] supervisor at the Social Science Research Center, and I recruited 
him to my research unit in August 2006. . . . 
Page 5 
[The petitioner's] responsibilities in my unit can be divided into two parts - research and 
data management coordination. I am working with him on several projects, including 
children's poverty, concentration of poverty, and highway effects of segregation. In the 
children's poverty project, we are studying how the Earned lncome Tax Credit (EITC) 
and Temporary Assistance for Needy Families (TANF) act as policies to support work 
especially for rural families in light of economic restructuring. . . . For the concentration 
of poverty project, we are studying the geographic distribution pattern of single female- 
headed families with children, and the driving factors of such pattern. The results will 
inform decision makers on how to better use planning, financial, and legislation 
resources to help these people. . . . [The petitioner] has initiated a research which studies 
highway effects on segregation. . . . [No previous researchers] have ever studied the 
effects of highways on segregation although highway plans an important role in 
affecting our daily activities. 
read on the linkage between major highway expansion and population (or empliGent) growth. It has 
the most rigorous panel design in the current literature, bar none" (emphasis in original). Prof. - 
deemed the petitioner "an exceptional social scientist, whose continued participation in his current 
research is crucial and absolutely irreplaceable." 
- 
Virginia, stated: 
Although I have never met [the petitioner] personally, I am familiar with his work 
through his publications and conference presentations. Impressed with his expertise in 
spatial demography and population forecasting, 1 asked him to be my consultant for a 
proposal that my group has been working on. . . . 
This is a multidisciplinary research project requiring expertise in various topics 
including statistics, demographic analysis, children's welfare, population estimation and 
forecasting, and spatial analysis, which is usually too demanding for an average social 
scientist. [The petitioner's] familiarity and proficiency in this wide range of subjects 
makes him a very uniquely capable scholar. He is the inventor of a ground-breaking 
method for small-area population estimation and forecasting. . . . He is also a pioneer in 
using spatial statistics and analysis for demographic studies. . . . And he is also known 
for his continuous earnest and absorption [sic] in children's welfare research. 
of the State University of New York at Buffalo credited the petitioner with 
original and influential work, and praised the petitioner's "contributions and potential" and his broad 
"expertise in spatial demography." stated that he first met the petitioner "last fall when 
he applied for a tenure-tracked assistant professor position at our department," but did 
not state the outcome of that application. The letter contains no indication that the university offered the 
Page 6 
petitioner the job, or even that 
 personally considered the petitioner to be qualified for the 
position. 
Clearly, the witnesses believe the petitioner to be an above-average social scientist in his specialty, or to 
have the potential to become one in the future. We stress, here, that exceptional ability (defined at 
8 C.F.R. $ 204.5(k)(2) as "a degree of expertise significantly above that ordinarily encountered" in a 
given area of endeavor) does not automatically qualify a given alien for the national interest waiver. 
The plain wording of section 203(b)(2) of the Act indicates that aliens of exceptional ability are 
typically subject to the job offedlabor certification requirement. Therefore, to establish eligibility for 
the waiver, it cannot suffice for the petitioner to show that his skills are somewhat superior to those of 
others in an inherently beneficial field. 
The petitioner documented various professional activities, asserting that these activities establish his 
eligibility for the waiver. For example, the petitioner submitted copies of requests for copies of his 
articles. The petitioner did not establish how the number of requests that he receives compares with the 
number of requests received by others in the field, nor did he indicate how many of those requests 
ultimately resulted in citation of his work. Evidence of professional interaction with others in the field 
is not prima facie evidence of eligibility for the waiver, unless the petitioner is able to show that such 
interaction is rare within the field. 
On December 18, 2007, the director instructed the petitioner to "submit documentary evidence of the 
exact influence the petitioner's work has had on this specialty or on the field in general," including 
"copies of citation indices, showing numbers of citations" of the petitioner's work. In response, the 
petitioner submitted additional witness letters, documentation of citations, and information about the 
progression of the petitioner's career, including a January 18, 2008 letter offering the beneficiary a 
tenure-track assistant professorship at MSU. 
The assistant professorship is not evidence of eligibility for the waiver, because there exists no blanket 
waiver for tenure-track university faculty. Even if such a blanket waiver existed, the offer was not 
made until well after the petition's July 2007 filing date. The petitioner must have been eligible for the 
benefit sought at the time of filing; he cannot rely on subsequent developments. See Matter of 
Katigbak, 14 I&N Dec. 45, 49 (Regl. Cornmr. 1971). In any event, a tenure-track job offer is not, as 
counsel asserts, recognition of "Petitioner's Outstanding Abilities" (counsel's capitalization). 
