dismissed EB-2 NIW Case: Aerospace Engineering

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preventclearly unwa~ ,
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PUBLIC COpy
U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm: 3000
Washington, DC 20529
U.S. Citizenship
and Immigration
Services
FILE:
LIN 0412351180
Office: NEBRASKA SERVICE CENTER Date: fEB 2 0 2B07
INRE: Petitioner :
Beneficiary :
PETITION : Immigrant Petit ion for Alien Worker as a Member of the Professions Holding an Advanced
Degree or an Alien of Exceptional Ability Pursuant to Section 2.o3(b)(2) of the Immigration
'and National ity Act, 8 U.S.c. § 11~3 (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 .
. ~~
~obert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
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DISCUSSION: The Director, Nebraska Service Center, denied the employment-based irrimigrant visa
petition, which is now before the Administrative Appeals Office on appeal. The appeal will be
dismissed.
The petitioner seeks classification pursuant to section 203(b)(2) ofthe 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 aerospace researcher and consultant. 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 all exemption from the requirement of a job offer would be in the national interest of the United
States.
On appeal, counsel submits a brief. For the reasons discussed below, while we withdraw the director 's
implication that an alien must exceed the qualifications of aliens of exceptional ability to qualify for the
national interest -waiver , the petitioner has not overcome the director's other valid concerns.
Specifically, the petitioner has not demonstrated that he has already influenced his field.
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 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 Aerospace Engineering from the University of Michigan. The
petitioner's occupation falls within the pertinent regulatory defin ition .ofa profession. · Thus, the
director acknowledged that 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.
·... .
Page 3
Neither the statute nor pertinent regulations define the term "national interest." Additionally, Congress
did not provide a specific definition of "in the nationalinterest," 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, WIst 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 all alien seeking to meet the [national Interest] standard must
make a showing significantly above that necessary to prove therprospective -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.
The director quoted the above language and then stated:
However, the record does not establish that the petitioner's credentials 'exceed those of
all aliens who seek to qualify as aliens of "exceptional ability," as that term is defined
above, and that a waiver ofthe job offerrequirement would be in the national interest.. . . ' . .
Again, Congress failed to define the concept of "national interest;" however, as
indicated above," .,.. 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. ')." Given this, it
would appear that an alien's qualifications must, in fact, lie somewhere between ,
"exceptional" and "extraordinary" to qualify for the national interest waiver. '
The director, however, ignores that the national interest waiver is available to both aliens of exceptional
ability and advanced degree professionals. Significantly, after the publication of the'final regulation at
8 C.F.R. § 204.5(k}, which included the above-quoted commentary on which the director relied,
Congress amended section 203(b)(2)(B) of the Act to extend the national interest waiver to advanced
degree professionals. I Mi'scdlaneous and Technical Immigration and Naturalization Amendments of. . . .
1991, Pub. L. 102-232§ 302(a)(2)(D), 105 Stat. 1733, (Dec. 12, 1991). , Extending the waiver to
advanced degree professionals would be meaningless if they still had to qualify as aliens of exceptional
ability.
1 While we acknowledgethatthe regulation at 8 C.F.R. § ;204.5(k) has not been amended to include members
of the professions holding advanced degrees as eligible for the national interest waiver, the statute supercedes
our regulation. ' '
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We acknowledge that Matter -of New York State Dep 't ofTransp., 22 I&N Dec. 215,216-217 (Comm,
1998), also quoted the above,commentary. But it did not do so for the proposition that an advanced
' degree professional , must ,demonstrate that his credentials exceed those of all aliens seeking
classification as aliens of exceptional ability to secure a national interest waiver : Rather, the decision
holds that the benefit of the alien's entry into the United States must exceed the benefit inherent in
.admitting aliens of exceptional ability. ' More specifically, the benefit for aliens of exceptional ability ,
not seeking a national interest waiver is not necessarily national in scope for each alien. See Matter of
New York State Dep 't ofTransp., 22 I&N Dec. at 217, n.3.
Matter of New York State Dep't. of Transp., 22 I&NDec. at 217-218, 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 onprospective n~tional 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, fluid mechanics ,
and that the proposed benefits of his work, improved numerical computations arid understanding of
deep-water wave phenomena , would be national in scope.
