dismissed EB-2 NIW Case: Plant Genomics

U.S.Department of Homeland Security
20 Mass. Ave., N.W., Rm. ;JOOO
Washington, DC 20529
.Date: N'OV 302006
U.S.Citizenship
and Immigration
Services
Office: NEBRASKA SERVICE CENTERLIN 0508951224FILE:
PUBLICCopy
identifying datadeleted to
preventclearlyunwarranted
invasicnof .vac
INRE: Petitioner:
Beneficiary:
PETITION: ·
I
Immigrant Petition for Alien Worker as a Member of the Profess ions Holding an Advanced
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration
and Nat ionality Act, 8 U.S.C. § 1153(b)(2). ~;
..' '-""" .~ :
ON BE.HALF OF PEflTIO~R:
.d.::'
INSTRUCTIONS:
This is thedecision of the Administr~tive 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.
~<J~
5= Robert P . Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
"
LIN 05 089 51224
, Page 2
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 hnmigration 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 scientist. The petitioner asserts that an exemption from the
requirement of a job offer, and thus of an alien employment certification, is in the national !interestof
the United States. The director found that the petitioner qualifies for classification but that the
petitioner had not established that an exemption from the requirement of a job offer would be in the
national interest ofthe United States.
On appeal, the petitioner submits a statement and additional evidence. For the reasons discussed
below, the petitioner has not overcome the director's concerns.
"
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, orwelfare
of the United States, and whose services in the sciences, arts, professions, or business
are sought by an employer in the United States.
,r
(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. from Oklahoma State University. 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 not 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
LIN 05 08951224
Page 3
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,JOlst 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 fo 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., 22I&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 cti 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, plant genomics,
and that the proposed benefits of his work, improved understanding of plant - pathogen interactions,
would be national in scope. It remains, then; to determine whether the petitioner will benefit the
national interest to a greater extent thanian 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., 22I&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-
LIN 05 089 51224
Page 4
trained workers are available in the U.S ..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. !d. 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 acase-bYicasebasis. Id. at 221, n. 7. '
The petitioner obtained his Master's degree in plant breeding at ;the University of the Philippines at
. '.Los Banos in 1996. He then worked as a senior science research specialist at the Philippine Rice
Research Institute from 1997-1999. The petitioner then attended Oklahoma State University ,
receiving his Ph.D. in 2002. As of the date of filing, the petitioner was working as a postdoctoral
research associate at Iowa State University. ..
During the time the petitioner was at the Philippine Rice Research Institute, Dr. _
currently an assistant professor at Texas A&M University, was the - Chi e~
Specialist. Dr. _asserts that the petitioner's work at the institute "impacted the national
breeding directions in rice to avoid catastrophic events like the potato blight -and com blight that
caused wide scale famine." While Dr. asserts that this work was "directed at" increasing rice
yield and reducing world hunger, he does not discuss the petitioner's ultimate-results on this project.
The petitioner did submit evidence that the local Los Banos government issued an award to the
petitioner's work analyzing "the diversity for phonotypic traits of 78 improved rice varieties released
from 1965 to 1995." The petitioner also received "Best Poster" recognition from a 1997 regional
symposium for his work entitled "New Rice Varieties for Different Ecosystems." Finally, the
petitioner's paper on using molecular markers to analyze the biodiversity of rice germplasm was a
semi-finalist in the Best Paper Competition during the 14 th Annual Conference of the Federation of
Crop Science Societies of the Philippines in 1998. The petitioner failed to submit any evidence
regarding the significance of this recognition . We note that recognition from government entities
and peers is one of the criteria for aliens of exceptional ability, a classification that normally requires
an alien employment certification. We cannot conclude that meeting one criterion or even the
necessary three criteria warrants a waiver of that requirement. -
Dr. , the petitioner's Ph.D. advisor at Oklahoma State University, asserts that
the petitioner was a pioneer at the university. Dr.; ilaborates:
[The petitioner's] work was published as a thesis in which he detailed the identities of
several genes that were associated with leaf rust infection. Leaf rust is the major
disease in wheat having tremendous economic and agricultural importance to the
United States and the World. Not only did he describe the genes involved in the
LIN 0508951224
.Page 5
infection process he also developed a theoretical foundation for their interactions. In
my opinion his work in the /area was way ahead of most students performing similar
studies at the time. His efforts were honored in the Department for the top research .
project at the time ..
Dr. _ explains that he recommended the petitioner for a number of positions based on this
work, including the petitioner's current position at Iowa State University.
Dr. _ Wise, the petitioner's supervisor at Iowa State University, discusses the petitioner's
investigation of "resistance mechanisms mediated by the Mia powdery mildew resistance .gene by
global expression profiling using the newly developed , a worldwide uniform
platform to investigate the function of 22,000 cereal genes ina single' experiment." This work is
designed to understand how pathogens cause disease and how hosts mount defenses against them.
Dr. laboratory was already involved with an international effort to create the j
_when the petitioner joined the laboratory . The petitioner's "novel _ analysis :
strategy has accelerated the high-throughput identification of rate-limiting steps in disease defense
pathways."
