dismissed EB-2 NIW Case: Applied Mathematics

(b)(6)
.. . •' ' 
DATE: · JAN 0 9 2013 
INRE : Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service: 
Administrative Appeals Office (AAO ) 
20 Massachuscn s Ave., N.W., MS 2090 
Washineton. DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
Office: NEBRASKA SERVICE CENTER Fll...E: 
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) 
I . 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative · Appeals Office in your . case. All of the 
documents related to this matter have been returned to the office that originally decided your case. Please 
be advised that any further inquiry that you might have concerning your case must be made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
· information that you wish to have considered, you may file a motion to reconsider or a motion to reopen 
in accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can ·be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § ·w3.5(a)(l)(i) requires any motion to be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
_lltJuclroL . · · 
~ ~~n Rosenberg 
Acting Chief, Administrative Appeals Office 
www .uscis.gov 
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Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Nebraska Service Center, and is now before the Administrative Appeals Office (AAO) on appeal. 
The appeal will be dismissed. 
The petitioner seeks classification under 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 applied mathematician "conducting research in 
applied superconductivity and magnetic levitation." At the time of filing, the petitioner was 
serving as an Executive Officer on the Board of Directors of 
a. family-owned company. 1 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 has 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 asserts that she will serve the national interest to a substantially greater 
degree than would an available U.S. worker having the same minimum qualifications, and thus she 
qualifies for the classification sought. The petitioner submits a brief with additional evidence. For 
the reasons discussed below, the AAO will uphold the director's decision. 
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 3;bility 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 ail 
employer in the United States. · 
1 A letter submitted from the company on appeal identifies the 
of the Board of Directors, . the 
· 1 as Chairman 
1, as President and Chief Executive Ofticer 
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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 ha:s 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 defme the term "national interest." Additionally, 
Congress did not provide a specific defmition of "in the national interest." The Conunittee on the 
Judiciary merely noted in its report to the Senate that the conunittee 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 regulations implementing the Immigration A~;:t of 1990, published 
at 56 Fed. Reg. 60897, 60900 (November 29, 1991), states: 
The Service [now U.S. Citizenship and Immigration Services (USCIS)] believes it 
appropriate to leave the application of this test as fl~xible 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 frorri, or waiver of, the job offer will 
be in the national interest. Each case is to be judged on its own merits. 
In reNew York State Dept. of Transportation (NYSDon, 22 I&N Dec. 215, 217-18 (Act. Assoc. 
Comm'r 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 emplo}'ment in an area of 
substantial intrinsic merit. /d. at 217. Next, the petitioner must show that the proposed benefit will 
be national in scope. /d. Finally, the petitioner see~g 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. /d. at 217-18. · 
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. /d. 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. /d. 
The AAO also notes that the. regulation at 8 C.F.R. § 204.5(k)(2) defines "exceptional ability" as 
"a degree of expertise significantly above that ordinarily encounte'red" in a . given area of 
endeavor. By statute, aliens of exceptional ability are generally subject to the job offer/labor 
certification requirement; they are not exempt by virtue of their exceptional ability. Therefore, 
whether a given alien seeks classification 
as ah alien of exceptional ability, or as a member of the 
professions holding an advanced degree, that alien cannot qualify for a waiver just by 
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demonstrating a degree of expertise significantly above that ordinarily encountered in his or her 
field of expertise. _.. 
The AAO concurs with the director's finding that the petitioner's work is in an area of intrinsic 
merit and that the proposed benefits of her work 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. 
Eligibility for the waiver must rest with the alien's own qualifications rather than with the 
-position sought. In other words, the AAO generally does 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 218. Moreover, it cannot.suffice to state that the alien possesses 
useful skills, or a "unique background." 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. 
!d. 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 she seeks. By seeking an extra benefit, the petitioner assumes 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. !d. at 219, n. 6. In evaluating the petitioner's achievements, 
the AAO notes 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. }d. at 221, n. 7. 
