dismissed EB-2 NIW Case: Food Science

(b)(6)
DATE : FEB 0 5 2014 
INRE: Petitioner: 
Beneficiary: 
Office : NEBRASKA 
SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeal s 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
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: 
SELF-REPRESENTED 
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.P.R.§ 103.5. Do not file a motion directly with the AAO. 
Thank you, 
/10f!Jtdm~ 
(iRon Rosenberg 
t Chief, Administrative Appeals Office 
www. uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the immigrant visa petition and the 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
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. 1 The 
petitioner states that he seeks employment "as a food scientist or food science professional." At the 
time of filing, the petitioner was working as a Residential Advisor at 
a nonprofit organization in Kansas serving individuals with developmental disabilities. 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 additional documentary 
evidence. 
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 petitoner received a Ph.D. in in 2011. The director 
determined 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. 
1 According to Form 1-94, Arrival-Departure Record, the petitioner was last admitted to the United States on January 20, 
2009 as an F-1 nonimmigrant student. 
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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, 101st Cong., 1st Sess., 11 (1989). 
A supplementary notice regarding the regulations implementing the Immigration Act of 1990, P.L. 
101-649, 104 Stat. 4978 (Nov. 29, 1990) (IMMACT90), published at 56 Fed. Reg. 60897, 60900 (Nov. 
29, 1991), states, in pertinent part: 
The Service believes it appropriate to leave the application of this test as flexible as 
possible, although clearly an alien seeking to meet the [national interest] standard must 
make a showing significantly above that necessary to prove the "prospective national 
benefit" [required of aliens 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 Dept 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 he 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 he 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 
his past record justifies projections of future benefit to the national interest. !d. at 219. The petitioner's 
subjective assurance that he 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 petitioner, rather than to facilitate the entry of an individual with no demonstrable 
prior achievements, and whose benefit to the national interest would thus be entirely speculative. !d. 
Eligibility for the waiver must rest with the petitioner's own qualifications rather than with the 
position sought. Assertions regarding the overall importance of a petitioner's area of expertise 
cannot suffice to establish eligibility for a national interest waiver. NYSDOT at 220. At issue is 
whether this petitioner's contributions in the field are of such significance that he merits the special 
benefit of a national interest waiver, a benefit separate and distinct from the visa classification he 
seeks. A petitioner must demonstrate a past history of achievement with some degree of influence 
on the field as a whole. !d. at 219, n. 6. In evaluating the petitioner's achievements, 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. ld. at 221, n. 7. 
(b)(6)
NON-PRECEDENT DECISION 
Page4 
In support of his petition, the petitioner submitted academic records; letters commenting on his 
experience as a food science researcher at earnings statements; and a June 
26, 2008 letter informing the petitioner that he was "being considered for inclusion into the 
~ 
' and that he should complete an "application form" to be included in the registry. 
Particularly significant awards may serve as evidence of the petitioner's impact and influence on his 
field, but the petitioner has failed to document his actual inclusion in the re istry, or to demonstrate 
that being "listed among thousands of accomplished professionals in the ----- - o 
Registry" constitutes an award indicative of influence in the field of food science. Regardless, 
academic records, occupational experience, salary, and recognition for achievements are elements 
that can contribute toward a finding of exceptional ability. See 8 C.P.R. § 204.5(k)(3)(ii)(A), (B), 
(D) and (F), respectively. Exceptional ability, in turn, is not self-evident grounds for the waiver. See 
section 203(b)(2)(A) of the Act. The USCIS regulation at 8 C.P.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 individual seeks classification as an alien of exceptional ability, or as a 
member of the professions holding an advanced degree, that individual cannot qualify for a waiver 
just by demonstrating a degree of expertise significantly above that ordinarily encountered in his 
field of expertise. 
