dismissed EB-2 NIW Case: Environmental Science

identifying data deleted to 
prevent clearly unwmted 
invasion of pm0na1 privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
FILE: - Office: NEBRASKA SERVICE CENTER Date: 
LIN 08 203 51774 AUG 0 3 2010 
IN RE: Petitioner: 
Beneficiary: 
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. 5 1153(b)(2) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS : 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised 
that any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. 
The specific requirements for filing such a request can be found at 8 C.F.R. 9 103.5. 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. Please be aware that 8 C.F.R. 5 103.5(a)(l)(i) requires that any motion must be 
filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition, which 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 an alien of exceptional ability or a member of the professions 
holding an advanced degree. The petitioner seeks employment as an environmental scientist. The 
petitioner asserts that an exemption from the requirement of a job offer, and thus of an alien 
employment 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 had 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 statement and additional evidence.' For the reasons discussed 
below, we uphold the director's decision. 
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 ofjob offer. 
(i) . . . the Attomey 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 holds a Ph.D. in Biology fiom the University of Miami at Coral Gables. The petitioner's 
occupation falls withn the pertinent regulatory definition of a profession. The petitioner thus qualifies 
1 The record contains a November 26, 2009 sworn statement by the petitioner before a U.S. Customs and 
Border Protection (USCBP) officer in which the petitioner states that he wants to "forfeit" his petition 
because he has secured a job offer in Belgium. The USCBP officer then erroneously advised the petitioner 
that his appeal had been rejected. As the petitioner has never submitted a written request to withdraw the 
appeal to this office, however, we will adjudicate the appeal on the merits. 
Page 3 
as a member of the professions holding an advanced degree. The remaining issue is whether the 
petitioner has established that a waiver of the job offer requirement, and thus an alien employment 
certification, is in the national interest. 
Neither the statute nor pertinent regulations define the term "national interest." Additionally, Congress 
did not provide a specific definition of the phrase, "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). 
A supplementary notice regarding the regulations implementing the Immigration Act of 1990 
(IMMACT), published at 56 Fed. Reg. 60897,60900 (Nov. 29, 1991), states, in pertinent part: 
The Service 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 seelung 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 Dep 't. of Transp., 22 I&N Dec. 2 15, 2 17- 18 (Comm'r. 1998) (hereinafter 
"NYSDOT"), 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. Id. at 217. Next, it must be shown that the proposed benefit will be national 
in scope. Id. 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. Id. at 2 17- 1 8. 
It must be noted that, while the national interest waiver hinges onprospective national benefit, it clearly 
must be established that the alien's past record justifies projections of future benefit to the national 
interest. Id. at 219. 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. Id. 
We concur with the director that the petitioner works in an area of intrinsic merit, environmental 
science, and that the proposed benefits of his work, mitigation of the impact of climate change, 
would be national in scope. It remains, then, to determine whether the petitioner will benefit the 
national interest to a greater extent than an available U.S. worker with the same minimum 
qualifications. 
Page 4 
Eligibility for the waiver must rest with the alien's own qualifications rather than with the position 
sought. In other words, we generally do not accept the argument that a given project is so important 
that any alien qualified to work on this project must also qualifL for a national interest waiver. 
NYSDOT, 22 I&N Dec. at 218. Moreover, it cannot suffice to state that the alien possesses useful 
skills, or a "unique background." Special or unusual knowledge or training does not inherently meet 
the national interest threshold. The issue of whether similarly-trained workers are available in the 
United States is an issue under the jurisdiction of the Department of Labor. Id. at 221. 
At issue is whether this petitioner's contributions in the field are of such unusual significance that the 
petitioner merits the special benefit of a national interest waiver, over and above the visa 
classification he seeks. By seeking an extra benefit, the petitioner assumes an extra burden of proof. 
A petitioner must demonstrate a past history of achievement with some degree of influence on the 
field as a whole. Id. at 219, n. 6. In evaluating the petitioner's achievements, we note that original 
innovation, such as demonstrated by a patent, is insufficient by itself. Whether the specific 
innovation serves the national interest must be decided on a case-by-case basis. Id. at 221, n. 7. 
