dismissed EB-2 NIW Case: Public Health

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PUBLIC COPY 
DATE: fEB 1919\2. OFFICE: NEBRASKA SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
V.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 law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
\\lo-;,,{ \~ .vVV-W--
f Perry Rhew ... J 
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 pursuant to section 203(b )(2) ofthe Immigration and Nationality Act 
(the Act), 8 U.S.C. § 1153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as a researcher/instructor in public health, community and international 
At the time she filed the ·tion, she was a social~ 
and _at Bohecker 
College, Westerville, Ohio. She has since begun working at Central State University, Wilberforce, 
Ohio. 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 ofthe United States. 
On appeal, the petitioner submits a brief from counsel and copies of previously submitted letters. 
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 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 
Page 3 
increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise .... " S. Rep. No. 55, WIst Cong., 1st Sess., 11 (1989). 
Supplementary information to regulations implementing the Immigration Act of 1990 (IMMACT), 
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 "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 a/New York State Dept. a/Transportation (NYSDOI), 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 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 January 4,2010. In an accompanying statement, the 
petitioner stated: 
My application for national interest waiver is based on my ability and expertise in 
interdisciplinary research in public health, demography and economic development; 
and my holding advanced degrees including a Doctorate in Rural Sociology (minor in 
Page 4 
International Development and Public Health) from an internationally reputable Ohio 
State University, Columbus, OH .... 
My areas of specialization are social demography, social epidemiology (health 
promotion and health education; biostatistics and health survey methods and 
epidemiology-focus on social inequalities of health), gender issues and community 
development. ... 
My research agenda focuses on health inequalities among minontIes .... [M]y 
current agenda is directed toward the African immigrant population, specifically the 
Somali immigrants. 
· .. Somali immigrants face a myriad of obstacles with health ranking high on the list. 
Health issues for new immigrants include but are not limited to malnutrition, sexually 
transmitted diseases, and tuberculosis. Delivery of adequate health care to Somalis 
has also been challenging to the American medical community .... 
Against this background, my research agenda concentrates not only on the health 
challenges faced by the Somali population, but also the challenges confronting the 
medical community in dealing with this population. In line with this agenda, I am in 
the process of developing a study . . . based on the notion that to tackle the Somali 
popUlation health issues and design appropriate health interventions it is important to 
first identify the gaps in knowledge among the medical community. 
· .. I am also increasingly interested in the social context of chronic disease such as 
obesity and diabetes, which are on the rise in the United States particularly in the 
context of African immigrant populations .... 
My research also centers on the socio-economic context of health in sub-Saharan 
Africa. This agenda recognizes that health and demographic issues in sub-Saharan 
Africa need to be studied as enmeshed with the region's social, economic and 
political context. 
· .. [M]y research agenda also seeks to explore AIDS impacts on rural livelihoods in 
sub-Saharan Africa .... 
This study makes a significant contribution to the United States Agency for 
International Development (USAID)'s mandate geared toward approaches for 
reducing infection and enhancing economic security in sub-Saharan Africa. 
· .. I am also engaged in research that examines ... the implications of agriculture for 
women's well being measures such as women's autonomy (empowerment) and 
household food security. Additionally I have also examined the gender influences on 
the design of agricultural interventions in developing countries. 
Page 5 
The petitioner submitted copies of reports, research agreements and other evidence of her 
participation in various grant-funded projects. These materials confirm the nature of the petitioner's 
occupation, but neither the nature of her occupation nor her choice of research topics presumptively 
entitle her to a national interest waiver. There is no blanket waiver for researchers in her specialty. 
She must establish not only the goals of her work, but also the impact and influence that she has 
already had through her previous efforts. General arguments regarding the importance of a given 
field of endeavor, or the urgency of an issue facing the United States, cannot by themselves establish 
that an individual alien benefits the national interest by virtue of engaging in the field or seeking an 
as yet undiscovered solution to the problematic issue. NYSDOT, 22 I&N Dec. 215. 
