remanded EB-2 NIW Case: Energy Field

U.S. Department of Homeland Security 
h 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
paBL$c COPY 
FILE: Office: TEX, 
SRC 03 184 51067 
4s SERVICE CENTER Date: (1 3 2005 
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. 8 1153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
ecided your case. Any further inquiry must be made to that office. 
Administrative Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas Service 
Center, and is now before the Administrative Appeals Office on appeal. The decision of the director will be 
withdrawn and the petition will be remanded for further action and consideration. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. 8 1153(b)(2), as an alien of exceptional ability or a member of the professions holding an 
advanced degree. The petitioner seeks employment as a market consultant in the energy field. 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 did not address whether the petitioner qualifies for classification as an 
alien of exceptional ability or as a member of the professions holding an advanced degree. Rather, the director 
determined that a waiver of the job offer requirement was not warranted in the national interest because the 
petitioner did not have a Ph.D., which the director concluded was required in the petitioner's field. 
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, 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 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 Master's degree in Agronomy from Shandong Agricultural University. The petitioner's 
occupation falls withn the pertinent regulatory definition of a profession. 
In defining advanced degree, the regulation at 8 C.F.R. 5 204.5(k)(2) provides: "If a doctoral degree is 
customarily required by the specialty, the alien must have a United States doctorate or a foreign equivalent 
degree." The director concluded that a doctoral degree is required in the petitioner's field based on the fact that 
all of the petitioner's references have such degrees. We do not find this analysis helpful. According to the 
Occupational Outlook Handbook, available online at http://stats.bls.gov/oco/home.htrn: 
Training requirements for agricultural scientists depend on their specialty and on the type of 
work they perform. A bachelor's degree in agricultural science is sufficient for some jobs in 
applied research or for assisting in basic research, but a master's or doctoral degree is 
required for basic research. A Ph.D. in agricultural science usually is needed for college 
teaching and for advancement to administrative research positions. 
Nothing in these materials suggests a doctorate is required in this field for basic research. 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 a labor certification, is in the 
national interest. 
Neither the statute nor 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, 1 Olst Cong., 1st Sess., l 1 (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 ths 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 
seelung 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., 22 I&N Dec. 215 (Comrn. 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 seelung 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 on 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. 
The director did not include any discussion under his headings relating to the intrinsic merit of the 
petitioner's area of work and whether the proposed benefits would be national in scope. Subsequently, 
however, the director appears to acknowledge that the petitioner proposes to benefit the U.S. economy.' The 
1 
This discussion appears in a section of the director's decision dedicated to a nonprecedent decision issued 
by this office prior to the precedent decision, Matter of New York State Dep't. of Transp., 22 I&N Dec, at 
215. 
director ultimately denied the petitioner's request for a waiver based on a determination that the petitioner 
could not benefit the national interest to a greater extent than an available U.S. worker with the minimum 
qualifications for his field since the did not possess the minimum qualifications necessary in the 
field, a Ph.D. 
As stated above, the petitioner qualifies for the classification sought as an advanced degree professional. 
While an alien must already have an advanced degree at the time of filing to qualify for the advanced degree 
professional classification, the alien's pursuit of another degree beyond his advanced degree does not 
preclude eligibility. In Matter of New York State Dep 't. of Transp. 22 I&N Dec. at 219, n. 6, the AAO stated: 
It should be noted that the alien's past record need not be limited to prior work experience. 
The alien, however, clearly must have established, in some capacity, the ability to serve the 
national interest to a substantially greater extent than the majority of his or her colleagues. 
The Service here does not seek a qualified threshold of experience or education, but rather a 
past history of demonstrable achievement with some degree of influence on the field as a 
whole. 
Id. This paragraph indicates that student work can be considered as part of the petitioner's past record and 
that no threshold of education is necessary. We note, however, that the decision goes on to state that 
academic performance, such as grade point average, is not sufficient alone.* Thus, while a Ph.D. candidate 
may bear a heavy burden to establish his ability to benefit the national interest to a greater extent than those 
with work experience, the lack of the final Ph.D. diploma at the time of filing is not, by itself, grounds for 
denying the waiver request, especially when the petitioner is able to demonstrate work or practical 
experience prior to or during his Ph.D. studies. 
Therefore, this matter will be remanded for consideration of whether the petitioner's past record, not limited to 
work experience, justifies projections of future benefit to the national interest. We note that the evidence 
consists mostly of testimony from professors, mentors and coauthors regarding the petitioner's achievements. 
The director should also consider whether the citation evidence submitted on appeal, three citations of his 1994 
article and a single citation of his 2002 article dated after the date of filing, is significant. In addition, the 
director should also consider whether the petitioner's memberships and recognition from government entities 
and his peers, both requirements for aliens of exceptional ability, warrant a waiver of the labor certification 
process normally required in that classification. 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. Id. at 219, n. 6. 
As always in these proceedings, the burden of proof rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. $ 1361. 
2 
The director should consider this language when evaluating the petitioner's membership in a local chapter 
of Gamma Sigma Delta, which appears based on grade point average according to the materials submitted. 
ORDER: The director's decision is withdrawn. The petition is remanded to the director for fh-ther action 
in accordance with the foregoing and entry of a new decision which, if adverse to the petitioner, 
is to be certified to the Administrative Appeals Office for review.