dismissed EB-2 NIW Case: Food Science

U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.S.Citizenship
and Immigration
Services
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FEB 08 2007
Date:Office: NEBRASKA SERVICE CENTER
PUBLIC COpy
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FILE:
LIN 05 088 51089
INRE: 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. § 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.
". ~~~~L-WA-
CS·· Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
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 classification pursuant to 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 research associate. 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 from the requirement of a job offer would be in the
national interest of the United States.
On appeal, counsel submits a brief and additional evidence. For the reasons discussed below, we
uphold the director's ultimate finding that the petitioner has not provided sufficient evidence of his
influence beyond his collaborators.
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.
The petitioner holds a Ph.D. in Food Science and Nutrition from the Ohio State University (OSU). The
petitioner's occupation falls within the pertinent regulatory definition of a profession. The petitioner
thus qualifies 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 "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, 101st Cong., 1st Sess., 11 (1989).
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 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. 215 (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 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 concur with the director that the petitioner works in an area of intrinsic merit, food science and
technology, and that the proposed benefits of his work, safer and more nutritional food, 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.
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 qualify for a national interest waiver.
Matter ofNew York State Dep 't of Transp., 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 director concluded that the petitioner had not established his influence beyond his immediate
circle of colleagues. On appeal, counsel notes that several letters attest to the petitioner's influence.
We will consider the evidence below.
The petitioner received his Ph.D. in Food Science and Nutrition from OSU in 2003. The petitioner
then accepted a postdoctoral position with OSU and was promoted to Research Associate II in 2004,
the position held as of the date of filing. On appeal, counsel asserts that the petitioner is currently a
senior food scientist at Galloway Company, a leading manufacturer of dairy products. The
petitioner, however, did not hold this position as of the date of filing.
the petitioner's Ph.D. advisor at OSU, asserts that the petitioner is performing
a critical role in the research and development of Pulsed Electric Field (PEF) and High Pressure
Processing (HPP) technologies as alternatives to thermal food processing to minimize food borne
diseases. Such nonthermal technologies do~e some of the nutritional elements of food
typically degraded by thermal processing. _ asserts that the petitioner "is one of the
designers and constructors of the PEF systems used in most research groups (such as US Army
Natick Soldier System Center, the Ohio State University, Rutgers University, Battelle Memorial
Institute, Alabama A&M University and Louisianan [sic] State University) in the US and worldwide
(Spain, Sweden, Hungary, Australia and China)." The record, however, lacks any evidence that the
petitioner is listed as an inventor on any patent or patent application.
Other collaborators provide similar assertions. another professor at OSU, asserts
that the petitioner "helped design and build PEF systems from the ground up and has conducted a
number of research projects including the comparison of PEF versus thermal processing [and]
studies of the efficacy of PEF processing on bovine IgG in milk." [Director of
GSA Contract Operations for Battelle Memorial Institute in Ohio, asserts that the petitioner worked
under his supervision. asserts that the petitioner "developed and constructed PEF
treatment chamber and fluid handling systems and made the PEF food processing practice possible in
commercial scale with improved performance and efficiency. [The petitioner] designed_
constructed the chamber systems for the world's first commercial scale PEF processing system.".
, another professor at OSU, asserts that the petitioner "is the coordinator for
n • •
collaborations with Kraft Foods and Stolle Milk and Biologics. He was invited to Alabama A&M
University to present a training lecture on initiating PEF research at this university." The record does
not include confirmation of this invitation from anyone at Alabama A&M University.
Citizenship and Immigration Services (CIS) may, in its discretion, use as advisory opimons
statements submitted as expert testimony. See Matter ofCaron International, 19 I&N Dec. 791, 795
(Comm. 1988). However, CIS is ultimately responsible for making the final determination regarding
an alien's eligibility for the benefit sought. Id. The submission of letters from experts supporting the
petition is not presumptive evidence of eligibility; CIS may evaluate the content of those letters as to
whether they support the alien's eligibility. See id. at 795-796. CIS may even give less weight to an
opinion that is not corroborated, in accord with other information or is in any way questionable. Id.
at 795; See also Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure
Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)).
In evaluating the reference letters, we note that letters containing mere assertions of industry interest
and positive response in the field are less persuasive than letters that provide specific examples of
how the petitioner has influenced the field. In addition, letters from independent references who
were previously aware of the petitioner through his reputation and who have applied his work are far
more persuasive than letters from independent references who were not previously aware of the
petitioner and are merely responding to a solicitation to review the petitioner's curriculum vitae and
work and provide an opinion based solely on this review.
