dismissed EB-2 NIW Case: Food Microbiology

(b)(6)
DATE: JUN Q 3 2014
oFFICE: NEBRASKA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
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. § 1153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F .. R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
OudncL 
Rosenberg 
< ef, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. The matter is now before us at the Administrative Appeals Office on appeal. We will dismiss 
the appeal. 
The petitioner seeks classification under section 203(b )(2) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as a postdoctoral research associate at Inc. 
affiliated with 
Washington. 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 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 and several exhibits, most of which duplicate prior 
submissions. 
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 
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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). 
Supplementary information to regulations implementing the Immigration Act of 1990, P.L. 101-649, 
104 Stat. 4978 (Nov. 29, 1990), published at 56 Fed. Reg. 60897, 60900 (Nov. 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 "prospective 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. 
In reNew York State Dep 't of Transportation, 22 I&N Dec. 215, 217-18 (Act. Assoc. Comm 'r 1998) 
(NYSDOT), has set forth several factors which must be considered when evaluating a request for a 
national interest waiver. First, a petitioner must establish that the alien seeks employment in an area of 
substantial intrinsic merit. /d. at 217. Next, a petitioner must establish that the proposed benefit will be 
national in scope. /d. 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. /d. at 217-18. 
While the national interest waiver hinges on prospective national benefit, the petitioner must establish 
that the alien's past record justifies projections of future benefit to the national interest. /d. at 219. The 
petitioner's assurance that the alien 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 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. /d. 
The USCIS regulation at 8 C.F.R. § 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 offer/labor 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. 
The petitioner filed the Form I-140, Immigrant Petition for Alien Worker, on August 7, 2012. In an 
introductory statement, the petitioner stated that he "has been conducting pioneering research in the 
field of plant/food safety and food microbiology, specializing in control of bacterial spoilage and 
foodborne pathogens on leafy greens and raw sprouts." Supporting evidence establishes that the 
petitioner ' s occupation has substantial intrinsic merit, and results in benefit that is national in scope. 
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The petitioner asserted that his employer would not be able to obtain a labor certification for the 
petitioner, because the "[e]mployer requires specific and outstanding qualifications of [the 
petitioner] based on his personal research achievements and novel findings," and Department of 
Labor regulations do not permit an application for labor certification to be narrowly tailored in this 
way. The petitioner has not shown that the above is a requirement for the position, rather than the 
employer's preference. More importantly the statutory threshold for the waiver of the job offer 
requirement is the national interest, rather than the employer's claimed inability to obtain a labor 
certification for the prospective employee. 
Documentation of the petitioner's membership in several professional associations serves to 
establish that he is active in his field, but does not demonstrate eligibility for the waiver. Such 
memberships can form part of a claim of exceptional ability under the regulation at 8 C.P.R. 
§ 204.5(k)(3)(ii)(E), but aliens of exceptional ability remain subject to the statutory job offer 
requirement. 
Several witness letters accompanied the petition. Two witnesses are professors at 
where the petitioner earned his doctorate. Professors the petitiOner's 
doctoral advisor, described in technical detail the petitioner's work with cucumber mosaic virus 
(CMV). Prof. stated: 
[The petitioner] was the first researcher to reveal that the CMV 2b protein is needed 
for systematic infection and for accumulation of the virus in plant at the 
cellular level. . . . [H]is discovery has important applications in the development of 
new strategies for the fundamental understanding of the generation of baseline data 
that can be applied to eliminating CMV symptoms in 
Prof. also stated that the petitioner "performed a critical role in two ... research projects on 
controlling aphid-borne viruses in cucurbit crop plants": 
[The petitioner] played a key role in analyzing computer-based statistical data 
analysis of variance using SAS program which revealed that UV-reflective mulches 
can reduce insects from entering a crop with coincidental reductions in virus 
incidence .... Further, [the petitioner] collaborated in the research on "Inter-row soil 
cover to reduce incidence of aphid-borne virus in pumpkin." ... [T]he data revealed 
that pumpkin plants grown with an inter-row soil cover demonstrate lower aphid­
borne virus burden during the 2-year investigation period (2006-2007). 
