dismissed EB-2 NIW Case: Environmental Engineering

U.S. Deoartment of Homeland Security 
20 ~ass'achusetts Ave., N.W., Rm. 3000 
Washington, D.C. 20529-2090 
prevent clearly unwarraneed 
. indm of personal privacy 
 U. S. Citizenship 
and Immigration 
-uc copy 
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. tj 1153(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. tj 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). 
,.q&dAl&f L-- 
[ 'John . Grissom, Acting Chief 
tw Administrative Appeals Office 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The 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. 5 1153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as an environmental engineer. 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 
from the requirement of a job offer would be in the national interest of the United States. 
On appeal, the petitioner submits a brief from counsel and copies of previously submitted materials. 
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, 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. 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 bbprospective 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 (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 seelung 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, whle 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. 
We also note that the regulation at 8 C.F.R. 8 204.5(k)(2) defines "exceptional ability" as "a degree 
of expertise significantly above that ordinarily encountered" in a given area of endeavor. By statute, 
aliens of exceptional ability are generally subject to the job offerllabor certification requirement; 
they are not exempt by virtue of their exceptional ability. Therefore, whether a given alien seeks 
classification as an alien of exceptional ability, or as a member of the professions holding an 
advanced degree, that alien cannot qualify for a waiver just by demonstrating a degree of expertise 
significantly above that ordinarily encountered in his or her field of expertise. 
In a statement accompanying the initial filing of the petition, the petitioner described his work: 
I am an expert in hydrolysis/acidogenesis and modeling in bio-energy, bio-products, and 
bio-fertilizer production fi-om food wastes, crops and livestock organic solid wastes. 
I have published five technical papers . . . . 
I have developed one model - a spatially distributed model for hydrolysis/acidogenesis 
in two-phase anaerobic digestion of cattle manure. lks model can be used as a general 
Page 4 
model for hydrolysis/acidogenesis of all crops and livestock organic solid waste. The 
model is useful in optimization of hydrolysis/acidogenesis in anaerobic digestion and 
maximization of bio-energy production. 
(Emphasis in original.) The petitioner submitted copies of hs scholarly writings, some in manuscript 
form. These documents establish that the petitioner has been a productive researcher, but they do not 
establish how the wider environmental engineering community has responded to the petitioner's 
research. 
Several witness letters accompanied the initial filing of the petition. Most of these letters are short (two 
to three paragraphs in length) and amount to general recommendation letters. For example, - 
editor of Environmental Engineering Science, stated without elaboration: "It is important that 
[the petitioner] be allowed to continue his-research in this important field through his educational 
alliances in the United States." Professor of the University of Tennessee stated that the 
petitioner "is among a very small community of specialist[s] in this technology area," but did not 
indicate where the petitioner stands within that "small community." The petitioner's choice of specialty 
is not, by itself, grounds for a waiver. It is the position of USCIS to grant national interest waivers on a 
case by case basis, rather than to establish blanket waivers for entire fields of specialization. Matter of 
New York State Dept. of Transportation at 2 1 7. 
wetten are hom the petitioner's mentors, employers and collaborators. - 
who supervised the petitioner's graduate studies at New Mexico State University 
(NMSU), stated: 
[The petitioner] has impressed me as a very intelligent, hardworking, and dedicated 
student . . . . I believe he has the necessary expertise and skills to make meaningful 
contributions in the field of alternative energy. . . . 
For his PhD dissertation, he has developed a new process for anaerobic digestion of 
cattle manure to produce energy and recycle nutrients. As it is a new area of research 
for me, [the petitioner] initiated the study, formulated the research plan, and executed it 
mostly by himself . . . . His contribution to the body of knowledge in this area is 
valuable and practical. For example, the model that he has developed and validated 
using experimental data with cattle manure can be generalized for application to other 
animal wastes as well as food wastes. I find this a remarkable contribution to the animal 
production industries as well as to waste management and sustainable energy 
production. It is my belief that his work has great potential for immediate practical 
application and for further research. 
, president of I, Richland Center, Wisconsin, stated: 
[The petitioner] has been working on a research and demonstration project for the 
demonstration and commercialization of High Solids Two-Phase Anaerobic Digestion 
Page 5 
(HS2PAD) for Bio-Products Engineering Corporation since July 2005 as Research 
Engineer Supervisor. 
