dismissed EB-2 NIW Case: Organic And Sustainable Agriculture

identifying data deleted to 
prevent clearly unwarranted. 
invasion of personal privacy 
PUBLIC COpy 
DATE:MAY 1 7 2012 OFFICE: TEXAS 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 
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 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 with 
the field office or service center that originally decided your case by filing a 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)(1)(i) 
requires any motion to be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
;, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petItIOn. The Administrative Appeals Office (AAO) dismissed the petitioner's appeal from that 
decision. The matter is now before the AAO on a motion to reopen and reconsider. The AAO will 
grant the motion to reopen and affirm the dismissal of the appeal. 
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. At the 
time he filed the petition, the petitioner was the education coordinator for Florida Certified Organic 
Growers and Consumers (FOG), Gainesville, Florida, and a doctoral student at the University of Florida 
(UF), Gainesville. 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. The AAO affirmed the director's decision. 
The AAO stated the prior history of this proceeding, along with the relevant statute, regulations and 
case law, in its September 13,2011 dismissal notice, incorporated here by reference. The AAO will 
quote short passages of that decision as necessary to provide context for the present decision. 
Counsel, on motion, states that the petitioner "seeks . . . to submit additional documentation and 
evidence to overcome the objections raised in the AAO decision and ... to show that the Service and 
AAO ignored crucial evidence submitted by petitioner." 
The petitioner filed the Form 1-140 petition on January 21, 2010. The petitioner described himself as 
"one of a select percentage of bilingual professionals who have risen to the top of organic and 
sustainable agriculture field" and "an expert in the production and certification of organic crops under 
the USDA National Organic Program." The petitioner described his work as follows: 
Education coordinator (2006-present). Florida Organic Growers and Consumers 
(FOG), Gainesville, FL. Responsible for supporting and promoting organic and 
sustainable agricultural practices through the education of consumers, farmers, future 
farmers, businesses, policy makers and the general public. [The petitioner] has trained 
farmers and agronomists in Florida, the Southeast, the Dominican Republic, Puerto Rico 
and Uganda. 
In the dismissal notice, the AAO noted that the petitioner had failed to submit Form ET A-750B, 
Statement of Qualifications of Alien, as required by the U.S. Citizenship and Immigration Services 
(USCIS) regulation at 8 C.F.R. § 204.5(k)(4)(ii). The petitioner submits this required document on 
motion. Because the appellate decision marked the first time USCIS raised the issue, the AAO will 
accept the form on motion and incorporate it into the record. 
Counsel refers to an unpublished appellate decision from 1992, which, in counsel's words, 
"suggested seven factors to be considered" in national interest waiver applications. While the 
USCIS regulation at 8 C.F.R. § 103.3(c) provides that AAO precedent decisions are binding on all 
Page 3 
USCIS employees in the administration of the Act, unpublished decisions are not similarly binding. 
Furthermore, Matter of New York State Dept. of Transportation (NYSDOT), 22 I&N Dec. 215 (Act. 
Assoc. Comm'r 1998), published in 1998, supersedes conflicting holdings in any earlier decisions. 
The AAO noted that the petitioner published six scholarly articles between 2000 and 2003, while he 
was a graduate student, and did not claim any subsequent publications. The director found, and the 
AAO agreed, that the petitioner had documented minimal citation of his published work. Counsel, in 
the appellate brief, had asserted that the petitioner works in "a very niche-related area and there are very 
few people at his level. ... If there are not many peers, you cannot be quoted." The AAO responded 
that the petitioner had not provided any statistical data to support the claim, and stated: 
It cannot suffice for counsel simply to declare that citation rarely occurs in the 
petitioner's occupation. The unsupported assertions of counsel do not constitute 
evidence. See Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988); Matter of 
Laureano, 19 I&N Dec. 1, 3 n.2 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 
503,506 (BIA 1980). 