The petitioner also submitted copies of messages relating to his attempts to secure positions at other 
institutions, such as the University of Virginia and Oak Ridge National Laboratory. The record does 
not show that any of these inquiries actually led to formal job offers, and even if they did, that would 
show only that the institutions consider the petitioner to be qualified for employment. The significance 
of this evidence is, therefore, far from clear. 
There seems to be a pattern of exaggeration of the importance of the petitioner's evidence. For 
example, counsel stresses the petitioner's participation in peer review of manuscripts, but the petitioner 
has submitted nothing to show that invitation to perform peer reviews is, itself, a sign of special 
recognition or esteem in the academic community, rather than a responsibility that is expected of 
qualified researchers who, themselves, seek to publish their own work in peer-reviewed journals. 
Turning to the petition's second group of witness letters,stated that his 
department "made the bob] offer to[the petitioner] for his excellence in research))' including the 
petitioner's "publication record," presentations at "prestigious conferences," and "several important 
awards." The letter explains why considered the petitioner to be the best-qualified candidate 
for the assistant professorship, but it sheds little Mer light on why the petitioner should received the 
additional benefit of a national interest waiver. 
of the University of Minnesota "discovered and cited two of [the 
petitioner's] excellent coauthored papers" when he "conducted a review of the literature" in 2006. Dr. 
stated that the petitioner's "findings challenged the efficiency of current planning and decision 
making mechanism, and suggested a more effective approach to planning and decision-making 
practice." did not indicate to what extent the petitioner's "more effective approach" has 
been implemented on a national scale, or what results have arisen from more limited application of that 
approach. 
fi of Florida State University discussed the petitioner's receipt of an award 
for one of his papers. The petitioner received this award in October 2007, several months after the 
petition's filing-date, and therefore Katigbak prevents its consideration here. Even if the petitioner had 
received the award prior to the filing date, a claim of exceptional ability can rest, in part, on evidence of 
recognition for achievements and significant contributions to the industry or field by peers, 
governmental entities, or professional or business organizations. Such recognition cannot suffice, by 
itself, to establish exceptional ability. See 8 C.F.R. 5 204.50(3)(ii)(F). As we have already stated, an 
alien of exceptional ability typically must have a qualiflmg job offer for the classification sought. The 
national interest waiver is an additional factor, over and above the underlying classification, and 
therefore evidence that tends to support a claim of exceptional ability is not interchangeable with 
evidence that meets the higher threshold of the national interest waiver. 
former Director of the Technical Services Department of the San Diego Association 
of Governments, stated: 
I started to know [the petitioner's] work at the 2004 annual meeting of the Population 
Association of America. I was the Discussant for "Highways and Population Change," 
a paper that [the petitioner] co-authored with 1 . . . Their research 
encouraged decision makers and planners to rethink about the role of road construction. 
. . . More recently, [the petitioner] submitted a single-authored paper to the journal of 
Demography, and I am one of the reviewers. . . . In the paper, [the petitioner] has made 
tremendous contributions to the field of small-area population and transportation 
forecasting. 
Page 8 
Notwithstanding the assertions about the article's importance, the record contains no evidence that 
Demography accepted the petitioner's article for publication. 
- Research Leader of the Geographic Information Science and Technology 
Group at Oak Ridge National Laboratory, praised the petitioner's "groundbreaking interdisciplinary 
spatio-temporal regression approach for small-area population forecasting." The record does not 
document the extent to which demographers have actually applied the petitioner's regression approach. 
attested to attem ting to recruit the petitioner for employment, but the record shows only 
that, in late 2007, hand the petitioner discussed a possible visit in February or March 2008. 
The petitioner submitted copies of two articles that contain citations to the petitioner's work. The 
author of one article is , an assistant professor at the University of Wisconsin- 
Madison who, the record shows, has (like the petitioner) collaborated with who in turn co- 
wrote the cited paper. The author of the other citing article is , whose letter we have 
already discussed. 
 These two citations do not demonstrate that the petitioner's published work, 
previously touted as groundbreaking, has sigruficantly influenced the work of others in the field. If 
other citations exist, the petitioner's omission of those items from the record has precluded their 
consideration here. 