He has been promoted as lead scientist on the project in March of 2006. His duties 
include the controlling and monitoring of anaerobic digestion of organic solid wbtes 
(i.e. food processing wastes, energy crops, livestock wastes, and organic solid wastes) to 
produce/recover bio-gas, bio-acids, and bio-fertilizers; civil, environmental, 
biotechnological engineering designs; calculation and autocad drawings; coordinating 
with mechanical and electrical engineering subcontractors to build and monitor the 
fabrication processes; quality control supervision of the steel structure and fabrication 
processes; evaluating alternative processes to reduce the fabrication, construction, and 
labor costs; construction, fabrication, and building of bioengineering parts, units, and 
processes; supervision of the environmental laboratory work. 
(Emphasis in original.) We note that 
 letter is dated April 5, 2006. The petitioner has 
stated that he worked for Bio-Products Engineering until May 2006, indicating that he left the company 
shortly after obtaining the above letter. 
On June 13, 2007, the director issued a request for evidence, instructing the petitioner to establish "a 
degree of influence on [his] field that distinguishes [him] from other research engineers with 
comparable academic/professional qualifications." 
 The director inquired as to whether other 
researchers have cited the petitioner's published articles. In response, the petitioner submitted copies of 
hls own published articles, but no evidence of citation of those articles. 
The petitioner also submitted copies of two articles about 
 research group at NMSU. 
Both articles appear to be fi-om local publications. An article in the November 27,2006 issue of the Las 
Cruces (New Mexico) Sun-News described efforts at NMSU to produce biofuel fiom agricultural waste. 
The article, part of the "NM State University Eye On Research" series, is credited to NMSU. An 
accompanying photograph shows the petitioner with two other researchers, but the petitioner's name 
does not appear in the text of the article. 
 Likewise, an article from the Spring 2007 issue Research & 
Resources describes the research i laboratory but there is no mention of the petitioner. 
The omission of the petitioner's name from these materials does not lead to the conclusion that the 
petitioner has been a major contributor to the projects described in the articles. Even if the petitioner 
had figured significantly in the articles, we note that these articles appeared after the petition's July 21, 
2006 filing date. The petitioner must establish eligibility as of the filing date; later developments cannot 
retroactively establish eligibility. See Matter ofKatigbak, 14 I&N Dec. 45,49 (Regl. Comrnr. 1971). 
The director denied the petition on January 25, 2008, acknowledging the intrinsic merit and national 
scope of the petitioner's field of research, but finding that the petitioner had not shown that he stands 
out among researchers performing similar work. The director concluded that the record lacks evidence 
of the petitioner's influence in his field. 
Page 6 
On appeal, counsel states that the director deviated fiom the guidelines of Matter of New York State 
Dept. of Transportation (NY SDOT): 
[Tlhe Service erroneously concluded that [the petitioner] did not meet the third element 
of the three part NYSDOT test . . . . 
Among other things, that case requires that aliens seeking a national interest waiver . . . 
demonstrate that the prospective benefit of their working in the United States will "serve 
the national interest to a substantially greater degree than would an available U.S. 
worker." Id. At 21 8. Instead of applying the well-settled standard announced in 1998 in 
NYSDOT to [the petitioner's] case, the Service applied its own more onerous standard 
which, as stated in its opinion, required [the petitioner] to demonstrate that his 
prospective employment should be permitted as a matter of national interest only if he 
could prove that his employment in the United States without going through the labor 
certification process "present[ed] a national benefit so great as to outweigh the national 
interest inherent in the labor certification process." 
(Counsel's emphasis.) The assertion that the director imposed a "more onerous standard" is not 
persuasive. The language to which counsel objects was, in fact, taken verbatim fiom the NYSDOT 
precedent decision: "An alien seeking an exemption fiom [the labor certification] process must present 
a national benefit so great as to outweigh the national interest inherent in the labor certification 
process." Id. at 2 18. That sentence immediately precedes the sentence containing the "substantially 
greater degree" language preferred by counsel. 
Counsel also argues that the director did not give sufficient consideration to letters from witnesses 
who "unilaterally agree that [the petitioner's] past record and achievement justifies sufficient 
projection of future benefit to the U.S. national interest of establishing bio-fuel energy independence 
for the United States." Setting aside the observation that the petitioner can hardly be expected to 
submit unfavorable witness letters, the AAO has reviewed these letters and has found little in them to 
suggest that the petitioner has played a particularly significant role in the development of biofuels. 
Furthermore, while counsel claims that these letters must be considered in the larger context of the 
record as a whole, the remainder of the record is, likewise, devoid of persuasive evidence to show 
that the petitioner has had significant impact in biofuel research. The petitioner has published some 
journal articles, which is common in academia, but the petitioner has not established (through 
citations or otherwise) that his articles have significantly influenced the research of others in his field. 
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. 
Thls 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.