sustained EB-2 NIW Case: Crop Science

U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office ofAdministrative Appeals MS 2090 
identifying data deleted to 
Washington, DC 20529-2090 
prevent clearly unwarranted U.S. Citizenship 
invasion of personal privacy 
 and Immigration 
pu~Llc 
LIN 07 101 53277 
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. 3 1 153(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 
the office that originally decided your case. Any further inquiry must be made to that office. 
F. Grissom 
Acting Chief, Administrative Appeals Office 
DISCUSSION: 
 The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will 
sustain the appeal and approve the petition. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. 5 1153(b)(2), as a member of the professions holding an advanced degree. At the 
time he filed the petition, the petitioner was a postdoctoral research associate at Texas A&M University 
(TAMU), Lubbock, Texas. He later began working at Iowa State University (ISU). 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 submits a brief from counsel, copies of previous submissions, and new 
exhibits. 
Section 203(b) of the Act states, in pertinent part: 
(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 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 director did not dispute 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. 
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 
Page 3 
increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise. . . ." S. Rep. No. 55, 10 1 st Cong., I st Sess., 1 1 (1 989). 
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 [now U.S. Citizenship and Immigration Services] 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 State Dept. of Transportation, 22 l&N Dec. 215 (Cornmr. 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 hture 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 also note that the regulation at 8 C.F.R. fj 204.5(k)(2) defines "exceptional ability" as "a degree 
of expertise significantly above that ordinarily encountered" in a given area of endeavor. By statute, 
aliens of exceptional ability are generally subject to the job offerllabor certification requirement; 
they are not exempt by virtue of their exceptional ability. Therefore, whether a given alien seeks 
classification as an alien of exceptional ability, or as a member of the professions holding an 
advanced degree, that alien cannot qualify for a waiver just by demonstrating a degree of expertise 
significantly above that ordinarily encountered in his or her field of expertise. 
Counsel, in an introductory statement, asserted that the petitioner "has garnered an international 
reputation in his field" for his agricultural research. To discuss this research, the petitioner submitted 
several witness letters. Regarding the petitioner's work at the time of filing, TAMU Associate 
stated: 
I direct [a] corn breeding program to develop multiple stress-tolerant corn lines and 
hybrids. . . . 
[The petitioner] joined my research group in September, 2006. I hand-selected him out 
of 12 high-qualified applicants for his impressive and strong educational and research 
experience and skills in traditional plant breeding, molecular biology and statistics. . . . 
[The petitioner] is a key scientist in my corn breeding and genetics laboratory. He is 
responsible for discovering drought and heat tolerance genes, identifying new 
physiological traits contributing to drought tolerance, and developing molecular 
breeding tools for genetic improvement of stress tolerance. . . . The accomplishment of 
this project would significantly contribute to the crop production under water stressed 
environments. 
A list of the petitioner's published work did not identify any articles, either published or in preparation, 
relating to the petitioner's work with corn at TAMU, or his previous work with tomatoes during a five- 
month stint at the University of North Carolina, Chapel Hill in mid-2006. 
Most of the remaining initial letters are from researchers who worked with the petitioner at the 
University of Missouri-Columbia (UMC), where the petitioner earned two graduate degrees and later 
undertook eight months of postdoctoral training. - stated: 
I was the major advisor of [the petitioner's] PhD degree studies in Genetics and a 
committee member of [the petitioner's] Master's degree studies in Statistics at the 
University of Missouri-Columbia during the period of 1999-2005. [The petitioner] also 
joined my laboratory as a postdoc research associate during 2005-2006. I state without 
reservation that [the petitioner] is an outstanding researcher in the field of crop science. 
. . . [The petitioner] played a critical role in my research projects. During his time in my 
laboratory, he published a total of four peer-reviewed papers and has already submitted a 
paper for publication from his post-doctoral research. [The petitioner's] papers attracted 
international interests [sic]. . . . I am sure that these results will become cited worldwide 
in the next few years. . . . [The petitioner] discovered quantitative trait loci [QTL] for 
soybean resistance to soybean cyst nematode (SCN), the first major pest in soybean. . . . 
His discoveries enhanced our understanding in development of SCN-resistant cultivars. 
. . . [The petitioner's] other significant achievements include the development of three 
novel techniques for discovering the genetic basis of complex traits - meta analysis of 
QTL locations, interval mapping pooled analysis and haplotype block-based interval 
mapping. 
stated that an associate editor of Crop Science referred to the petitioner's work as "pioneer, 
innovative." 
