dismissed EB-2 NIW Case: Atmospheric Science

US. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Ofice of~dministrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. citizenship 
and Immigration 
WBLK COPY 0 
SRC 07 800 26570 
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). 
Chief, Administrative Appeals Office 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) 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. § 11 53(b)(2), as a member of the professions holding an advanced degree. At the 
time he filed the petition, the petitioner was a postdoctoral research fellow at Purdue University, West 
Lafayette, Indiana. He indicated that this employment would end in May 2008. He subsequently 
accepted a postdoctoral position at the Jet Propulsion Laboratory (JPL), operated by the National 
Aeronautics and Space Administration at the California Institute of Technology. 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 fkom 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, new witness letters, and copies of materials 
already in the record. 
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 (USCIS)] 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. 2 15 (Commr. 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. 
We also note that the regulation at 8 C.F.R. 5 204.5(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 30,2007. The petitioner's work involves radio occultation (RO) 
of signals from Global Positioning System (GPS) satellites. The petitioner submitted copies of five 
published articles (three in Chinese, two in English) and an unpublished manuscript, as well as evidence 
of his participation in professional conferences. 
[The petitioner's] thesis focused on finding a solution to a systematic problem when 
using GPS RO to profile the lowest 0.5 to 2 miles of the atmosphere. . . . The 24 GPS 
satellites continuously radiate microwave signals over the entire Earth for precisely 
determining the positions of the aircraft, ships etc. In 1987 researchers at JPL [the Jet 
Propulsion Laboratory at the California Institute of Technology (Caltech)] recognized 
that these GPS signals could be used to profile the atmosphere. The basic idea is that as 
GPS radio signals pass through the atmosphere, they slow down very slightly, 
depending on how dense the atmosphere is and how much water vapor it contains. This 
slowing can be measured very precisely and used to profile the vertical temperature, 
pressure and water vapor structure of the atmosphere. The atmospheric profiles that are 
derived from the GPS RO measurements provide an unusual combination of high 
vertical resolution, high precision and insensitivity to clouds, a combination that far 
surpasses other satellite observing systems and provides profiles of the atmosphere in 
any weather conditions. Therefore GPS RO will contribute significantly to improving 
weather prediction for both civilian and military applications. 
There is however a problem for GPS RO at the vertical transition between the planetary 
boundary layer (PBL) and the overlying troposphere, particularly over the oceans. . . . 
While other satellite instruments cannot profile the very important boundary layer, the 
GPS RO measurements have the vertical resolution and cloud penetrating capabilities to 
do so. It is very important that we be able to measure the properties of the PBL from 
orbit as its vertical structure is a critical input for both civilian and military weather 
forecasting as well as determining how our climate is changing. 
The problem with GPS RO is it systematically underestimates the atmospheric density 
and specifically the amount of water vapor in the PBL . . . [which] will make the 
atmosphere appear to be less likely to produce severe weather than it actually is. In 
extreme cases this would result in forecasts that underestimate the intensity of 
hurricanes. . . . 
[The petitioner] came up with an entirely new approach to deriving density and water 
vapor from the GPS RO in the PBL that overcomes the problem of GPS systematic 
underestimation of the PBL density and water vapor. . . . 
It is [the petitioner's] unique background that caused his present boss, m 
at Purdue University, to be willing to wait quite a while for him to finish his PhD 
at the University of Arizona. He was simply the only recent PhD and therefore post- 
doctoral scholar around with the right background to support her GPS RO related 
research. 
Page 5 
University of Arizona Professor Emeritus 
 stated: "When the [petitioner's] 
technique finds it's [sic] way into [the] modeling community, it should have a noticeable effect on the 
accuracy of the initial atmospheric conditions used as input to the forecast models." 
University of ~rizonawho served on the petitioner's dissertation committee, 
stated that the petitioner "is now a unique intellectual asset for the U.S." 
Purdue University Assistant , the petitioner's supervisor at the time of filing, 
stated: 
[The petitioner's] Ph.D. work on the use of GPS radio occultation to measure the 
humidity and temperature in the atmosphere just above the surface of the ocean 
addresses one of the main problems in applying this technique globally. The great 
potential of the GPS radio occultation technique is that measurements can be made 
everywhere on the globe and not just at select points above weather stations. . . . 
