sustained EB-2 NIW Case: Biometrics And Forestry

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u.s.Department of Homeland Securlty
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
U.s. Citizenship
and Immigration
Services
LIN 03 18551056
Office: NEBRASKA SERVICE CENTER Date: MAR 28 Z007
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) of the Immigration
and Nationality Act, 8 U.S.C. § 1153(b)(2)
ON BEHALF OF PETITIONER:
SELF-REPRESENTED
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office.
~~~
:lRobert P. Wiemann, Chief
Administrative Appeals Office
www.uscls.gov
"
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa
petition, which is now before the Administrative Appeals Office on appeal. The appeal will be
sustained and the petition will be approved.
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act
(the Act), 8 U.S.C. § 1153(b)(2), as an alien of exceptional ability or a member of the professions
holding an advanced degree. The petitioner seeks employment in the fields of biometrics and forestry.
The petitioner asserts that an exemption from the requirement of a job offer, and thus of an alien
employment 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 submits additional evidence. Weare persuaded that the new evidence
overcomes the director's concerns.
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 ofJob 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.
It appears from the record that the petitioner seeks classification as an alien of exceptional ability. This
issue is moot, however, because the record establishes that the petitioner holds a Ph.D. in Natural
Resources and Environmental Sciences from the University of Illinois at Urbana-Champaign (UIUC).
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 an
alien employment 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, 101st Cong., 1st Sess., 11 (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 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 "exceptiona1."] 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 (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 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.
We concur with the director that the petitioner works in an area of intrinsic merit, natural resource
computer modeling, and that the proposed benefits of his work , improved modeling, 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 .
Eligibility for the waiver must rest with the alien's own qualifications rather than with the position
sought. In other words, we generally do not accept the argument that a given project is so important
that any alien qualified to work on this project must also qualify for a national interest waiver.
Matter ofNew York State Dep 't ofTransp., 22 I&N Dec . at 218. Moreover, it cannot suffice to state
that the alien possesses useful skills, or a "unique background." Special or unusual knowledge or
training does not inherently meet the national interest threshold. The issue of whether similarly-
trained workers are available in the United States is an issue under the jurisdiction of the Department
of Labor. ld. at 221.
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. ld. at 219, n. 6. In evaluating the petitioner's achievements, we note that original
innovation, such as demonstrated by a patent, is insufficient by itself. Whether the specific
innovation serves the national interest must be decided on a case-by-case basis. ld. at 221, n. 7.
The petitioner obtained his first Master's degree from the Central South Forestry University in China
in 1988 after which he was a lecturer at that institution until August 1993. In October 1996, the
petitioner received a second Master's degree in Forestry from UIUC. In May 1998, the petitioner
received a third Master's degree from the same institution in statistics. Finally, the petitioner
received a Ph.D. from UIUC in Natural Resources and Environmental Sciences on January 15, 2000.
of Central South Forestry University, asserts that the petitioner was a
responsi e teac er and "excellent researcher." The petitioner was the Principal Investigatoron a
project to develop database management software for "Cut Wood Data." The petitioner published
four academic papers and a book.
Central South Forestry University, provided additional details about the
petitioner's time there. Specifically, the petitioner was a "critical researcher" of a project to produce
a simulation system of management for the massoniana pine, funded by the Ministry of Forestry.
The petitioner improved upon a biological model to simulate the growth processes of the pine in
different climate zones. The system was tested in four forest farms, increasing income at these farms
by three million Yuan.
The Ministry of Forestry recognized the petitioner's pine simulation system in 1992 with a second
place Science and Technology Progress award. The ministry recognized five other projects with a
second place award and the petitioner is one of eight researchers involved in the project.
_asserts that such awards are limited to projects that "discover new natural laws/rules, or
develop new theories or procedures, o_r'mrove productivity and produce significant ecological and
economical effect." Finally, Professo asserts that only a small percentage of projects are
recognized with prizes. The petitioner su rm ed the official procedures for evaluating science and
technology achievements.
Throughout this proceeding, the petitioner had submitted three letters from the
petitioner's Master's and Ph.D. thesis advisor at UIDC then employed the petitioner in
his laboratory as a scientific research programmer. After the date of filing, the petitioner was
promoted to Associate Director of the laboratory. The letters are dated in 2002, 2003 and 2005. In
his initial letter, iscusses the petitioner's work on a project funded by the Department of
Defense, the Environmental Protection Agency and the Department of Energy. The project focused
on error and uncertainty in ecological modeling and simulation. The petitioner was responsible for
the most technical software programming for the project, using both parallel supercomputers and
ersonal computers to develop uncertainty analysis software.
rther describes his own article on the Bayesianapproach, coauthored by the petitioner,
as a major step forward in parameterization of complex models." Specifically, this project
represents "the first time that calibration of complicated models for complex ecosystems has been
based on realistic, objective and systematical information."
Finally, the petitioner improved the Fourier Amplitude Sensitivity Test (FAST) by extending it to
allow for an uncertainty analysis of soil erosion. One of the petitioner's papers on this subject,
relating to the impact of off-road ve.hiculartraffic, describes a methodolo~essment of
uncertainty of models that have been developed for managing federal lands. -.sserts that
this model will be used by the U.S. ~rEngineers to comply with federal environmental
protection laws. In his 2003 letter_oes further, asserting that the petitioner's recent
paper on this subject "will be a highly cited paper" and "has been of major interest by decision­
makers and managers of federal lands when it was presented in Strategic Environmental Research
and Development Program (SERDP) conferences."