In addition, the petitioner submitted copies of his published and presented work, and letters of 
support discussing his activities in the field. 
stated: 
[The petitioner] began his multidisciplinary doctoral studies at in the 
Fall of 2007, when I hired him as a research and teaching assistant; as a graduate student in 
my interdisciplinary Frontier program, he helped support the development of classroom­
based as well as online courses related to food safety, the multilateral trading system, and 
health regulation of the agricultural and food trade. [The petitioner] has [] excellent teaching 
abilities, which I observed through his impressive leadership in my USDA [United States 
Department of Agriculture] funded I training sessions related to sanitary (food safety 
and animal health) and phytosanitary (plant health) trade policy. In these sessions, he took 
full responsibility for teaching entire summer-long courses for visiting agricultural and trade 
officials from Thailand (summer 2008) and Egypt (summer 2009) .... [The petitioner's] role 
in developing and administering undergraduate and graduate-level courses, and his 
leadership in my USDA-funded training sessions underscores his unique teaching ability. 
· comments on the petitioner's "unique teaching ability" as a teaching assistant at 
However, it cannot suffice to state that the petitioner possesses useful skills, or a 
"unique background." The issue of whether similarly-trained workers are available in the United 
States is an issue under the jurisdiction of the U.S. Department of Labor through the labor 
(b)(6)
NON-PRECEDENT DECISION 
Page 5 
certification process. Special or unusual knowledge or training does not inherently meet the national 
interest threshold. NYSDOT at 221. In addition, - fails to provide specific examples of 
how the petitioner's specific work in developing and administering courses and training sessions on 
behalf of his academic supervisor has influenced the field as a whole. 
continued: 
[The petitioner's] Ph.D. project focused on U.S. food import safety and security issues, and 
the population-based risks faced by U.S. consumers of seafood products, including those that 
may be contaminated due to poor environmental agricultural practices. [The petitioner] also 
conducted, an in-depth study on ways in which the U.S. food safety regulators can improve 
the safety of food imports; his work was published in the 2011 
comments on the petitioner's Ph.D. project and article in 
but there is no documentary evidence showing that the petitioner's Ph.D. work and 
published article have been frequently cited by independent researchers or that his findings have 
otherwise influenced the field as a whole. 
further stated: 
As an interdisciplinary minded professional with a keen curiosity, he pursued several 
experiential learning opportunities to better understand contemporary and emerging issues in 
today's complex world. For example, he attended conferences and delivered talks in Ireland 
(a professional risk-based modeling software conference), Canada (international studies 
related to food science), Wisconsin (an import-security conference), Washington, D.C. 
(USDA and Homeland Security related meetings) , and the U.S.-Mexico border (to observe 
and recommend ways of improving import security). [The petitioner's] research 
achievements have also been recognized internationally; in April 2012, the 
formally invited him to present his work in China. 
points to the petitioner's attendance and participation in professional meetings and 
conferences. Many professional fields regularly hold meetings and conferences to present new 
work, discuss new findings, and to network with other professionals. These meetings and 
conferences are promoted and sponsored by professional associations, businesses, educational 
institutions , and government agencies. While presentation of the petitioner's work demonstrates that 
his findings were shared withothers and may be acknowledged as original based on their selection to 
be presented, there is no documentary evidence showing that his presented work has specifically 
impacted food import safety practices, that his work is frequently cited by independent researchers, or 
that his findings have otherwise influenced the field as a whole. 
stated: 
(b)(6)
NON-PRECEDENT DECISION 
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I have known [the petitioner] since 2007 in my capacity as a faculty member of the Food 
[The petitioner] recently defended his Ph.D. research within the inter-departmental Food 
_ the hallmark of this program is its 
focus on interdisciplinary graduate education. 
* * * 
As is evident from his dissertation title, for his doctoral research [the petitioner] focused on 
food safety risk assessments related to the safety of U.S. food imports from China. In the 
context of this work he has explored food safety problems that characterize U.S. food imports 
and the various technical, regulatory, and international trade policy approaches to solving the 
issues. In developing his research questions and methodologies, [the petitioner] sought to 
blend disciplinary insights in both domestic and international contexts so as to paint truer 
pictures of the food safety challenges faced by the U.S. He has made significant contribution 
to the academia and public through his research on U.S. import safety, population-based risk 
assessment on food contaminants, and protecting 
public health from food contaminants. 
