dismissed EB-2 NIW Case: Urban Forestry

identifying data deleted to 
prevent clt:8.:·'j Jnwarr~ted 
invasion of personal prtvacy 
l'1 mLlC copy 
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 
DATE: JAN 192012 OFFICE: NEBRASKA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
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) ofthe Immigration 
and Nationality Act, 8 U.S.C. § I I 53(b)(2) 
ON BEHALF OF PETITIONER: 
SELF -REPRESENTED 
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)(I)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
PerryRbew 
Chief, Administrative Appeals Office 
www.uscis.gov 
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. § I I 53(b)(2), as an alien of exceptional ability in the sciences. The petitioner seeks 
employment as an urban forester at the University of California, San Diego (UCSD). 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 does not quality for 
classification as an alien of exceptional ability in the sciences or as a member ofthe professions holding 
an advanced degree. The director also found that the petitioner has not established that an exemption 
from the requirement of a job offer would be in the national interest of the United States. 
On appeal, the petitioner submits a statement and supporting 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) WaiveroOob 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 first issue under consideration is whether the petitioner qualifies for the immigrant classification 
he seeks. The petitioner filed the Form 1-140 petition on September 3, 2009. In an accompanying 
statement, the petitioner specified that he "claim[ s 1 exceptional ability in the sciences." His 
description of the evidence submitted, however, also implied eligibility for classification as a 
member of the professions holding an advanced degree. 
The U.S. Citizenship and Immigration Services (USCIS) regulation at 8 C.F.R. § 204.5(k) includes the 
following relevant clauses: 
Page 3 
(2) Definitions. As used in this section: 
Advanced degree means any United States academic or professional degree or a foreign 
equivalent degree above that of baccalaureate. A United States baccalaureate degree or 
a foreign equivalent degree followed by at least five years of progressive experience in 
the specialty shall be considered the equivalent of a master's degree. If a doctoral 
degree is customarily required by the specialty, the alien must have a United States 
doctorate or a foreign equivalent degree. 
Exceptional ability in the sciences, arts, or business means a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business. 
Profession means one ofthe occupations listed in section 101(a)(32) of the Act, as well 
as any occupation for which a United States baccalaureate degree or its foreign 
equivalent is the minimum requirement for entry into the occupation. 
(3) Initial evidence. The petition must be accompanied by documentation showing that 
the alien is a professional holding an advanced degree or an alien of exceptional ability 
in the sciences, the arts, or business. 
(i) To show that the alien is a professional holding an advanced degree, the 
petition must be accompanied by: 
(A) An official academic record showing that the alien has an United 
States advanced degree or a foreign equivalent degree; or 
(8) An official academic record showing that the alien has a United 
States baccalaureate degree or a foreign equivalent degree, and evidence 
in the form of letters from current or former employer(s) showing that 
the alien has at least five years of progressive post-baccalaureate 
experience in the specialty. 
(ii) To show that the alien is an alien of exceptional ability in the sciences, arts, 
or business, the petition must be accompanied by at least three of the following: 
(A) An official academic record showing that the alien has a degree, 
diploma, certificate, or similar award from a college, university, school, 
or other institution oflearning relating to the area of exceptional ability; 
(8) Evidence in the form ofletter(s) from current or former employer(s) 
showing that the alien has at least ten years of full-time experience in the 
occupation for which he or she is being sought; 
Page 4 
(C) A license to practice the profession or certification for a particular 
profession or occupation; 
(D) Evidence that the alien has conunanded a salary, or other 
remuneration for services, which demonstrates exceptional ability; 
(E) Evidence of membership in professional associations; or 
(F) Evidence of recognition for achievements and significant 
contributions to the industry or field by peers, governmental entities, or 
professional or business organizations. 
(iii) If the above standards do not readily apply to the beneficiary's occupation, 
the petitioner may submit comparable evidence to establish the beneficiary's 
eligibility. 
The petitioner claimed to have satisfied all six of the regulatory standards under 8 C.F.R. 
§ 204.5(k)(3)(ii). He also claimed more than five years of progressive post-baccalaureate experience. 
The director, in denying the petition, focused on the petitioner's academic background. In the August 6, 
2010 decision, the director stated: 
In determining whether the petitioner's Higher National Diploma from the Federal 
Ministry of Education, Science and Technology is a foreign equivalent degree, we have 
reviewed the Electronic Database for Global Education (EDGE) created by the 
American Association of Collegiate Registrars and Admissions Officers .... 
EDGE provides that the Higher National Diploma issued in Nigeria represents 
attainment of a level of education comparable to two years of university study in the 
United States. Additionally, it says: 
While the Higher National Diploma represents a high level of expertise, it is not 
comparable to a bachelor's degree in a technical field .... The Higher National 
Diploma should not be considered comparable to a US bachelor's degree. 
Thus, it cannot be concluded that the petitioner has a Bachelor's degree or foreign 
equivalent degree. Although the petitioner provided evidence that he is a member of the 
Society of American Foresters, the International Society of Arboriculture, and the 
Society of Municipal Arborists, the record lacks evidence that any of these groups 
require a Bachelor's degree as criteria for membership. 
