sustained EB-2 NIW Case: Agribusiness

MATTER OF E-J-C-D-H-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 19, 2018 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an agribusiness entrepreneur, seeks second preference immigrant classification as an 
individual of exceptional ability, as well as a national interest waiver of the job offer requirement 
attached to this EB-2 classification. See Immigration and Nationality Act (the Act) 
section 203(b)(2), 8 U.S.C. § 1153(b)(2). After a petitioner has established eligibility for EB-2 
classification, U.S. Citizenship and Immigration Services (USCIS) may, as matter of discretion, 
grant a national interest waiver if the petitioner demonstrates: (1) that the foreign national's proposed 
endeavor has both substantial merit and national importance; (2) that the foreign national is well 
positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the 
United States to waive the requirements of a job offer and thus of a labor certification. Matter of 
Dhanasar, 26 I&N Dec. 884 (AAO 2016). 
The Director of the Texas Service Center denied the Form 1-140, Immigrant Petition for Alien 
Worker, finding that the Petitioner did not qualify for classification as an individual of exceptional 
ability, and that he had not established that a waiver of the required job offer, and thus of the labor 
certification, would be in the national interest. 
On appeal, the Petitioner contends that he meets three of the six exceptional ability criteria and that 
he is eligible for a national interest waiver under the Dhanasar framework. 
Upon de nova review, we will sustain the appeal. 
I. LAW 
To establish eligibility for a national interest waiver, a petitioner must first demonstrate qualification 
for the underlying EB-2 visa classification, as either an advanced degree professional or an 
individual of exceptional ability in the sciences, arts, or business. Because this classification 
requires that the individual's services be sought by a U.S. employer, a separate showing is required 
to establish that a waiver of the job offer requirement is in the national interest. 
Section 203(b) of the Act sets out this sequential framework: 
Matter of E-J-C-D-H-
(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) National interest waiver. ... [T]he 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 regulation at 8 C.F.R. § 204.5(k)(2) defines exceptional ability as "a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business." In order to 
demonstrate exceptional ability, a petitioner must submit at least three of the types of evidence listed 
at 8 C.F.R. § 204.5(k)(3)(ii): 
(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 of 
learning relating to the area of exceptional ability; 
(B) Evidence in the form of letter(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; 
(C) A license to practice the profession or certification for a particular profession or 
occupation; 
(D) Evidence that the alien has commanded 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. 
2 
.
Matter of E-J-C-D-H-
Additionally, while neither the statute nor the pertinent regulations define the term "national 
interest," we set forth a framework for adjudicating national interest waiver petitions in the 
precedent decision Matter of Dhanasar, 26 I&N Dec. 884. 1 Dhanasar states that after EB-2 
eligibility has been established, USCIS may, as a matter of discretion, grant a national interest 
waiver when a petitioner satisfies the three prongs set forth in its analytical framework. 
II. ANALYSIS 
A. Exceptional Ability 
As an agribusiness entrepreneur, the Petitioner invents and manufactures crop biostimulants that are 
then sold by agrochemical distributors. He asserts that he meets three of the exceptional ability 
evidentiary criteria: 8 C.F.R. § 204.5(k)(3)(ii)(A), (B), and (F). The Director determined that the 
Petitioner's advanced vocational diploma from the satisfied the regulatory criterion at 
8 C.F.R. § 204.5(k)(3)(ii)(A), which requires evidence of "a degree, diploma, certificate, or similar 
award from a college, university, school, or other institution of learning relating to the area of 
exceptional ability." In addition, the Director found that the Petitioner presented letters from employers 
showing that he "has at least ten years of full-time experience" in his occupation and therefore he 
satisfied the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B). The record supports the Director's findings 
relating to these two criteria. 
On appeal, the Petitioner maintains that he also meets the regulatory criterion at 8 C.F.R. 
§ 204.5(k)(3)(ii)(F) which requires "[e]vidence of recognition for achievements and significant 
contributions to the industry or field by peers, governmental entities, or professional or business 
organizations." For the reasons discussed below, the record supports a finding that the Petitioner 
satisfies this third criterion. 
As evidence of the recognition of his achievements and significant contributions to the industry, the 
Petitioner provided letters from agrichemical distributors, citrus growers, and the director of the 
These letters from experts in the 
field offer specific examples of the widespread utilization of the Petitioner's crop biostimulant products 
and their contribution to sustainable agriculture. For example, president of the 
indicates that his organization is using the Petitioner's product 
to treat over 2,300 acres. He further states: "As a result of utilizing [the Petitioner's] products on our 
crop, we are able to use fewer synthetic chemicals and the vigor of our trees has improved and our 
production has increased." In addition, the record includes purchase orders, invoices, and sales data to 
corroborate the information provided in the aforementioned letters of support about the widespread 
utilization of the Petitioner's products. The Petitioner also presented agronomic study test results from 
an independent organization showing the efficacy his biostimulant products and an article in Florida 
Grower discussing the effectiveness of his product. 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 l&N Dec. 215 (Act. Assoc. Comm 'r 1998) (NYSD07). 
