remanded EB-2 NIW Case: Microbiology

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U.S. Dcpnrtmcnt of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Wash~ngtot~. DC 20529 
U.S. Citizenship 
and Immigration 
FILE: WAC 04 060 52329 Office: CALIFORNIA SERVICE CENTER Date: 1 4 ~[~[~~ 
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. 4 1153(b)(2) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
TNSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. AH documents have been returned to 
the affice that qeginally decided your case. Any further inquiry must be made to that office. 
3- Robert P. Wiemann, Director 
Administrative Appeals Office 
WAC 04 060 52329 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, California Service 
Center, and is now before the Administrative Appeals Ofice 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withdrawn and the petition will be remanded for further action and consideration.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. 9 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 life science research associate. 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 had 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 asserts that the director failed to consider her letter from the Department of Veterans 
Affairs and other evidence. The petitioner responds to the director's basis of denial by explaining the 
inapplicability of the labor certification process for researchers at Stanford University. 
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 Doctor of Science in Microbiology from the University of Vienna. 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 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, 10 I st Cong., l st Sess., 1 1 (1 989). 
WAC 04 060 52329 
Page 3 
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 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 of New York Sfate Dep't. of Transp., 22 I&N Dec. 2 15 (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 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 wiil. 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. 
Prior to addressing the standard set forth in Matter of New York State Dep't of Transp. 22 I&N Dec. at 21 5, the 
director stated that the letters submitted "were more akin to reference letters than testimonials." Such vague 
criticism of the letters does not assist the petitioner in filing a meaningful appeal that addresses any 
shortcomings in the letters. The director further noted that the petitioner had not provided "any letters of interest 
from U.S. government or private organizations expressing an interest in her services as a Research Scientist." 
We note that the petitioner is requesting a waiver of the job offer requirement. Requiring a job offer as evidence 
that the job offer requirement should be waived undermines the purpose of the waiver. 
We concur with the director that the petitioner works in an area of intrinsic merit, microbiology, and that the 
proposed benefits of her work, improved cancer treatments, would be national in scope. It remains, then, to 
determine whether the petitioner will benefit the national interest to a greater extent than an available U.S. 
worker with the same minimum qualifications. 
In evaluating this question, the director stated the following: 
The petitioner has not established that there is any real urgency to her entry into the United 
States in an immigrant status. . . . In fact, the petitioner must show that by not being given 
immediate immigrant status the national interest of the United States would actually be 
harmed. The petitioner has failed to establish that such harm to the national interest would 
WAC 04 060 52329 
Page 4 
occur if his empIoyer took the extra time to obtain a labor certification through the normal 
labor certification process. 
The director then noted the petitioner's nonimmigrant status and concluded that the labor certification 
process could be completed prior to the expiration of that status. 
The language used by the director does not reflect the proper standard set forth in Matter of New York State 
Dep % of Trunsp., 22 I&N Dec. at 215. That decision does state that the national interest waiver was not 
intended simply as a means for employers (or self-petitioning aliens) to avoid the inconvenience of the labor 
certification process. Id. at 223. This language, however, merely emphasizes that the inconvenience of the 
process itself is not an argument to waive the requirement. Such language does not imply that the petitioner 
must demonstrate that there is any "urgency" to her adjustment to lawful permanent resident status. In fact, 
the AAO clearly stated that the inapplicability of the labor certification process is not, in and of itself, a basis 
to waive that process. Id. at 218, n. 5. Thus, had the petitioner demonstrated that the labor certification 
process would have lasted longer than her nonimmigrant status, that information would not have justified the 
waiver.' In light of the above, the director erred in making this issue the focus of his decision2 
The appropriate standard for evaluating waiver requests is set forth earlier in the AAO's precedent decision. 
In discussing the standard for evaluating whether the alien will benefit the national interest to a greater extent 
than an available U.S. worker with the same minimum qualifications, the AAO indicated that it clearly must 
be established that the alien's past record justifies projections of future benefit to the national interest. Id. at 
219. The footnote to this statement provides that the petitioner must demonstrate a past history of 
demonstrable achievement with some degree of influence on the field as a whole. 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 she seeks. 
Therefore, this matter will be remanded for consideration of the evidence under the appropriate standard. 
Specifically, the director should consider the petitioner's past record, not the remaining time as a nonimmigrant. 
In reaching his new decision, the director should acknowledge the evidence that the petitioner has been cited, 
evidence ignored in the director's initial decision, but also consider whether the letters, mostIy from the 
petitioner's colleagues and lacking specific examples of how the petitioner has influenced the field, document 
the petitioner's past record of achievement with some degree of influence on the field as a whole. As always in 
these proceedings, the burden of proof rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. $ 1361. 
ORDER: The director's decision is withdrawn. The petition is remanded to the director for further 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. 
I The director's anaIysis would favor aliens who file their petitions later in their stay as a nonimmigrant 
rather than those with superior achievements. 
2 The petitioner's nonimmigrant status might be relevant in situations where the petitioner's sole basis for 
the waiver is the proposed benefit from a single short-term project likely to be completed prior to the 
expiration of the alien's nonimmigrant status. Such facts are not present in this matter.