Professor 's letter contains similar observations and, at times, the same wording. 
Both letters, for instance, indicate that the petitioner's findings are useful "for home grown farmers 
in the southeastern United States who wish to grow summer squash in early summer in order to 
avoid abundant sources of virus and large insect vector populations that may occur at later times 
during the growing season." 
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Three witnesses are officials of assistant corporate counsel for , stated: 
[The petitioner] is an exceptional research scientist who is recognized for significant 
contributions in the field of food and agricultural biosecurity, plant/food safety and 
quality, food microbiology, and plant sciences-plant biology . 
. . . His main duties are to conduct leading edge research in the projects funded by the 
USDA, FDA, and Food Industry. He plays a critical role in plant/food safety research 
projects .... 
[The petitioner] was recruited by based on his exceptional research ability and 
accomplishments in the area of plant sciences-plant pathology. [The petitioner] has 
made original scientific research contributions to the understanding of the control and 
management methods of vegetable crop diseases as well as the prevention of plant­
based food products from contamination with food-borne pathogens .... If he were 
replaced by scientists having only the minimum qualifications, the research projects 
would suffer a substantial delay. 
executives provided further details regarding the petitioner's work for the company. Dr. 
president and chief executive officer of , described the petitioner's work 
for that company: 
[The petitioner] has conducted important research on the effect of ascorbic acid wash 
treatments on shelf life of minimally processed leafy vegetables .... His pioneering 
research ... serves as a basis for developing and reinforcing new hygienic strategies 
to extend shelf life of leafy vegetable products as a guideline for fresh produce 
growers all over the U.S. 
[The petitioner] elucidated a novel molecular biology approach to detect spoilage 
microorganisms on leafy greens .... Indirectly, his approach has diminished the risk 
of human pathogen contamination associated with bacterial spoilage .... His research 
indicates that early detection will aid in an appropriate post-harvest management 
strategy which can extend the shelf life of food and reduce product loss .... 
[The petitioner] has developed at least three novel micro methodologies based on 
chemical, physical, and biological treatments to decontaminate plant seeds for sprout 
production .... Collectively, these methods are aimed at reducing the populations of 
spoilage bacteria ... and diminish[ing] the risk of foodborne illnesses associated with 
sprout consumption ... . 
[The petitioner] is the lead scientist in the important FDA-, USDA- and food 
industry-funded research projects at which are currently in a very 
critical stage; 
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NON-PRECEDENT DECISION 
in my opinion, it would be impossible to find someone with his expertise and novel 
knowledge in food safety research to continue them. 
Dr. 's vice president for , offered many of the same 
observations, stating, for instance, that the petitioner "developed at least three novel methodologies 
to decontaminate plant seeds for sprout production." 
Letters from other witnesses overlap in terms of structure and, sometimes, exact wording. The 
phrase "early detection will aid in an appropriate post-harvest management strategy which can 
extend the shelf life of food and reduce product loss," found in Dr. 's letter, appears in 
slightly modified form in a letter from Dr. senior researcher for the 
"early detection of their presence will aid in 
appropriate post-harvest management strategies which can extend the shelf life of plant food and 
reduce product loss." 
Dr. 's letter contains the sentence: 
He was the first to discover that the average extent of bacterial spoilage pathogens in 
leafy samples, using his multiplex PCR, revealed 37.2% of tested samples collected 
in the California, the largest fresh vegetable production district in the 
world, to be shown to harbor both Erwinia carotovora and Pseudomonas syringae, 
the most prevalent bacterial plant pathogens causing spoilage in varieties of 
vegetables. 
A variant passage appears in a letter signed by Dr. 
and Regulatory Affairs for Diagnostics for the Ltd.: 
, director of Scientific 
He was the first scientist who discovered the average extent of bacterial spoilage 
pathogens by 37.2% of tested leafy samples collected in the 
California, the largest fresh vegetable production district in the world, to be shown to 
endemically harbor the most prevalent bacterial plant pathogens causing spoilage in 
varieties of vegetables. 
A letter signed by Dr. 