The petitioner submitted information regarding the impact factors of journals that have published hs 
work. The impact factor is an average, compiled from citation data relating to all the articles that have 
appeared in a given journal. Publication in a high-impact journal does not imply or cause high impact 
for any one given article in that journal. Indeed, the petitioner's submission of materials relating to 
journal impact factors demonstrates that the petitioner is conscious of the importance of citations when 
judging a publication's impact. Nevertheless, the petitioner documented only two citations of his work, 
one of which was fiom an associate of his former mentor,- 
The director denied the petition on April 23, 2008. The director acknowledged the petitioner's 
submission of published articles, witness letters, and other exhibits, but found that the record lacks 
documentary evidence to support the claims put forth in the letters. The director added that the 
petitioner had not demonstrated significant independent citation of the petitioner's articles. 
On appeal, the petitioner asserts that the director "relied solely on the number of citations to evaluate the 
impact of the alien's achievements without discerning the academic areas." In a later supplement to the 
appeal, the petitioner submits documentation indicating that demographic journals do not have citation 
rates as high as those of journals in many other disciplines. 
The AAO acknowledges the assertion that citation rates are low in the petitioner's field, but the director 
did not base the denial "solely on the number of citations" as the petitioner argues on appeal. The 
director mentioned citations in the decision, but also found more broadly that "the documentary 
evidence does not support the opinions expressed in the letters." Documentary evidence of the 
petitioner's impact can take forms beyond citations of journal articles. For example, witnesses have 
described the petitioner's research relating to the effects of highway construction. The petitioner has 
Page 9 
not documented that highway planners over a wide geographic range have taken the petitioner's work 
into account in their subsequent projects. 
Furthermore, even taking into account the asserted low overall citation rate in the petitioner's field of 
endeavor, the petitioner has not shown that the overall citation rate of his work significantly exceeds the 
average in that field (as shown by the impact factors of journals specializing in that field). 
Counsel states that, in discussing the citation of the petitioner's work, the director failed to take several 
citations into account. On appeal, the petitioner submits documentation of four published citations of 
his work (including the two discussed previously), all published before the director issued the request 
for evidence on December 18,2007. Three unpublished manuscripts written or co-written by students 
also contain citations of the petitioner's work. The petitioner did not produce these materials in 
response to the director's earlier specific request for "copies of all published works of authors who cite 
the petitioner's work, or other evidence, such as copies of citation indices, showing numbers of 
citations" (emphasis added). Where, as here, a petitioner has been put on notice of a deficiency in the 
evidence and has been given an opportunity to respond to that deficiency, the AAO will not accept 
evidence offered for the first time on appeal. See Matter ofSoriano, 19 I&N Dec. 764,766 (BIA 1988); 
see also Matter of Obaigbena, 19 I&N Dec. 533, 537 (BIA 1988). Counsel protests that the citation 
figures provided by counsel are "not true," but if this is so, it is only because the petitioner failed to 
provide requested evidence. We cannot fault the director for failing to consider evidence that the 
petitioner did not submit. 
Counsel discusses other materials in the record, such as evidence of awards that the petitioner has 
received. As we have already discussed, these materials may support a claim of exceptional ability, but 
exceptional ability does not automatically qualifl an alien for the separate, additional benefit of 
exemption from the job offer requirement. 
Also already discussed was the tendency to exaggerate the significance of materials in the record. The 
record indicates that the petitioner's career is still at something of an embryonic state, and at best the 
petition was filed prematurely. Thus, we have a situation in which the petitioner boasts of having 
submitted an article for publication in Demography, but he does not show that the journal actually 
accepted the article. By the same token, the petitioner provides documentation about several prestigious 
research institutions, but he is able only to show that he scheduled job interviews there. 
Counsel argues that the labor certification process is inappropriate for the petitioner's situation because 
"[tlhe labor certification procedure was designed to locate workers who can meet the minimum 
qualifications for a position and perform the duties of that position at a basic level of competency." 
Counsel fails to consider that 20 C.F.R. $ 656.18 establishes a separate procedure for college and 
university teachers. In such cases, the institution need not show that no minimally qualified U.S. 
worker is available. Rather, the intending employer must be able to document the alien was selected for 
the job opportunity in a competitive recruitment and selection process through which the alien was 
found to be more qualified than any of the United States workers who applied for the job. 20 C.F.R. 
Page 10 
5 656.18(b). The petitioner has not explained why this procedure would not apply to his tenure-track 
assistant professorship at MSU, which includes substantial teaching duties. 
As for counsel's assertion that labor certification is inapplicable because the petitioner has 
essentially created a new or greatly changed version of his discipline, this is essentially a distillation 
of several witness letters. Given the nature of the claims put forth in those letters, it is reasonable to 
expect some kind of objective evidence to exist that would support those claims. The AAO concurs 
with the director that the record lacks such evidence. 
As is clear &om 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 fiom 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. 5 1361. The petitioner has not sustained that burden. 
This denial 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.