As of the date of filing; the article reporting this project had just been published in The Plant Cell­
with a commentary b) , the journal 's News and Reviews Editor. The commentary
. characterizes the petitioner 's work as "an excellent example of a well-designed and analyzed set of
transcript profiling experiments that give us valuable new resources as well as no vel insights into the
expression of plant defense responses." The commentary further provides that the "strength of this
work comes not solely from the amount of replication and total number of hybridizations performed ,
but even more importantly, from the careful experimental design that accounted for changes in gene
expression over time and differences in host-pathogen interactions depending on plant and fungal
genotype. "
Dr. Chair of the Genetics Graduate Group at the University of California , -
Davis and the editor at The Plant Cell who handled the petitioner 's paper, asserts that the paper "was
the best paper of its type so far and this experiment .iparticularly the statistical analysis, is a model for
future GeneChip experiments. " Dr. further discusses the prestigious reputation of the
The Plant Cell.
Other members of the field who claim no "interest" in the petitioner 's immigration but who have
collaborated with him provide similar information, praising the petitioner 's microarray skills. Dr.
••••• a former collaborator of Dr. now at the University of Delaware , asserts
that he knows the .petitioner through his publications . Dr. _ praises the petitioner's skills and
multidisciplinary background , predicting that the petitioner's work will ultimately lead to improved
barley varieties. Dr. _ does not , however, claim to have adopted the petitioner 's methods for
analyzing microarray data.
LIN 0508951224
Page 6
In response to the director's request for additional evidence, the petitioner submitted evidence that two
of his articles had been cited seven and 12 times. The only one of the seven citations of the article in
The Plant Cell dated prior to the filing of the petition is the commentary that appeared in the same issue
of that journal. In addition, only one of the research teams citing the article in The Plant Cell claims to
be utilizing the petitioner's protocol and that group is another laboratory at IowaState University. Of
the 12 citations of the petitioner's article in Plant Physiology, only four are from independent research
teams and ofthose, only two predate the filing ofthe petition.
\ ~
The director concluded that the letters were insufficient and that the petitioner had not been widely or
frequently cited as of the date of filing. The director acknowledged that the petitioner's article was the
subject of a commentary, but concluded the commentary was not evidence of the article's subsequent
impact.
On appeal, the petitioner asserts that the reference letters should be given evidentiary weight as the
authors are all experts in their field and agree that the petitioner is exceptional. The petitioner continues
to assert that the very .inclusion of his article in The Plant Cell is indicative of the article's impact.
Finally, the petitioner notes his membership in an academic honor society. The petitioner submits a
letter from Dr. hair of the Department of Plant Pathology at Iowa State University,
reiterating previous claims and asserting that the petitioner has given guest lectures at the university.
Citizenship and Immigration Services (CIS) may, in its -discretion, use as advisory opinions
statements submitted as expert testimony. See Matter of Caron Iiuemational, 19 I&N Dec. 791, 795
(Comm. 1988). However, CIS is ultimately responsible for making the final determination regarding
an alien'seligibility for the benefit sought. Id. The submission ofletters 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 ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972)).
In evaluating the reference letters, we note that letters containing mere assertions of skill and a 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 the most persuasive.
The letters submitted are almost entirely from the petitioner's collaborators. While such letters are
useful in demonstrating the petitioner's role on a given project, they cannot, by themselves, establish
his influence in. the field as a whole. The more independent letters provide no examples of research
teams applying the petitioner's protocols.
We will not presume the influence of a given article solely from the prestige of the journal in which it
appeared. Rather, the petitioner must provide evidence that the individual article was influential in the
·,
LIN0508951224
Page 7
field. We concur with the director that the contemporaneous commentary, while indicative of the
journal's belief of the promising nature of the petitioner's work, is not evidence that the article did, in
fact, prove influential. As of the date of filing, the petitioner had not been widely or frequently cited in
the field. The petitioner must establish his eligibility as of that date. See 8 C.F.R. § 103.2(b)(l2);
Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg. Comm. 1971). The petitioner cannot file a petition
based on work just published in the hope that citations will be forthcoming later in the proceeding.
Moreover, even the citations provided in response to the request for additional evidence and on appeal
do not suggest that the petitioner' s protocol is being widely adopted.
The petitioner's membership in Gamma Sigma Delta, the Honor Society of Agriculture at Oklahoma
State University, is in recognition of high scholarship, outstanding achievement or service.
Academic performance, however, cannot alone satisfy the national interest threshold or assure
substantial prospective national benefit. In all cases the petitioner must demonstrate specific prior
achievements that establish the alien's ability to benefit the national interest. Matter of New York
State Dep 'to ofTransp., 22 I&N Dec. at 219, n.6. .
Finally, the fact that thepetitioner, aresearcher at Iowa State University, has given guest lectures at
the university is not evidence of his influence beyond the university.
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.
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 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 byan 'alien employment certification certified by the Department of Labor, appropriate
supporting evidence and fee.
ORDER: The appeal is dismissed.