UMC Professor 
 a member of the petitioner's Ph.D. program committee, described 
in technical detail the petitioner's "three novel techniques in gene discovery of economically important 
traits of crops," and stated that the petitioner 
 an unusually high volume of published work 
during his studies. 
UMC Professor 
 stated that the petitioner's "research results have had a significant 
im~act on develo~ment of SCN resistant cultivars because thev enabled scientists around the US to 
more rapidly develop new soybean varieties resistant to SCN." 
 claimed that the 
petitioner's "discoveries are used by the soybean breeders around the US," but he provided no evidence 
to support this claim. 
, a Supervisory Research Geneticist at the Agricultural Research Service (ARS), is 
also a UMC Adjunct Professor who has collaborated with the petitioner. stated that the 
petitioner's findings "play an important role" in "understanding . . . soybean genetic resistance" to SCN. 
also stated that the petitioner's "technique, called interval mapping pooled analysis . . . 
provides an opportunity to breeders for selecting [the] most desirable alleles in their research." 
I have known [the petitioner] through the annual international meetings of the Crop 
Science Society of America and his publications. . . . Although I have never collaborated 
with him, I am aware of the significance of his research as it is very close to my field. 
. . . [The petitioner's] papers make a significant contribution to the understanding of 
soybean resistance to SCN and they represent invaluable contributions to the soybean 
community and soybean production in the U.S.A. and Canada. 
. . . [The petitioner's] accomplishments as a PhD student far exceed those of his peers at 
the same career stage and have earned him an international reputation as an outstanding 
researcher. 
petitioner] personally and have only met him briefly at meetings, so I can only comment on his 
published research in the field of SCN resistance. This research is of high quality and has made 
important contributions to this research field." 
The petitioner submitted copies of his published and presented work, and copies of requests for reprints 
of those works, but no direct evidence of the impact of this work. Reprint requests establish that other 
scientists were interested in reading his work, but they cannot establish their subsequent reactions. 
On September 10, 2008, the director instructed the petitioner to submit evidence that distinguishes him 
fiom his peers in the specialty. In response, the betitioner submitted new witness letters and other 
evidence. Three of the new letters are fiom researchers at ISU. - stated: 
I became aware of [the petitioner] through his publications, and subsequently, invited 
him to join my research program in January, 2008. He had published as first author his 
innovative method for identifying the genetic basis for traits of importance in the widely 
cited journal, Theoretical and Applied Genetics (2006). . . . When I [first read the 
petitioner's] paper, I was very excited because I strongly believe this method could lead 
to a new generation of DNA-resequencing 'based methods for identification of genes 
underlying traits of importance. 
[The petitioner's] contributions to statistical genetics will be highly significant in 
addressing our capacity to increase ow crops productivity in an age of emerging market 
demands. . . . 
[The petitioner's] current work on my project is to develop a new generation of methods 
for identifying the causal nucleotides . . . for traits of agricultural importance through 
exploiting next generation sequencing technologies. . . . 
I strongly believe that [the petitioner] is an exceptionally outstanding scientist and that 
granting [the petitioner] permanent residency will definitely benefit our national interest. 
petition, such work cannot affirmatively establish eligibility. An applicant or petitioner must establish 
that he or she is eligible for the requested benefit at the time of filing the application or petition. 
8 C.F.R. 5 103.2(b)(l). Therefore, subsequent events cannot cause a previously ineligible alien to 
become eligible after the filing date. See Matter of Katigbak, 14 I&N Dec. 45, 49 (Regl. Cornrnr. 
1971). We acknowledge the petitioner's work at ISU insofar as it shows that he continues to work in 
the same specialty, but the details of that work cannot establish that he was already eligible for the 
waiver before he began working at ISU. 
ARS Research ~eneticisv stated: 
Until now, a large number of QTL studies have been conducted on various crops, but the 
results were conflicting and incongruent. [The petitioner's] paper illuminates a practical 
way to resolve these conflicts, which will improve the efficient development of 
molecular diagnostics tools for traits of agricultural importance. 
I served as an Associate Editor [for] the peer-reviewed journal Crop Science for six 
years.. . . 
During 2005 I managed the review of an article [by the petitioner]. . . . Given the unique 
nature of the article, I requested three rather than the typical two reviews. It was my 
opinion that the article presented pioneering research that was of the highest quality. 