3 
.
Matter of E-J-C-D-H-
We find the above evidence sufficient to document that the Petitioner's achievements and significant 
contributions to the industry through his development effective biostimulant products have been 
recognized by peers, governmental entities, or professional or business organizations. Accordingly , 
he meets the regulatory criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F), and the Director's finding on this 
issue is withdrawn. The record adequately demonstrates that the Petitioner meets at least three of the 
six regulatory criteria at 8 C.F.R. § 204.5(k)(3)(ii) and that he has achieved the level of expertise 
required for exceptional ability classification. 
B. National Interest Waiver 
The remaining issue is whether the Petitioner has established that a waiver of the requirement of a job 
offer, and thus a labor certification, is in the national interest. 
1. Substantial Merit and National Importance of the Proposed Endeavor 
Through his company, the Petitioner proposes to continue developing and 
manufacturing liquid natural biostimulants derived from marine algae. He asserts that his "unique, 
all-natural, crop protection products" provide economic benefits to the U.S. agriculture industry, 
create a healthier and sustainable agricultural environment, and offer consumers access to fruits and 
vegetables that are free of pesticides. As one example of the potential benefits of his proposed 
endeavor, the Petitioner explains that his biostimulants are aimed at helping infected trees survive 
Huanglongbing (HLB) , a bacterial citrus greening disease that is a serious threat to citrus crops in 
Florida. 
The record includes various news articles discussing HLB and its adverse effects on the Florida 
Citrus industry. For instance, a May 2013 article in the New York Times, entitled 
indicates that the disease is the Florida citrus industry ' s 
"most serious threat in its history" and "has infected all 32 of the state's citrus-growing counties." 
This article further notes that a report from the "concluded that between 2006 
and 2012, citrus greening cost Florida ' s economy $4.5 billion and 8,000 jobs." In addition , an 
October 2016 CBS News article entitled 
states: " Florida ' s nearly $11 billion citrus industry faces a growing danger from disease . 
A tree-killing bacteria is wiping out the state's famous orange groves. Ninety percent are infected, 
and next year' s orange harvest could be one of the lowest on record." We find that the Petitioner's 
proposed development of natural products that improve plant health for fruit and vegetable crops has 
substantial merit. 
To satisfy the national importance requirement, the Petitioner must demonstrate the "potential 
prospective impact" of his work. In addition to multiple news articles highlighting the urgency of 
protecting citrus groves from HLB disease, the record includes letters of support discussing the 
potential benefits of his all-natural biostimulant development work and its broader implications in 
the industry. For instance , vice president of crop protection products at 
asserts that the Petitioner "is continually developing, testing and creating 
4 
.
Matter of E-J-C-D-H-
new products for use within the agricultural industry." further explains that the 
Petitioner's products are environmentally friendly, improve crop yields and plant health, do not 
expose farm workers to chemical irritants, and allow consumers access to crops that are free of 
pesticides. Furthermore, , president of . discusses the value of the 
Petitioner's proposed work to the crop protection industry, stating: "[The Petitioner's] continued 
research and product manufacturing in agribusiness will undoubtedly help in creating more natural 
crop protection products which is better than the chemical pesticides that are frequently used today -
it is better for our environment, farm workers, and end consumers." 
The aforementioned evidence is sufficient to demonstrate that the potential prospective impact of the 
Petitioner's proposed biostimulant development work offers advancements in sustainable agriculture 
and the crop protection industry. As the Petitioner has documented both the substantial merit and 
national importance of his proposed endeavor, we find that he meets the first prong of the Dhanasar 
framework. 
2. Well Positioned to Advance the Proposed Endeavor 
The second prong shifts the focus from the proposed endeavor to the Petitioner. The record includes 
his resume, advanced vocational diploma, a provisional U.S. patent application, three registered U.S. 
trademarks, media coverage and advertising relating to his products, and documentation of his 
company's business plan and operations.2 In addition, the Petitioner offered reference letters 
describing his expertise as an agribusiness entrepreneur and his past record of success in developing 
effective crop biostimulants. 