The petitioner initially submitted his two articles and his unpublished dissertation. While publication 
demonstrates that the petitioner's work has been circulated in the field, publication alone cannot 
establish the influence of that work. In response to the director's request for evidence, the petitioner 
submitted five articles that cite his work. Four of the articles cite the petitioner's work as one of two or 
more articles in support of the proposition that generalization does not preclude specialization. The 
final citing article cites the petitioner's work as one of three examples of using the Gaussian, Quadratic 
or Weibull functions to theoretically or empirically describe thermal performance curves. A review of 
the petitioner's 2004 article reveals that he used the quadratic function. The citing article, however, 
ultimately used the Gaussian function. The petitioner's citation hstory does not reflect that other 
environmental scientists are using his methods or that he produced results that have influenced the 
field. 
The petitioner also submitted evidence that he registered his presentation entitled "Community-based 
Approach to Research on Infectious Diseases of the Developing World and Global Health" for 
copyright protection. As stated above, a patent is insufficient evidence that a waiver of the alien 
employment certification process should be waived in the national interest. Id. Rather, whether the 
specific innovation serves the national interest must be decided on a case-by-case basis. Id. Similarly, 
copyright protection, a different intellectual property right, establishes originality but does not, by itself, 
establish the influence of the work protected. The petitioner did not provide any evidence that this 
presentation has been cited or other evidence of its influence in the field. 
In addition, the petitioner submitted evidence that, as of the date of filing, he was in the process of 
editing a book on tidal salt marshes of the San Francisco Bay estuary. Specifically, he submitted a 
letter from - of the San Francisco Bay National Estuarine Research Reserve, 
discussing the petitioner's work on the book as part of his responsibilities as the reserve's Site Profile 
Coordinator. The record also contains the book proposal submitted to the University of California 
Page 5 
University of Oklahoma Biological Station and one of the petitioner's collaborators states that the book 
"is expected to be widely read nationally and internationally by the scientific community, especially 
those interested in estuaries and wetlands." On appeal, the petitioner asserts that well established 
scientists would not have agreed to write a chapter for the book unless the editor was well respected 
and distinguished. The book, however, had yet to be published as of the date of filing and, as such, its 
ultimate influence in the field is unknown. 
hrther asserts that in 2007, the petitioner cofounded the 0 
based in Vilnius, Lithuania and ~erkelei, California, which he now directs. explains 
that the institute intends to expand collaborations between the European Union and the United States in 
developing and promoting ecologically sound technologies worldwide. , however, provides 
no examples of any actions taken by the institute or the influence of those actions. As stated above, the 
national interest waiver contemplates future contributions by the alien but is not intended to facilitate 
the entry of an alien whose benefit to the national interest would be entirely speculative. See id. 
Without evidence that EEI, under the petitioner's direction, has already developed a track record of 
success, the fact that the petitioner founded and directs the institute does not warrant a waiver of the 
alien employment certification process in the national interest. 
The remaining evidence constitutes letters from the petitioner's colleagues. , a 
professor at the University of Miami, asserts that he was a member of the petitioner's doctoral 
committee. - discusses the petitioner's dissertation project, which involved testing the adage 
"a jack-of-all-trades is a master of none" in the context of evolution. Specifically, using environmental 
tolerance curves, the petitioner measured the fitness of Daphnia, an aquatic crustacean, with variable 
temperatures. explains that the petitioner did not find the negative correlation between 
height and breadth predicted by the adage, concluding: "Instead of there being a tradeoff between broad 
temperature tolerance and high fitness at any one temperature, [the petitioner]found evidence that some 
genotypes were simply more fit than others over a range of temperatures." notes that 
because this work addressed temperature, it is relevant to global warming issues. 
While the petitioner's research no doubt has potential applications, it can be argued that any research 
must be shown to be original and present some benefit if it is to receive funding and attention from 
the scientific community. Any Ph.D. thesis or other research, in order to be accepted for graduation, 
publication or funding, must offer new and useful information to the pool of knowledge. It does not 
follow that every researcher who performs original research with potential applications inherently 
serves the national interest to an extent that justifies a waiver of the job offer requirement. 
The petitioner also submitted letters from other colleagues at the University of Miami and the 
University of Mississippi where the petitioner served on the faculty. These letters praise the 
petitioner's research and teaching skills, but fail to provide examples of how the petitioner has 
influenced the field. 
Page 6 
As is clear from 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 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 alien employment 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. 
Ths denial is without prejudice to the filing of a new petition by a United States employer 
accompanied by an alien employment certification certified by the Department of Labor, appropriate 
supporting evidence and fee. 
ORDER: The appeal is dismissed.