The petitioner submitted a letter from senior research fellow at IFPRI, who 
stated: "[the petitioner] continues to work with me as a long-term consultant. ... Her work is crucial 
to progress in several projects that are underway, and her performance to date has been excellent." 
three-sentence letter contains no details about the petitioner's work or 
accomplishments. 
On February 17,2010, the director issued a request for evidence, instructing the petitioner to submit 
evidence and testimony to establish eligibility for the national interest waiver under NYSDOT. In 
response, the petitioner stated: "I believe that my work stands to make a significant impact in my 
field." Assertions about the potential for future impact are, by nature, speculative and conjectural. 
As noted previously, the petitioner must establish prior impact that justifies such predictions. The 
petitioner states: "I was approached by authorities in the field of HIV I AIDS and requested to 
contribute to the research by authoring a chapter in an upcoming Earthscan publication, _ 
The record contains excerpts of 
the manuscript for this book. was one of the book's three editors, and therefore the 
petitioner's involvement in the book is not evidence that her work attracted outside attention. 
The petitioner submitted copies of completed research papers and evidence of conference 
presentations. These materials demonstrate that the petitioner has been active in her field, but their 
significance is not self-evident. 
The petitioner's response included three new witness letters. In one letter, 
further information about the petitioner's work: 
provided 
I first met [the petitioner] as her supervisor for an IFPRI-funded project for which she 
was the principal investigator. [The petitioner] innovatively developed a research 
project that examined the interactions between agriculture, food security and 
HIV/AIDS in Kenya. In particular, the project examined how sub-regional 
agricultural contexts in Kenya may create situations of economic dependency and 
food insecurity and condition women's vulnerability to HIV. [The petitioner's] 
project was meticulously articulated and critically thought-out and the ensuing 
research has contributed immensely not only to methodological innovation in the 
field, but has served to push the frontiers of HIV research further by teasing out how 
Page 6 
contexts of poverty, particularly agriculture ... may condition vulnerability to the 
epidemic. Previously, researchers had given more attention to the impacts of HIV on 
agriculture and [the petitioner's] research served to draw attention to the reverse 
relationship, a previously under-researched angle .... 
[The petitioner] has recently developed a document that proposes methodologies and 
approaches for setting priorities at the interface between agriculture and health. This 
document is currently an IFPRI working paper and the proposed approaches will be 
implemented in an upcoming stakeholder conference on agriculture and health in sub­
Saharan Africa to be held in southern Africa later this year. This is an important 
contribution, which I believe will serve as a roadmap to guide strategies to enhance 
collaboration between the two sectors .... 
In my view, [the petitioner's] expertise and quality of work in the field of agriculture 
and health is indispensable and stands to make an important contribution to the 
current U.S. global development agenda. 
the petitioner's doctoral studies advisor and chair of her dissertation 
committee at Ohio State University (OSU), stated: 
[The petitioner's] dissertation . . . combines her interests in development, social 
inequality, and demography in the context of sub-Saharan Africa. Her goal was to 
examine ... the degree to which women's HIV/AID[S] risk varies across different 
regional contexts in Kenya that are characterized by different "agricultural 
production-consumption regimes" (structural attributes of local production and 
household inequalities) .... She brings together bodies of work often kept separately 
in scholarly literature-research on women's position, health disparities, and 
agricultural production. Another conceptually innovative aspect of the project is her 
consideration of agricultural regimes as a determinant rather than causal outcomes of 
HIV/AIDs .... 
As part of her dissertation project, [the petitioner] also developed two independent 
manuscripts .... A large body of work has shown that women's decision making 
autonomy has important implications for ... fertility, reproductive and sexual health. 
[The petitioner's first] manuscript moves this literature forward by understanding 
how the agricultural context within which a woman is located impacts her decision­
making autonomy, over and above her individual-level characteristics such as marital 
status, age, education and occupation .... The second manuscript ... extends the on­
going agricultural-structure-food security debate that has predominantly focused on 
the impacts of agricultural commercialization on household food security. 
was another 
member of the petitioner's doctoral committee. 
