sustained EB-2 NIW Case: Civil Engineering

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MATTER OF S-H-A-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Adm~nistrative Appeals Office 
DATE: SEPT. 16,2016 
PETITION: FORM I-140, IMMIGRANT PETITION EOR ALIEN WORKER 
The Petitioner, a civil engineer, seeks classification as a member of the professions holding an 
advanced degree. See Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. 
§ 1153(b )(2). The Petitioner also seeks a national interest waiver of the job offer requirement that is 
normally attached to this immigrant classification. See § 203(b)(2)(B)(i) of the Act, 8 U.S.C. 
§ 1153(b )(2)(B)(i). U.S. Citizenship and Immigration Services (USC IS) may grant this discretionary 
waiver of the required job offer, and thus of a labor certification, when it is in the national interest to 
do so. 
The Director, Texas Service Center, denied the petition. The Director found that the Petitioner 
qualified for classification as a member of the professions holding an advanced degree, but that he 
had not established that a waiver of a job offer would be in the national interest. 
The matter is now before us on appeal. In his appeal, the Petitioner argues that he satisfies the 
national interest waiver requirements and that the Director's decision did not address all of the 
evidence submitted or the use of the Petitioner's research by 
Upon de novo review, we will sustain the appeal. 
I. LAW 
To establish eligibility for a national interest waiver, a petitioner must first demonstrate his or her 
qualification for the underlying visa classification, . as either an advanced degree professional or an 
individual of exceptional ability in the sciences arts or business. Because this classification normally 
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 states, in pertinent part: 
(2) Aliens who are members of the professions holding advanced deg~;ees or aliens of 
exceptional ability. -
Matter ofS-H-A-
(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. ... the Attorney General1 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. 
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, lOlst Cong., 1st Sess., 11 (1989). 
Matter of New York State Department of Transportation, 22 I&N Dec. 215, 217-18 (Act. Assoc. 
Comm'r 1998) (NYSDOT), set forth several factors which must be considered when evaluating a 
request for a national interest waiver. First, a petitioner must demonstrate that he or she seeks 
employment in an area of substantial intrinsic merit. Id. at 217. Next, a petitioner must show that 
the proposed benefit will be national in scope. Id. Finally, the petitioner seeking the waiver must 
establish that he or she will serve the national interest to a substantially greater degree than would an 
available U.S. worker having the same minimum qualifications. Id. at 217-18. 
While the national interest waiver hinges on prospective national benefit, a petitioner's assurance 
that he or she will, in the future, serve the national interest cannot suffice to establish prospective 
national benefit. !d. at 219. Rather, a petitioner must justify projections of future benefit to the 
national interest by establishing a history of demonstrable achievement with some degree of 
influence on the field as a whole. Id. at 219, n.6. 
- 1 Pursuant to section 1517 of the Homeland Security Act of 2002 ("HSA"), Pub. L. No. I 07-296, 116 Stat. 2135, 2311 
(codified at 6 U.S.C. § 557 (2012)), any reference to the Attorney General in a provision ofthe Act describing functions 
that were transferred from the Attorney General or other Department of Justice official to the Department of Homeland 
Security by the HSA "shall be deemed to refer to the Secretary" of Homeland Security. See also 6 U.S.C. § 542 note 
(2012); 8 U.S.C. § 1551 note (2012). 
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Matter ofS-H-A-
II. ANALYSIS 
The Director determined that the Petitioner qualifies as a . member of the professions holding an 
advanced degree. The sole issue in contention is whether the Petitioner has established that a waiver of 
the job offer requirement, and thus a labor certification, is in the national interest. The Petitioner's work 
involves developing tools that will assist in more accurately forecasting precipation and managing water 
resources. We agree with the Director that the Petitioner has established that his work is in an area 
of substantial intrinsic merit and is national in scope. Thus, the only finding at issue in this matter is 
whether he established sufficient influence on his field to meet the third prong of the NYSDOT 
national interest analysis. 
