dismissed EB-2 NIW Case: Environmental And Atmospheric Science

U.S. Citizenship 
and Immigration 
Services 
MATTER OF N-0-H-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 4, 2015 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a researcher in environmental and atmospheric science, seeks classification as a member 
of the professions holding an advanced degree, and 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. See Section 
203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2). The Director, Texas 
Service Center, denied the petition. The matter is now before us on appeal. The appeal will be 
dismissed. 
I. LAW 
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 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. 
(b)(6)
Matter ofN-0-H-
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). 
Matter of New York State Department of Transportation , 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. Id. at 217-18. 
While the national interest waiver hinges on prospective national benefit, a petttwner must 
demonstrate a past record justifies projections of future benefit to the national interest. I d. at 219. A 
petitioner's assurance that he or she 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 petitioner, rather than to facilitate the entry of a foreign national with no 
demonstrable prior achievements, and whose benefit to the national interest would thus be entirely 
speculative. Id. 
II. PERTINENT FACTS AND PROCEDURAL HISTORY 
The Petitioner filed the Form I-140, Immigrant Petition for Alien Worker, on May 13, 2014, at 
which time he was working as an assistant professor in the Agricultural Science Department at 
The record reflects that the Petitioner previously 
worked as a post-doctoral researcher and laboratory manager at , having 
earned a Master's degree in soil science and a Ph.D. in environmental and atmospheric science from 
the In an introductory letter, the Petitioner stated that his work "offers 
significant enhancements to the understanding of greenhouse gas emissions from agricultural 
production, and makes important advances in the role that agricultural soils might be able to play to 
act as a sink for methane." 
Documentation supporting the Form I -140 included a personal statement with details about the 
Petitioner's past and current research, and evidence that he had published four scholarly articles in 
addition to presenting his work at numerous conferences in his field. The Petitioner also provided 
five letters from current and former colleagues and collaborators attesting to the significance of his 
work and the importance of his areas of research. 
The Petitioner indicated in his personal statement that his research aims to "develop alternative 
farming systems practices and techniques that can be used ... to increase carbon sequestration, 
improve crop production, utilize energy waste products, and reduce greenhouse gas emissions." He 
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(b)(6)
Matter ofN-0-H-
stated that he is currently investigating the use of biochar, charcoal produced by burning organic 
biomass under low oxygen conditions, to reduce greenhouse gas emissions and augment com and 
soybean production. In addition, he is "incorporating nanotechnology to improve 
on water and 
nutrient efficiency of agronomic crops and to increase the ability of these crops to adapt to new 
environmental conditions resulting from climate change." The Petitioner also noted that he has a 
proposal "under review" with the U.S. Department of Agriculture's Agriculture and Food Research 
Initiative to further examine the link between soil microorganisms and atmospheric greenhouse gas 
concentrations, a topic that he previously studied during his graduate research at the 
His postdoctoral research at focused on "the impact of long-term herbicide 
application on soil microbial community ." 
In a May 10, 2014, letter, , professor at attested to the Petitioner's past and 
continuing "valuable impact" on the field, and described the national benefits posed by his work. 
For instance, he predicted that the Petitioner "will make a major contribution to understanding how 
the soil and the agricultural practices used in crop production influence the exchange of gases 
between soil and the atmosphere." He noted that the Petitioner's previous research established an 
association between soil temperature, soil biology, and greenhouse gas emission. In addition, 
expressed that the Petitioner's work on biochar "is essential if we are to develop strategies to 
cope with changing climatic conditions." He praised the Petitioner 's novel techniques and approach 
to this area of research, including his "unprecedented" use of nanotechnology to investigate the 
potential ofbiochar to improve drought tolerance in crops. 
, professor at and co-author of three of the Petitioner 's 
published articles, stated in a May 8, 2014, letter that the Petitioner's graduate research on soil 
microorganisms and greenhouse gas "places him among the pioneers in this area of research," and 
. that he is also "recognized as being among the pioneers seeking to employ nanotechnology as a new 
and effective strategy to offset climate change issues." She called the Petitioner 's work "critical to 
US agriculture" and described its prospective environmental and economic benefits. 
is a microbiologist at the U.S. Department of Agriculture, adjunct professor at 
the _ and co-author of one of the Petitioner's articles. In a May 12, 2014, 
letter, he described the Petitioner's expertise and the potential applications of his research. For 
instance, he stated that the Petitioner's "excellent research ... and his unique expertise in the area of 
soil microbial ecology, greenhouse gas emission, and crop production are of key importance to US 
food security." also offered his "professional assessment," that based on the success of 
the Petitioner 's past work and the importance of his current research, he "will make very significant 
contributions to US agriculture." 
