dismissed EB-2 NIW Case: Entomology

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, D.C. 20529-2090 
U. S. Citizenship 
and Immigration 
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. 9 1153(b)(2) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in you 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. 8 103.5(a)(l)(i). 
Administrative Appeals Office 
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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 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 1 153(b)(2), as a member of the professions holding an advanced degree. On the 
Form 1-140 petition, the petitioner indicated that he seeks employment as a "Lab Assistant 111," which 
was the title he held at the University of California (UC), Riverside, from 2003 to 2005. 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 denied the application for a national 
interest waiver. 
On appeal, the petitioner submits a statement and various exhibits. 
Section 203(b) of the Act states in pertinent part that: 
(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, who holds a master's degree from Nanjing Agricultural 
University, 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. 
We note that 8 C.F.R. 4 204.5(m)(4)(ii) specifically requires the submission of a completed Form 
ETA-750B, Statement of Qualifications of Alien, in duplicate. The petitioner has not submitted this 
required document. The director did not note this omission in the decision. In the interest of 
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thoroughness, the AAO will review the merits of the petitioner's national interest waiver claim, but 
the petitioner has not properly applied 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, 101 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. Citizenshp 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 
qualie 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 (Cornmr. 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 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. 
The evidence included in the petitioner's initial submission on December 29, 2005 mostly established 
his educational background. 
 In a letter dated July 19, 2005, 
 an associate 
environmental research scientist at the California Environmental Protection Agency, stated: 
[The petitioner] worked for me at the University of California, Department of 
Entomology between February 2003 and June 2004. Since he left my laboratory, [the 
petitioner] and I have continued to work together as colleagues in cooperative projects at 
UC Riverside until two months ago when I accepted a position with the California 
Environmental Protection Agency, Department of Pesticide Regulation. 
[The petitioner] is a very highly trained scientist with extensive research and techcal 
expertise in insect toxicology, biochemistry, and field ecology relevant to pest 
management. [The petitioner] has been awarded an advanced degree and has been 
continuously employed in the field of insect toxicology and pest management for more 
than five years in increasingly responsible positions. He is both competent and diligent 
and is a great asset to our comunity. 
In a November 23,2004 letter,- of the Department of Entomology at UC Riverside 
stated: 
This is in response to a recent request for a letter of recommendation fiom [the 
petitioner] who is working in my laboratory for the last 5 months. . . . 
[The petitioner] is an enthusiastic employee and is always willing to pitch in to help the 
team to get the job done. . . . He is efficient in projects that are assigned to him with little 
supervision. He makes an effort to improve his skills in running bioassays and other 
related field projects. . . . 
I would recommend him as a candidate in any research-oriented projects. 
The letters quoted above attest to the petitioner's competence in the laboratory, but they do not establish 
that the petitioner stands out in his field and thereby warrants the special benefit of a national interest 
waiver. One does not qualify for the waiver simply by being properly trained in a particular occupation 
or field of endeavor. A plain reading of the statutory language, quoted earlier in this decision, shows 
that a member of the professions holding an advanced degree is, typically, subject to the job offer 
requirement. 
The petitioner submitted copies of four articles that the petitioner co-wrote, and which appeared in 
Chinese-language journals in 2000 and 2001. (One of the articles is undated.) Two of the articles 
include English titles and abstracts; both of these articles related to insecticide resistance in the rice stem 
borer. The petitioner did not indicate, at the time of filing, that he had engaged in any published 
research after he arrived in the United States in 2002. 
On February 17,2007, the director notified the petitioner of the director's intent to deny the petition, on 
the grounds that the petitioner had not submitted evidence of eligibility for the waiver. In response, the 
petitioner submitted a personal statement. The petitioner repeats many of the same assertions on appeal, 
and we will consider them in that context. 
The petitioner submitted a letter from , a senior scientist at the University of Maryland 
Biotechnology Institute, who stated: 
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[The petitioner] was my classmate and good fi-iend while we were in college and 
graduate school since 1989. He is a very industrious and dependable person. He is very 
interested in biology, especially his own major entomology. When he was an 
undergraduate student, he volunteered for more than a year to work in the laboratory of 
Insect Physiology and Biochemistry and learnt many basic histology and biochemistry 
techniques. He set up a toxicology-bioassay laboratory by himself while he was 
pursuing his M.S. 
Like the previous letters, 
 letter attests to the petitioner's basic competence in 
entomology but does not set him apart from others in that field. 
The petitioner did not indicate that he had performed any research work after he left UC Riverside. 
, owner of stated that the petitioner is "an 
employee working in my store ever since October, 2006." This employment does not readily reflect 
significant demand for the petitioner's professional services in entomology or related fields. 
A letter fmm of Johns Hopkins University contains more detail about the petitioner's 
research work, characterizing the petitioner as "very ambitious." stated: "I believe that his 
great interest in neuroscience will lead him to a bright future." In the letter, also stated: "I have 
known [the petitioner] since 1997 while we both worked as graduate students at the Department of 
Entomology, Nanjing Agricultural University," but omitted to mention that she is also the 
petitioner's spouse. 