At the time of filing this petition, the Petitioner was working as a postdoctoral associate at the 
-at 
The Petitioner indicated that his research is focused on retrieving root-zone soil moisture from 
P-band radar measurements and that he has developed a new polarimetric retrieval algorithm to better 
understand water resources and the hydrologic cycle. The Director determined that the Petitioner's 
impact and influence on his field did not satisfy the third prong of the NYSDOT national interest 
analysis. As stated above, the analysis set forth in NYSDOT requires a petitioner to demonstrate that 
he or she will serve the national interest to a substantially greater degree than would an available 
U.S. worker having the same minimum qualifications. To do this, a petitioner must establish "a past 
history of demonstrable achievement with some degree of influence on the field as a whole." !d. at 
219, n. 6. 
The Petitioner submitted evidence reflecting that his research is being directly implemented by 
mission. As described by the Petitioner, this is a five-year 
project aimed at using a aircraft fitted with the synthetic aperture radar to 
collect soil moisture data from nine climatic habitats in North America to estimate how much carbon 
the continent is taking in or releasing into the atmosphere. The principal investigator for 
miSSIOn, 
confirms the Beneticiary's critical contributions to the mission. 
He explains: 
[The Petitioner's] new algorithms are being used to effectively reduce the uncertainty 
of root zone soil moisture measurements to improve our understanding of the carbon 
exchange in the ecosystem and the overall health of the North American Ecosystem. 
Simply put, his methods and algorithms are ground-breaking in the sense that they 
improve ability to make the measurements, below the surface of the Earth 
and through vegetation, in ways which dramatically improve the certainty or accuracy 
of the estimates. Through the use of his methods and algorithms in the 
project, we can obtain more accurate root zone soil moisture estimates than 
ever before leading to a better understanding of carbon exchange and our . ' environment. 
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Research scientist, 
affirms that the Petitioner's research "has 
had a direct impact on our research efforts at and the 
According to "Remotely-sensed soil moisture provides more spatially and temporally 
extensive data than in situ observations. However, satellites can only measure water in the top few 
centimeters of the $Oil. Root zone soil moisture is a more important metric .... " He explains that 
the ' uses radar to collect soil moisture data from nine climatic habitats in North America 
for estimates of carbon [the] continent releases into the atmosphere. Carbon dioxide has an 
important influence on climate, and the results will help to improve the accuracy of 
climate projections for the next 50-100 years by measuring root-zone moisture." He further stated 
that the Petitioner's "research is important for the next generation of remotely sensed precipitation 
estimates and for this reason his research is of particular interest to and for application to 
some of our current projects .... " 
Others concur that the Petitioner's research has been significant. For example, 
new 
indicates that the Petitioner's research "has led to first-of-their-kind improvements to 
models and algorithms m precipitation records and data." 
critical" to the success of the 
previously unable to fill. 
testifies that the Petitioner's research "is 
mission and filled a void that other researchers have been 
director of the 
at the stated that the 
Petitioner's "research efforts are helpful to our group in accomplishing our research mission" and his 
"improved methods of resolving uncertainties in precipitation are the reason we are using them." 
The direct use of the Petitioner's work by and its as well as by other researchers, is 
persuasive evidence ~hat the Petitioner's work has substantially impacted the field as a whole. The 
Petitioner submitted additional evidence consisting of his published work, including two book 
chapters, and conference presentations. The record sufficiently demonstrates that the Petitioner has 
had a degree of influence on the field as a whole. We therefore find that the Petitioner's past record 
of achievement justifies a projection that he will serve the national interest to a significantly greater 
degree than would an available U.S. worker having the same minimum qualifications. 
III. CONCLUSION 
As discussed above, the record demonstrates that the benefit of retaining this Petitioner's services 
outweighs the national interest that is inherent in the labor certification process. Therefore, on the basis 
of the evidence submitted, the Petitioner has established that a waiver ofthe requirement of a job offer, 
and thus of a labor certification, will be in the national interest of the United States. 
It is the Petitioner's.burden to establish eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the Petitioner 
has met that burden. 
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Matter ojS-H-A-
ORDER: The appeal is sustained. 
Cite as Matter ofS-H-A-, 18325 (AAO Sept. 16, 2016) 
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