In a May 9, 2014, letter, assistant professor at stated that "[the 
Petitioner's] research in microbial contribution to greenhouse gas emission is becoming increasingly 
important," noting 
national and international efforts to mitigate greenhouse gases. He called the 
Petitioner "one of the leading innovators in applying biochar technique combined with 
nanotechnology to agronomic crop production," and stated that this technique has "great potential." 
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(b)(6)
Matter ofN-0-H-
Finally, the Petitioner submitted a May 9, 2014, letter from , assistant 
professor at and collaborator on his who stated that the Petitioner 
"has made excellent accomplishments that will significantly contribute to the field of 
" For instance, he stated that the Petitioner's analysis of the impact of 
manufactured nanoparticles on major agronomic species has "resulted in a better understanding of 
these unique systems materials and their potential effects." also described the 
Petitioner's leadership role in ongoing projects and explained the importance of his areas of 
research. 
The Director issued a request for evidence (RFE) on September 18, 2014, in part requesting 
additional documentation to establish a past record of specific prior achievement with some degree 
of influence on the field as a whole, and to demonstrate that the Petitioner will serve the national 
interest to a substantially greater degree than an available U.S. worker having the same minimum 
qualifications. In response, the Petitioner stated that such requirements are not included in the 
relevant law, regulations, or the NYSDOT precedent decision, and that a correct reading of 
NYSDOT' s third prong instead requires a petitioner to demonstrate that the proposed work cannot 
continue without his presence in the U.S. He maintained that, in this instance, he is not replaceable 
because he "developed his own studies" rather than working as a "team member on someone else's 
projects." He submitted a new letter from dated December 10, 2014, attesting that the 
Petitioner's presence is required for the continuation of his research, and again offering his 
professional opinion that the Petitioner will make significant contributions to the field. 
The RFE included a specific request for the Petitioner to show that other researchers had cited or 
otherwise recognized his research. The Petitioner's response included a Google Scholar printout, 
copies of two published articles that cited his work, several articles that thanked him for his 
assistance in the "Acknowledgements" section, and four theses by graduate students for whom he 
served as an advisor. 
The Director denied the petition on March 24, 2015, finding that the Petitioner had not established 
sufficient impact on his field to meet the third prong of the NYSDOT national interest analysis. He 
found that the evidence of the Petitioner's publications and presentations did not establish his 
influence on other researchers, and that the submitted letters focused on the prospective rather than 
past impact of his work. The Director stated, "[ w ]hile the letters do speak of your contributions in 
the field, there is no evidence to support that your contributions have influenced the field as a 
whole." The decision concluded, in part, with the following statement: 
A complete review of the available evidence does not persuasively establish 
that you have a past record of prior achievement at a level which would justify a 
waiver of the requirement of an approved labor certification which would be in the 
national interest of the United States. 
In his appeal brief, the Petitioner asserts that the Director applied the incorrect standard of proof in 
this matter, noting his use of the phrase "persuasively establish." The Petitioner states that the 
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Matter of N-0-H-
Director should instead have determined whether he established eligibility by a "preponderance of 
the evidence," and he submits case law and policy guidance relating to the application of that 
standard. 
The appeal brief also states that the third prong of the NYSDOT national interest waiver analysis is 
not applicable to the current matter, and applies only when an individual has the option of applying 
for a labor certification. The Petitioner cites our statement from NYSDOT that an individual "must 
present a national benefit so great as to outweigh the national interest inherent in the labor 
certification process," as well as our findings that an individual's qualifications or a local labor 
shortage would not merit a waiver because such matters are addressed by that process. He maintains 
that, in this instance, the labor certification process is "not relevant" because he is a self-petitioner. 
He concludes: "The third prong of the NYSDOT case, then, has been satisfied since the concern for 
protection U.S. workers and the rules and regulations established by the Dept. of Labor for standard 
'employer-employee' relationships does not apply to [the Petitioner's] situation." 