The petitioner showed that he had applied to enter doctoral programs at several universities in the 
United States, and that he had been accepted at Kansas State University but was unable to attend due to 
family commitments in Maryland. Ongoing graduate study is not a basis for a national interest waiver. 
An alien may obtain an F-1 nonimmigrant visa to study in the United States; a temporary program of 
study does not warrant or justi& permanent immigration benefits. 
The director denied the petition on July 9,2007. The director noted the petitioner's failure to submit an 
evaluation of his master's degree from China, and found that the petitioner had not established 
eligibility for the national interest waiver. On appeal, the petitioner submits an evaluation of his degree, 
establishing its equivalence to a master's degree from a regionally accredited U.S. university. This 
evidence establishes that the petitioner, who has stated his intent to engage in a profession in the United 
States, holds an advanced degree. 
The remaining ground for denial is not so easily overcome. Prior to the denial of the petition, the 
petitioner established some credentials in the field of entomology, but the petitioner's choice of 
occupation is not, by itself, grounds for a waiver. The plain wording of the statute shows that an alien 
member of the professions holding an advanced degree is, typically, subject to the job offer 
requirement. 
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On appeal, the petitioner discusses his academic and employment history. The petitioner does not show 
that his work in China or the United States has stood out in any discernible way fiom that of others in 
the field. The petitioner repeats his assertion that he was unable to continue his doctoral studies because 
of family obligations in Maryland. There are universities in Maryland where the petitioner could have 
pursued those studies, such as Johns Hopkins University and the University of Maryland, but the 
petitioner states only that he "got interviewed" at those institutions. There is no indication that these 
efforts led to acceptance into a doctoral program. Also, as evidence that his "service is actually sought 
by different employers in the U.S.," the petitioner submits a list of university professors said to have 
interviewed him. If these interviews did not result in employment offers - and there is no evidence that 
they did - then the list shows only that the petitioner is seeking employment, not that the universities are 
seeking his services. 
The petitioner submits documentation showing that he has received training as a Microsoft SQL Server 
Database Administrator. The petitioner makes no attempt to link this training to hs past work in 
entomology or his professed interest in neuroscience. The record, therefore, shows that the petitioner 
has had difficulty securing either employment or Mer education in his chosen field of entomology, 
and therefore he has worked at a grocery store and sought computer training unrelated to entomology. 
This does not support the petitioner's claim that his services are in demand at U.S. universities. 
Regarding his past track record, the petitioner stated: 
Many American Citizens can do better under my situation, BUT THE POTENTIAL OF 
A PETITIONER, I believe, should be taken into account when a final decision is made. 
After all, [because the] United States holds the most advanced science and technologies 
in almost all research fields today, only a very few . . . immigrants can be "pafectly 
equipped already" with a background that outweighs most Americans, at the time when 
they first arrived in the United States. 
(Emphasis in original.) The petitioner did not explain how the director could judge the petitioner's 
"potential" without looking at his "past and current" achievements. Because the petitioner's future 
work is not yet available for review, we can only extrapolate from what the petitioner has done and is 
doing. In all cases the petitioner must demonstrate specific prior achievements which establish the 
alien's ability to benefit the national interest. Matter of New York State Dept. of Transportation at 
219, n.6. 
We do not dispute the petitioner's assertion that "very few" aliens arrive in the United States 
"perfectly equipped" to qualify for the waiver. From the statute, it is clear that the national interest 
waiver is not intended to be widely used. It is, instead, a special exemption from requirements that 
normally apply to the immigrant classification that the petitioner has chosen to seek. With respect to 
the petitioner's assertion that most aliens do not qualify for the waiver "when they first arrived in the 
United States," we note that the petitioner arrived in the United States more than three years before 
he applied for the waiver, having spent much of the intervening period working for a well-regarded 
university. Whatever circumstances may have intervened that prevented the petitioner from 
completing his doctorate and accumulating higher-level experience and expertise in his desired field, 
it remains that we can only look at the qualifications that the petitioner possesses now, not the 
qualifications he wishes to have or hopes to earn in the future. An alien seeking an employment-based 
immigrant classification must possess the necessary qualifications as of the filing date of the visa petition. See 
Matter of Kmgbak, 14 I&N Dec. 45,49 (Regl. Comrnr. 197 1) 
The petitioner establishes that his spouse is the beneficiary of another petition, through which she 
qualified for the national interest waiver. Any proceeding arising fiom that approval, including the 
disposition of any adjustment application filed by the petitioner or his spouse, lies outside the scope of 
the present proceeding. 
As is clear fiom 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. § 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. This decision is also without prejudice to any proceeding arising fiom the approval of 
any separate petition filed by or on behalf of the petitioner's spouse. 
ORDER: The appeal is dismissed.