sustained EB-2 NIW Case: Plant Pathology

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
kkatieing data deleted to 
pewat cfgatly unwarranted 
bvasion of pofson~il privacy 
Office: NEBRASKA SERVICE CENTER Date: flkG \ -.; \!\) i 
LIN 06 185 52528 
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: 
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 mher inquiry must be made to that office. 
-Administrative Appeals Office 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) 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. 5 1153@)(2), as an alien of exceptional ability or a member of the professions 
holding an advanced degree. The petitioner seeks employment as a research scientist. 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, counsel submits a brief and additional evidence. Not all of counsel's assertions are 
persuasive. Moreover, the record would have been considerably bolstered by the submission of 
evidence that independent researchers or those in the agricultural industry have relied on the 
petitioner's work, especially her work after 2001. Such evidence might have included evidence that 
independent research teams have cited the petitioner's articles or letters from experts independent of the 
petitioner who affirm the petitioner's influence on their own work. Nevertheless, other evidence, in the 
aggregate, is consistent with the petitioner's continuing influence in the field. 
Section 203@) 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 of Job 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. 
The petitioner holds a Ph.D. in Plant Pathology from the University of California (UC), Riverside in 
1993. 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. 
It appears from counsel's initial cover letter that the petitioner also seeks classification as an alien of 
exceptional ability. This issue is moot, however, because, as stated above, the record establishes that 
the petitioner 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, 101 st Cong., 1 st Sess., 1 1 (1 989). 
A supplementary notice regarding the regulations implementing the Immigration Act of 1990 
(IMMACT), published at 56 Fed. Reg. 60897,60900 (November 29, 1991), states, in pertinent part: 
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 qualifj 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 Dep 't. of Transp., 22 I&N Dec. 2 15, 2 17- 18 (Comm. 1998)(hereinafier 
"NYSDOT"), 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. Id. at 2 17. Next, it must be shown that the proposed benefit will be national 
in scope. Id. 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. Id. at 2 17-1 8. 
It must be noted that, while the national interest waiver hinges onprospective national benefit, it clearly 
must be established that the alien's past record justifies projections of future benefit to the national 
interest. Id. at 219. 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. Id. 
We concur with the director that the petitioner works in an area of intrinsic merit, plant disease 
research, and that the proposed benefits of her work, reduced crop loss from plant diseases, 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. 
As stated above, counsel initially asserted that the petitioner is an alien of exceptional ability. The 
director concluded that the petitioner's contributions and abilities have not been shown to be greater 
than those who meet the definition of exceptional ability at 8 C.F.R. 8 204.5(k)(2). On appeal, 
counsel notes that the national interest waiver is available to members of the professions holding 
advanced degrees as well as those of exceptional ability. 
Significantly, it was counsel in her initial brief who raised the issue of exceptional ability. By 
statute, "exceptional ability" is not, by itself sufficient cause for a national interest waiver. Id. at 
218. Thus, the benefit which the alien presents to her field of endeavor must greatly exceed the 
"achievements and significant contributions" contemplated for that classification. Id; see also id. at 
222. Insofar as the director was stating that exceptional ability, by itself, does not warrant a wavier 
of the alien employment certification in the national interest, we concur with the director. 
The petitioner submitted considerable documentation regarding the importance of the petitioner's 
area of research. The director did not dispute that the petitioner works in an area of intrinsic merit 
and, as stated above, we concur with that determination. Eligibility for the waiver, however, 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. Id. at 21 8. Moreover, it cannot 
suffice to state that the alien possesses useful skills, or a "unique background." Id. at 221. 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. Id. 
Counsel has also asserted that the policies of the petitioner's employer prevent it from filing an 
application for an alien employment certification in the petitioner's behalf. The employer's policies 
and apparent disinterest in offering the petitioner a more permanent position do not bind us in this 
matter. The inapplicability or unavailability of an alien employment certification cannot be viewed as 
sufficient cause for a national interest waiver; the petitioner still must demonstrate that the self- 
employed alien will serve the national interest to a substantially greater degree than do others in the 
same field. Id. at 2 1 8, n. 5. 
The director expressed concern regarding the petitioner's current level of employment. It is clear 
that the petitioner, who has worked as a research associate since entering the United States in 2002, 
has been unable to maintain or even regain the same level of employment she enjoyed in Uruguay, 
where she worked as the Coordinator of the Biotechnology Unit at the National Institute of 
Agricultural Research. That said, the petitioner does not need to demonstrate the type of sustained 
acclaim required for classification as an alien of extraordinary ability pursuant to section 
203(b)(l)(A) of the Act, 8 U.S.C. 8 1153(b)(l)(A). As stated above, however, the national interest 
waiver contemplates a prospective benefit. Thus, the petitioner must demonstrate that she continues 
to influence the field to at least some degree. 
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 she seeks. By seeking an extra benefit, the petitioner assumes an extra element of 
proof. A petitioner must demonstrate a past history of achievement with some degree of influence on 
the field as a whole. Id. 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. Id. at 221, n. 7. 
The most detailed letter regarding the petitioner's work in Uruguay is fiom Gonzalo Arocena, former 
Director of the General Agricultural Services for the United Nations Food and Agricultural 
Organization (FAO). Mr. Arocena asserts that he led the FAO's Citrus Certification Project, whose 
goal was to produce virus free plants, seed and budwoods through the creation of a citrus 
certification program. The petitioner was "in charge of the area of Technical Development of 
Biological Laboratories of the Plant Protection Services." According to Mr. Arocena and a 
published interview of the petitioner, the FA0 selected the Uruguay project as among the five best 
projects funded by FA0 and was nominated for the Eduard Saouma Award. 
The remaining letters provide only vague and poorly articulated explanations of exactly what the 
petitioner did in Uruguay. Nevertheless, we cannot ignore the leading roles the petitioner held in 
Uruguay, most notably that she served as President of the Latin American Association of Plant 
Pathologists. A news article explains that this position goes to a different Latin American country 
every two years and that the petitioner was elected to this role when it was Uruguay's turn for the 
presidency. In addition, the record contains the petitioner's 1997 award fi-om the Latin American 
Plant Pathology Association for "outstanding contribution to Plant Pathology in Latin America," and 
evidence that she served as editor for at least two publications in 1998 and 2000. 
a professor at UC Davis, asserts that he invited the petitioner to join his 
laboratory, where she currently works. He explains that she has "improved methodologies for detecting 
and identifying Xylella fastidiosa in clinical samples fiom plants and insects." - 
Director and Plant Virologist of BIOREBA AG in Switzerland, asserts that he contacted the petitioner 
in the context of her work on detecting Xylella fastidiosa and that she was "instrumental in developing 
tools for the detection of Xylella bacteria and in drafting diagnostic protocols for this pathogen." 
Significantly, the record contains a July 8, 2005 letter fi-om CAB International in Malaysia noting that 
the petitioner was nominated to be a member of the Expert Working Group for drafting the protocol for 
Xylella fastidiosa and inviting the petitioner to lead the group and co-ordinate the production of a draR 
of the protocol. The record includes the International Plant Protection Convention draft protocol 
credited to the petitioner and The nomination of the petitioner to serve on the 
working group and the invitation for him to lead the group and produce the draft, which lists only the 
petitioner and one other individual as authors, is consistent with a researcher who has had at least some 
influence on the field as a whole. 
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 above testimony, and further testimony in the record, establishes that the 
agricultural research 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. 8 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.