dismissed EB-2 NIW Case: Fisheries Science

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U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: LIN 05 0 14 5 1222 Office: NEBRASKA SERVICE CENTER Date: .? r 2 2 2006 
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. § 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. 
L) 
Aobert P. Wiemann, Chief 
Administrative Appeals Office 
LIN 05 014 51222 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office on appeal. The appeal will be 
dismissed. 
The petitioner seeks to classifL the beneficiary pursuant to section 203(b)(2) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 8 1 153(b)(2), as an alien of exceptional ability or a member of the 
professions holding an advanced degree. The petitioner seeks to employ the beneficiary as a 
quantitative fisheries scientist. 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 beneficiary qualifies for classification as a member of the professions holding an 
advanced degree, but that the petitioner had not established that an exemption from the requirement of 
a job offer would be in the national interest of the United States. 
On appeal, counsel submits a brief and evidence previously submitted. As will be discussed in greater 
detail below, the petition appears primarily based on the unavailability of U.S. workers with the 
beneficiary's skills, an issue under the jurisdiction of the Department of Labor even where the project 
on which the beneficiary is working has national significance. Thus, 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 of Job Offer. 
(i) . . . the Attorney General may, when the Attorney General deems it to 
be in the national interest, waive the requirement of subparagraph (A) 
that an alien's services in the sciences, arts, professions, or business be 
sought by an employer in the United States. 
Counsel has asserted that the beneficiary qualifies for classification as an alien of exceptional ability. 
This issue is moot, however, because the record establishes that the beneficiary holds a Ph.D. in 
Quantitative Ecology and Resource Management from the University of Washington. The 
beneficiary's occupation falls within the pertinent regulatory definition of a profession. The beneficiary 
thus qualifies as a member of the professions holding an advanced degree. The remaining issue is 
LIN 05 014 51222 
Page 3 
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 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., I st Sess., 1 1 (1 989). 
Supplementary information to the regulations implementing the Immigration Act of 1990 (IMMACT), 
published at 56 Fed. Reg. 60897,60900 (November 29, 1991), states: 
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 seeking to qualifL 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 % of Transp., 22 I&N Dec. 2 15 (Comm. 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 onprospective 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 concur with the director that the beneficiary works in an area of intrinsic merit, salmon 
preservation. The director did not contest that the proposed benefits of the beneficiary's work would 
be national in scope. It remains, then, to determine whether the beneficiary will benefit the national 
interest to a greater extent than an available U.S. worker with the same minimum qualifications. 
We acknowledge the significance of the projects on which the beneficiary works. Eligibility for the 
waiver, however, 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 
LIN 05 014 51222 
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alien qualified to work on this project must also qualify for a national interest waiver. Similarly, 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. Matter of New York State Dep't. of Transp., 22 I&N Dec. at 221. 
Simple training in advanced technology or unusual knowledge, while perhaps attractive to the 
prospective U.S. employer, does not inherently meet the national interest threshold. Id. 
At issue is whether this beneficiary's contributions in the field are of such unusual significance that 
the beneficiary merits the special benefit of a national interest waiver, over and above the visa 
classification sought. By seeking an extra benefit, the petitioner assumes an extra burden of proof. 
A petitioner must demonstrate that the beneficiary enjoys a past history of achievement with some 
degree of influence on the field as a whole. Id. at 2 19, n. 6. 
degree and Ph.D. from the University of Washington under the 
supervision of 
 Chair of the Columbia Basin Research Institute at that university. 
After receiving his Ph.D., the beneficiary worked as a postdoctoral researcher with- before 
going to work for the petitioner. 
On appeal, counsel asserts that the director erred in failing to favorably consider the beneficiary's 
scholarship fi-om Rotary International. Scholarships are typically awarded based on academic 
achievements. Academic performance, however, measured by such criteria as grade point average, 
cannot alone satis@ the national interest threshold or assure substantial prospective national benefit. 
In all cases the petitioner must demonstrate specific prior achievements that establish the alien's 
ability to benefit the national interest. Matter of New York State Dep 't. of Transp., 22 I&N Dec. at 
219, n.6. 
iscusses the difficulty in restricting the catch of threatened or endangered anadromous 
fish when they migrate to the ocean. The beneficiary investigated ocean distributions of such fish, 
in distribution" between healthy and threatened or endangered 
populations. 
 notes that this work was published in an NPAFC bulletin and asserts that 
allocate fishing efforts by regions in the ocean." - 
provides no examples of changes or proposed changes in ocean fishing that were prompted by the 
beneficiary's results. 
