dismissed EB-2 NIW Case: Atmospheric Chemistry

identifying Csta ddelcted to 
arevent clearly unwarranted 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
&,ion of personal privacy 
 U.S. Citizenship 
and Immigration 
PUBLIC C Services 
FILE: Office: TEXAS SERVICE CENTER Date: 
SRC 07 800 23249 
 :JUN 1 'I 2009 
PETITION: 
 Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 153(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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
kJn F. Crissom 
Acting Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: 
 The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (-4.40) on appeal. The AAO will 
dismiss the appeal. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. 5 1153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner is a postdoctoral research associate at Texas A&M University, College Station. The 
petitioner asserts that an exemption fkom 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 submits a brief from counsel. 
Section 203(b) of the Act states, in pertinent part: 
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of 
Exceptional Ability. -- 
(A) In General. -- Visas shall be made available . . . to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or who 
because of their exceptional ability in the sciences, arts, or business, will substantially 
benefit prospectively the national economy, cultural or educational interests, or welfare 
of the United States, and whose services in the sciences, arts, professions, or business 
are sought by an employer in the United States. 
(B) Waiver of Job Offer 
(i) . . . the Attorney General may, when the Attorney General deems it to be in 
the national interest, waive the requirements of subparagraph (A) that an alien's 
services in the sciences, arts, professions, or business be sought by an employer 
in the United States. 
The director did not dispute that the petitioner qualifies as a member of the professions holding an 
advanced degree. The sole issue in contention is whether the petitioner has established that a waiver of 
the job offer requirement, and thus a labor certification, is in the national interest. 
Neither the statute nor the pertinent regulations define the term "national interest." Additionally, 
Congress did not provide a specific definition of "in the national interest." The Committee on the 
Judiciary merely noted in its report to the Senate that the committee had "focused on national interest by 
increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise. . . ." S. Rep. No. 55, 10 1 st Cong., 1 st Sess., 1 1 (1 989). 
Supplementary information to regulations implementing the Immigration Act of 1990 (IMMACT), 
published at 56 Fed. Reg. 60897, 60900 (November 29, 1991), states: 
The Service [now U.S. Citizenship and Immigration Services] believes it appropriate 
to leave the application of this test as flexible as possible, although clearly an alien 
seeking to meet the [national interest] standard must make a showing significantly 
above that necessary to prove the "prospective national benefit" [required of aliens 
seeking to qualify as "exceptional."] The burden will rest with the alien to establish 
that exemption from, or waiver of, the job offer will be in the national interest. Each 
case is to be judged on its own merits. 
Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Cornmr. 1998), has set forth 
several factors which must be considered when evaluating a request for a national interest waiver. First, 
it must be shown that the alien seeks employment in an area of substantial intrinsic merit. Next, it must 
be shown that the proposed benefit will be national in scope. Finally, the petitioner seeking the waiver 
must establish that the alien will serve the national interest to a substantially greater degree than would 
an available U.S. worker having the same minimum qualifications. 
It must be noted that, while the national interest waiver hinges on prospective national benefit, it clearly 
must be established that the alien's past record justifies projections of 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. 
When considering witness statements about the petitioner's level of ability, we note that the regulation 
at 8 C.F.R. fj 204.5(k)(2) defines "exceptional ability" as "a degree of expertise significantly above 
that ordinarily encountered" in a given area of endeavor. By statute, aliens of exceptional ability are 
generally subject to the job offerllabor certification requirement; they are not exempt by virtue of 
their exceptional ability. Therefore, whether a given alien seeks classification as an alien of 
exceptional ability, or as a member of the professions holding an advanced degree, that alien cannot 
qualify for a waiver just by demonstrating a degree of expertise significantly above that ordinarily 
encountered in his or her field of expertise. 
The petitioner filed the petition on July 26, 2007. In an introductory statement, counsel described the 
petitioner's work: 
[The petitioner] is working in the prestigious atmospheric group led by - 
. . . concerning aerosol formation in the atmosphere. . . . PetitionerlBeneficiary has 
already made groundbreaking contributions to research concerning ozone formation 
mechanism by developing the state-of-[the-]art instrumentations and techniques to 
measure trace gases that are responsible for ozone and particulate formation in the 
atmosphere. His past research contributions and his present work are helping scientists 
in this country understand the initiation steps in aerosol formation, and provide clues to 
devising a strategy to control ozone concentrations in the urban atmosphere. . . . His 
findings have been utilized by the Texas Commission on Environmental Quality 
(TCEQ) to construct [a] state implementation plan to prevent high ozone episode[s] 
from occurring. 