Page 7 
[The petitioner] creatively tailored and pursued her PhD program in Rural Sociology, 
combining coursework that draws from social demography, public health and 
international development, with an emphasis on development issues confronting sub­
Saharan Africa. She skillfully crafted her research topic which focused on the 
interactions between agriculture, food security, and HIV/AIDS in Kenya .... This 
research was not only timely, but innovative. Previous research focusing on factors 
driving the HIV epidemic in Africa concentrated on individual factors such as sexual 
behavior and cultural aspects but usually ignored the underlying factors that shaped 
the epidemic such as poverty and livelihood opportunities of which agriculture ... is 
a major component. [The petitioner] continues to pursue research examining the 
linkages between agriculture and health .... 
I continue to work collaboratively with [the petitioner] on the East African Integrated 
Pest Management (IPM), Collaborative Research Support Program (CRSP) .... 
Through her engagement in IPM CRSP research activities [the petitioner] has assisted 
our collaborators, both U.S. and East African, in developing an understanding of the 
importance of integrating a gender perspective into project activities .... Her research 
provides evidence that with more intensive horticultural systems, the gender-specific 
nature of African farming is transitioning, a finding that may have important 
implications for the design of development interventions in this region and sub­
Saharan Africa in general. 
The director denied the petition on December 1, 2010. The director acknowledged the intrinsic 
merit and national scope of the petitioner's occupation, but stated: 
[The witnesses] speak of [the petitioner's] work experience mostly in general terms 
with the exception of her dissertation work which she completed about a year ago. 
The letters indicate that the self-petitioner is well qualified to conduct important 
research in her field, but do not clearly delineate how the self-petitioner's past 
accomplishments are a reasonable basis for the granting of a national interest waiver 
on her behalf. 
The director noted the lack of "objective documentary evidence" that would distinguish the 
petitioner's research from that of other qualified researchers in the specialty. 
On appeal, the petitioner submits an unsigned, undated statement that essentially repeats her earlier 
statement in response to the request for evidence. In a separate brief, counsel states that the 
petitioner provided her own "very detailed statement in support of the National Interest Waiver," as 
well as "letters of support ... from other outstanding researchers." The petitioner's own statements 
can serve to explain the nature and goals of her research, but cannot objectively establish the 
importance thereof. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of SojJici, 22 I&N Dec. 158, 
Page 8 
165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 
1972)). 
of the previously submitted witness letters. The AAO notes that the 
new copy letter is printed in a different font than the previous copy, but the text is 
identical. All three of the witnesses have worked closely with the petitioner, at OSU or at IFPRI. 
These witnesses cannot attest, first-hand, to the impact of the petitioner's work outside the 
institutions where (or on behalf of which) she performed her work, and in terms of their own 
collaborations with the petitioner, their assessments are no more disinterested than the petitioner's 
own. The witnesses identified no external, concrete effects (such as policy changes) that directly 
resulted from her work. They indicated, instead, that the petitioner pursued novel or previously 
neglected avenues of inquiry. 
Counsel lists a number of unpublished AAO appellate decisions approving national interest waivers. 
Counsel does not provide any of the facts from the cited decisions except to identify the occupations 
of the respective beneficiaries. Counsel fails to explain how these unpublished decisions are 
relevant to the present proceeding. While 8 C.F.R. § 103.3(c) provides that AAO precedent 
decisions are binding on all USCIS employees in the administration of the Act, unpublished 
decisions are not similarly binding. The decisions show that workers in a wide range of fields can 
qualify for the waiver, but the director never stated that the petitioner's occupation disqualified her 
for the waiver. At issue is not what the petitioner does, but the significance of what the petitioner 
has so far accomplished. Counsel asserts that "it is obvious that the adjudicating officer applied an 
incorrect legal standard in denying the petition," but this conclusion is not at all obvious from the 
evidence presented. 
There is no dispute that the petitioner's academic area of research is an important one, or that it is 
necessary to seek solutions to poverty, epidemics, and other serious problems facing sub-Saharan 
Africa. It does not follow, however, that the petitioner qualifies for a waiver simply by virtue of 
performing research in that area (or intending to perform such research). The petitioner has submitted 
no persuasive, objective evidence that would distinguish her work from that of other competent and 
qualified scholars who, like her, seek solutions to these pressing problems. 
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.