The above discussion does not fully address the petitioner's claim of exceptional ability in the sciences. 
The petitioner claimed to satisfy all six of the regulatory criteria at 8 C.F.R. § 204.5(k)(3)(ii), but he 
Page 5 
need satisfy only three ofthem to qualify as an alien of exceptional ability in the sciences. Issues with 
his education and memberships concern only two of the six criteria, and therefore the director's 
assertions, even if entirely true, do not rule out a finding of exceptional ability in the sciences. 
Review of the record indicates that the petitioner has submitted acceptable evidence of more than ten 
years of full-time experience in the occupation, certification for the occupation, and recognition for 
achievements and significant contributions to the industry or field by peers, governmental entities, or 
professional or business organizations. Thus, the petitioner has satisfied the regulatory standards at 
8 C.F.R. §§ 204.5(k)(3)(ii)(B), (C) and (F). As such, the petitioner qualifies for classification as an 
alien of exceptional ability in the sciences, and the AAO will withdraw the director's contrary finding. 
Much of the petitioner's appeal centers on a defense of his claimed academic degree. This defense 
would have to succeed in order for the petitioner to qualify for classification as a member of the 
professions holding the defined equivalent of an advanced degree. Given the favorable determination 
regarding exceptional ability, however, the advanced degree issue is moot. The AAO need not discuss, 
in detail, the director's fmdings about the petitioner's degree or the petitioner's response to those 
findings. 
The AAO now turns to the issue of the petitioner's eligibility for the national interest waiver. The 
USCIS regulation at 8 C.F.R. § 204.5(k)(4)(ii) requires that a petitioner seeking to apply for the 
exemption must submit Form ETA-750B, Staternent of Qualifications of Alien (or corresponding 
sections of ETA Form 9089), in duplicate. The record does not contain this required document, and 
therefore the petitioner has not properly applied for the national interest waiver. The director, 
however, did not raise this issue. The AAO will, therefore, review the matter on the merits rather 
than leave it at a finding that the petitioner did not properly apply for the waiver. 
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., 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 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. 
Page 6 
Matter of New York State Dept. ({{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 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, in his introductory statement, explained the basis for his claim of eligibility for the 
national interest waiver: 
revampmg resource management strategy, geared 
toward the preservation of its green assets - specifically, the campus' circa 230,000-
tree urban forest. First off, I co-wrote, with two colleagues, a trail-blazing 
February 2006 .... 
foundation laid with the Introduction to_ 
I completed. . . first everlt •••••• 
provides a framework for the sustainable management­
including continuing enhancement - of the university's urban forest resource by 
instituting and implementing specific cost effective policies .... The professional 
management rich urban forest ... is crucial to the all-round well-
being ofpresent generations of California's dwellers and visitors .... 
Page? 
During the drafting ofthe California Climate Action Registry's (California Registry) 
Urban Forest Project Reporting Protocol, I served as a Stakeholder Committee 
member. ... 
The California Registry's Urban Forest Project Reporting Protocol provides guidance 
to account for and report greenhouse gas (GHG) emission reductions associated with 
a planned set of tree planting and maintenance activities to permanently increase 
carbon storage in trees .... 
Through its Climate Action Reserve program (the Reserve), the California Registry 
supplies protocols ... for quantifying GHG emission reductions (or offsets). In 
addition, it oversees and accredits independent third-party verifiers, and provides a 
web-based publicly accessible offset registration, serialization, and tracking service. 
(Evidentiary citations omitted). The intrinsic merit of the occupation of forestry is not in dispute. 
The petitioner must, however, establish that his occupation is national in scope, and that his 
contributions to his field warrant the special benefit of the national interest waiver. 
The director, in denying the petition, stated: 
There is nothing in the record to demonstrate that the activities of an Urban Forester 
in a specific region would be national in scope. The occupation of forestry, while 
commendable, would provide a benefit so attenuated at the national level as to be 
negligible. While the occupation of forestry has obvious intrinsic value, the work of a 
single forester within a specific region could not be considered sufficiently in the 
national interest for the purposes of this provision of the Act. 
The director concluded that the petitioner's "impact would be regional, not national." 
On appeal, the petitioner states: 
As the pioneer Urban Forester at th, •••••• 
and the manager of the university's 230,000-tree campus forest, my VISIOnary 
enterprise started _ urban forestry program from scratch. I have applied, since 
2005, advanced principles of forestry to the maintenance and improvement of a 
significant national environmental resource __ urban forest which 
enormously benefits both the region and the nation with the removal, by its 
estimated 230,000 trees, of 64,400 tons of carbon dioxide and 1.38 million pounds 
of pollutants from the atmosphere annually. Furthermore, the campus forest at 
_intercepts 483 million gallons of rainwater per year. This translates to: (a) 
less storm water runoff and, consequently, less money spent on storm water control, 
(b) reduced soil erosion and water pollution, and (c) cleaner (forest-soil-filtered 
Page 8 
storm water discharges to nearby Areas of Special Biological Significance (ASBS) 
in the Pacific Ocean. 