The petitioner described his own work: 
I have extensive experience in the field of instrumentation developments and field 
measurements of trace gaseous air pollutants in the troposphere. From 1998 to 2005, I 
was a research assistant at Stony Brook University collaborating with scientists from 
Brookhaven National Laboratory ("BNL"). I conducted in-depth research in the area of 
ozone formation mechanism in the urban environment. . . . My research was designed to 
explore the finer details in the ozone production processes and find effective and 
practical ozone control strategies that had the minimum side effects on the economy. 
During my research, I and scientists from BNL developed a novel instrument to detect 
hydroperoxyl radicals (H02) in the atmosphere. I build the first prototype H02 
instrument. . . . 
Since 2005, I have been working as a research scientist at the Texas A&M University. 
The research project I have been involved in is . . . led by 
 who is an 
established expert in the field of atmospheric chemistry and recently has found a 
connection between Asian air pollutions and the intensified Pacific storm activities. . . . 
The final goal of the research is to develop instrumentations for the measurements of 
highly reactive volatile organic compounds (HRVOC) and nitrogen-containing 
compounds . . . and investigate how HRVOC and nitrogen-containing compounds affect 
ozone production in the Houston metropolitan area. 
. . . I also participated in the MILAGRO (Megacity Initiative: Local and Global 
Research Observations) Campaign, an unprecedented international effort to observe and 
quantify the fate of anthropogenic pollutants emitting from the world's second largest 
city (Mexico City, Mexico), especially their influence on air quality in the southwest 
U.S. region. Besides instrumentation, I performed quality control and quality assurance 
procedures on the data we collected during the field experiments and conducted further 
data analysis to reveal the cause of severe ozone episodes encountered in the Houston 
metropolitan area. 
Several letters accompanied the initial filing of the petition. , the petitioner's 
doctoral thesis advisor at the State University of New York, Stony Brook (also known as Stony Brook 
University), stated: 
Page 5 
During his Ph.D. study at Stony Brook University, [the petitioner] established a record 
of achievement far above those I have ever encountered in his field. . . . He focused on a 
research to study the cause of rapid ozone formation in the troposphere especially in the 
populated urban area. Ozone is known to cause many health harms. . . . The key to 
solve this problem is to understand the mechanisms that control the ozone production 
rate and establish effective ozone precursors emission regulation accordingly. [The 
petitioner] developed a state-of-the-art instrument system to measure . . . the key 
intermediate products during ozone photochemical production. . . . 
[The petitioner] has published his findings in scientific journals and helped government 
agencies . . . to construct regulations to prevent high ozone episode[s] from occurring. 
Thus, [the petitioner] has directly contributed to our national efforts in the research field. 
I have held a research appointment at Brookhaven National Laboratory, in Upton, NY, 
since my postdoctoral appointment there in 1975. . . . 
[The petitioner] worked at Brookhaven National Laboratory to develop instrumentation 
for determining atmospheric trace gases. . . . Early in his career, he re-engineered the 
liquid and air flow systems in these instruments to improve performance. . . . 
[The petitioner's] doctoral thesis studies focused on a new technique for analysis of gas- 
phase H02 radicals. . . . He built a prototype instrument for this work, as well as a gas- 
phase calibration apparatus. 
, Head of the Atmospheric Sciences Division (ASD) at BNL, stated: 
[The petitioner] was a graduate student of the State University of New York at Stony 
Brook when he started his Ph.D. research at the ASD-BNL in 1999 under the direction 
of His research focused on issues regarding air quality in the United 
States by acquiring comprehensive understanding of the impact and fate of trace 
pollutants. At the ASD-BNL, [the petitioner] was trained by, and worked with some of 
the best atmospheric chemists in the U.S. . . . [The petitioner] used an enzyme mediated 
fluorescence technique onboard the G-1 Gulfstream research aircraft to measure 
hydroperoxides during the Texas 2000 Air Quality Study (TexAQS 2000). . . . [The 
petitioner] successfidly completed 14 research flights and collected high quality data. . . . 
[The petitioner's] hydroperoxide data provided one of the valuable clues to devising a 
strategy to control ozone concentrations along the heavily polluted Gulf Coast of Texas. 
His work was crucial to the governmental decision making process in deciding what 
emissions to control and by how much. . . . 
[The petitioner] also developed a new, highly precise chemilurninescence technique that 
can be used to measure hydroperoxyl radicals (H02). . . . Real time H02 measurements 
can provide an opportunity to inter-compare model simulations results with real 
measurements to verify and improve our understanding of the ozone formation 
mechanism. . . . 
I am confident he is rapidly becoming a leading researcher in his field. 