Production ar 
director of 
Inc., contains another variation of this same passage: 
[The petitioner] was one of the first ever to discover that the average extent ·of 
bacterial spoilage pathogens in leafy samples collected in the 
California (the largest fresh vegetable production district in the world) revealed 
37.2 % of tested samples to be shown to endemically harbor two major plant­
pathogenic bacteria; Erwinia carotovora, and Pseudomonas syringae, the most 
prevalent bacterial plant pathogens causing spoilage in varieties of vegetables. 
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All three of the above quoted passages resemble a passage found in Dr. Samadpour's letter: 
His significant studies showed that 37.2% of tested leafy samples collected in the 
Salinas Valley, California, the largest fresh vegetable production district in the world, 
were shown to harbor both Erwinia carotovora and Pseudomonas syringae, the most 
prevalent bacterial-plant pathogens causing spoilage in the leafy green samples. 
The petitioner also provided his own 23-page statement, describing his work in technical detail. 
This statement includes another variation of a passage that appears in several witness letters: 
The testing for bacterial spoilage pathogens in leafy greens using multiplex PCR 
showed that 37.2% of samples collected in the California (the largest 
fresh vegetable production district in the world) were shown to harbor both Erwinia 
carotovora and Pseudomonas syringae, the most prevalent bacterial plant pathogens 
causing spoilage in varieties of vegetables. 
Given the demonstrable similarities between the letters as well as the petitioner's statement, detailed 
discussion of each of these exhibits would be redundant. The letters contain detailed discussion of 
the claimed importance of the petitioner's work, but the initial submission did not include 
documentary evidence to support those claims. 
The petitioner submitted documentation relating to two provisional patent applications that 
filed in 2012, relating to an ' and a 
The petitioner called this material "[ e ]vidence that 
[the petitioner] is a main inventor of the Patent Application[s] (Pending)." The petitioner's name 
does not appear in the submitted patent application documents; the only identified inventor is Dr. 
Therefore, those documents are not evidence that the petitioner is a main inventor as 
claimed. Furthermore, development of a patented innovation is not always sufficient to meet the 
national interest threshold. The petitioner must establish that the specific innovation serves the 
national interest. See NYSDOT, 22 I&N Dec. 221 n. 7. 
The petitioner stated that he "has published significant scientific research papers" and presented his 
work at conferences, and that "[o]ther scientists have cited [the petitioner's] research publications as 
authoritative in their scientific papers." A printout from the Google Scholar search engine shows a 
total of six citations of the petitioner's published work, with three articles respectively cited one, 
two, and three times. The printout did not identify the citing articles or their authors, and therefore 
the petitioner did not establish how many of the citations are independent citations rather than self­
citations by the petitioner and/or his co-authors. 
The petitioner also submitted copies of five claimed citing materials. The petitioner's exhibit list 
showed six items, but item 6 is a repetition of item 4 on the list. Regarding the first of the five items, 
the petitioner stated: "Dr. and his colleagues ... published a review article entitled 
on the most important research 
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Page 8 
achievements, which included [the petitioner's] research publication." The petitioner did not submit 
a copy of an article with that title. Instead, the petitioner submitted grant funding documentation 
relating to Dr. s laboratory. The grant documentation, bearing the title "Research 
Spending 
& Results," identifies the "Award Title or Description" as ' 
' and it lists several "Publications Produced as a Result of this Research." 
The petitioner's article appears in that list. Thus, the evidence indicates that Dr. 's research 
led to the petitioner's article, rather than vice versa as the petitioner claimed. 
The petitioner's own curriculum vitae re eats the assertion that Dr. wrote "a review article 
... entitled ' ' but the record contains 
no evidence that such an article exists. The petitioner did not identify the journal that purportedly 
published this article. The curriculum vitae also identifies the same four citing articles named in the 
petitioner's exhibit list. The petitioner submitted copies of those four articles. 
The first citing article is by researchers, including the petitioner's co-authors 
and citing theu own previous work with the petitioner. Likewise, the 
fourth citing article is by . The petitioner's initial submission, therefore, documents two 
independent citations of the petitioner's work. 