Since he has been at Purdue he has developed techniques for making similar 
observations with GPS receivers on board an aircraft. This is an $800,000 research 
project, entitled "Occultation Instrument for Atmospheric, Oceanographic and Land 
Remote Sensing from the High Performance Instrumented Airborne Platform for 
Environmental Research (HIAPER)." . . . The instrumentation will provide 
measurements to help understand the chemistry of the upper atmosphere that affects 
climate and climate change. The instrument developed by our laboratory will provide 
critical profiles of atmospheric humidity and temperature that support this effort. The 
instrument is also a prototype of a future operational system that could potentially 
provide dense sampling of the atmosphere by being deployed on commercial aircraft. 
This would increase by more than a hundred-fold the amount of data to input to the 
operational weather forecast models. 
[The petitioner's] role has been the development of the software for the analysis of this 
unique type of data in order to extract the humidity information. 
asserted that she also expected the petitioner to play critical roles in two proposed future 
projects. As we have already noted, the petitioner indicated that he would leave Purdue in May 2008, 
and USCIS records confirm that the petitioner changed employers at that time. We will consider the 
significance of the petitioner's past work at Purdue, but his departure from that university forecloses any 
argument that he should receive the waiver because he will be needed in laboratory. 
Purdue ~ssistant - stated: "There is no question in my mind that [the petitioner] 
is among the top rank of specialist[s] in the world. . . . His unique expertise has made him indispensable 
to our scientific community and of course to this country." 
a research scientist on the Senior Technical Staff at JPL, first encountered the 
petitioner's work at a 2005 conference: 
[The petitioner] gave a very impressive poster presentation, which summarized his 
ground-breaking retrieval technique which could greatly reduce the errors in the GPS 
RO observation within the PBL. . . . I was working on [a] similar topic at that time and 
became very inspired by his work. . . . 
I am currently working with [the petitioner] on refining his novel technique. In the 
foreseeable future, his retrieval technique could be incorporated into the JPL data 
processing package, which should significantly improve the GPS RO observations in the 
PBL. 
The petitioner submitted a copy of an article in which cited the petitioner's work. We will 
discuss this citation in further detail later in this decision. 
(UCAR) stated: 
I have known [the petitioner] for six years and I am very familiar with his research 
because I have worked closely with him since he came to the United States in 2001. . . . 
Currently I work with GPS RO data fiom a six-satellite constellation called COSMIC 
(Constellation Observing System for Meteorology, Ionosphere and Climate). . . . 
Since I left the University of Arizona in 2004, [the petitioner] and I have worked 
remotely together on several projects. . . . 
I am convinced that the novel retrieval method developed by [the petitioner] will help 
researche[r]s better understand the structure and dynamics of the lowest few kilometers 
of the atmosphere. Furthermore, [the petitioner's] research on this topic could advance 
air pollution simulations and other small-scale regional weather and climate studies. 
a research scientist at UCAR's National Center of Atmospheric Research (NCAR), 
stated that the petitioner's "outstanding works" have "made a great contribution to the GPS remote 
sensing studies. " 
On October 6, 2008, the director issued a request for evidence, instructing the petitioner to "submit 
copies of published articles by other researchers citing or otherwise recognizing the self-petitioner's . . . 
research andor contributions," or documentary evidence of such citations. The director stated that the 
petitioner must "establish . . . a past record of specific prior achievement that justified projections of 
future benefit to the national interest." The director stated that articles that the petitioner published after 
the filing date "have no bearing on these proceedings" because, under 8 C.F.R. 5 103.2(b)(l), the 
petitioner must be eligible as of the filing date. 
In response, the petitioner did not address the director's request for evidence of citation of his work. 
Instead, the petitioner submitted further witness letters, copies of new articles published after the filing 
date, evidence of grant funding, and documentation showing that the petitioner has participated in peer 
review of manuscripts. The petitioner did not show that grant funding, writing articles, or reviewing 
manuscripts by others are intrinsic evidence of the importance or impact of one's work in the field, 
rather than expected functions of competent workers in his field. 