Along with copies of her published and pr~sented articles, the petitioner submitted letters of 
support discussing her work. 
states: 
[The petitioner] obtained her Ph.D. in mathematics at 
under my supervision in 2005 and was appointed 
the following year. In my role as her Ph.D. supervisor, her 
continuing research mentor and collaborator, ... I am very familiar with [the petitioner's] 
work and its importance to the national security and economic interests of the United 
States. 
* * * 
Along with a small group of researchers that I also direct, [the 
petitioner] worked closely with me between 2005 and 2010 on the development of 
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computational methods that can be used to solve many problems currently out of reach of 
even the fastest current computers. 
* * * 
[The petitioner 's] work primarily deals with both theoretical and highly practical 
questions concerning advanced adaptive algorithms that will become, in the 
near future, the computational standards for modeling radiative transport. Along with a 
second person that I also trained, [the petitioner] is a primary 
developer at of a major new computational platform, the to 
be used for both research and training by a broad community of biomedical researcher in 
the U.S. The methods that we are developing form the core of the 
software system which is deemed to be sufficiently important to have been featured 
prominently in ~e recent five year renewal of a major grant 
that supports our 
* * * 
[The petitioner] and I recently completed a one year research collaboration with 
with the work there being led by 
. aimed at introducing these new techniques into the code 
which is the world's most widely used r::~cii::~tive tr::~m:nort cone. We have also 
collaborated with in a proposal to the ' 
to continue this work for an additional three years. [The petitioner] and 
I also collaborated with a research biologist at in a five year 
study to develop real-time computational methods in support of the laser cervical probe 
that she has pioneered for early detection of cervical cancer. Finally, our work was 
recognized by a grant awarded by the to continue the 
theoretical and practical development of these new algorithms. 
comments that the petitioner's work deals with ' algorithms that will 
become, in the near future, the computational standards for modeling radiative transport." 
does not provide specific examples of how the petitioner's specific work has already 
impacted the field as a whole as of the date of filing. Eligibility must be established at the time 
of filing . . 8 C.F.R. §§ 103.2(b)(1), (12); Matter of Katigbak, 14 I&NDec. 45,49 (Reg'l Comm'r 
1971 ). A petition cannot be approved at a future date after the petitioner becomes eligible under 
a new set of facts. Matter of /zummi, 22 I&N Dec. 169, 175 (Comm'r 1998). That decision 
further provides, citing Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981), that USCIS cannot 
"consider facts that come into being only 
subsequent to the filing of a petition." /d. at 176. 
a'tso indicates that the petitioner helped develop the 
computational platform at and that their project is funded by the 
In addition, discusses his and the petitioner's collaborations with and 
states that their work was recognized by a grant awarded by the to 
continue the theoretical and practical development of new algorithms. It can be 
argued, however, that most research,, in order to receive funding, must present some benefit to 
. I 
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the general pool of scientific knowledge. It does not follow that every researcher working with a 
U.S. government grant inherently serves the national interest to an extent that justifies a waiver 
of the job offer requirement. The petitioner failed to submit supporting documentary evidence 
showing that her specific work on the techniques represented 
groundbreaking advances that significantly impacted the field at large. 
states: 
I collaborated with [the petitioner] and her supervisor ... on a 
research. project with the goal of dramatically improving the calculational efficiency of 
particle transport simulations. The project's success is changing the basic 
nature of calculations from a slow convergence as the inverse square root of 
the computer time to an exponentially fast convergence. 