The director issued a request for evidence on March 25, 2013. The director requested additional 
citation evidence and "documentary evidence to establish ... a past record of specific prior 
achievement that justifies projections of future benefit to the national interest. " 
In response, the petitioner submitted copies of additional articles and conference presentation 
materials. These materials show that the petitioner continues to be a productive researcher, but the 
petitioner's own articles and presentations are not evidence of their own impact. Evidence that post­
dates the filing of the petition cannot retroactively establish eligibility as of the filing date. An 
applicant or petitioner must establish that he or she is eligible for the requested benefit at the time of 
filing the benefit request. 8 C.P.R. §§ 103.2(b)(l), (12). USCIS cannot properly approve the 
petition at a future date after the petitioner or beneficiary becomes eligible under a new set of facts. 
See Matter ofKatigbak, 14 I&N Dec. 45,49 (Reg'l Comm'r 1971). 
The petitioner submitted an updated Google Scholar printout showing seven citations of his work, 
again without identifying the citing articles. The petitioner also submitted copies of the same four 
citing articles submitted previously, along with the grant documentation regarding Dr. On 
this occasion, the petitioner did not call it a "review article." Instead, the petitioner stated: "Dr. 
and his colleagues . 
. . wrote a report entitled 
on the most im ortant research 
achievements, which included [the petitioner's] Research publication." The ' 
document does not single out the petitioner's work as being among "the most important 
research achievements." Rather, it lists "Publications Produced as a Result of this Research." The 
submitted list identifies 71 articles, with nothing to distinguish the petitioner's article from the other 
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70 listed titles or to indicate that these articles are "the most important" out of a larger pool of 
articles. 
In a letter dated April 4, 2013, Dr. 
development, stated: 
the petitioner's vice president for research and 
For the last 6 months, [the petitioner] has focused his efforts on developing diagnostic 
kits intended to improve food safety, while continuing on his basic research 
pertaining to leafy green and sprout food safety .... 
In November of 2012 our company expanded our corporate interests to include 
development of antibody-based diagnostic kits for detection of food-borne pathogens 
and FDA-regulated food allergens. 
Dr. then explained the petitioner's role in this project. The petitioner submitted several 
documents relating to the detection kit project. The project did not begin until November 2012, 
several months after the petition's August 7, 2012 filing date; the project documents all date from 
2013. Therefore, whatever the merits of this project, it cannot establish that the petitioner was 
already eligible for the waiver at the time of filing. See 8 C.F.R. §§ 103.2(b )(1), (12); Matter of 
Katigbak, 14 I&N Dec. at 49. 
The director denied the petition on May 16, 2013, stating that the petitioner met the first two prongs 
of the NYSDOT national interest test, pertaining to intrinsic merit and national scope, but had not met 
the third prong by establishing his past influence on his field as a whole. The director acknowledged 
that the petitioner's witnesses described his work in great detail, but the director found that the 
record did not contain objective documentary evidence to corroborate the witnesses' claims 
regarding the importance of the petitioner's work (rather than the unchallenged overall importance 
of food safety research). 
The director asserted that publication is evidence of the originality of the petitioner's work, but that 
the petitioner had not shown that "the research community's reaction to those articles" sets the 
petitioner's work apart from that of others in the field. The director acknowledged several of the 
petitioner's ongoing projects, but found no evidence that they have yielded products that are 
"currently being used." The director also noted the patent applications, stating: "these patents are 
still pending and no inference can be drawn by the Service concerning their effect on the petitioner's 
field of endeavor." 
On appeal, the petitioner submits several dozen exhibits. Most of the exhibits submitted on appeal 
are duplicates of materials previously submitted with the initial filing of the petition or in response to 
the request for ev~dence. Among the duplicate exhibits are the patent application materials from the 
initial filing. The record does not show that the petitioner holds any patents. had filed both of 
the applications as provisional patent applications, which are placeholders to preserve an inventor's 
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priority while a more complete application is in preparation. The web site of the U.S. Patent and 
Trademark Office states: 
A provisional application for patent ... allows filing without a formal patent claim, 
oath or declaration, or any information disclosure (prior art) statement. It provides the 
means to establish an early effective filing date in a later filed non-provisional patent 
application filed under 35 U.S.C. §111(a). It also allows the term "Patent Pending" to 
be applied in connection 
with the description of the invention. 