(Emphasis in original; evidentiary citations omitted.) The petitioner has not shown that the above 
benefits are significant on a national level. Materials submitted by the petitioner indicate that the 
United States produced 5.75 billion metric tons of carbon dioxide emissions in 2009 - about one­
fifth of the world's total emissions. The trees 01 1,200-acre campus remove, according to 
the petitioner, about one one-thousandth of one percent of those emissions. 
Furthermore, the benefits listed above are the products not of the occupation of forestry, but of the 
trees themselves. The record shows that the trees on what is now the were there for 
several decades before I created the urban forester position for the petitioner in 2005. The 
petitioner has not shown that his work as a forester has significantly increased or enhanced the 
forest's carbon capture or water filtration properties. The environmental benefits 0 ftrees and forests 
are not in dispute here. Nevertheless, if those benefits are inherent properties of trees, whether or not 
professionally managed, then the petitioner cannot claim credit, as a forester, for the intrinsic 
properties ofthe trees or for the benefits that the trees were already providing on their own, decades 
before his arrival. 
The AAO finds that forestry, in the abstract, is at least potentially national in scope. The petitioner 
mentions, for example, "advanced principles of forestry." A forester who developed or improved 
such principles could have a national impact by disseminating the improved practices to other 
foresters on public and private lands. Therefore, contrary to the director's finding, the petitioner has 
met the second, "national scope" prong of the NYSDOT national interest test. This does not mean, 
however, that the petitioner's own work in this regard has been, or likely will be, national in scope. 
The petitioner initially submitted various materials about _ urban forestry program. These 
materials all appear to be internal_ . with no evidence of wider reach. The record 
indicates that the petitioner contacted to nomlnal:e 
and that the that designation in 2008 (the 
;mn()l"i",WP or of this designation, the 
record does not establish that the designation attracted significant notice outside of 
UCSD's own press releases. The 2009 press release stated: 
__ launched in 2008 by the and supported by 
~a, honors colleges and universities, and leaders of the campus and 
surrounding communities, for promoting healthy urban forest management. 
UC San Diego met the required five core standards of tree care and community 
engagement in order to receive the honor. These include establishing a campus tree 
advisory committee, evidence of a campus tree-care plan, verification of dedicated 
annual expenditures on the campus tree-care plan, involvement in an 
Page 9 
observance, and the institution of a service-learning project aimed at engaging the 
student body. 
to the above information, the "five core standards" all relate to internal factors within 
rather than wider engagement or influence on the field offorestry at large. 
With respect to the the document applies at the state level, 
with no evidence of wider implementation. Furthermore, the record does not show the extent of the 
petitioner's input into creating the protocol. The protocol identified four committees -_ 
The petitioner served on the last of these, 
The initial submission contains a copy of an article from quoting the petitioner 
regarding the benefits of trees. The author of the stated: "Other large 
universities could take a cue from UC - San Diego," but this does not show or imply that the 
petitioner's work has, in fact, influenced the efforts of foresters at "other universities." 
Similarly, a _ press release calling the a model 
that can be replicated throughout the country" does not has 
occurred, or is imminent. The possibility of imitation does not imply the certainty thereof. 
On February 12, 2010, the director instructed the petitioner to submit evidel~ 
[his] field of employment as a whole." In response, the petitioner stated: 
_ recognizes me as a leader" 
claim, the petitioner submitted a document ,h(lWlin" 
•••• describing 
_ logo, it is clear 
references to "our campus," "our goals" and what "we" are 
The last section ofthe document falls under the heading Therefore, the 
evidence indicates that the document using a template provided by _ it is not 
evidence of recognition by 
The director, in denying the petition, stated: "The petitioner has submitted a copious amount of 
evidence pertaining to his field of specialty, forestry. However, the record lacks evidence that the 
petitioner has had an impact on the field of forestry that is substantially greater than that of his 
peers." On appeal, the petitioner states: 
my expertise 
field of employment as a whole; I am already an 
professional colleagues nationally . ... 
for 
recognition are an 
my growing influence on my 
inspiration to many of my 
Page 10 
My work has been showcased as a model for others nationwide, indicating that my 
work has influenced the field of forestry as a whole. 
The petitioner did not, however, submit objective evidence of this claimed influence. He has 
submitted a variety of evidence, and declared that it shows his influence, but this is not self-evident 
from the materials presented. The petitioner's re~ed citation of information that _provided 
to the _ as though it were praise from the _ itself, undermines the petitioner's credibility 
when it comes to the source and significance of comparable information in the record. 
Evidence that the petitioner has given some speeches on the subject of forestry indicates that the 
petitioner's work has, at times, extended outside of the _ campus, but these occasional forays 
do not establish a pattern ofsustained or significant impact or influence. 
It may well be that the potential exists for the petitioner's forestry work at _0 serve as a model 
for large-scale implementations outside the but the record contains no evidence to 
show that the petitioner has already made his influence felt in this way. Speculation about the 
potential for future influence is not a sufficient basis for approval ofthe national interest waiver. 
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.