dismissed EB-2 NIW Case: Food Safety

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PUBLIC COPY 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Ofice ofAdminisfrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
LIN 07 200 52743 
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 1 1 53(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. 5 103.5 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. 5 103.5(a)(l)(i). 
Chief, 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 AAO will 
dismiss the appeal. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. fj 1153(b)(2), as a member of the professions holding an advanced degree. At the 
time she filed the petition, the petitioner was a postdoctoral researcher at the Western Institute for Food 
Safety and Security (WIFSS) at the University of California, Davis (UCD or UC Davis). The petitioner 
is now a visiting scientist at the U.S. Food and Drug Administration (FDA). 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 from counsel and additional exhibits. 
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] 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. 
Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Commr. 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, whle the national interest waiver hmges 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. 5 204.5(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. 
The petitioner filed the petition on July 23, 2007. In a statement accompanying the initial submission, 
the petitioner described herself as "an internationally recognized expert on food-borne infectious 
disease." Describing her work further, she stated: "I try to understand the molecular mechanism of 
the pathogenesis of E. coli 0157:H7. Another important direction of my research is to answer what 
we do wrong in farming and in the processing line that gives the bacteria a chance to enter our food, and 
what is the environmental factor to increase the virulence of this bacteria" (emphasis in original). The 
petitioner stated that she described different ways by which E. coli can get inside lettuce leaves, where 
they cannot be removed by washing. 
The petitioner stated that she is "the first author of 6 papers. My publications have received hlgh 
recognition in journals with worldwide distribution in the field and have been published in such 
prestigious academic journals as the Journal of Bacteriology, Applied and Environmental Microbiology, 
etc." The petitioner then listed the six articles. Only two of those articles had actually been published; 
the others were described as "submitted" or "in preparation." The petitioner's use of "etc." is, therefore, 
misleading, because it falsely implied that her work had already been published in journals other than 
the two that she named. 
The petitioner submitted several witness letters, mostly from witnesses with ties to the petitioner, with 
I am the deputy director of Shandong Center of Disease Control and Prevention (CDC), 
where [the petitioner] had worked for ten years before she went to the US. [The 
petitioner] is one of the most outstanding scientists who have ever worked in Shandong 
CDC.. . . 
[The petitioner] has proven that she is a pioneer and outstanding scientist with 
substantial contributions in food borne infectious disease. . . . She . . . played a leading 
role in the rapid diagnosis method researches in Shandong CDC, some of her research 
has been used as standard clinical isolation and identification methods throughout entire 
Shandong province for many years. 
I have known [the petitioner] for several years. Her research discovery on the regulation 
of nisin immunity [at the University of Minnesota] is groundbreaking. It contributed to 
the understanding of the molecular mechanism involved in nisin production and 
protection, the best model system understood so far in bacteriocin (small molecule 
produced by certain bacteria that can kill other microorganisms, such as Gram-positive 
bacteria including pathogens in this case) production. . . . I have been trying to recruit 
[the petitioner] to join the OSU food safety team after she got her Ph.D., but obviously I 
was too late and UC Davis got her. 
I feel very fortunate to have been able to attract [the petitioner] to the Institute. Her 
work is extraordinarily important to the goals of the Institute and to the field of 
foodborne infectious disease. . . . [The petitioner] provides the core for our basic 
genomic research on foodborne pathogens. . . . 
Page 5 
She has been very productive in the challenging field of identifying genetic markers for 
pathogen virulence. Even at this early stage in her career, her work on the virulence of 
the foodborne pathogen, E. coli 0157:H7, has been praised by leaders in the field. This 
is extremely important work, which will lay the foundation for understanding the 
conditions that lead to E. coli 0157:H7 evolving (mutating) into highly lethal strains. 