Lastly, the Petitioner asserts that the Director did not adequately consider evidence regarding his 
past achievements, including first-authored research articles and letters attesting that his past studies 
have been recognized for their innovation. Specifically, he states that the submitted letters constitute 
"expert testimony," and that they were not given proper weight in the decision. The Petitioner 
contends that, in order to deny the Form I-140, the Director would have to directly refute the 
experts' statements or the basis of their analysis, which he has not done. In support of this position, 
the Petitioner cites Matter of E-M-, 20 I&N Dec. 77 (BIA 1989), in which the Board of Immigration 
Appeals (BIA) found affidavits sufficient to establish the continuous residence of an applicant 
seeking temporary resident status under section 245A of the Immigration and Nationality Act. 
III. ANALYSIS 
The Petitioner is correct that "preponderance of the evidence" is the applicable standard in this 
proceeding. A petitioner must prove by a preponderance of the evidence that he or she is eligible for 
the benefit sought. Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010). The truth is to be 
determined not by the quantity of evidence alone but by its quality. !d. at 376. 
Regarding the applicability of the third prong of NYSDOT, the Petitioner's assertion that it does not 
apply to self-petitioners is incorrect. An individual may file a petition on his own behalf, i.e. self­
petition, whether or not he will be self-employed, and the NYSDOT analysis is applicable in both 
instances. In NYSDOT, we clarified that "the inapplicability or unavailability of a labor certification 
cannot be viewed as sufficient cause for a national interest waiver; the petitioner still must 
demonstrate that the self-employed alien will serve the national interest to a substantially greater 
degree than do others in the same field." !d. at 218 n.5. We further explained that, in order to make 
such a demonstration, a petitioner must have a past record that "justifies projections of future benefit 
to the national interest" by showing that he or she has had "some degree of influence on the field as a 
whole." !d. at 219, 219 n.6. 
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Matter ofN-0-H-
As noted above, the record includes letters attesting to the influence and importance of the 
Petitioner's work based on the authors' expertise in the field and their knowledge of his past and 
ongoing research. However, the submission of letters from experts supporting the petition is not 
presumptive evidence of eligibility, as asserted by the Petitioner. The cited decision, 
Matter of E-M-, did not relate to expert testimony, nor did it hold that testimony alone would always 
be sufficient for meeting an individual's burden of proof. In Matter of Caron International, 
19 I&N Dec. 791 (Comm'r 1988), the BIA held that "[t]his Service may, in its discretion, use 
advisory opinions" as expert testimony. !d. at 795. However, USCIS is ultimately responsible for 
making the final determination regarding an individual's eligibility for the benefit sought. !d. 
In this instance, the submitted letters attest to the importance of the Petitioner's research and state 
that he has. made significant contributions to the field. However, neither the letters nor the 
supporting evidence demonstrate specifically how the Petitioner's findings have impacted his field. 
For instance, multiple letters noted his past study linking soil microorganisms and atmospheric 
greenhouse gas concentrations, but they do not describe the subsequent impact of that work on his 
field of research. In addition, several letters praise his innovative research on biochar and 
nanotechnology, but they do not state, and the record does not indicate, that this research has widely 
influenced farming practices or the work of other researchers in the field. Accordingly, we find the 
record insufficient to demonstrate that the Petitioner has had some degree of influence on the field as 
a whole. 
IV. 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. The Petitioner has not shown that his past record of 
achievement is at a level sufficient to waive the job offer requirement which, by law, normally 
attaches to the visa classification he seeks. While a petitioner need not demonstrate notoriety on the 
scale of national acclaim, the national interest waiver contemplates that his influence be national in 
scope. NYSDOT, 22 I&N Dec. at 217, n.3. More specifically, a petitioner "must clearly present a 
significant benefit to the field of endeavor." !d. at 218. See also id. at 219, n.6 (the individual must 
have "a past history· of demonstrable achievement with some degree of influence on the field as a 
whole"). Considering the other evidence submitted, the Petitioner 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 ofthe United States. 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
Matter of N-0-H-
ORDER: The appeal is dismissed. 
Cite as Matter ofN-0-H-, ID# 14655 (AAO Dec. 4, 2015)