* * * 
Needless to say, changing the convergence rate involves 
practical challenges. [The petitioner's] advanced 
instrumental in overcoming these challenges. 
numerous theoretical and 
research has been 
Despite the fact that large numbers of people use calculations to design 
almost every type of system involving radiation (e.g. nuclear mediCine, nuclear power, 
and nuclear shielding), there are only a handful of people in the world with both the 
theoretical background and expertise necessary to achieve exponential 
convergence. The U.S. needs to retain such exceptional talent as the health, safety, and 
·economic impacts of better designs for nuclear systems are enormous. This comment is 
especially true with the nation's current energy problems and the resurgence of nuclear 
power. 
states that the petitioner worked on a project to improve the efficiency of 
particle transport simulation, but he does not provide specific examples of how the petitioner's 
work at has significantly influenced others in the field or is being applied by other 
mathematicians. also comments on the limited· number of people "with both the 
theoretical background and expertise necessary to achieve exponential 
convergence." It cannot suffice, however, .to state that the petitioner possesses useful skills, or a 
"unique background." Regardless of the alien's particular experience or skills, even assuming 
they are unique, the benefit the alien's skills or background will provide to the United States 
must also considerably outweigh the inherent national interest in protecting u.s. workers through 
the labor certification process. NYSDOT, 22 I&N Dec. at 221. 
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of which I was the chaimian that I learned about 
research area is very broad 
with many applications to the energy, transportation, and defense areas. 
* * * 
[The petitioner's] thoroughness and deep understanding of these applications are 
demonstrated in her publications. Her strength is the ability to · construct sophisticated, 
physics-based, computer models that can provide the basis for the design and 
construction of these advanced high technology systems. There are very few people in 
the technical community that have the background in the electromagnetics area that [the 
petitioner] possesses. These areas are critical for the U.S. to maintain a technology 
leadership position. Her unique research experience and technical background are 
essential for continuing these important research activities either at or any other 
suitable private arid/or government funded institution. 
points to the limited number of "people in the technical communitv that have the 
background in the electromagnetics area that [the petitioner] possesses." also 
comments on the petitioner's "unique research experience and technical background." Once 
again, it cannot suffice to state that the alien possesses useful skills, or a "unique background." 
Special or unusual knowledge or training does not inherently meet the national interest threshold. 
The issue of whether similarly-trained workers ·are avaihible in the U.S. is an issue under the 
jurisdiction of the. Department of Labor. /d. at 221. 
states: 
I have known [the petitioner] . since September 1998, when she joined 
_ 
. . . to pursue her Doctoral Degree studies in Applied 
Mathematics .... As per her scholarshiprequirements, she was my teaching assjstant for 
the Dynamical Systems class . ... 
* * * 
As [the petitioner's] mentor I have advised her throughout her studies and have observed 
her progress; so when she approached me about being on her dissertation committee I 
gladly agreed .... Her thesis work has resulted in a comprehensive study publication on 
the subject of condensed history modeling in the prestigious 
* * * 
I can also attest to [the petitioner]'s recent outstanding work collaborating with 
on developing exponentially convergent 
algorithms. These algorithms for the radiative transport equation modeling are an 
(b)(6)
Page 8 
enabling tool for various applications . that are in the national interests of the United 
States, such as nuclear reactor shielding, radiation therapy planning for cancer treatment, 
non-invasive cancer detection for biomedical optics and many more. 
Moreover, [the petitioner's] current commitment to the mathematical modeling of 
electromagneti~ effects is highly relevant to the development of technologies in such 
applications as clean transport and sustainable energy- these are unquestionably issues 
of national if not international importance. . . . I am certain that it would be detrimental 
to the u:s. national interests to require her immigration to be based on a particular 
employment offer - this would be too confining for her multifaceted research 
capabilities. 
states that the petitioner's thesis work has resulted in a publication on the subject 
of condensed history modeling in but there is no documentary 
evidence showing that the petitioner's work is frequently cited or has otherwise significantly 
influenced her field. While the petitioner's research is no doubt of value, it can be argued that 
any research must be shown to be original and present some benefit if it is to receive funding and 
attention from the scientific community. Any Ph.D. thesis or postd~ctoral research, in order to 
be accepted for graduation, publication, presentation, 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. also 
states that "it would be detrimental to the U.S. national interests to require [the petitioner's] 
immigration to be based on a particular employment offer." U.S. Citizenship and Immigration 
Services (USCIS) acknowledges that there are certain occupations wherein individuals would have 
no U.S. employer to apply for an alien employment certification. While this fact will be given due 
consideration in appropriate cases, 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 she will serve the national interest to a substantially greater degree than do 
others in the same field. /d. at 218, n. 5. 