[The petitioner's] work could very well lead to developing ways of preventing the shift 
to hlghly lethal strains by changing the environmental conditions necessary for shifts in 
virulence by pathogens. The underlying genetic mechanisms that she is investigating 
can be applied to other pathogens, which will likely provide her a long-term, highly 
significant research career path. 
Although she is not in my laboratory, I have become aware of the work [the petitioner] 
is doing in a laboratory just down the hall from my office. . . . Her genetic studies here at 
UCD promise to make an important contribution to preventing transmission of a highly 
significant scourge of the United States and various other countries, Escherichia coli 
0157:H7. . . . [The petitioner's] genetic work will contribute very significantly to 
reducing carriage and shedding of the agent by cattle, thus making our food and water 
safer. 
I became acquainted with [the petitioner] during my sabbatical period at UC Davis. . . . 
I consider her current work to be exceedingly important to the field and to be breaking 
new ground. Her research compares very favorably with some of the best research in 
the UK. It is very important that someone with her knowledge, skills and training can 
continue to do this work at WIFSS. 
With respect to the last sentence above, the record shows that the petitioner left WIFSS in October 
2008, before the denial of this petition. stated that the petitioner "has had five first 
author papers in recent years in the key journals in this field." At the time wrote his 
letter, in January 2007, the petitioner had published only two papers (one in 2002, one in 2006). 
Although I have not directly worked with [the petitioner], I know of her through her 
published work, presentations at scientific meetings, and personal communications. . . . 
[The petitioner] has extensive experience in conducting research fighting foodborne 
infectious diseases. . . . The work by [the petitioner] has profound benefits to our 
national healthcare system and food industry. 
The ~etitioner stated that her initial submission also included a letter from University of Minnesota 
On August 21, 2008, the director instructed the petitioner to submit evidence of "a past record of 
specific prior achievement that justifies projections of future benefit to the national interest." The 
director specifically requested evidence of independent citation of her published work, and "copies of 
any additional articles not previously submitted, that have been published . . . prior to the filing of the 
petition." In response, the petitioner submitted copies of two of her articles, both published after the 
petition's filing date, and the unpublished manuscript of a third article. The newly-published articles 
appear to be revisions of two of the manuscripts from the initial submission. This submission seems to 
confirm that, as of the filing date, only two of the petitioner's articles had actually been published. 
With regard to citation of her work, the petitioner submitted database printouts listing 13 citations of her 
work, as well as copies of eleven of the citing papers. Most of the published citations appeared in 2008, 
after the July 2007 filing date. Only one published citation clearly appeared prior to the filing date, in a 
2003 article. Another citation, from a book published in 2007, may have predated the filing of the 
petition; the record does not show the exact publication date. Both of these citations referred to the 
petitioner's work at the University of Minnesota in 2002. 
The petitioner submitted five additional witness letters, including a letter from - 
The letter is dated January 25, 2007, indicating that this is likely the letter that the petitioner meant to 
include in the initial submission. 
 stated: 
Much of my research involves finding natural ways to control pathogens. One natural 
little protein that has enormous potential for controlling many dangerous pathogens is 
nisin and it is on this protein that [the petitioner] did her research in my laboratory. 
During her research on nisin production in my laboratory, [the petitioner] made many 
exciting discoveries that contributed enormously to the understanding of this system. . . . 
She has proven herself to be an excellent scientist with an ability to investigate complex 
issues and come up with creative solutions. . . . 
I consider [the petitioner] to be one of the best young scientists of today. 
[The petitioner] is a member of our Editorial Board and an Expert Reviewer to review 
original manuscripts in the subject of food and applied microbiology submitted by other 
scientists for publication in this journal. . . . 
[The petitioner] was selected as an Expert Reviewer because of her extensive experience 
and outstanding achievements in both scientific research and technical innovations in 
rage I 
food-borne pathogen research and her broad background in molecular microbiology and 
public health. . . . 