* * * 
[The petitioner's] research has greatly contributed to a better understanding of the complexity 
of food safety issues as they relate to international trade, and the means of addressing U.S. 
import safety. 
corrunents on the petitioner's doctoral research concerning food safety risk assessments, 
but she fails to provide specific examples of how the petitioner's findings are being applied by food 
safety professionals or have otherwise influenced the field as a whole. While the petitioner's Ph.D. 
research has value, any research must 
be original and likely to present some benefit if it is to receive 
funding and attention from the scientific community. In order for a university, publisher or grantor 
to accept any research for graduation, publication or funding, the research must offer new and useful 
information to the pool of knowledge. Not every researcher who performs original investigations or 
studies that add to the general pool of knowledge inherently serves the national interest to an extent 
that justifies a waiver of the job offer requirement. 
continued: 
[The petitioner] has considerable practical experience working as a food scientist in the food 
industry in his home country of Kenya, including in the farming, dairy, poultry, and sugar 
industries. His food industry skills and experience will be of greater national interest to the 
U.S., which continues to experience a shortage of qualified food science professionals to 
serve as public health inspectors, food safety auditors, food technologists, food safety 
managers, educators, etcetera. 
(b)(6)
NON-PRECEDENT DECISION 
Page 7 
comments on the petitioner's food industry skills and experience, and asserts that there is 
"a shortage of qualified food science professionals" in the United States. The unavailability of 
qualified U.S. workers or the amelioration of local labor shortages are not considerations in national 
interest waiver determinations because the alien employment certification process is already in place 
to address such shortages. NYSDOT at 218. Again, the issue of whether similarly-trained workers 
are available in the U.S. is an issue under the jurisdiction of the Department of Labor through the 
alien employment certification process. ld. at 221. 
, stated: 
I first knew [the petitioner] through his major professor 
recommended him for professional training at our headquarters in 
---~-'1 1_; __ _,_._-
who 
I had the opportunity to interact with [the petitioner] during his training at our headquarters 
in and later when he was invited for a professional user-conference to present 
a paper on his research findings. [The petitioner] presented an excellent paper on his 
research, which involved conducting chemical contaminant exposure assessment on certain 
vulnerable demographic segments of the U.S. population. His study sought to determine the 
extent to which the vulnerable U.S. subpopulations were at risk from chemical contaminants 
in seafood imports. [The petitioner] is one of the best trained persons on the use of 
tool for food safety risk assessment; during his research, he interacted extensively with 
software engineers, who from time to time assisted him whenever he faced technical 
problems with [The petitioner] is a food scientist by profession, and his skills in food 
sciences as well as food safety risk assessment will be of great value to United States. 
Since I have known him, [the petitioner] has shown a high level [of] professionalism by his 
extensive knowledge in conducting food safety risk assessment on microbial and chemical 
contaminants in food. 
points to the petitioner's knowledge and training on utilization of the tool for 
food safety risk assessment, but any objective qualifications which are necessary for the performance 
of the occupation can be articulated in an application for alien employment certification. NYSDOT at 
220-221. In addition, while asserts that the petitioner "presented an excellent paper" 
at the 1.... user-conference, there is no documentary evidence showing that his research findings 
have been frequently cited by other food scientists or that his work has otherwise influenced the field as 
a whole. 
In response to the director's request for evidence, the petitioner submitted a copy of a single article 
citing to his research work. The petitioner has not established that this level of citation is indicative 
of his influence on the field as a whole. Frequent citation by others is not the only means by which 
to show the petitioner's impact on his field. Independent reference letters can play a significant role 
in this respect. Here, however, the petitioner has submitted no such letters from independent 
(b)(6)
NON-PRECEDENT DECISION 
Page 8 
references. Instead, the above letters are limited to individuals who have trained and educated the 
petitioner. While such letters are important in providing information about the petitioner's role in 
various projects and his professional development, they cannot by themselves establish the impact of 
his work beyond his educators and trainers. 
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 
conoborative testimonial and documentary evidence, where available." !d. If testimonial evidence 
lacks specificity, detail, or credibility, there is a greater need for the petitioner to submit 
cmroborative evidence. Matter of Y-B, 21 I&N Dec. 1136 (BIA 1998). 