Associate Director of the Atmospheric Science & Global Change Division at 
Pacific Northwest National Laboratory, Richland, Washington, stated: 
I was fortunate enough to work with [the petitioner] during the Texas 2006 Air Quality 
Study. . . . [The petitioner], his colleagues at A&M, and several of my staff set up a 
monitoring network that encompassed the greater Houston area. In this capacity, I 
interacted with [the petitioner] several times a week, and had the benefit of learning 
much from his extensive experience in measuring trace-gas compounds in the polluted 
atmosphere that are related to health issues and also critical to understanding the 
formation of ozone and other secondary pollutants that form in urban atmospheres. 
[The petitioner's] expertise lies in the PTR-MS [Proton Transfer Reaction Mass 
Spectrometry] technique . . . [which] is a unique instrumentation for fast-response and 
sensitive measurements of selected VOCs [volatile organic compounds] in the 
atmosphere. . . . During summer 2006, he deployed a PTR-MS at our ground based 
supersite on campus of the University of Houston for a couple of weeks and afterwards 
at a site of the local air quality network. . . . [The petitioner's] work is indispensable in 
the process to solve the O3 [ozone] issue that affects not only the Houston-Galveston 
area but also many other metropolitan area[s] in the U.S., such as Los Angeles and New 
York. 
was not one of the petitioner's instructors or collaborators. Associate Professor 
of Portland (Oregon) State University stated: 
Because I am not [the petitioner's] colleague, collaborator, or personal friend, I can offer 
my professional opinions as an independent expert. I met [the petitioner] briefly in 
Houston during Texas Air Quality Study I1 in August of 2006. I was impressed by his 
expertise in ozone photochemist and analytical techniques, especially mass 
spectrometry. [The petitioner] and 4 co-developed a state-of-the-art 
instrument called ion-drift mass spectrometry (ID-CIMS) for measuring nitric acid 
(HN03) in the atmosphere. HN03 can increase the acidity of rainwater and serves as a 
reservoir species for the active nitrogen compounds (NO,), which together with reactive 
Page 7 
hydrocarbons are the major cause of high ozone episodes encountered in Houston and 
other major metropolitan areas. . . . 
[The petitioner] is also an expert in hydroperoxyl radical (H02) and peroxide 
measurements in the atmosphere. His expertise has received international recognition 
along with the publication of his significant research findings in peer-reviewed and 
internationally circulated journals. 
To document his research work, the petitioner submitted copies of three journal articles and abstracts of 
four conference papers. The three journal articles all appeared in 2003 or 2004, based on the 
petitioner's work at Stony Brook University. The initial submission contained no articles by the 
petitioner published after 2004. 
To establish the impact of his published work, the petitioner submitted a printout from a citation 
database, showing 17 citations of an article from 2003 and six citations of a 2004 article. Nine of these 
23 citations are self-citations by the petitioner's co-authors, leaving 14 independent citations. 
On August 21, 2008, the director issued a request for evidence (RFE), instructing the petitioner to 
submit evidence to distinguish his work from that of others in his field. In response, the petitioner 
submitted copies of three articles published in 2008, three new witness letters, and other materials. 
[The petitioner] was heavily and critically involved in the design, fabrication, and 
assembly of the first PTR-MS unit in my group. . . . With his critical input, our group 
soon discovered that PTR-MS has rather limited applications for studying hydrocarbon 
reactions. . . . [The petitioner] then embarked on a more ambitious task to develop an ion 
drift-chemical ionization mass spectrometry (ID-CIMS) instrument. . . . This is a truly 
original and significant invention. . . . His work was critical in building two ID-CIMS 
instruments in my group that have been successfully used in various laboratory studies, 
and his effort was instrumental for the development of the ID-CIMS systems. . . . 
Another major contribution [the petitioner] has made in my lab is his work on the 
conversion of the lab ID-CIMS instrument for field measurements of VOCs and 
inorganic compounds. . . . To date he has participated in several major field campaigns 
among some of the most polluted megacities in the world. . . . 
To the best of my knowledge, [the petitioner] is the only researcher that has conducted 
field measurements of air pollution in those major field campaigns worldwide. 
visit to Texas A&M University. Prof. Dickerson stated that the petitioner 'possesses a rare ability in his 
field and has made significant contributions to atmospheric chemistry through developing 
Page 8 
instrumentations to measure [chemicals] that play crucial roles in the chemistry of the polluted 
atmosphere." concluded that the petitioner's "work is an indispens[a]ble step [in] a 
series of efforts to defeat air pollutions [sic] even from outside of the U.S." 
President of the Molina Center for Strategic Studies in Energy and the 
Environment, La Jolla, California, stated: 
I coordinated the MILAGRO Campaign . . . [in] March 2006. Due to [the petitioner's] 
outstanding analytical skills, he was invited to conduct measurements of nitric acid and 
nitrogen oxides in Mexico City. [The petitioner] found that nitric acid was unexpectedly 
low in this tropical site and concluded that it was controlled by the gaslparticle 
partitioning process. This is a major contribution to our understanding of the nitrogen 
oxides chemistry and evaluation of the regional effects of nitrogen oxides emission from 
Mexico City; it provides important insights for other urban centers around the world. 