We find that the Petitioner's past experience renders him well positioned to advance his proposed 
endeavor. Multipl_e experts discuss the widespread utilization of the Petitioner's crop biostimulant 
product, and its effectiveness in improving plant health and increasing crop yield. For 
example, with respect to improving citrus tree resistance to HLB disease, director of the 
states: "[The Petitioner's] 
product has proven effective for mature trees as well as those newly planted and found as nursery stock. 
This product has been used throughout the industry and the results have been verified by each and every 
part~cipating grower." Further, as previously noted, states that the is using 
on 2,300 acres and he further indicates that the product "is helping us maintain and improve our 
fruit yields, while also helping our trees gain resistance to HLB." 
2 The Petitioner's business plan for _ includes a company description, market analysis, organizational chart, 
employment and financial projections, discussion of product lines, and sales and marketing infonnation . In addition, the 
record includes evidence demonstrating that this small business is currently in existence and that it operates as a wholesaler of 
the agricultural products the Petitioner has developed. This documentation includes U.S. income tax returns, financial 
statements, purchase orders, invoices, and sales data. 
5 
.
Matter of E-J-C-D-H-
Similarly, production manager at , asserts that his 
company "has been utilizing [the Petitioner's] invention, 1 since 2013."3 He explains that 
when first utilized this product, his company had "lost approximately 50% of our fruit production 
from our roughly 5,000 acres or 1 million trees" due to HLB disease. In addition, states: 
"Our crops showed a strong and an immediate positive response with Specifically, HLB 
infected trees that were treated with were producing larger fruit size than HLB infected trees 
that were not treated. . . . [W]e also noted that was also reviving the declined canopy of our 
sick trees." Based on these results, indicates that is now "using on all our 
4,000 dedicated citrus acres" and that his company has restored its "pack out ratio and yield ratio to 
nearly 450 boxes per acre." 
The record also includes letters of support from agrochemical distributors that sell the Petitioner's crop 
biostimulants to growers. For instance, states that has been selling 
"on a large-scale basis and it is easily one of our top sold/demanded crop protection 
products" and that sales in the first ten months of 2016 have exceeded "32,000 liters." In addition, 
an agronomic crop consultant and area manager for indicates 
that his company has been "selling [the Petitioner's] products to our clients - ranchers and farmers in 
the Southeastern States - for over three years now." further notes that "is being 
sold to several hundred of our customers" and that demand has been high due to results such as "better 
quality fruit, a better yield of fruit and resistance to HLB." The Petitioner offers purchase orders, 
invoices, and sales data to corroborate the information provided in the aforementioned agrochemical 
distributors' letters. This documentation helps demonstrate that the Petitioner is well positioned to 
advance his proposed biostimulant development work in the United States. 
The Petitioner's experience and expertise in his field, his record of success in developing biostimulant 
products, the significant interest in his products from customers and relevant parties, and his 
progress in helping to protect citrus groves from HLB disease position him well to advance his 
proposed endeavor. Accordingly, we find that he satisfies the second prong of the Dhanasar 
framework. 
3. Balancing Factors to Determine Waiver's Benefit to the United States 
As explained above, the third prong requires the petitioner to demonstrate that, on balance, it would 
be beneficial to the United States to waive the requirements of a job offer and thus of a labor 
certification. Here, the record establishes that, as an agribusiness entrepreneur, the Petitioner 
possesses considerable experience and expertise in developing and manufacturing crop biostimulant 
products. The Petitioner notes that, as he is self-employed, it would be impractical for him to obtain a 
labor certification. The record also demonstrates the widespread benefits associated with his 
development of natural products that improve plant health for fruit and vegetable crops. In addition, the 
Petitioner has documented his past successes in developing effective biostimulant products and 
progress in helping to protect citrus groves from HLB disease. Based on the Petitioner's track record 
3 He states that is "one of the largest citrus growers in Florida with over 4,000 acres ... dedicated to citrus production." 
6 
Matter of E-J-C-D-H-
of successful product development and the significance of his proposed work to advance U.S. 
agricultural interests in the crop protection industry, we find that he offers contributions of such value 
that, on balance, they would benefit the United States even assuming that other qualified U.S. workers 
are available. 
III. CONCLUSION 
The Petitioner has established eligibility for EB-2 classification as an individual of exceptional 
ability. Furthermore, he has met the requisite three prongs set forth in the Dhanasar analytical 
framework. We find that the Petitioner has established he is eligible for and otherwise merits a 
national interest waiver as a matter of discretion. 
ORDER: The appeal is sustained. 
Cite as Matter of E-J-C-D-H-, ID# 1519291 (AAO Sept. 19, 2018)