states: 
When fthe oetitionerl aoproached me requesting a supporting letter I remembered the 
held in - this is when· I first learned about the work 
. done by [the petitioner] and other members of :esearch group. I was 
impressed by the variety of technologies ... that are derived from and/or developed on 
the basis of the . • ... I've followed and 
present evidence of [the petitioner's] contributions as an applied mathematician to the 
development of these technologies as demonstrated by these publications: 
1. 
-
Washington D.C., 2010. 
(b)(6)
., Page 9 
* * * 
Upon receiving a request for this supporting letter I had a chance to evaluate these 
publications: 
* * * 
The publications by [the petitioner] referenced above clearly demonstrate that she is an 
expert in simulations to the transport equation for biomedical optics 
applications·- an expertise developed over her several years o~ post-doctoral work at 
comments on the petitioner's published and presented work, but there is no 
presumption that every published article or conference presentation demonstrates influence on 
the field as a whole; rather, the petitioner must document the actual impact of her article or 
presentation. In that regard, the petitioner submitted citation evidence reflecting an aggregate of 
two cites to her b@ of published and presented work. Specifically, her article entitled 
entitled 
was independently cited to only once. In addition, the petitioner's article 
··in 
WCl;:) ;:)~H-'-'lliAJ VII ) U l '-UOUUJU1'3 
and - Self-citation is a normal, expected practice. Self-citation cannot; nowever, 
demonstrate me response of independent researchers. The petitioner has not established that the 
single independent cite to her body of published and presented work is indicative of a notable 
influence on the field. 
further states: 
My most recent communication with 
- the company with which [the oetitionerl is currently affiliated -was in September 
2010 when I had a meeting with of the company. We discussed 
future directions in developing that the company will take. 
The company's vision on ideas that are in high demand and serve the national interests of 
the United States has proven to be a far-sighted one - since then another new patent 
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Page 10 
application related to efficient energy extraction from ocean tides and waves has been 
submitted by the compal}.y. ' 
states that the petitioner's company submitted patent applications "related to efficient 
energy extraction from ocean tides and waves." The evidence submitted by the petitioner 
includes two patent applications authored by her father, Neither of these 
patent applications specifically identifies the petitioner as a co-inventor. Further, even if the 
petitioner were to establish that these inventions received a patent, the grant of a patent 
demonstrates only that an invention is original. Moreover, an alien cannot secure a national interest 
waiver simply by demonstrating that she holds a patent or that her company has filed two patent 
applications. Whether the specific innovation serves the national interest must be decided on a case­
by-case basis. !d.' at 221, n. 7. In this instance, there is no evidence indicating the extent to which 
the petitioner's company's inventions have been licensed by energy generation companies or 
successfully utilized in the industry. Thus, the impact of the inventions is not documented in the 
record. The record contains little in the way of specific evidence to show what measurable 
impact the petitioner has wrought in her field of endeavor. While the petitioner has published 
useful research and her company has filed for two patents authored by it can be 
argued that the petitioner's field, like most science, is research-driven, and there would be little 
point in publishing research which did not add to the general pool of knowledge in the field. 
Similarly, it has not been established that everyone who works for a company that applies for a 
patent for a useful invention inherently qualifies for a national interest waiver of the job offer 
requirement. Ultimately, the citation record and other documentary ,evidence submitted by the 
petitioner are not indicative of a notable influence in the field at the time of filing. 