Counsel adds that much of the petitioner's recent work has centered around the 
relatively and states: "Unless someone else chooses this fruit 
for their research his paper will not be quoted." The record contradicts the baseless 
assertion that every crop produces its own exclusive stream of research publications. 
The ·tioner, in his own article 
cited 53 earlier articles. Only 16 of the cited 
mentIon or the Latin name Cucumis melo in their titles. 
Other named crops include cucumbers, bell peppers, tomatoes, and strawberries, all of 
which are very common in the United States. The petitioner was clearly able to cite 
research on other crops in his own work on 
On motion, counsel offers no rebuttal to the above points. Instead, counsel pursues a novel line of 
reasoning, stating: 
The Service and AAO decisions make much of the fact that the Petitioner's research 
papers have not been widely independently cited .... However, we note that Petitioner is 
not seeking employment as a Scientist or Researcher, but rather at the time of filing was 
working as an Education Coordinator for the Florida Organic Growers and Consumers . 
. . . Therefore, an overemphasis on citation of his research as a determinant of his impact 
and influence in his field is not appropriate in this case. 
The materials submitted on motion indicate that the petitioner no longer works fo~ Counsel's use 
of the phrase "at the time of filing [he] was working as an Education Coordinator" implies the 
petitioner's subsequent departure from that position, and a number of witness letters (discussed below) 
plainly refer to the petitioner's employment at~ in the past tense. 
Page 4 
The petitioner's departure from _ is significant because, in a previously submitted letter, .. 
stated: "Since 2006 [the petitioner] has been the Educational 
Coordinator for Florida Organic Growers in Gainesville Florida. It is precisely this role ... that 
makes him a person in great demand not only in Florida, but also overseas." If the petitioner is no 
longer in "precisely this role" that formed the original basis for the waiver claim, then the petitioner 
must show that he has had at least equal, if not greater influence and responsibility in his subsequent 
position(s). The motion, however, contains no information about the petitioner's current 
employment. This is a significant point, as the petitioner must demonstrate prospective national 
benefit. The waiver is not simply a reward for past achievements. 
Returning to the issue of research, prior witnesses directly involved in the petitioner's work had 
indicated that research was integral to his position as education coordinator. For example, _ 
_ the petitioner's former supervisor at_ stated that the petitioner "was the primary force 
behind our efforts to research sustainable agriculture methods."_ executive director,_ 
_ stated that the petitioner "has been an integral part in all of the research and educational 
projects that we have been involved with over the years." 
Counsel, on motion, states that "scholarly research informs [the petitioner's] work," and that 
"farmers, students, and agricultural agents ... 'cite' his work by putting his research findings into 
practice in the fields and farmlands rather than in the laboratory." Counsel had previously described 
the petitioner's impact in the future tense, stating that the petitioner's 
national interest impact will ... be seen when he will teach our farmers skills that will 
lead to competitiveness that is sustainable . . . [and will] also save our federal 
government millions in farm subsidies that will no longer be necessary as a result of 
his research and development into saving water, using renewable resources, and 
maximizing yield per square meter. With his research, the United States will be less 
dependent on weather conditions and better able to compete against Canada, Mexico, 
Holland and Isr[ ae ]1, who are now taking business away from our own farmers. 
The AAO had responded to the above claim by stating: "If the petitioner's work has not already had 
a measurable effect on crop yields, farm subsidies, etc. at a national level, then it is mere conjecture 
to assert that such effects are forthcoming." 
Counsel states that the petitioner had previously submitted evidence that farmers and ranchers have 
put the petitioner's research to use, but the AAO "ignored" that evidence. The AAO had found that 
the petitioner had relied on witness letters rather than documentary evidence, but counsel contends 
that this finding "ignores the purpose of an expert letter. That is, an expert is someone ... [who] 
should be able to 'speak for others in the field' and such testimony should be sufficient in and of 
itself without further evidence to support their claims." 
