dismissed EB-2 NIW Case: Geographic Information Systems

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COPY 
DATE: 
JUl 1 9 2012 
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 
OFFICE: NEBRASKA SERVICE CENTER 
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. § I 153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
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 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 The 
!!""'!!T~mhl'c information systems (GIS) analyst at 
The petitioner asserts that an exemption from the 
requirement of a job offer, and thus 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 ofajob offer would be in the national interest of the United States. 
On appeal, the petitioner submits a brief from counsel and copies of previously submitted exhibits. 
Section 203(b) ofthe 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 ofJob 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, IOlst Cong., 1st Sess., II (1989). 
Supplementary information to regulations implementing the Immigration Act of 1990, published at 
56 Fed. Reg. 60897, 60900 (November 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 "exceptiona1."] 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 re New York State Dept. of Transportation (NYSDOT), 22 I&N Dec. 215 (Act. Assoc. Comm'r 
1998), has set forth several factors which must be considered when evaluating a request for a national 
interest waiver. First, the petitioner must show that the alien seeks employment in an area of substantial 
intrinsic merit. Next, the petitioner must show 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 United States worker having the same minimum 
qualifications. 
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. The petitioner's 
subjective assurance that the alien will, in the future, serve the national interest cannot suffice to 
establish prospective national benefit. The intention behind the term "prospective" is 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. 
The AAO also notes that 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 1-140 petition on February 7, 2011. In an accompanying statement, 
counsel stated: 
scientist in the area 0 
He 
"vlelon.rlO" new approaches and methodological 
techniques in the analysis and mapping of land use/land cover change and to the 
identification of wetland and other critical ecological resources which is vital to the 
ability of the U.S. to monitor and manage its natural resources. He is employing his 
--Page 4 
... [The petitioner's] research efforts focus on developing, improving, and refming 
multiple remote sensing techniques and integrating the results with GIS data to help 
identifY natural resources and capture and analyze the changes in the Earth's surface. 
His work significantly benefits not only remote sensing research but environmental 
research on a national scale .... 
innovative cOlltribuiti0I1S 
of the projects based 
national level. 
The petitioner's own curriculum vitae lists the following responsibilities of a senior GIS analyst: 
Change detection analysis using high spatial resolution, muItispectral_ 
. in environmentally sensitive area as a part of 
pr~ 
resolution_ imagery for the_ 
program 
Wetland mapping using high radar data, 
and various topography-derived products. 
ALOS A VNIR-2 inlage ~ cover classification for the_ 
monitoring program using....--software 
Land cover and wetland ground truth data collection using segmentation-based 
field map 
QAlQC analyses of various maps (i.e., land cover, wetland, change detection 
maps) 
Analyze GIS data to answer various County's science and engineering questions 
Nine witness 
professors at 
degrees. 
petitioner's work: 
~;()l]rIjJClIlit!<l the initial filing of the petition. Three of the witnesses are 
where the petitioner earned his master's and doctoral 
the petitioner's graduate advisor, explained the nature of the 
Land cover (LC) refers to the natural and man-made material located on the surface 
of the earth, whereas land use (LU) refers to how humans use the land. Land use/land 
cover (LULC) can be mapped using remotely sensed imagery, such as satellite data or 
aerial photography .... 
Page 5 
Challenges in LULC mapping and its change detection over time can come from the 
remote sensing data itself ... [or] the complexity in landscape changes and the image 
processing algorithms used in LULC mapping .... 
[The petitioner] developed an improved LULC classification algorithm using a 
graphical user interface. Traditional classification algorithms lack an ability to handle 
noise in the remote sensing dat[a]. [The petitioner] minimized data noise by 
introducing the singular value decomposition (SVD) method .... He was the first 
person to develop a LULC mapping algorithm using the SVC method incorporated 
into an object recognition technique. His process produced highly accurate LULC 
maps with an overall accuracy of>89% . 
. . . In summary, [the petitioner] developed a framework, which includes developing 
improved LULC maps and assessing hydrologic impacts using LULC products, that 
can be used in future efforts to study urbanizing watersheds to understand the 
hydrological impact ofLULC change in a watershed on a larger scale. 
stated that the petitioner has "developed new approaches to the analysis 
to the identification ofwetland and other critical ecological resources." 
that the petitioner "has shown that one can effectively minimize 
costly and time consuming large scale testing .... Previously, less well-qualified Ph.D. 's have been 
assigned similar objectives, but without [the petitioner's] high level of expertise, their results have 
been unsatisfactory." 
The letters from OSU faculty members pertained to the petitioner's graduate school research. 