, states: 
I first heard · of through one of the 
technology review reports prepared for the I for which I serve as 
the Deputy Project Manager. These technology reviews were conducted to screen a 
number of proposals for the transport of Port . containers using "green" tPf'hnnlnoiP s l'lnn 
to determine the applicability of each of these technologies on the 
advancements in demonstrated great promise and will 
continue to be considered for future applications in the In the 
and along ) in particuiar, diesel particulate matter (primarily coming 
from diesel trucks) is a leading cause of cancer. For the communities along 
finding a "green" alternative to the transport of containers by diesel trucks is a public 
health priority. 
I believe [the petitioner's] research will help develop a technology that is applicable to 
the transport of cargo and that will therefore help reduce diesel emissions in the U.S. 
states that advancements in 
"demonstrated great promise and will continue to be considered for future 
applications in the also claims that the petitioner's research "will 
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Page I I 
help develop a technology that is applicable to the transport of canm and that will therefore help 
reduce diesel emissions in the U.S." In the preceding instances, comments on what 
could one day result from the petitioner's work rather than providing specific examples of how 
her past research has already significantly impacted the field. A petitioner cannot file a petition 
under this classification based solely on the expectation of future eligibility. Matter of Katigbak, 
14 I&N Dec. at 49. · · 
states: 
My knowledge of [the petitioner's] interests and capabilities in mathematics derive from 
the latter half of the six-month period of her student internship at the · 
during the sunimer and fall of 1993. She 
was ·assigned to the Scientific Computing Group. 
* * * 
For the latter half of that period, she worked under my direct supervision on a miscellany 
of modeling and solution-algorithm development problems related to reactive flow m 
liquid propulsion systems. 
* * * 
During. the first half of her term at she performed various tasks designed to 
familiarize her with cpmputer network and a variety of software packages 
relevant to her overall participation in the group's activities. 
Since I am a physicist, my evaluation of her performance is based on her use of heu­
ristics, rather than formal rigor. During our brief period of workin.g together, she assisted 
me to develop and implement numerical solution methods to solve a very large system of 
nonlinear equations whic~ constituted a lumped-parameter model ·of a reactive flow 
problem. She became very interested in the fact that graph-theoretic techniques were used 
to obtain representations of network configurations in forms canomcal to the objective of 
enabling the stable, accurate numerical solution of very large systems of flow equations 
utilizing parallel processing methods. She used her understanding of basic matrix 
factoring and bordering algorithms to develop and implement an algorithm to mitigate the 
effects of ill-conditioning which are a consequence of the large disparities between the 
orders of magnitude of the natural time constants of interacting inertial and thermal 
phenomena. 
does not provide specific examoles of how the petitioner's work at has 
influenced the field as a whole. Instead, focuses on the tasks performed by the 
petitioner during her internship. Simple training in advanced technology or unusual knowledge, 
while perhaps attractive to the prospective U.S. employer, does not inherently meet the national 
interest threshold. NYSDOT, 22 I&N Dec. at 221. 
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The documentation initi~th, ~"h"1itted by the petitioner included an internet screenshot 
identifying her as a system user and her name tag from the 
_ The petitioner asserts that the preceding 
items are documentation of her "membership in professional societies." The petitioner has not 
established that having a system online user profile and attending a mathematics 
conference constitute professional society memberships. Regardiess, the AAO notes that 
professional association memberships relate to the regulatory criteria for classification as an a~ien 
of exceptional ability, a classification that normally requires an alien employment certification. 
8 C.F.R. § 204.5(k)(3)(ii). The AAO cannot conclude that meeting one; two, or even the 
requisite three criteria for classification as an alien of exceptional ability warrants a waiver of the 
employment certification requirement in the national interest. By statute, "exceptional ability" is 
not, by itself sufficient cause for a national interest waiver. /d. at 218. Thus, the benefit which 
the alien presents to his field of endeavor m1.1st greatly exceed the "achievements and ·significant 
contributions" contemplated for that classification. /d.; see also id. at 222. 
states: 
. Developing efficient (fast and accurate) • methods has been a major theme of 
my work and is the subject of [the petitioner's] research. The term condensed simulation 
means compressing several simulation steps into a super step in an attempt to bypass 
· individual collisions and to shorten 
simulation run times. Prior to [the petitioner's] paper, - . ... 