Expert opinion testimony, while undoubtedly a form of evidence, does not purport to be evidence as 
to "fact" but rather is admissible only if "it will assist the trier of fact to understand the evidence or 
to determine a fact in issue." Matter ofV-K-, 24 I&N Dec. 500, 502 n.2 (BIA 2008). 
Page 5 
If the petitioner is responsible for widespread implementation of novel methods, then there ought to 
be first-hand evidence to that effect, and any witness, regardless of credentials or expertise, 
somehow must have come by his or her knowledge about the effect of the petitioner's work. 
Knowledge of the specific impact of the petitioner's work does not spontaneously or intuitively arise 
from a witness's expertise in the petitioner's field. If there is no independent evidence regarding the 
petitioner's work, then there is no source of information upon which the expert can rely. If the 
petitioner's work has improved crop yields or usage of resources, reduced spoilage rates, or lowered 
costs, then each of these changes would be objectively measurable. If, on the other hand, the 
petitioner's work has had no measurable effect, then it is far from evident what effect his efforts 
have had. 
Counsel contends that the petitioner "previously submitted objective, verifiable evidence which 
established his achievements, impact and influence in his field." Specifically, the petitioner 
"submitted a certificate he received from the Ugandan Ministry of Agriculture, Animal Industry and 
Fisheries and the Uganda Coffee Development Authority which praised his meritorious service in 
conducting a national training program," as well as "documentation of his participation in the 5th 
National Small Farm Conference" and "USDA-funded research." The petitioner resubmits these 
exhibits on motion. 
The named exhibits establish that the petitioner has been active in his field, but they say nothing of 
the results of his work. The petitioner, like many others, gave a presentation at a conference. The 
subject of the presentation was "making educational efforts effective for farmers and other 
practitioners." To claim that this presentation resulted in a significant improvement in training 
methodology would be to assume facts not in evidence. 
Regarding the "USDA-funded research," the petitioner submits a copy of a printout from the website 
of the U.S. Department of Agriculture. The article reproduces a press release from the University of 
Florida (the author is identified as being on the "UF Staff'). The petitioner's name appears nowhere 
in the article. The article reported that crops grown in greenhouses have higher yields than field 
crops, because growers have more control over growing conditions. The article also indicated that 
"the new greenhouse technology is already being used in Israel and other Middle Eastern countries 
as well as Canada, China, Korea, Mexico and Japan." The record does not indicate that the 
petitioner is responsible for introducing the technology to these countries. Thus, the petitioner's role 
in the research appears to have been measuring the benefits of existing technology. Counsel, on 
motion, does not explain how this work distinguishes the petitioner from others in his field. (As 
noted previously, elsewhere in the same motion counsel has minimized the "research" aspect of the 
petitioner's work.) The petitioner has not shown that participation in government-funded research is 
an intrinsic mark of distinction, or that a government grant is an unusual privilege rather than a 
routine source of university research funding. 
The certificate from Uganda indicates that the petitioner "Conduct[ ed the] 1 st Organic National 
Training Program for the Coffee Industry in Uganda." The AAO had not disputed the petitioner's 
Page 6 
involvement in that trammg program, but found only that the petitioner provided minimal 
information about that involvement. 
The petitioner submits several new exhibits, most of which are witness letters. The petitioner also 
submits a copy of a transcript, for informational purposes, showing that the petitioner received his 
doctorate in May 2011, more than a year after he filed the petition. The petitioner also submitted 
documentation about the USDA's Sustainable Agriculture Research and Education (SARE) 
Program. (covering 13 
states as well as U.S. territories in the Caribbean), stated: "I have known [the petitioner] for nearly a 
decade through my work with_ and most recently when he was a member of the Southern 
Region SARE Administrative Council (AC)." The rest of the letter concerns the role of AC 
members. _ does not say when the petitioner joined the AC, but the petitioner's prior 
submissions made no mention of his membership in the Southern Region SARE AC. Therefore, 
there is no evidence that the petitioner served on the AC prior to the petition's 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. § 103.2(b)(1). 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 of Katigbak, 14 I&N Dec. 45,49 (Reg'l Comm'r 1971). Therefore, even if the petitioner 
had shown that his position on the SARE AC demonstrated his eligibility for the waiver (which he 
has not done), it would not result in approval of the petition because the available evidence does not 
show that the petitioner held that position prior to the petition's filing date. (If the petitioner did 
serve on that council before the filing date, his failure to mention it earlier would cast doubt on his 
new claims regarding its importance.) 