While We concede' that the proposed benefits of the,petitioner's work would be national in scope, we
note 'that .the record does not support counsel's appellate assertions regarding the applications of the
petitioner's work. Specifically, while counsel asserts on appeal that the petitioner 's work has
applications in preventing ~atural disasters by' predicting tsunamis, only the petitioner himself made
such a claim, and only in ,response to the 'director 's request ,for additional evidence. The only
references to practical 'applications of the petitioner 's deep-water wave research in the witness letters,
are improved ship design to withstand severe storms. The unsupported assertions of counsel do not
constitute'evidence. Matter of Obaigbena, 19I&N Dec;'. 533, 534 (BIA 1988); Matter ofLaureano,
19 I&N·Dec. 1 (BIA 1983); Matter ofRamire z-Sanche z, 17 I&N Dec. 503; 506 (BIA J980).,
It remains, then, to determine whether the petitioner will benefit the national interest to a greater
, extent than an available U.S: worker withthe same minimum qualifications. .The director concluded
that the petitioner had not demonstrated why the alien employment certification process wo~ld not
"" ,
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serve the national interest in this matter and concluded that the lettei-ssubmitted do not establish the
" "
overall impact of the petitioner's work On appeal ,counsel asserts:
: Were [the "petitioner] -to be granted the requested waive~, histale~ts will remain
available to the scientific community and the government of the United States. The
operation of the labor market mayor may not offer an opportunity at any particular
time; if none is available now, [the petitioner ] may leave the country. On the other
hand, once public awareness of the necessity oftsunami prediction has developed into
political will, the pool of qualified experts in this field will evaporate. One cannot
speak of a labor market in the ordinary sense of the term, advanced scientific talent is "
not a fungible commodity. There is "no market price for scientific talent that could
save the country from natural disaster, if such talent is unavailable for recruitment.
Indeed , it is not ."clear from "the record that the petitioner was still employed pursuant to a
nonimmigrant visa 'as of the date of filing. Regardless , counsel appears to be asserting that the
national interest waiver is a tool for securing a pool of presently unemployable aliens qualified to
work in a field where the job. market may, at some point in the future , create a need for their services .
We find that such an analysis is far too speculative. It is the position of Citizenship and Immigration
Services (CIS) to grant national interest waivers on acase-by-case basis , rather than to establish blanket
waivers for entire fields of specialization , such as the sciences. See Matter ofNew York State D ep 't of
Transp., 22 I&N Dec. at 217. "
Counsel's sole support for the ' assertion that the 'United "States is not taking the threat- of tsunamis
seriously is an article about how the United States is failing to monitor a volcano that, if it erupts, could
senda portion of the volcano into the sea, causing massive tsunamis on the U.S. East Coast within three
to four hours. The article expressly states that a warning once the volcano ' erupts would be too late.
First, the record contains no evidence that the petitioner's work with fluid dynamics is relevant to
monitoring the next eruption of a volcano . Second, as stated above, none of the petitioner's references '
assert that the petitioner 's work is advancing existing methods for monitoring tsuriamis. While the
petitioner asserts; in response to the director 's request for additional evidence , that a tsunami is a
"breaking wave," he provides no support of that assertion . Notably, in the Introduction to the
petitioner 's pending . article, "A Numerical Study of Breaking Waves," the petitioner asserts that
breaking wave research is important to understand the 'mixing processes that take place in the upper
layer of the oceans and is "crucial for the safety of vessels and structures tit sea." (Emphasisadded.)
Even if the petitioner's work does have applications for tsunami research; it is not limited to tsunamis.
Specifically, the petitioner 's references attest to aerospace, biomedical , military (naval defense) and
commercial applications of the petitioner's work. Thus , the record does not suggest that the petitioner 's
work is limited to a narro w field that has not been, but will be , recognized as nationally important. ,
Finally, even if we accepted that the alien employment certification process is somehow inapplicable or
unavailable in the field of fluid dynamics, and we see no evidence to support such a conclusion , the
Page 6
inapplicability of that process cannot be viewed as sufficient cause fora national interest waiver .
Rather, 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 218, n . 5.
For all of the above reasons, counsel's assertion that the petitioner's purported expertise in tsunami
warning systems may someday make him valuable to the national interest is not' persuasive.
Eligibility for the waiver must rest with the allen's own qualifications rather ' than with the position
.sought. In other words, we generally do not accept the argument that a given proj ect 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. at218. Moreover , it cannot suffice to state,
as counsel does on appeal , that the alien possesses useful or "unique" skills. 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 Un ited States is an issue under the jurisdiction of the
.. Department of Labor . Id. 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 petitionerassumes 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. 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-casebasis, !d. at 221, n . 7. . .
As stated above, the pet itioner received his Ph .D. in Aerospace Engineering from the University of
Michigan on December 16,2001. The petitioner then worked as a postdoctoral researchfellow at the.
same institution through November 30, 2003 . ..In his personal affidavit accoinpanying the petition,
signed March 1, 2004 , the petitioner does not discuss any subsequentemployment. The petitioner
asserts that his petition is supported by reference letters, his unpublished Ph.D. thesis, and three articles
in various stages of preparation for publication . Thus, as of the date of filing; none of the petitioner 's
work had been published and, thus , widely disseminated in the field .
IIihis affi~avit , the p~titioner asserts that he perf~nned hi~ P?D . resear~h ~onof Dr.