I had seen 
on y to charged-partiCle transport. Thus her application of 
this approach to photons was completely novel. Condensation represents an 
approximation to the exact transport process and the associated error has traditionally 
been difficult to assess. [The petitioner] has developed a mathematically rigorous theory 
for condensed history photon methods which indicates that by controlling 
the number, N, of angular moments of the phase function, one can control the accuracy of 
the condensed history simulation. 
* *·. * 
Due to algorithms that [the petitioner] has developed, researchers are now able to replace 
diffusion with more accurate computational tools in cancer detection research when full 
radiation transport modeling is prohibitively expensive. Enabling and facilitating cancer 
research is clearly important to the United States national interests. Furthermore, [the 
petitioner's] research is of significance for biomedical optics research community as a 
whole, since this community requires photon · transport in a variety of settings. 
Developing, approximate methods is an important area of research with a 
variety of applications, each of which is iri the national interest, such as nuclear reactor 
engine~ring, biomedical optics, cancer therapy, and radiation planning. 
* * * 
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Page 13 
I can · testify that changing the rate of convergence requires sophisticated 
mathematics, knowledge of an application at hand as well as substantial skills in software 
·engineering. [The petitioner] has demonstrated amply those qualities in her paper 
this paper [the petitioner] has developed a geometrically convergent 
algorithm based on sequential correlated sampling applied to a radiative transport 
problem with high heterogeneity in the energy variable. This paper has been published in 
the highly selective peer-reviewed 
comments on the petitioner articles entitled ' 
'and 
but the level of citation for these articles (one mdependent Cite and 
one self-cite by the petitioner's coauthors, respectively) is not indicative of a notable influence in 
the field. also discusses the general importance of developing approximate . 
methods. Assertions regarding the overall importance of the alien's area of expertise 
cannot suffice to establish eligibility for a national interest waiver. /d. at 220. As previously 
discussed, eligibility for the waiver 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. /d. at 218. · 
states: 
I was the editor handling the paper written by [the petitioner] et al., 
now published in 
A novel, doubly adaptive, geometrically convergent a gorithm has been suggested and 
tested on the extremely difficult transport problem due to high heterogeneity in the 
energy variable. The ideas presented in this paper are quite novel. I consider this paper a · 
specific achievement by [the petitioner] that justifies projections ·Of future benefit to the 
national interests because: 
1. Very few researchers can achieve geometric convergence even on simplified 
model problems; 
2. Realistic problems where is the only method of solution are typically 
quite heterogeneous. In general, the medium in transport applications has 
. I 
heterogeneities in space, angle and energy. 
* * * 
methods are slow in that you usually have to do four times as much 
computation to cut the error in half (or similarly, 100 times the work to improve by a 
factor of 10) .... Geometrically convergent algorithms, such as proposed 
by [the petitioner], change the rate of convergence. They get a virtuous cyck going 
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Page 14 
where greater accuracy at one step is used to devise a more accurate method for the next 
step, which in tum generates a IJ.lOre accurate answer .... [The petitioner's] research has 
been fosused on particle transport applications, useful for applications in medicine and 
physics. · I expect that the idea will be useful in other applications too, where similar 
underlying equations appear. That is adaptive Monte Carlo algorithms have the potential 
to make enormous improvements in other technical areas useful to U.S. industry and 
commerce. 