Counsel categorized the other new witness letters as being from "farmers," "agricultural 
professionals" and "agricultural education professionals," most of them in or near Florida. In the 
first group Wellborn, Florida, stated that the petitioner "is one of a 
limited number of agricultural professionals who has both research and production experience with 
protected systems," and that the petitioner "would make an excellent crop advisor ... in the private 
sector, or Extension advisor ... in the federal or state system." 
owner of "an organic vegetable and fruit farm in Gilchrist County, Florida," states: 
"new and beginning farmers like myself need agriculture professionals as knowledgeable as he is in 
assisting us to become more economically successful and environmentally-friendly growers .... He 
is part of a small group of horticulture experts who are willing to continue to work in agricultural 
production. " 
[the petitioner] when he was completing his master's 
degree at the University of Florida." states that the petitioner "did some of the first 
research at UF involving 'soilless' media," leading other students to expand upon that research. _ 
•••• adds: "I frequently turned to [the petitioner] to help me understand how to comply with the 
U.S. National Organic Standards." 
Page 7 
The above-quoted witnesses praise the petitioner in very general terms, stating that the petitioner 
possesses rare skills and offered useful information to farmers seeking to improve their practices. 
All of the "agricultural education professionals" are on the UF faculty. III 
her second letter on the petitioner's behalf, deems the petitioner "a leading professional in the 
agricultural and life sciences. He is preeminent with regard to both breadth and depth of experience 
and expertise and the quality of the contribution that he makes and will make in the future." The 
letter contains no details about what those contributions are. 
stated: 
I support [the petitioner's] application for permanent residence for three reasons. 
First, he is one of a small number of young agricultural professionals with extensive 
international experience .... Second, he has a strong background in the agricultural 
sciences .... 
Third, [ the petitioner] has extensive experience in developing and delivering 
educational programs for farmers and other agricultural professionals . 
••••••• stated the petitioner's "hands on" experience and his "direct experience in training" 
distinguish him from others in his field. 
Sustainability, states: 
I first knew of [the petitioner's] work when he was employed as Director of 
Education by Florida Organic Growers and we have maintained a valuable working 
relationship ever since. [The petitioner's] deep involvement with the local and 
organic farming community assisted the University of Florida in reaching our goals 
with regard to the local food system. 
discusses various elements of the petitioner's work, all relating to the petitioner's impact 
within UFo 
states that the petitioner's "international experience . . . places him in an 
extraordinarily strong competitive position for assistant professor," and that his various skills and 
experience "would place him in a very strong competitive stance for a faculty position at virtually any 
major U.S. university." The AAO did not find that the petitioner lacks marketable skills; the issue is not 
whether the petitioner would be able to secure employment in the United States. (That being said, _ 
_ does not indicate that any United States university - including UF - has actually sought to hire 
the petitioner in a faculty position.) 
also points to predictions "that over 50,000 scientists and professionals will be required 
annually to fill job vacancies in agriculture and natural resources." The assertion of a worker shortage 
Page 8 
is an argument for obtaining rather than waiving a labor certification, which exists for the purpose of 
ascertaining the availability of qualified United States workers. See NYSDOT, 22 I&N Dec. 218. 
Counsel categorizes three of the remaining witnesses as "agricultural professionals" and four as 
"international agricultural professionals." Two of the claimed "international agricultural professionals" 
are in United States possessions. agricultural economics specialist at the 
University of Puerto Rico, states: 
In 2001, [the petitioner] advised a group of coffee farmers who were interested in 
diversifying their farms about the production of greenhouse tomatoes. Many of the 
farmers who attended that training are today still in business and continue to grow high 
quality greenhouse tomatoes .... 