••••• an aSSOCIateprofessor at the University of Michigan, and Dr. _ a former
professor _at the University of Michigan who ,is 'currently Head of the Mechanical Engineering
Department at Worcester Polytechnic Institute. Dr. asserts that the petitioner 's research, funded
... by 'the National Aeronautics and Space Agency (NASA) , focused on microgravity. The petitioner
developed new computational methodology to study ·fluid atomization, designed a system that can be
. operated in zero gravity as well as on Earth and demonstrated a correlation between ~umerical results
and experiments for liquid column/jet systems. . Dr. ass erts that scientists and researchers
"around the globe recognize and acknowledge 'the significance , impact" and contributions [the]
petitioner has made to the' field." Dr. I, however, provides no examples of other laboratories ,
Page 7
whether governmental, academic or commercial, applying the petitioner's work. As stated above, the
record contains no evidence that the petitioner had presented or published this work as of the date of
filing. '
Dr. xplains that the petitioner 's Ph.D. research focused particularly on how one drop of
, fluid inside another is formed . Dr. §gg assisted the petitioner with the computational aspects.
The petitioner was "able to identify several different regimes of drop formation, how they depended on
the numerical parameters, and what the underlying mechanisms are ." Dr. concludes that
this work is important, has been visited by other researchers and covered parameter ranges that are not
conducive to experimentation. Dr. _ does not explain how this work had already impacted
the field.
After obtaining his Ph.D. , the petitioner worked in the laboratory of Dr. an assistant
professor at the 'University o 'f Michigan . .During this time, the petitioner focused on numerical
simulation of polymer flows and breaking waves. This work was funded by the Defense Advanced
Research Projects Agency (DARPA) and the Office of Naval Research (ONR). Dr. asserts
that this work led to a conference paper and a paper currently under review for publication but does not
identify specific results or explain how the petitioner's results are significant and influential. ,
The petitioner then joined the laboratory of Dr.' an assistant professor at the
University of Michigan. There , the petitioner investigated wave breaking "on the ocean surface."
Neither Dr. _ the petitioner nor any other reference assert that surface wave breaking research is
applicable to-tsunamis , which, according to the article submitted on appeal, travel 'below the surface.
Dr. _iexplains that the project is important because the "understanding of mixing processes inducted
by large amplitude internal wave breaking is far way from complete , and such a nonlinear process has
to be correctly modeled for a better prediction of ocean circulation and therefore climate." ,Dr._
speculates that this work "will be of value," but does not identify any significant results already
obtained by the petitioner. '
Finally, , Professor Emeritus at Uni versity of Michigan, reiterates the assertions made by
the other refer ences. He concludes that the petitioner's Ph.D. thesis is very important , but provides no
examples of its influence in the field. He further concludes that the petitioner's wave breaking research
"can have important practical applications , as for example in the improvementin the design of ships to
withstand severe-storms." , ,
Citizenship and Immigration Services (CIS) may, in its discretion, use as ' advisory OpInIOnS
statements submitted as expert testimony. See Matter of Caron Intemational.Y') I&N Dec. 791, 795
(Comm. 1988). However , CIS is ultimately responsible for making the final determination regarding
analien'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.
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at 795; See also Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure
Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972». ' '
In evaluating the reference letters', we note that letters containing mere assertions of government or
commercial interest and positive 'response in the field are less persuasive than letters that provide
specific 'examples 'of how the petitioner .has influenced the field. In addition, letters from
independent references who were previously aware of the petitioner through his reputation and who
have applied his work are the most persuasive ' letters. The petitioner did not submit any letters from
professionalsbeyorid his immediate circle of collaborators at the University of Michigan.
While the petitioner's research may have been funded by NASA, D~A and ONR, most research is
funded and. rthus, must present some benefit to the general pool of scientific knowledge. It does not
follow that every researcher working with a government grant inherently serves the national interest
to an extent that justifies a :waiver of the job offer requirement.
Without letters from independent researchers influenced by , the .petitioner or evidence that the '
petitioner's work has been published and Cited or covered in the media , we cannot conclude that the
petitionethas a track record of success with any influence on the field. Not only has the ' petitioner
failed to provide evidence that he has been cited, he had yet to even publishhis work as of the date of
filing. ' ,
While ' the petitioner 's research is no doubt ,of value , it can be argued that any research must be
shownto be original and present some benefit 'if it is to receive funding a~d attention from the
scientific community. Any Ph.D. thesis .or postdoctoral research ; in order to be accepted for
graduation, publication or funding, must offer new and useful information to the pool of knowledge.
It does not follow that every researcher who performs original research that adds to the general pool
of knowledge inherently serves the national interest to an extent that justifies a waiver of the job
offer requirement. "
As is clear from a plain 'reading of the statute, 'it was not the intent of Congress that every person
qualified to engage .ma profession in the United States should be exempt from the requirement of a job
offer based on national interest. Likewise , 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 profession , rather than
on the merits of the individual alien. On the basis of the evidence submitted , the petitioner has not
"established that a waiver of the requirement of art 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 not sustained that burden ;
, '
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This denial is without prejudice. to the filing of a new petmon by a United States employer
accompanied by an alien employment certification certified by the Department of Labor, appropriate
supporting evidence and fee.· . .
ORDER: The appeal is dismissed.