The petitioner submitted copies of three articles that he co-wrote, arising from his work on the 
MILAGRO project. All of these articles were submitted for publication after the petition's July 2007 
filing date. 
A citation printout showed eleven citations of an article published in 2003, but not included in the 
petitioner's earlier submission of citation data. About half of the citing articles were published after the 
filing date. The petitioner submitted a copy of one citing article, which counsel stated "highlighted and 
reviewed" the petitioner's "pioneering work of the instrument for aqueous phase superoxide radical 
detection." The article, "Fluorescent and luminescent probes for measurement of oxidative and 
nitrosative species in cells and tissues: Progress, pitfalls, and prospects," focuses on biochemistry rather 
than on atmospheric chemistry. The article is a review article, comprising a survey of literature on the 
topic of choice. The petitioner's article was one of 3 10 source articles cited in the review article. The 
citation of the petitioner's article occurred in the phrase "there have been some . . . impressive 
demonstrations of quantitation of superoxide in chemical . . . model systems." It is not clear how this 
article establishes the petitioner's impact on the study of atmospheric pollution, nor is it evident that a 
sentence fragment in a nearly 20-page article constitutes a "highlight." 
The director denied the petition on October 23, 2008. The director acknowledged the intrinsic merit 
and national scope of the petitioner's work, but found that the petitioner's "research has not risen to the 
level of significance in which [sic] to grant a national interest waiver." 
On appeal, counsel argues that the director disregarded persuasive evidence of the petitioner's 
contributions and influence. Counsel states: "Letters of recommendation from experts provide critical 
evidence of an alien's professional accomplishment." Counsel noted that, in prior decisions, the AAO 
has "held specifically that these testimonials could serve to establish the beneficiary's reputation within 
his field." While the cited AAO decisions are unpublished, and therefore not binding as precedent 
under 8 C.F.R. § 103.3(c), counsel is correct in stating the AAO's position that witness letters can 
represent strong evidence. This does not mean, however, that submission of strongly worded witness 
Page 9 
letters compels or guarantees approval of a given petition. The AAO reviews each record of proceeding 
individually, in its entirety and with all submissions in the proper context. 
In this instance, most of the witnesses have worked directly with the petitioner. The perspectives of 
such witnesses are valuable because they describe the nature of the petitioner's contributions to a 
particular project, but their statements are not direct evidence of the extent of the petitioner's impact. 
Counsel observes that the witnesses "are unanimous in terms of the significance of the beneficiary's 
contributions." This unanimity is less impressive than it may seem at first glance. Unanimity among 
every letter submitted does not imply unanimity among every potential witness that the petitioner 
contacted, and we would hardly expect the petitioner to submit a witness letter that cast his work in 
anything but the most favorable light. Therefore, while we take the letters into account, we will not 
presume or pretend that the witnesses chosen by the petitioner in this way constitute a random or 
representative cross-section of the field as a whole. 
Witnesses have praised the petitioner's construction and modification of measurement devices, and 
asserted that the petitioner's work in this area represents a significant advance in the field. The record, 
however, fails to show that other atmospheric chemists have adopted the petitioner's technology. The 
record shows that the petitioner is a valued part of certain research projects, but the record also shows 
that many of these projects involve large groups of scientists. For instance, background materials in the 
record state that "[mlore than 300 scientists from over 60 universities and research institutions . . . 
participated in the MILAGRO field campaign." The record does not show that the petitioner played an 
especially important or central role in that campaign. The record simply identifies the petitioner's 
specific tasks in the project. 
Counsel has asserted that the Texas Commission on Environmental Quality has used the petitioner's 
findings. Counsel has not explained why this is remarkable, considering that the petitioner was 
involved in pollution readings in the air over Texas. The utilization of the petitioner's work would be 
notable only if the Commission typically ignores air quality readings, but made an exception in the 
petitioner's case owing to the quality of his data. The record contains nothing from the Commission to 
indicate that its findings, recommendations or actions would have been different if the readings had 
been taken by another qualified scientist instead of the petitioner. 
Also, while witnesses credit the petitioner with modifications to laboratory and field equipment, the 
record does not show widespread adoption of these modifications by other laboratories. The 
issuance of a patent is not evidence of widespread use or interest in the patented device. Similarly, 
while the petitioner has shown some citations of his published work, the petitioner has not shown 
that the level of citation is substantially higher than what others in the same field have achieved. 
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 labor certification will be in the national 
interest of the United States. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. tj 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 a labor certification issued by the Department of Labor, appropriate supporting evidence and fee. 
ORDER: The appeal is dismissed.