The sole independent reference, of the University of Connecticut Health Center,
PEF processing technology developed in part by the petitioner is in use around the world.
does not assert that the University of Connecticut uses it and it is not clear how he has
personal knowledge of the information he provides. The regulation at 8 C.F.R. § 103.2(b)(2) permits
a petitioner to rely on affidavits only after showing that primary and secondary evidence is
unavailable or does not exist. Affidavits should be from individuals with "direct personal knowledge
of the event." Thus, while we do not question credibility, the regulation cited above
strongly suggests that affidavits from those without personal knowledge have little evidentiary value.
Far more persuasive would have been letters from the institutions that are alleged to have adopted
the petitioner's technology and have invited him to provide training. The record lacks such letters.
The record does contain evidence beyond the letters discussed above.
endowed chair at OSU, asserts that the petitioner was "invited to present h
Ehrlich Conference held in Germany." The record contains the e-mail invitation, which included a
$360 grant and no travel costs. The record lacks evidence regarding the significance of this
conference, which does not appear to have been well funded, or that the petitioner accepted this
invitation. Significantly, the conference is not listed among the petitioner's conference presentations
on his curriculum vitae.
further asserts that the petitioner was "a participant in an NIH (National Institute of
Health) discussion group, commenting on the definition of bioactive food components to clarify the
future research in the area of functional foods." The record contains an e-mail notice from a
scientific consultant at NIH stating:
Thank you for your recent submission of comments and information pertinent to
defining bioactive food components. These comments will be reviewed by an ad hoc
Federal working group and considered in developing approaches to assess the health
effects resulting from consuming these components.
Thank you again for responding to the September 16,2004 Federal Register notice.
The e-mail notice does not indicate that NIH solicited the petitioner to participate in a discussion
group. Rather, the notice strongly suggests that the petitioner, on his own initiative, merely
responded to a request for comments posted in the Federal Register, something any member of the
public may do.
The petitioner also submitted evidence of his membership in Gamma Sigma Delta, professional
membership in the Institute of Food Technologists, recognition from OSU, a certificate of merit in
recognition of his finalist status for outstanding student presentation at an Institute of Food
Technologists conference, a fellowship from the Society of Chemical Industry and a first place poster
presentation award in the Product Development Division from the Institute of Food Technologists.
Professional memberships and recognition from one's peers are two of the criteria for aliens of
exceptional ability, a classification that normally requires an alien employment certification. We
cannot conclude that meeting two, or even the requisite three, criteria warrants a waiver of that
requirement. See Matter ofNew York State Dep't of Transp., 22 I&N Dec. at 222.
Further, the petitioner submitted evidence that on March 22, 2004, the Office of Research at OSU
conferred "Principal Investigator" status on the petitioner. ~hair of the Department of
Food Science and Technology at OSU, asserts that this status is limited to faculty and it is a rare
privilege to be conferred on a postdoctoral associate. _rasserts that the Office of
Research has conferred this status to non-faculty membe~ department only four other
times in 14 years. While this recognition may demonstrate that the petitioner compares well with
other postdoctoral researchers, principal investigator status is presumed for faculty and is not
indicative of an influence on the field as a whole.
Finally, the petitioner submitted evidence that some of his articles have been cited. As of the date of
filing, one of the petitioner's articles had been cited four times and another article twice. In response
to the director's request for additional evidence, the petitioner submitted evidence that independent
researchers had cited his review article six times and that the petitioner had cited three of his own
articles two times, five times and once. On appeal, counsel stresses that the petitioner has now been
cited 44 times, which counsel characterizes as "extensive." The citations break down as follows: 22
Page 7
citations of the petitioner's review article on buckwheat, nine citations of his 2003 article in the
Journal of Food and Science, and no more than three citations of any other article. Of the nine
citations of the 2003 article, six are self-citations. Thus, with the exception of the review article,
none of the petitioner's work has been cited more than three times by independent research teams.
Three citations per article are not indicative of "extensive" citation. The review article did not report
the petitioner's own work and constitutes a review of an area of research the petitioner no longer
pursues. Thus, the citations of this article are not evidence of the petitioner's influence in the field of
PEF and HPP, the fields he claims he will benefit in the national interest.
The record shows that the petitioner is respected by his colleagues and has made useful contributions
in his field of endeavor. It can be argued, however, that most research, in order to receive funding,
must present some benefit to the general pool of scientific knowledge. It does not follow that every
researcher working with a government grant inherently serves the national interest to an extent that
justifies a waiver of the job offer requirement. While some references claim that the petitioner has
designed technology in use around the world, the record lacks patents or patent applications, letters
from those institutes that have adopted this technology or licensing agreements. Thus, the petitioner
has not established his influence in the field.
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. § 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 alien employment certification certified by the Department of Labor, appropriate
supporting evidence and fee.
ORDER: The appeal is dismissed.