Two of the four new letters are from researchers at JPL, where the petitioner began working around the 
- - 
time the director issued the request for evidence. principal Research Scientist and the 
petitioner's supervisor at JPL, investigates "fine-structure phenomena in . . . high-resolution GPS RO 
measurements" taken by the COSMIC satellites. 
 stated: "Based in his solid research 
credentials, I can certify that [the petitioner] has established [himselfl to be among the best scientists in 
his field" who has had "and will continue to have a significant impact on this field of research. 
JPL, stated: 
A significant source of systematic error in GPS RO measurements originates in the 
lower troposphere (normally below 5 km) under conditions when the signal becomes 
trapped or "ducted" by the atmosphere. . . . [Slcientists from around the world (including 
our group) have spent [a] significant amount of effort to investigate this specific issue. 
There had not been any major advancement of solving the ducting problem until [the 
petitioner's] work. . . . He clearly demonstrated the physical basis of the problem, and 
proposed an innovative solution based on a sophsticated analysis of signal structure 
near the ducting layer. This is an unprecedented achievement in the field. . . . I expect 
that his future work will significantly improve the lower troposphere RO measurements 
and produce notably positive impact on the operational weather forecasting models even 
more than has been achieved already at higher altitudes. 
Beyond any doubt, [the petitioner] has contributed significantly to GPS remote sensing 
and atmospheric science . . . [and] established a reputation as a leading scientist in his 
field. 
of the Data Assimilation Testbed Center at the National Center for 
Atmospheric Research, stated: 
I have not worked with [the petitioner]; yet I am aware of his research accomplishments 
through his presentations at international conferences as well as his publications in top 
scientific journals. It is my professional judgment that [the petitioner] is a distinguished 
scientist who has made and continues to make crucial contributions to his field. 
. . . [The petitioner] took a lead role in developing the retrieval system for the [HIAPER] 
observations. I am most impressed by his pioneering work on comprehensively 
analyzing the error characteristics of the airborne observing system. . . . Thanks to [the 
petitioner's] work, we now have better understanding of the sophisticated observing 
system structures and the fundamental physics of the retrieval system. [The petitioner] 
is surely the one who has gone far beyond his peers and become indispensable to such a 
high-tech and highly valuable airborne observing system. 
[The petitioner] is without any doubt an important pioneer whose influence on the GPS 
RO field far exceeds that of others with comparable academic qualifications. His 
original work has improved fundamentally our understanding of the space-borne and 
airborne GPS RO measurements in the lower troposphere and I firmly believe his hture 
research will help irnprov[e] the use of GPS RO in weather forecasts. 
Though I have never worked with [the petitioner], I am very familiar with his work 
through his papers. I first knew him at the 2nd GPS Radio Occultation Data Users 
Workshop in 2005. . . . [The petitioner's] approach was the first direct solution to correct 
the super-refraction errors, which has opened up a new era for ABL [atmospheric 
boundary layer] research. [The petitioner's] breakthrough research attracted . . . wide 
attention from the conference attendees and contributed significantly to the success of 
the conference. . . . 
His group [at Purdue] has developed a GPS recording system to be implemented [in the 
HIAPER project]. . . . [The petitioner] has contributed significantly to this research. . . . 
He clearly demonstrated the feasibility and the expected accuracy of the new system. 
Moreover, [the petitioner] developed an occultation prediction software that has been 
used to provide the fly trajectory guidance for the pilot to optimize the best possible 
measurement. . . . Undoubtedly, his research results were essential for the[] recent 
success of real-time aircraft measurements in the Gulf of Mexico. This work has 
influenced many scientists in the field. Actually his work has influenced mine too. 
Recently our group is developing a system similar to that of [the petitioner's] group. 
With great benefits from their pre[v]ious field campaign experience, we can successfully 
build ours. 
The director denied the petition on January 30, 2009. The director repeated that "[alrticles published 
after the date of filing have no bearing on these proceedings," and found that the petitioner had not 
shown "[flrequent citation" of his "modest publication record." The director acknowledged the witness 
letters, but found that if the petitioner's work were truly of great significance, there would be more 
evidence of that significance than a handful of witness letters, mostly from the petitioner's own 
professors and collaborators. 