Original research is a fundamental part of graduate study, and graduate study is not a career unto 
itself. It is, rather, preparation for future employment. Therefore, the national scope of one's 
graduate research is not a sure sign that one's future work will have national scope. It is with this in 
mind that the AAO turns to letters from the petitioner's current colleagues and collaborators. 
habitat specialist and critical area project manager at_ stated: 
[The petitioner's] work on land cover and wetland mapping in Ohio was very 
innovative and sophisticated .... 
was initiated in 
County's regulations and 
environmental initiatives in protecting critical areas such as wetlands and streams .... 
The central element of the program involves using satellite imagery, aerial photos, 
radar and other GIS data to classifY critical areas and track changes in their functions 
over time .... 
Page 6 
As the lead for the program, [the petitioner] is a core member of the 
project team and the lead for all remote sensing related monitoring tasks. He 
developed the critical area mapping approach, identified input data sources and 
developed processing routines for ... [the] data sources .... 
To create a highly accurate land cover map, [the petitioner] developed an innovative 
approach called spectral rotation. Through this technique, he was able to better 
distinguish between similar land cover classes and increase the overall map accuracy 
from 81 % to 88%. 
Wetland mapping was another challenging aspect of the project. ... [The petitioner's] 
wetland model greatly improved wetland mapping accuracy to over 80%, which is 
very high relative to the accuracy 0 f other wetland mapping in this region reported in 
the scientific literature .... 
He has presented his work ... at local ... and national conferences .... He prepared 
three journal articles on the classification approach for submission to peer-reviewed 
journals. . . . Through these efforts, his work has been widely disseminated 
throughout the scientific community. 
put)li·ic works supervisor in the _ Stewardship, Planning and Analysis 
methods and protocols that [the petitioner] established can be applied to similar 
remote sensing work in other jurisdiction[s] across the United States." 
senior research scientist at the 
"worked very closely with [the petitioner] for over a year." 
"work is of profound significance to the wetland mapping community." 
wetland biologist with the 
stated that the petitioner "is developing models 
the condition of streams and wetlands which will help ensure their protection and long-term 
sustainability .... The models developed by [the petitioner] may be able to be adapted and applied at 
the regional and national scale." 
., senior research _ for the 
I am currently leading a change detection demonstration project using high resolution 
satellite imagery to evaluate changes in land cover between 2006 and 2009 .... 
Through my work on this project, I recently met and became familiar with the work 
of [the petitioner]. He is working on a similar project. ... I was very pleased to find a 
colleague with whom I could collaborate and compare techniques. I look forward to 
doing a comparison of change detection results using different data stacks within the 
Snohomish Basin, the area of overlap in our analyses. 
The ninth witness is not in either Ohio or Washington. professor at the 
first met the petitioner at a 2008 conference in Portland, 
petitioner's work receives exposure outside of the local 
area where work takes place. with other witnesses that the petitioner "developed 
an innovative approach to accurately map wetlands in a consistent and repeatable manner" which 
"can be successfully applied to other wetland areas," and that the petitioner's method resulted in 
"increased accuracy (over 5% increase from the maps based on the conventional methods)." 
The majority of the petitioner's submitted work product appears to be local in nature, consisting of 
reports prepared for the government relating to lands within its jurisdiction. 
Nevertheless, the initial copies of materials that the petitioner prepared for 
presentation at professional such as an abstract of a paper in preparation for the 2011 
annual conference of the The petitioner was the _ 
_ of the paper. The abstract reads, in part: 
[O]ur understanding about the distribution ofwetlands across the landscape, is limited 
due to the time-consuming process of wetland identification and delineation. 
developed an efficient wetland mapping 
usmg sensmg . . . . The flexibility provided by this 
product makes it an important tool in development planning and wetland protection. 
While development of this technique occurred~, the framework 
can be applied elsewhere. 
On May 17, 2011, the director issued a request for evidence, instructing the petitioner to "submit 
documentary evidence to establish that the benefits of [the petitioner's] work will be national in 
scope" and to show "a past record of specific prior achievement that justifies projections of future 
benefit to the national interest." 
In response, counsel asserted that the petitioner's "methodological developments can be applied to 
any geographic area in the United States or in the world .... There is nothing localized about [the 
petitioner's] contributions since he has created methodological techniques and tools" (emphasis in 
original). 
With respect to the impact of the petitioner's work, counsel contended that the petitioner "has 
created new methodological techniques that have far-reaching impact on environmental research." 
Counsel listed the petitioner's past projects, which the petitioner had already documented and 
described in his initial submission. 
