dismissed EB-2 NIW Case: Atmospheric Chemistry

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u.s.Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
pUBLICCOpy
FILE: LIN 0611951395 Office: NEBRASKA SERVICE CENTER Date: OCT 252007
INRE: Petitioner:
Beneficiary:
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 further inquiry must be made to that office.
~~~
~Robert P. Wiemann, Chief
/ Administrative Appeals Office
www.uscis.gov
LIN 0611951395
Page 2
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant 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) 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 a research associate. 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 the classification sought, but that
the petitioner had not established that an exemption from the requirement of a job offer would be in the
national interest of the United States.
On appeal, the petitioner submits her own statement and additional evidence. For the reasons discussed
below, the petitioner has not overcome the director's basis of denial.
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 ofjob 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 petitioner holds a Ph.D. in Earth and Atmospheric Sciences from the Georgia Institute of
Technology. 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. The
remaining issue is whether the petitioner has established that a waiver ofthe 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 the phrase, "in the national interest." The Committee on the
LIN 0611951395
Page 3
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, 10ist Cong., 1st Sess., II (1989).
A supplementary notice regarding the regulations implementing the Immigration Act of 1990
(IMMACT), published at 56 Fed. Reg. 60897, 60900 (Nov. 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 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 Dep't. of Transp., 22 I&N Dec. 215, 217-18 (Commr. 1998) (hereinafter
''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 217. 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. !d. at 217-18
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. !d.
We concur with the director that the petitioner works in an area of intrinsic merit, atmospheric
chemistry, and that the proposed benefits of her work, an improved understanding of chemical
reactions important to the formation of pollution in the atmosphere , 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, 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
218. Moreover, it cannot suffice to state that the alien possesses useful skills, or a "unique
background." !d. at 221. Special or unusual knowledge or training .does not inherently meet the
LIN 0611951395
Page 4
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 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 director concluded that the petitioner's three published articles, handful of citations and letters
mostly from her immediate circle of colleagues were insufficient to establish her impact in the field.
On appeal, the petitioner asserts that she had actually authored four published articles, been cited
nine times and submitted letters from three independent experts in the field. She further asserts that
her publication record should not be compared with those of far more experienced members of the
field.
The petitioner must establish eligibility as of the date of filing. See 8 C.F.R. § 103.2(b)(12); Matter
ofKatigbak; 14 I&N Dec. 45, 49 (Regl. Commr. 1971). In order to demonstrate that her work had
been published and, thus, disseminated in the field, the petitioner must demonstrate actual
publication, not simply preparation, submission or acceptance for publication. The record before the
director demonstrated that only three of the petitioner's articles had been published. On appeal, the
petitioner submits evidence that her fourth article was published on the date of filing, March 15,
2006. Thus, we accept that the petitioner had authored four published articles as of the date of filing,
although we note that it is difficult to gauge the impact of an article on the day it is published. We
further acknowledge that the petitioner had presented her work at conferences.
As stressed by the petitioner on appeal, she is listed first among the authors on her articles.
Nevertheless, the director did not make a factual error in stating that the articles were coauthored.
Regardless of her position in the list of authors, the petitioner must still demonstrate the significance of
the individual articles. In response to the director's request for additional evidence, the petitioner
submitted three articles that cite her work. The petitioner notes on appeal that one of those articles cites
three of her own articles and submits a self-citation by her Ph.D. advisor and coauthor,
While self-citation is a normal and expected process, it cannot establish the petitioner's influence
beyond her own immediate circle of colleagues. Of the three citing articles submitted in response to the
director's request for additional evidence, one of them is a "Preface" in Aquatic Sciences that reviews
the ten articles appearing in that issue, one of which is the petitioner's article. This preface is not
evidence of independent recognition of the petitioner's work. We concur with the director that the
petitioner has not established that she is widely cited. Moreover, one of the independent articles,
"Dimethyl Sulfide and Dimethyl Sulfoxide and Their Oxidation in the Atmosphere," suggests that the
petitioner's theories have yet to be confirmed as valid for the marine atmosphere.
LIN 0611951395
PageS
On appeal, the petitioner identifies of the University of Michigan,
Hoffmann of the California Instituteof Technologyand fthe University of Leeds
as independent references. ~d both assert that they learned of the petitioner
through her reputation or by meeting her at a conference. _ however, worked in the same
location as the petitioner in 2005 and, according to the ~itae of_
coauthored an article with_in2002 when_was the petitioner's ~
said, we will consider the letters in detail below.
Regarding testimonial evidence, Citizenship and Immigration Services (CIS) may, in its discretion,
use as advisory opinions statements submitted as expert testimony. See Matter of Caron
International, 19 I&N Dec. 791, 795 (Commr. 1988). However, CIS is ultimately responsible for
making the final determination regarding an alien's eligibility for the benefit sought. Id. The
submission of letters from experts supporting the petition is not presumptive evidence of eligibility;
CIS may evaluate the content ofthose letters as to whether they support thealien's eligibility. See id.
at 795. CIS may even give less weight to an opinion that is not corroborated, in accord with other
information or is in any way questionable. ld. at 795. See also Matter ofSoffici, 22 I&N Dec. 158,
165 (Commr. 1998) (citing Matter ofTreasure Craft of California, 14 I&N Dec. 190 (Regl. Commr.