In addition,explains that forecasting the number of fish that return to rivers to spawn is 
important for management of the fish as a certain number of fish must be allowed to reach the 
spawning grounds for conservation purposes. The beneficiary developed a computational model to 
forecast the return of sockeye salmon to Bristol Bay, which can be applied to other anadromous fish, 
such as the beneficiary's successful application of his model to Chinook salmon returns to the 
Columbia River basin. - As of the date of filing, the beneficiary had not yet published this work. Dr. 
the beneficiary's scholarship counselor at the University of Washington, asserts that 
LIN 05 014 51222 
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man phi:: 
an accurate forecast of the salmon runs to Bristol Bay is essential, but fails to 
management authorities relying on the beneficiary's model. Significantly, 
Fisheries Scientist for the Alaska Department of Fish and Game, does not claim to have applied the 
beneficiary's model. Rather, he states that the state is preparing to spend millions of federal dollars on 
salmon recovery and needs the beneficiary's "unique blend of skills for critically appraising 
methodologies emplo 
 pling designs, monitoring systems, research programs and resource 
management." While 
 praises the beneficiary's "background in fisheries, advanced statistics, 
and mathematics," these are requirements that could be listed on an application for permanent 
employment certification. 
, Executive Director of the petitioning commission, discusses the importance of 
recovering salmon populations and asserts that the beneficiary brings a " 
skills for salmon restoration work in the Columbia 
 he petitioner's 
manager, provides a similar statement. 
 In addition, 
Confederated Tribes of the Umatilla Indian Reservation, asserts that the beneficiary is "singularly 
qualified as an expert in anadromous fish population dynamics." Once again, unique skills are not a 
basis for waiving the labor certification requirement and shortage issues fall under the jurisdiction of 
the Department of Labor. Matter of New York State Dep 't. of Transp., 22 I&N Dec. at 22 1. 
asserts that the beneficiary has proposed and received $250,000 in project funding while 
working for the petitioner. The ability of the beneficiary to secure funding for his work is a favorable 
consideration. More significant, however, would be the results of his past funded work. The record is 
less persuasive that the beneficiary's past results and models have already influenced the field. 
Co-Chair of the Interior Columbia Basin Technical Recovery Team with the 
National Oceanic and Atmospheric Administration (NOAA) office in Oregon, asserts that the 
beneficiary's main role with the petitioner is "to develop and apply quantitative methods involving 
statistics and mathematics, thereby providing managers with objective scientific analyses critical to 
good decision makin 
 As of the date of filing, the beneficiary was working on a project under the 
purview of NOAA. gasserts that NOAA "is responsible for assessing, managing and 
promoting conservation of living marine and anadrornous resources in the waters of the Pacific 
Northwest, including oversight for the im lementation of the [Endangered Species Act] for the West 
Coast Population of anadromous fish."  discusses the beneficiary's models, but does not 
assert that any of NOAA's policies have derived from those models. While 
 a research 
fishery biologist with the Seattle-based Northwest Fisheries Science Center of NOAA, asserts that the 
beneficiary's models represent a significant contribution to the statistical theory currently used to 
manage fisheries, he does not indicate that any managers have adopted the beneficiary's models or are 
considering doing so. Notably, ses an article by the beneficiary that had not yet been 
published as of the date of filing. The petitioner must establish the beneficiary's eligibility as of that 
date. See 8 C.F.R. 5 103.2(b)(12); Matter of Katigbak, 14 I&N Dec. 45,49 (Reg. Comm. 1971). 
LIN 05 014 51222 
Page 6 
, a fishery biologist with the Bonneville Power Administration (BPA), discusses the 
beneficiary's leadership of the petitioner's efforts on a contract for BPA, the Safety-Net Artificial 
Propagation Program (SNAPP). 
 The objective of SNAPP was "to determine extinction risk of 
spring/summer Chinook salmon and steelhead populations in the Snake River basin and, if necessary, 
to intervene with hatchery 'safety-net' programs to reduce this risk." The beneficiary calculated 
extinction risk, prioritized populations most at risk, presented his work at a formal conference, wrote 
reports and organized a workshop to present the SNAPP results to "fishery co-managers." At the 
workshop, the benefici 
 federal, state and tribal fishery co-managers and 
scientists." According t 
 the beneficiary's work, it was determined that no 
additional intervention 
 however, specifically refers us to BPA's website 
to view the 
 concluded that some populations were at 
serious risk while others were at moderate risk. While these conclusions would not necessarily have to 
have been ignored to conclude that no additional intervention by BPA was necessary, does 
not adequately explain the significance of the beneficiary's report finding that some populations were at 
risk on BPA's ultimate decision not to intervene. 
of his own consulting firm in Oregon, indicates that he coordinated the 
asserts that the beneficiary's paper was the "major product of the entire 
SNAPP project," but concedes that "various scientists presented alternative methods and analyses to 
address exti-nction risk of salmon and steelhead species." expresses his own opinion that the 
beneficiary's work was "superior" to the other analyses, but the record lacks official BPA or SNAPP 
reports adopting the beneficiary's methods as superior to the other analyses. 
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 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. !ij 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 an application for permanent employment certification certified by the Department of 
Labor, appropriate supporting evidence and fee. 
ORDER: The appeal is dismissed.