I can assure you that thanks to those earlier workshops that he led, today the number of 
organic farmers and research[ ers] has grown in Puerto Rico. 
The observation that the petitioner led workshops, followed by the vague assertion that "the number of 
organic farmers ... has grown [by some unspecified amount] in Puerto Rico," does not strongly support 
the conclusion that the petitioner, individually, is responsible for a significant proportion of that growth. 
acting district supervisor for 
Virgin Islands, makes various claims about a present or III s 
specialty, and adds that the petitioner "was instrumental in the development of training materials and 
delivery of three training workshops that were conducted in St. Thomas from 2005 to 2007." .. 
_ states that "the workshop [the petitioner] conducted with Puerto Rican coffee farmers ... was an 
enormous success. Many of the farmers who attended that training are today still in business and 
continue to grow high quality greenhouse tomatoes." The latter sentence is exactly identical to a 
sentence in letter, quoted above. This use of identical language, more similar than 
coincidence would plausibly allow, raises questions about the actual origin and authorship of the letters. 
The two truly international witnesses worked directly with the petitioner. 
Uganda Coffee Development Authority, states: "The Uruversity 
has been extremely useful in implementing three (3) training sessions in 
states that, after the petitioner's involvement, "more than 14,000 households 
have III organIc coffee production," resulting in "a four-fold increase in volume and value" of 
"organic exports to the European Union and USA." The record does not show that the petitioner was 
solely or primarily responsible for this increase, or that similar success lay outside the capabilities of 
other qualified professionals in the petitioner's field. 
Spain, states that her university 
has "a collaborative project with UF," that "[b] members at UF and at UPM found 
his participation to be critical." _did not establish the broader significance of the project 
beyond the two universities, but asserted that the petitioner is "a critical resource for enhancing 
collaboration between U.S. and European institutions." 
Page 9 
The remaining witnesses are all in Florida or North Carolina. conservation agronomist 
with the Florida State Office of the USDA's Natural Resources Conservation Service, states that the 
petitioner "is one of the few agricultural professionals in Florida that I know with significant experience 
in the field of organic agriculture, organic certification, sustainable production systems and protected 
agriculture systems. asserts that the petitioner "fulfills a critical need in our area," which 
calls back to the shortage issue, and offers the vague assertion that the petitioner has "assisted several 
farmers in our area to start growing organic vegetables in high tunnels." 
interim 
North Carolina, "worked with [the petitioner] on projects and efforts related to disaster assistance 
programs and financial counseling for Florida farms ... after the disastrous hurricanes that hit Florida in 
2004 and 2005." does not discuss the petitioner's work with organic farming and 
education, instead stating that the petitioner's "contributions will be especially important for small, 
underserved, and minority farmers who experience cultural, economic, and social barriers to gaining 
access to the resources they need to make their full contribution to the U.S. economy and society." 
North 
Carolina State University, states that the petitioner "has already shown himself to be a leader in a group 
that has limited low participation in the formal and informal educational systems dealing with 
agriculture, natural resources, and food systems." assert that the petitioner's 
language skills will be helpful to Latin American farmers who may otherwise have difficulty 
comprehending legal documents. This assertion has little to do with the original claimed basis for the 
national interest waiver. 
Counsel, on motion, has not shown that the AAO reached incorrect conclusions in dismissing the 
petitioner's appeal. The petitioner cannot overcome the AAO's findings about the limitations of 
witness letters by submitting still more witness letters. Attempts to shift the emphasis from research 
to education do not show that the AAO's prior decision was in error. The materials submitted on 
motion continue to indicate that the petitioner's impact has been largely local. 
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 AAO's decision of September 13, 2011 is affirmed. The petition remains denied.