1972)).
In evaluating the reference letters, we note that letters containing mere assertions of adding to the
general pool of knowledge in the field or a positive response in the field are less persuasive than
letters that provide specific, concrete examples of how the petitioner has influenced the field. In
addition, letters from independent references who were previously aware of the petitioner through
her reputation and who have applied her work are the most persuasive.
As stated above, the petitioner obtained her Ph.D. from the Georgia Institute of Technology in
December 2004. Since that time, the petitioner has been working as a postdoctoral scholar at the
Chemical Sciences Division (CSD) of the Cooperative Institute for Research in Environmental
Sciences (CIRES), jointly sponsored by the National Oceanic and Atmospheric Administration
(NOAA) and the Universityof Colorado.
_ asserts that the petitioner studied the effect of aqueous phase reactions of organic sulfur
compounds to the formation and growth of aerosols and cloud droplets, discovering previously
unreported measurementsof the chemical transformationsand providing the latest or only information
about how sulfur compounds degrade in cloud droplets under atmospheric conditions. In addition, the
petitioner developed a computermodel to simulate the effectof these reactions on aerosol growth in the
atmosphere and in ice cores. This model showed that the reactions increase the reflection of solar
radiation, therebycounteractingglobal warminginduced by greenhouse gases._ concludes that
the petitioner played a criticalrole in his National ScienceFoundation (NSF) funded project.
LIN 0611951395
Page6 .
In a subsequent letter,_asserts that the petitioner's combinationof education, training and past
experience "places her in a position to benefit our national interest to a higher degree than mostof her
peers." He further asserts that her work is both original and scientifically significant and made
significant contributions to his NSF funded project. He notes that the petitioner's presentations and
articles were reported to the NSF in the laboratory 's annual report. The record contains the report,
which lists the petitioner's presentations and publications. He concludes that the petitioner's research
"has contributed significantlyto our understandingof the global sulfur cycle, thus facilitating accurate
assessment of the contribution of both biogenic and anthropogenic sulfur to climate modification or
regulation as well as other environmental issues such as visibility reduction, acid precipitation , and
lower stratosphericozone depletion."
an assistant professor at the Georgia Institute of Technology, asserts that he
served as the petitioner's Ph.D. co-advisor._ further asserts that the petitioner's work on th~
sulfur cycle "was long needed and fills in a significant knowledge gap." He discusses the importance
of the petitioner's area of research and concludes that her ability to ''bridge the experimental and
modeling components of the atmosphericresearch distinguishedher not only from other PhD graduate
students in our program , but also from many other post-doctoral scientists normally encountered in
atmospheric chemistryresearch."~ an associate professor at the Georgia Institute
of Technology, provides similari~
_that he met the petitioner at a conferencein 2003 and has followed her work ever
~rates that the petitioner provided original data that contributed to the overall pool
of knowledge in her field, he does not assert that he has personally relied on her work. _
asserts that he knew of the petitioner by her reputation and then met her at a conference in 2002. Dr.
_ does not explain the basis of the petitioner's "reputation" prior to 2002, at which time she had
yet to publish a single article and had only presented her work at two conferences. While_
praises the petitioner's novel experimentaland modeling studies, he provides no examplesof their use
in the 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 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 obtains a Ph.D., is published in a reputable journal or is
working with a government grant inherently serves the national interest to an extent that justifies a
waiver of the job offer requirement.
Acting Director of CSD and a professor at the University of Colorado,
discusses the petitioner's work at CSD. Specifically, the petitioner has focused on ''the reaction of
hydroxyl radical (OH) with acetaldehydeand the possible reactions of acetyl radicals with molecular
oxygen to regenerate OR radicals." explains that these reactions are important to the
formation of urban ozone and theformationof ozone in thetroposphere. continues:
LIN 06 11951395
Page 7
[The petitioner's] work has provided important data on the rate coefficients for the
reaction of OH with acetaldehyde under atmospheric conditions. These data are
fundamental and essential in estimating the rate of ozone production, quantifying the
photochemical smog formation mechanism, and finding strategies to control ozone
pollution.
_ncludes that the petitioner's experience in both liquid and gas phase reactions will
allow her to obtain laboratory-based data essential for understanding and mitigating air pollution in the
United States. _ asserts th~ioner has produced data for a model to simulate
atmospheric ozone generation. While ~explains why this area of research is important, he
does not provide examples of other laboratories using the petitioner's models or other examples of her
influence in the field.
lassertsthat the petitioner's work at CSD "has provided such important information that
[is] fundamental to estimate the ozone production rate due to these reactions, thus help us better
understand [sic] the photochemical smog formation mechanism and find the strategy to control ozone
pollution." _ provides similar assertions, concluding that the petitioner's "innovative work
has vital implications for the U.S. economy." As of the date of filing, the petitioner had not authored
any published articles reporting her CSD studies and had presented this work at a single conference.
Thus, it does not appear that any of this work had been sufficiently disseminated such that we can
gauge its impact in the field asof the date of filing in this matter.
As is clear from a plain reading of the statute, it was not the intent of Congress that every person
qualified to engage in a 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 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. § 1361. The petitioner has not sustained that burden.
This denial is without prejudice to the filing of a new petition 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.