On appeal, the petitioner submits a printout from Google Scholar (http://scholar.google.com), 
identifying three articles that cited the 2006 article in which the petitioner described his GPS RO 
work. The petitioner did not explain why he did not submit such a list when the director specifically 
asked for evidence of citation in the request for evidence. The petitioner was put on notice of 
required evidence and given a reasonable opportunity to provide it for the record before the director 
issued the decision. The petitioner failed to submit the requested evidence at the time, and now 
submits it on appeal. The AAO need not consider this untimely submission. See Matter of Soriano, 
19 I&N Dec. 764,766 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533,537 (BIA 1988). 
The only previous evidence of citation of the petitioner's work appeared in the initial submission. 
stated: "I have . . . cited [the petitioner's] paper in my paper published on American Geophysical 
Union Radio Sciences in 2007." The petitioner submitted a copy of 
 paper, "Effect of ducting 
on radio occultation measurements: An assessment based on high-resolution radiosonde soundings." In 
that paper, wrote: "A promising approach to invert refractivity in the presence of ducts has 
recently been proposed vie et al., 20061, but more work is needed to validate its effectiveness when 
applied to real data." In submitting the citing article, the etitioner highlighted the first part of the 
sentence, but not the second part. The next paragraph o 
 article begins with: "Until a reliable 
way is devised to filter out data affected by ducting . . . ," indicating that no "reliable way" yet existed. 
In context, this citation does not indicate that the petitioner has definitively solved the problem of 
ducting or superrefiaction. Rather, the only submitted citation of the petitioner's work emphasizes the 
tentative and unproven nature of the petitioner's technique. 
Two new letters accompany the appeal. NCAR Scientist 
 stated "I have not worked 
with [the petitioner]," but 
 served on a review committee when the petitioner applied for a 
postdoctoral fellowship at NCAR, and, as a researcher at Purdue, the petitioner participated in creating 
instruments specifically for use by NCAR researchers. Therefore, it would not be entirely accurate to 
call - an independent witness. - listed the, petitioner's various projects, declared each 
to be important, and concluded that the petitioner "is without a doubt an important pioneer whose 
influence in his field far exceeds that of others with comparable academic qualifications." 
Director of NCAR's Earth and Sun Systems Laboratory, who has "known [the 
petitioner] for several years," stated that the petitioner's "work on airborne GPS measurements is 
especially novel" and that the petitioner "has demonstrated exceptional skills and abilities." The new 
letters submitted on appeal are broadly similar to those submitted previously. 
Counsel somewhat exaggerates the nature of the petitioner's evidence, claiming that "world-famous 
experts in the field . . . have attested to their reliance on Appellant's work and that the petitioner 
submitted "four (4) letters from independent sources." Some of the sources said to be independent are 
researchers at NCAR, an entity in collaboration with the laboratories where the petitioner has worked. 
One witness described as independent had evaluated the petitioner's application for a fellowship at 
NCAR, stating that the petitioner ranked highly but stopping short of confiiing that NCAR actually 
offered the petitioner the job. 
Counsel is correct that independent witness letters have weight in national interest waiver proceedings. 
This does not mean, however, that all the petitioner must do is locate willing witnesses whom he or she 
has not personally met. We must judge the content of the letters, both individually and in the context of 
the record as a whole. 
In this instance, the petitioner has submitted little documentary evidence of the influence of his 
work, either in the form of citations or otherwise. The record does not establish that research groups 
are actively using the petitioner's work to a greater extent than would be typically expected from the 
normal dissemination of a given researcher's findings. References to one of the petitioner's papers as 
a "landmark" do not become persuasive simply through repetition. A handful of attendees at a 2005 
conference have stated that the petitioner's presentation there attracted great interest, but these 
witnesses cannot speak for others and nothing exists to support these claims except for letters written 
specifically for the petitioner's benefit. The only citing reference known to exist prior to the filing 
date indicated only that the petitioner's work was promising but unproven. After careful and 
thorough consideration of the materials presented, we are not persuaded that the petitioner has 
provided sufficient support for the waiver claim. At best, the petition appears to be premature, filed 
at a time when the field had not reacted to the petitioner's work except where the petitioner solicited 
those reactions himself. This does not rule out the possibility that the petitioner may subsequently 
become eligible for the waiver, but the evidence does not persuade us that the petitioner was already 
eligible when he filed this petition. 
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 fiom 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. $ 1361. The petitioner has not sustained that burden. 
This decision 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.