Also in his 2003 letter, lasserts that the petitioner developed all of the software for
UIDC's Uncertainty Analysis Software Library (UASLill). Specifically, the petitioner "was
responsible for designing, coding and testing throughout the project" and authored the user 8U:ides.
In addition, the petitioner did most of the programming for the case studies websites. Final1~
_asserts that the petitioner has been acknowledged in other published studies for his work
encoding all of the computer programs.
In his 2005 lette sserts that in the last six ye_rshis 1 brat rY has developed eight
statistical methods, five of which the petitioner developed. rther asserts that his
laboratory developed two computational packages for unce and model calibration,
improved various ecological and urban sprawl models and studies more than eight different
ecosystems. This work resulted in 45 scientific papers and 20 presentations, to which the petitioner
contributed as an author or, even when not credited as an author, to a lesser extent.
Citizenship and Immigration Services (CIS) may, in its discretion, use as advisory opnuons
statements submitted as expert testimony. See Matter of Caron International, 19 I&N Dec. 791, 795
(Comm. 1988). However, CIS is ultimately responsible for making the final determination regarding
an alien's eligibility for the benefit sought. Id. The submission ofletters from experts supporting the
petition is not presumptive evidence of eligibility; CIS may evaluate the content of those letters as to
whether they support the alien's eligibility. See id. at 795-796. CIS may even give less weight to an
opinion that is not corroborated, in accord with other information or is in any way questionable. Id.
at 795; See also Matter 0/Soffici, 22 I&N Dec. 158, 165 (Corum. 1998) (citing Matter a/Treasure
Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)).
... ~ ...
In support 0 . letters, the petitioner submitted his publication and citation record, letters
from three coauthors of an article citing the petitioner work, e-mail corresponde~ght,
invitations to present his work or review a manuscript, recognition received by__and
evidence that the petitioner's work has been applied by his collaborators outside UillC.
As of the date of filing, the petitioner's 1999 article on Bayesian models had been cited. The article,
coauthored with the Head of the Department of Forestry, Danish Forest and Landscape Research
Institute, is listed on a Danish website as a "relevant publication." An independent research team
had cited the petitioner's 2001 article in the Journal of Forest Research. Other articles cited the
petitioner's work after the filing of the petition. While the petitioner's citation record by itself is not
remarkable, the remaining evidence, especially a letter submitted on appeal, affirms the petitioner's
influence in the field.
orest Resources Department at the University of Minnesota
professor at that university; and _ docent and academy researcher at the
University of Helsinki, coauthored a 20~siology that cites the petitioner's 1999
article reporting a Bayesian approach for forest modeling. All three submit letters in support of the
petition_sserts that he cited the petitioner's work as "a major step forward - an outstanding
piece of~her asserts that the petitioner's subsequent work has also been excellent.
erts that he cited the petitioner's work because it "presented a new method developed for
estimation of the parameters of process models. ontinues that by incorporating previous
knowledge and historical observations to estimate both marginal and high-dimension joint
distributions of the parameters of process models, the petitioner improved upon previous models.
_concludes that the p'etitioner's model is "state-of-the-art." provides similar
~on to that provided b
The petitioner submitted evidence that graduate students in Venezuela contacted for
more information on FAST, who passed the request on to the petitioner who forwarde IS artie e to
the graduate students. A response from the graduate students reveals that they relied on the
petitioner's work.
The petitioner submitted a 2002 letter from
Research and Development Center (ERDC),
to VillC expressing appreciation for
(LBCC) program. While CERL is local to Illinois,
gained national recognition.
UIVC's website credits the petitioner and three others with the development of the Uncertainty
Analysis Software Library (UASLIB). The petitioner submitted evidence that the Society of
American Foresters (SAF) bestowed an Award in Forest SCience upo~ at the 2003 SAF
convention. The materials reveal that the awards recognize a compr~tory of sustained
contributions to the forestry profession, as opposed to one specific discovery. The bio fo_
Gertner in the award announcement , however, lists UASLIB as one of his significant
accomplishments.
On appeal , the petitioner submits a and Research
Biologist at ERDC. While much of etter discusses accomplishments that postdate
the filing of the appeal otes that the petitioner's 2002 off-road vehicle simulation
represents an influence beyond Illinois as it related to Fort Hood, Texas. ~rther
asserts, for the first time in the record, that the petitioner's models have been adopted in the Army's
2002 Standard Operating Procedures (SOP) and provides two citations for Anny SOPs incorporating
the petitioner's models. A news release reveals that received a Strategic
Environmental Research and Development Program (SRDP) award for two years in a row for his
work on maneuver training at more than 100 military installations worldwide.
Additional independent letters of support and evidence of frequent and wide citation as of the date of
filing would clearly bolster the record. Nevertheless, the petitioner did submit letters of support from
individuals with whom he has not collaborated. These letters provide more than general praise of the
petitioner's abilities . Nor do they simply allege that the petitioner has unique or rare credentials.
Rather, they cite specific accomplishments and improvements to previous models that are not merely
predicted to be beneficial, but that have been adopted by the U.S. Army in its SOPs.
It does not appear to have been the intent of Congress to grant national interest wai vers on the basis of
the overall importance of a given field of research, rather than on the merits of the individual alien.
That being said, the above testimony, and further testimony in the record, establishes that the forestry
community recognizes the significance of this petitioner's research rather than simply the general area
of research. The benefit of retaining this alien's services outweighs the national interest that is inherent
in the alien employment certification process . Therefore, on the basis of the evidence submitted, the
petitioner has established that a waiver of the requirement of an approved alien employment
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 sustained that burden. Accordingly , the decision of the director
denying the petition will be withdrawn and the petition will be approved.
ORDER: The appeal is sustained and the petition is approved.