The opinions of the petitioner's references are not without weight and have been considered above. 
users may, in its discretion, use as advisory opinions statements submitted as expert testimony. 
See Matter of Car01i International, 19 I&N Dec. 791, 795 (Comm'r 1988). However, USers is 
ultimately responsible for making the final determination regarding a petitioner's eligibility for the 
benefit sought. !d. The submission of letters of support from the petitioner's professional contacts is 
not presumptive evidence of eligibility; users may evaluate the content of those letters as to 
whether they support the petitioner's eligibility. See id. at 795-796; see also Matter of V-K-, 24 I&N 
Dec. 500, n.2 (BIA 2008) (noting that expert opinion testimony does not purport to be evidence as to 
"fact"). Thus, the content of the experts' statements and how they became aware of the petitioner's 
reputation are important considerations. Even when written by independent experts, letters solicited 
by a petitioner in support of an immigration petition are of less weight than preexisting, independent 
evidence that one would expect of a food scientist who has influenced the field as a whole. 
The director denied the petition on May 17, 2013. The director stated that the petitioner had not shown 
that the benefits of his proposed employment are national in scope. The director also determined that 
the petitioner had "not established that his past accomplishments set him significant! y above his peers 
such that a national interest waiver would be wananted." The director therefore concluded that the 
petitioner failed to establish that an exemption from the requirement of a job offer would be in the 
national interest of the United States. 
On appeal, the petitioner does not mention the NYSDOT guidelines or explain how he meets them. 
Additionally, the petitioner does not specifically challenge any of the director's findings or point to 
specific enors in the director's analyses of the documentary evidence. Instead, the petitioner submits 
documentation of his appointments to positions as a researcher and a lecturer that post-date the filing of 
the petition. Specifically, the petitioner submits a July 12, 2013 letter from the for 
Science and Education appointing him to the at the U.S. Food and Drug 
Administration; the " public announcement; an 
August 15, 2013 e-mail from the Assistant ~~---~~ ~ ~~ . -~--- - - -- - • 
_ offering the petitioner employment as a "Part-time Lecturer" to teach online courses; the 
May 7, 2013 job announcement for the Part-time Lecturer position at and an 
August 26, 2013 "Letter of Appointment" from the- ,. "" "- -'- --• c_ ••• -1:- o at 
(b)(6)
NON-PRECEDENT DECISION 
Page 9 
offering the petitioner employment as a Part-time Lecturer for the 2013-2014 
academic year. The preceding job appointments post-date the filing of the petition. Eligibility, 
however, must be established at the time of filing. 8 C.F.R. § 103.2(b)(1), (12); Matter of Katigbak, 
14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). A petition cannot be approved at a future date after the 
petitioner becomes eligible under a new set of facts. Matter of /zummi, 22 I&N Dec. 169, 175 
(Comm'r 1998). That decision further provides, citing Matter of Bardouille, 18 I&N Dec. 114 (BIA 
1981), that users cannot "consider facts that come into being only subsequent to the filing of a 
petition." !d. at 176. Accordingly, the job appointments offered to the petitioner after August 13, 
2012 cannot be considered as evidence to establish his eligibility. 
The director's finding that the petitioner failed to demonstrate that the proposed benefits of his work 
are national in scope is withdrawn. The documentation submitted by the petitioner is sufficient to 
establish that the proposed benefits of his work in the food science field contribute to U.S. public 
safety and therefore are national in scope. The petitioner , however, has not established that he will 
benefit the national interest to a greater extent than an available U.S. worker with the same minimum 
qualifications. 
A plain reading of the statute indicates that it was not the intent of Congress that every advanced degree 
professional or alien of exceptional ability should be exempt 
from the requirement of a job offer based 
on national interest. The petitioner has not shown that his past record of achievement is at a level 
sufficient to waive the job offer requirement which, by law, normally attaches to the visa 
classification sought by the petitioner. While the petitioner need not demonstrate notoriety on the 
scale of national acclaim, 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." !d. 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"). 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. 
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, that burden has not been met. 
ORDER: The appeal is dismissed.