The internalization of E. coli 01 57:H7 into lettuce reduces the decontamination efficacy 
of industrial washing process and allows a greater survival of pathogen in lettuce. This 
finding reveals one more risk factor in explaining why the California lettuce has caused 
22 outbreaks from 1996-2005. [The petitioner] is the first investigator to reveal the 
existing risk of this technique. The significance of this finding is needless to say very 
critical for improving lettucelother leafy-greens safety. It also gives compelling 
evidence that [the petitioner's] expertise has risen to the very top of the field of the 
endeavor. 
stated: 
I am familiar with [the petitioner's] research work and have worked closely with her to 
develop scientific approaches for produce industry problems. We continue to act as 
joint Principal Investigators on a number of research proposals. . . . Her work is 
extraordinarily important to the field of foodborne infectious disease. 
The final letter, from fi of the FDA Center for Food Safety and Applied 
Nutrition, was originally written to support a separate nonimmigrant visa petition. stated 
that the petitioner's "scholarly publications and participation in professional conferences have been 
impressive," and that the FDA intended to employ the petitioner "for a three-year period." 
The director denied the petition on December 16, 2008, stating that the petitioner's publication and 
citation record as of the petition's filing date did not indicate significant influence or impact in her field. 
The director found that the petitioner's witness letters came primarily from her mentors and 
collaborators, and described her work "mostly in general terms." 
On appeal, counsel argues that the petitioner "is an influential scientist" whose "publications have been 
cited a total of nine times in only a relatively short period of time." Counsel observes that, while the 
petitioner's "citation rate increased after the July 2007 filing, the actual cited research work took place 
prior to the filing date, and therefore it is appropriate to conclude that she had already undertaken and 
published her high-impact work before 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 application or petition. 8 C.F.R. tj 103.2(b)(l). Therefore, subsequent events cannot cause a 
previously ineligible alien to become eligible after the filing date. See Matter of Katigbak, 14 I&N Dec. 
45,49 (Regl. Commr. 1971). 
The petitioner has not shown that nine citations is a particularly significant number. 
 More 
fbndamentally, the flaw in counsel's argument is that, at the time the petitioner filed the petition, there 
was minimal documented reaction to her work in the published literature. At the time of filing, there 
was not already an established pattern of heavy citation of her work. Thus, even if the petitioner had 
documented a significant later pattern of citation, which we do not concede here, this would not 
establish that she was eligible for the waiver at the time of filing. The waiver requires evidence of 
eligibility at the time of filing, rather than reason to believe that such evidence will eventually exist at 
some later time. Counsel's logic provides an incentive for petitioners to file as early as possible, and 
then stall the adjudication of the petition while awaiting the accumulation of fwther evidence. 
Counsel correctly states that we can take into account "documents evidencing continuing influence . . . 
after the priority date." Indeed, if an alien's influence apparently ceased after the priority date, this 
would be grounds for concern. But counsel's argument, here, presupposes the petitioner's influence 
before the priority date; otherwise, her later influence would not be "continuing." The petitioner has not 
persuasively shown that, at the time of filing, she was already as influential as she claims. 
Citations are not the only means by which to show the petitioner's impact on her field. Independent 
witness letters can play a significant role in this respect. Here, however, the petitioner has submitted 
only a handful of such letters, which collectively fail to establish the depth or extent of her influence on 
the field. Simply listing her achievements cannot suffice in this regard, because all graduate students 
and postdoctoral researchers are arguably expected to produce original work. 
A recurring theme in this petition is the importance of ensuring a safe, pathogen-free food supply. 
The petitioner has not shown, however, that her work has resulted in any remedial action by the food 
industry; significant policy changes by regulatory agencies; or any other concrete steps by the 
government or industry. If the petitioner's work has not changed how food is processed, or the 
requirements relating to that processing, then it is not clear in what meaningful sense she has had the 
influence she claims unless we return to the realm of speculation about what changes might someday 
result from her work. 
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. § 1361. The petitioner has not sustained that burden. This decision 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.