sustained EB-2 NIW Case: Forestry

idmi@hg deleted to 
WVent clearly Unwarranted 
hsb ofpersonal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
SRC 07 800 23016 
IN RE: 
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. 5 1153(b)(2) 
ON BEHALF OF PETITIONER: 
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. 
pk,g* 
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. § 1153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as an assistant professor at the Department of Forestry at Michigan State 
University (MSU). The petitioner asserts that an exemption fiom 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 fiom the requirement of a job offer would be in 
the national interest of the United States. 
On appeal, the petitioner submits further evidence and a brief from counsel. Counsel argues that the 
director should have issued a request for evidence under U.S. Citizenship and Immigration Services 
(USCIS) regulations at 8 C.F.R. tj 103.2(b)(8) and its subsections. Those regulations, however, only 
indicate that USCIS has the option of issuing a request for evidence if the original filing of the petition 
lacks required initial evidence. If, in the director's opinion, the initial filing is complete and does not 
establish eligibility, then the director is not required to issue an intermediate notice before denying the 
petition. This is a procedural point, rather than a finding that the director's findings were correct. We 
will reverse the director's decision, but not because the director failed to issue a request for evidence. 
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 
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). 
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 USCIS] 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 I&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 hture 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 also note that 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 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. 
The petitioner filed the petition on July 26, 2007. 
 The initial submission included a 14-page 
introductory statement from counsel, describing the evidence and setting forth legal arguments. On 
page 3 of the statement, four phrases have been underlined in purple ink, apparently by a service center 
adjudicator: "candidate genes," "contributes to the basic knowledge of wood formation," "is anticipated 
to be used in future applications" and "will lead to a technology." 
Several witness letters accompanied the initial filing. For example, fi 
stated: 
When [the petitioner] was working as a principal investigator in an emerging Korean 
biotechnology company, I recruited him to work on the biosynthesis of natural rubber. 
. . . [The petitioner] carried out the project very successfidly, resulting in better 
understanding of how natural rubber is produced in planta. . . . In addition, he also 
worked on another project . . . aimed at elucidating the molecular mechanisms 
underlying wood formation. . . . In this research, [the petitioner] developed a novel 
experimental system to study wood formation in a herbaceous species, resulting in a 
landmark publication in the field. He has subsequently identified and painstakingly 
characterized candidate genes as regulators of wood formation. These genes will serve 
as a means to biotechnologically modify the structure and biochemistry of wood for 
value-added wood products and bio-energy feedstock. [The petitioner] played a critical 
role in the efforts to unravel the regulatory mechanisms that control active growth- 
dormancy cycle in trees . . . which will lead to a technology that can resolve the dilemma 
of achieving greater environmental protection of forest ecosystems while meeting the 
increasing demand for forest utilization. 
stated that the petitioner also continues to make contributions relating to "bio-fuel 
development" and "the development of drought tolerant system for agricultural and forest crops." 
changes in gene expression that occur in the formation and maturation of wood in trees and other 
woody plants." 
of Michigan Technological University, who described 
 as her 
that the petitioner's findings regarding "a novel group of genes probably 
functioning in the wood formation process . . . are readily applicable to improve the quality and quantity 
of wood-biofuel." 
The other witnesses represent a variety of institutions. of ~orth Carolina 
State University credited the petitioner with "significant contribution[s] to our understanding of wood 
formation," whch are significant because "[fluels derived fiom cellulosic biomass" such as wood "offer 
[an] alternative to conventional energy sources." 
the petitioner "has also contributed to the study of disease resistance, and to tolerance to abiotic stress 
including salt tolerance." concluded that the petitioner's "critical . . . work lays the 
foundations of plant research and paves the road for future studies that might lead to the mitigation of 
global warming and alternative energy applications of vital importance." 
of the U.S. Forest Service's Hardwood Tree Improvement and Regeneration Center 
stated: 
[The petitioner] discovered that a gene called ANAC012 is an important master switch 
regulating wood development. [The petitioner's] results will have immediate and 
profound impacts on the study of wood formation and the use of plants as biofuels. . . . 
There is no doubt that [the petitioner] has already made original contributions with 
major significance to research into plant molecular biology in general, and specifically 
in the field of wood biology and the genetic regulation of wood formation. 
The petitioner submitted copies of several of his published articles, along with documentation of 74 
independent citations of his published work. The most heavily cited article showed 45 independent 
citations. 
The director denied the petition on November 5,2008, stating: 
A review of the evidence submitted does not indicate a broad implementation of the 
beneficiary's research into the field. Most of the evidence indicates possible future 
advantages of such research instead of significant discoveries that have been 
implemented into the field. The evidence is filled with phrases such as candidate, 
contributes to the general knowledge pool, contributes to the basic knowledge, is 
anticipated to be used in the future, will lead to technology, etc. 
Nearly all of the phrases quoted above match, or resemble, the underlined passages on page 3 of 
counsel's introductory letter. The director's conclusion, therefore, seems to be based not on a review of 
the entire record, but on one page of a letter from counsel. The director's decision contains no other 
discussion of the materials submitted by the petitioner except for a sentence that listed, in general terms, 
the types of documentation included with the petition. 
On appeal, counsel protests that the petitioner submitted ample evidence of his accomplishments and 
influence on the field, and that the director erred in failing to consider that evidence. We are strongly 
inclined to agree with this assessment of the director's decision. 
The petitioner submits documentation of patent applications that arose from the petitioner's work. 
These applications show that the petitioner's work has been productive, but a patent (let alone a pending 
patent application) is not, on its face, evidence of eligibility. See Matter of New York State Dept. of 
Transportation at 22 1, n.7. A patent is evidence only of originality, not of significance. 
More persuasive is the evidence that the petitioner's work has attracted the attention of independent 
researchers. That evidence has taken the form of credible and persuasive witness letters, and in the 
form of heavy citation of the petitioner's published work. The initial filing showed several dozen such 
citations, and by the time of the appeal that number had swollen into the hundreds. These citations are 
objective evidence that other researchers have taken notice of the petitioner's work, and built upon it in 
their own efforts. Simply being cited is not irrefutable proof of eligibility; a researcher who produced a 
handful of articles cited three or five times each generally cannot claim to be an influential figure in his 
or her field. But the sheer volume of citation evidence presented in this proceeding demands 
consideration, and the arbitrary quotation of sentence fragments from one page of an attorney's letter 
does not outweigh such evidence. 
We agree with counsel that the petitioner submitted credible and consistent evidence of the 
petitioner's eligibility for the waiver, and that the director does not appear to have given sufficient 
consideration to that evidence in rendering the decision. 
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 
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.