* * ~ 
[The petitioner's] original research and significant contributions to the field of 
geometrically convergent methods. will play a major role in solving many 
problems, for instance, inverse problems in biomedic.al optics; allowing early diagnosis of 
cancerous tissue. 
discusses the novel findings presented by the petitioner in her article entitled 
"but there 
is no documentary evidence showing that this article is frequently cited by independent 
researchers or that her findings have otherwise si1mificantlv influenced the field at lar2:e. 
also states that the petitioner's 
but he fails to provide specific examples of how the petitioner's 
original methods are already being successfully applied in medicine or industry. With regard to 
the witnesses of record, many of them they discuss what may, might, or could one day result 
from the petitioner's work, rather than how her past research has already influenced the field as a 
whole. As previously discussed, a petitioner cannot file a petition under this classification based 
solely on the expectation of future eligibility. Matter of Katigbak, 14 I&N Dec. at 49. 
The director denied the petition finding that the petitioner failed to establish that a waiver of the 
requirement of an approved labor certification would be in the national interest of the United 
States. The director noted that while the petitioner's work "has promising possibilities," the 
submitted evidence did not "persuasively distinguish her from other capable researchers in the 
field." 
On appeal, the petitioner 
submits a letter from 
As a founder of our company, ... I claim that our intellectual property has been created 
and being owned by [the petitiorier] and myself; it is our property that 
cannot be transferred as a tangible and intangible property to any other .company or 
individual, including those U.S. workers having the same nominal doctoral degree in 
applied mathematics as [the petitioner] has. 
As a s.cientist and co-owner of our company, I claim that [the petitioner's] commitment to 
business and the record of her prior achievements consisting of 5 (five) scholarly 
papers presented at various international conferences and subsequent! y accepted for 
'-. 
(b)(6)Page 15 
publication sets [the petitioner] apart of her peers. Moreover, since developing 
technologies commercially requires a lot of money with potential profits being very high, 
the technology is a very competitive business, where innovations are not shared 
openly in scholarly publications as much as in other fields. Instead, those innovations are 
reported at conferences and documented in patent applications: Hence, the mere fact of 
being invited for such conferences indicates novelty of our results and interest in our 
original research expressed by the community, i.e. our·competitors. 
The success of innovations owned by both from the standpoint of science and 
business, crucially depends on [the petitioner] <;ontinued commitment to 
* * * 
S.ustainable energy generation alone, e.g., is the subject of research at many National 
Laboratories and Universities. However, precisely because these applications are so 
important to the U.S. National Interests, the jobs requiring expertise in mathematical 
modeling for these applications typically require pemianent residency status. Also, the 
same holds true regarding eligibility for government funding, as this funding is being 
distributed through such governmental agencies as e.g., Department of Energy. Thus, 
[the petitioner's] expertise in mathematical modeling of levitation and superconductivity 
phenomena cannot be applied to the U.S. benefit, since in her current non-immigrant 
status she is not eligible for such jobs that match her expertise outside of Neither 
can she accelerate business development at . in her current status, as raising 
government funding for commercial development of innovations is practically 
impossible in [the petitioner's] current status. Meanwhile, our company needs [the 
petitioner's] scientific expertise in furthering this research as well as her experience in 
obtaining government grants .... 
comments on the petitioner's published and presented work, but there is no 
evidence showing that her articles are frequently cited by independent researchers or that her 
findings have otherwise notably influenced the field as a whol~. The AAO notes that many 
professional fields regularly hold meetings and symposia to present new work, discuss new 
findings, and to network with other professionals. These conferences are promoted and 
sponsored by professional associations, businesses, educational institutions, and government 
agencies. While presentation of the petitioner's work demonstrates th~t her findings were shared 
with others and may be acknowledged as original based on their selection to be presented, there 
is no documentary evidence showing that her resented work has' significantly impacted the 
transportation industry or that the original technologies that she developed have been 
implemented commercially. also discusses the importance of mathematical 
modeling to sustainable energy generation, but as previouslydiscussed, assertions regarding the 
overall importance of the alien's area of expertise cannot suffice to establish eligibility for a 
national interest waiver. NYSDOT, 22 I&N Dec. at 220. Finally, points to the . . 