A provisional application for patent (provisional application) has a pendency lasting 
12 months from the date the provisional application is filed. The 12-month pendency 
period cannot be extended .... 
A provisional application cannot result in a U. S. patent unless one of the following 
two events occur within 12 months of the provisional application filing date: 
1. a corresponding non-provisional application for patent entitled to a filing date 
is filed that claims the benefit of the earlier filed provisional application; or 
2. a grantable petition under 37 CFR 1.53(c)(3) to convert the provisional 
application into a non-provisional application is filed .... 
Provisional applications are not examined on their merits.1 
s submitted provisional patent applications show receipt dates of February 13, 2012 and June 1, 
2012. By the time the petitioner filed the appeal on June 18, 2013, the 12-month deadline to file a 
non-provisional application had passed for both of the provisional applications. The petitioner 
continues to call the applications "[p ]ending," but the appeal includes no evidence ,that 
followed up on the provisional applications by converting them or filing non-provisional patent 
applications. 
The same web page advises: "If there are multiple inventors, each inventor must be named in the 
application." As noted previously, the submitted documents relating to the provisional patent 
application do not name the petitioner as an inventor. 
The petitioner's appellate brief begins with the assertion that has hired the petitioner "to 
develop cutting edge antibody-based diagnostic kits for detection of FDA-regulated food allergens." 
The appeal includes a new letter, dated June 13, 2013, in which Dr. praises the 
petitioner's past and present work but emphasizes the detection kits as the petitioner's "primary role" 
and the means by which his efforts will benefit the United States. 
1 Source: http://www.uspto.gov/patents/resources /tvpes/provapp.jsp (printout added to record February 27, 2014). 
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As noted previously, the initial filing of the petition did not mention these diagnostic kits, and Dr. 
states that the petitioner did not begin the project until November 2012, several months 
after the petition's August 2012 filing date. The petitioner's subsequent work on the kits cannot 
establish that the petition was already approvable in August 2012, before he began that work. 
Dr. does not claim that the kits are in commercial use. Rather, he states that "these 
detection Kits will be distributed in the market in the near future." Dr. claims that the 
kits' "significant influence has already been proven by the distinctive ability to detect very low 
levels of antigen and to detect across a broad dynamic range that exceeds that of commercially 
available rapid diagnostic tools that are currently employed in the food industry." Dr. 
does not explain how claims regarding the superiority of the kits have "proven" their "significant 
influence" even before they have become available. 
Dr. refers to the petitioner's "ongoing contributions in patenting a 
product at our company," but the 
record does not establish that the petitioner's name appears on any 
patent or patent application. 
The petitioner asserts that, in the initial submission, he "proffered seven (7) expert opinion letters to 
attest that he has made original research contributions of important influence in the field." The 
Board of Immigration Appeals (BIA) has held that testimony should not be disregarded simply 
because it is "self-serving." See, e.g., Matter of S-A-, 22 I&N Dec. 1328, 1332 (BIA 2000) (citing 
cases). The BIA also held, however: "We not 
only encourage, but require the introduction of 
corroborative testimonial and documentary evidence, where available." !d. 
The opinions of experts in the field are not without weight and have received consideration 
above. users may, in its discretion, use as advisory opinions statements submitted as expert 
testimony. See Matter of Caron International, 19 I&N Dec. 791, 795 (eomm'r 1988). However, 
users is ultimately responsible for making the final determination regarding an alien's eligibility 
for the benefit sought. !d. The submission of letters from experts supporting the petition is not 
presumptive evidence of eligibility; USCIS may, as above, evaluate the content of those letters as to 
whether they support the alien's eligibility. USCIS may even give less weight to an opinion that is 
not corroborated, in accord with other information or is in any way questionable. See id. at 795; see 
also Matter of V-K-, 24 I&N Dec. 500, 502 n.2 (BIA 2008) (noting that expert opinion testimony 
does not purport to be evidence as to "fact"). See also Matter of Soffici, 22 I&N Dec. 158, 165 
(Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 
1972)). 