The three reviewers all felt the manuscript should be published. . . . 
[The petitioner's] manuscript was the first and most important paper in this kind of 
research in Crop Science and it makes significant contributions to studies of traits of 
agricultural importance. 
I agree with the reviewer that felt [the] paper needs addition[al] background information 
regarding the meta-analysis approach in general, and how your analysis here relates to 
meta-analysis in other field[s]. I make this point because this, in the future, may well be 
considered a pioneering paper in Crop Science and therefore should contain a very 
tho[rou]gh presentation of the topic. 
In the 2005 message, and again in his new letter,uoted from the reviews. One reviewer 
stated: "This manuscript sets an example of how to use a quantitative, analytical approach to resolving 
conflicting results from many different manuscripts." Another stated: "This paper definitely helps 
current and future SCN researchers in prioritizing QTL loci that may be likely candidate[s] for cloning." 
The petitioner documented several dozen citations of his published work, both in Chinese and in 
English. 
The director denied the petition on November 17,2008, stating that the witness letters "have not clearly 
established the beneficiary has greater ability than [his] peers." The director added that citation of the 
petitioner's work "is not unusual or different from other researchers who have had their work cited." 
The director concluded that the petitioner failed to establish that his "accomplishments are of such 
unique significance that the labor certification requirement can be waived." 
On appeal, counsel argues that the director ignored evidence of the petitioner's wider influence on the 
field. As further evidence of this influence, two new witness letters accompanied the appeal. Professor 
of Virginia Polytechnic and State University stated: 
I have not directly worked with [the petitioner] and I became aware of him through his 
meta-analysis paper published in Crop Science in early 2006. His method is a very 
useful one and our program started to apply his method to our research later in 2006. . . . 
Discovery of resistance genes in wheat accessions is crucial in the development of 
resistant cultivars for the United States. Quantitative trait loci mapping is a major tool 
for discovering the genes for resistance to Fus[ar]iurn head blight in wheat. Sixty-three 
QTLs (the genome regions where the genes may lie) have been reported in 23 studies for 
resistance to this disease. However, inconsistent results were reported due to the 
limitations of QTL mapping techniques. This inconsistency significantly hinders the use 
of the identified QTLs in wheat breeding. Thus, our research group is applying [the 
petitioner's] method to resolve this problem and we have obtained interesting results. 
The results from the meta-analyses can help breeders identify consistent and unique 
resistant genes. Therefore, breeders can combine them in new varieties to breed durable 
resistance. I believe that [the petitioner] has made significant contributions to plant 
breeding and genetics. 
A copy of 
 paper confirms his use of the petitioner's methods. 
m7 Senior Scientist at the International Maize and Wheat Improvement Center, Mexico City, 
Mexico, stated: 
Recently, I wrote a book entitled . . . "Molecular Plant Breeding." . . . This book covers 
16 chapters. In one sub-section of Chapter 7 (Molecular Dissection of Complex Traits: 
Theory), I introduced and discussed [the petitioner's] method called pooled analysis 
which was published in 2006. After a comprehensive investigation, I found that [the 
petitioner's] method is the first one for discovering genetic basis of quantitative traits . . . 
using multiple mapping population data in plant species. . . . Most importantly, this 
method will lead to an emerging hot field "joint linkage and linkage disequilibrium 
mapping" which can be used for effectively discovering the genetic basis of quantitative 
traits I crops. I believe that [the petitioner] has made a significant and important 
contribution to genetic studies of quantitative traits in crops. 
Upon careful consideration of the evidence submitted, we agree with counsel that the director did not 
give sufficient consideration to evidence of the petitioner's influence beyond his collaborators and 
mentors. The record establishes international attention to, and implementation of, the petitioner's 
work in statistical genetics. The combination of credible independent witness letters and objective 
documentation such as citations indicates that the petitioner's work has been consistently influential 
in his field. The witnesses have attested specifically to the importance of the petitioner's work and 
findings, rather than simply praise his skill or his mastery of complicated laboratory techniques. The 
record likewise establishes the importance of the petitioner's work, which involves more than simply 
describing work and deeming it to be important. 
It does not appear to have been the intent of Congress to grant national interest waivers 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 evidence in the record establishes that the scientific 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 labor certification 
Page 9 
process. Therefore, on the basis of the evidence submitted, the petitioner has established that a waiver 
of the requirement of an approved labor 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. 5 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.