petitioner's expertise in mathematical modeling, her ability to accelerate business development, 
and her experience in obtaining governmental funding. Once again, it cannot suffice to state that 
(b)(6)
Page 16 
the alien possesses useful skills, or a "unique background." Regardless of the alien's particular 
experience or skills, even assuming they are unique, the benefit the alien's. skills or background will 
provide to the United States must also considerably outweigh the inherent national interest in 
protecting U.S. workers through the labor certification process. /d. at 221. The national interest 
waiver was not intended simply as a means for employers (or self-petitioning aliens) to avoid the 
inconvenience of the labor certification process. /d. at 223. 
In a letter accompanying her appeal, the petitioner repeats information regarding her publication 
record, citation history, presentations, the novelty of her research, the governmental funding of 
her past projects, and the importance of her work in developing new technologies. The 
preceding information from the petitioner is not sufficient to den:tonstrate that a waiver of the 
requirement of an approved alien employment certification will be in the national interest of the 
United States. The petitioner also asserts that the limited number of cites to her published work 
should not preclude her eligibility for a national interest waiver. The AAO acknowledges that 
independent citations are .not the only means by which to show the petitioner's impact on her 
field. Letters of support can play a significant role in this respect. Here, however, the petitioner 
has submitted reference letters limited mostly to her professors and to individuals affiliated with 
institutions where she has studied or worked. While such letters are important in providing 
details about the petitioner's role in various projects, they cannot by themselves establish her 
influence beyond her institutions and over the field as a whole. Moreover, simply listing the 
petitioner's novel research findings cannot suffice in this regard, because all graduate students 
and postdoctoral researchers are arguably expected to produce original work. 
The opinions of experts in the field are not without weight and have been ·considered above. 
USCIS may, in its discretion, use as advisory opinions statements submitted as expert testimony. 
See Matter of Caron International, 19 I&N Dec. 791, 795 (Comm'r. 1988). However, USCIS is 
ultimately responsible for making the final determination regarding an alien's eligibility for the 
benefit sought. /d. The submission of letters from experts supporting the petition is not 
presumptive evidence of eligibility; USCIS may evaluate the content of those letters as to 
whether they support the alien's eligibility. See id. at 795-796; see also Matter of V-K-, 24 I&N 
Dec. 500, n.2 (BIA 2008) (noting that expert opinion testimony does not purport to be evidence 
as to "fact"). Thus, the content of the experts' statements and how they became aware of the 
petitioner's reputation are important considerations. Even when written by independent experts, 
letters solicited by an alien in support of an immigra~ion petition are of less weight than 
preexisting, independent evidence that one would expect of an applied mathematician who has 
influenced the field as a whole. 
While petitioner has performed admirably on the research projects to which she was assigned, 
she has not established that her past record of achievement is at a level that would justify a 
waiver of the job offer requirement which, by law, normally attaches to the visa classification 
sought by the petitioner. The AAO notes that the petitioner need not demonstrate notoriety on 
the scale of national acclaim, but the national interest waiver contemplates that her influence be 
national in scope. NYSDOT, 22 I&N Dec. at 217 n.3. More specifically, the petitioner "must 
clearly present a signifigant benefit to the field of endeavor." /d. at 218. See also id. at 219 n.6 
(b)(6)
Page 17 
(the alien must have "a past history of demonstrable achievement with some degree of influence 
on the field as a whole.") 
As is clear from a plain reading of the statute, it was not the intent of Congress that every alien of 
exceptional ability should be '?xempt from the requirement of a job offer' based on national interest. 
Likewise, it does not appear to have been the intent of CongJ;ess to grant national interest waivers on 
the basis of the overall importance of a given occupation, rather than on the merits ofthe individual 
alien. On the basis of the evidence submitted, the petitioner has not established that a waiver of the 
requirement of an approved alien employme~t 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. 
ORDER: The appeal is dismissed.