Two witness letters accompanied the response to the request for evidence. 
petiticmer's initial witnesses, these two witnesses have worked with the ~~~~ 
who has "known [the petitioner] for 10 years," is now a 
and an associate research scientist at the 
I have known [the petitioner's] work since I was working at the 
_ [The petitioner's] meticulous research skills on remote ''''''''''IS 
interdisciplinary knowledge ... are profound, and will cut across several disciplines 
in Earth science, engineering, ecology, climate, international security, political 
science, and more. 
[The petitioner's work], in my opinion, should extend to the entire nation .... I am 
highly confident that [the petitioner] will benefit the nation in environmental and 
urban managements and remote sensing. 
senior research scientist at., stated: 
I originally met and began petiticmer 1 in 2008 under a contract that 
was developed between . . . and _ . . . The methods 
developed and . III by [the petitioner] provide a 
nationally viable approach to probal)ilistil~all) capture wetlands with a high-degree of 
certainty. 
... The implementation of methods ue',eiIJD()u 
contribute to estuarine research in the 
systems nationally .... 
pet:Jhcmeri would significantly 
sys,tenn, as well as estuarine 
Currently, there is no accurate and defensible source of wetlands data for the nation to 
help assess national bioenergy production potential and optimization. [The 
petitioner's] methods are key to contributing to an accurate national assessment of 
this magnitude. 
The witnesses quoted above did not indicate that the petitioner's work has had a significant influence 
beyond hi~loyer - rather,_stated that it "should" and "will" have such an impact, 
while Mr._asserted that the petitioner's efforts "would significantly contribute" to ongoing 
efforts and that "there is substantial opportunity" for the petitioner to do so. 
The director denied the petition on September 2, 2011. The director listed the three factors set forth 
in NYSDOT (substantial intrinsic merit, national scope and serving the national interest to a 
substantially greater degree than a minimally qualified United States worker), and stated: "The self­
petitioner sufficiently established the first and third factors; however, the self-petitioner has failed to 
establish that the proposed benefit will be national in scope." 
Page 9 
To support the conclusion that the petitioner's work lacks national scope, the director stated: 
The self-petitioner's methodology may very well have the potential to be used 
nationally as several of the letters of support speculate. However, no evidence has 
been submitted which suggests the self-petitioner's method is being used by other 
practitioners or researchers in other parts of the country. Nor is there any evidence of 
the self-petitioner using his methodology and benefiting other parts of the country 
beside the states of Washington, Ohio, and New York. 
The director acknowledged the potential national application of the petitioner's methods, but found 
that the had not submitted any evidence that those methods were actually in use outside of 
The director therefore concluded that the proposed benefit from the petitioner's 
"""~"U nal[J011al scope. 
On appeal, counsel contends at length that the director "erroneously concluded that the proposed 
benefit of Petitioner's research contributions is not national in scope" (counsel's emphasis). The 
AAO fmds that the petitioner meets the "national scope" test because his innovations are not 
intrinsically limited to a particular locality; they can apply throughout his field. The petitioner's 
~ntific conferences affords him the opportunity to disseminate his work beyond 
The director found that the petitioner had not shown existing use of his latest work outside of 
Counsel does not contest this fmding, instead asserting that it is irrelevant to the 
scope. The director's core fmding, however, remains a valid concern. The 
AAO considers the issue of the petitioner's actual (rather than potential) impact and influence on his 
field to relate to the third prong, rather than the second prong, of the NYSDOT national interest test, 
but its exact placement does not affect its overall relevance. Counsel and the petitioner cannot 
disregard the issue of the impact of the petitioner's work simply because the director mistakenly 
characterized it as a national scope issue. 
Counsel quotes from prior witness letters that "addressed the applicability of [the petitioner's] work 
on a federal/national level," but submits nothing to show that this applicability has translated into 
wider practical use. Counsel identifies both before and after the petition's filing date 
"outside of these are projects in which the 
petitioner himself has participated, either in Washington or, in case of student work, in Ohio. 
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.F.R. § I03.2(b)(I). USCIS carmot properly approve the petition at 
a future date after the petitioner or beneficiary becomes eligible under a new set of facts. See Matter 
of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). Therefore, evidence of projects after the 
petition's filing date would not establish that the petitioner was already eligible for the benefit 
sought as of the filing date. Even then, the record contains no evidence of such projects; counsel, on 
appeal, refers to such evidence as "forthcoming" but it remains absent from the record. Finally, even 
Page 10 
nn)l'''c./ in Washington State. Counsel's claim that the 
"a federal agency," partly funded this project 
petitioner's work. 
The petitioner's methods would serve the national interest through their use, rather than through the 
potential of future application. Thus, speculation about possible future adoption of the petitioner's 
methods does not establish his present eligibility for the waiver. At best, it points to possible future 
eligibility. As such, the application for the national interest waiver is essentially premature. 
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. 
ORDER: The appeal is dismissed.