The letters described the petitioner's work in detail, but the 
record lacks corroborating evidence to 
support the claims in the letters regarding the influence ofthe petitioner's past work. Therefore, the 
letters themselves are the petitioner's only evidence of that influence. Furthermore, the 
demonstrable similarities between the witness letters and the petitioner's own introductory statement 
are consistent with common authorship. These similarities support the inference that the petitioner 
himself is the source of the common language. Cf Mei Chai Ye v. U.S. Dept. of Justice, 489 F.3d 
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517, 519 (2d Cir. 2007) (concluding that an immigration judge may reasonably infer that when an 
asylum applicant submits strikingly similar affidavits, the applicant is the common source). Letters 
apparently from a common source, unsupported by verifiable documentation, do not meet the 
petitioner's burden of proof. The record establishes that the petitioner conducted the research 
described in the record, but not that the petitioner's work has influenced the field as a whole and 
thereby warranted approval of the national interest waiver. 
The petitioner asserts that the director erred because the Department of Labor would not approve an 
application for labor certification tailored to the petitioner's skills and background. This assertion 
repeats a claim from the initial filing. The petitioner supports this assertion by quoting the phrases 
"normally required for the job in the United States" and "Shall be those defined for the job in the 
Dictionary of Occupational Titles (D.O.T.)," which originated in the former regulations at 20 C.F.R. 
§§ 656.21(b )(2)(i)(A) and (B) (2003). The quoted regulations are obsolete; see 69 Fed. Reg. 77326 
(December 27, 2004). The current regulation at 20 C.P.R.§ 656.17(h) states: 
The job opportunity's requirements, unless adequately documented as arising from 
business necessity, must be those normally required for the occupation and must not 
exceed the Specific Vocational Preparation level assigned to the occupation as shown 
in the O*NET Job Zones. To establish a business necessity, an employer must 
demonstrate the job duties and requirements bear a reasonable relationship to the 
occupation in the context of the employer's business and are essential to perform the 
job in a reasonable manner. 
Furthermore, the claim that the petitioner would have difficulty obtaining labor certification does not 
establish that it is in the national interest to waive the statutory job offer requirement. 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 alien seeking the waiver will 
serve the national interest to a substantially greater degree than do others in the same field. See 
NYSDOT at 218 n.5. 
The petitioner quotes from NYSDOT at 219 n.6: "The Service here does not seek a quantified 
threshold of experience or education, but rather a past history of demonstrable achievement with 
some degree of influence on the field as a whole." The petitioner contends that the "Director erred 
in seeking a quantified threshold of the total number of citations to judge Petitioner's past 
achievements and influence in the field." The director's decision is not in conflict withNYSDOT. In 
context, the sense of the quoted passage is that one need not hold a particular degree or have a 
particular amount of past employment experience in order to qualify for the waiver (beyond degree 
and/or experience requirements inherent in the statute and regulations). The director, by finding the 
petitioner's citation record to be minimal, did not require "a quantified threshold of experience or 
education." The petitioner's truncation of the phrase to "a quantified threshold" omits crucial 
context. 
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The petitioner states that US CIS "has long reorganized [sic] that citations can be much fewer in 
certain fields," and that the director "deviated [from] this correct policy." The petitioner has 
submitted no evidence to establish average citation rates in the petitioner's field or to show that the 
citation rate of the petitioner's articles is high when compared to others in that same field. 
The petitioner states that he "has been making tremendous effort to apply his novel research 
discoveries and new methods to develop advanced products." The record does not show that any of 
those products had reached the market by the petition's filing date, or that the petitioner ' s work had 
influenced the field as a whole at that time. 
The petitioner has not established a past record of achievement at a level that would justify a waiver of 
the job offer requirement. The petitioner need not demonstrate notoriety on the scale of national 
acclaim, but the national interest waiver contemplates that his influence be national in scope. NYSDOT 
at 217, n.3. More specifically, the petitioner "must clearly present a significant benefit to the field of 
endeavor." Id. at 218. See also id. at 219, n.6 (the alien must have "a past history of demonstrable 
achievement with some degree of influence on the field as a whole."). 
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. 
We will dismiss the appeal for the above stated reasons. In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the petitioner has not 
met that burden. 
ORDER: The appeal is dismissed.