dismissed EB-2 NIW Case: Automotive Engineering

U.S. Department of Homeland Security
20 Mass. Ave., N.W;, Rm. 3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
FILE: LIN 06 11753547 Office: NEBRASKA SERVICE CENTER Date: DEC 1 ~ 2001
INRE: Petitioner:
Beneficiary:
PETITION: Imrriigrant 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. § I I53(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.
www.uscis.gov
LIN 06 117'53547
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 assistant professor. 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, counsel submits a brief and evidence that several of the petitioner's Chinese-language
articles have been cited between one and five times each by coauthors, colleagues at institutions where
the petitioner studied or worked and independent researchers. In his request for additional evidence,
the director requested "copies of any published articles by other researchers citing or otherwise
recognizing your research and/or contributions." . The petitioner submitted only a single citation in
response to that notice and now submits additional citations on appeal, although no single article has
garnered more than five citations and only one article has been cited that many times.
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 employerin 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. inAutomotive Engineering from Jilin University of Technology in China"
"in 1996. 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
LIN 06 11753547
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remaining issue is whether the petitioner has established that a waiver of the job offer requirement, and
thus an alien employment certification, is in the national interest. .
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
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, lOlst Cong., 1st Sess.,ll (1989).
A supplementary notice regarding the regulations implementing the Immigration Act of 1990
(lMMACT), 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, thejob 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. Id 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. Id
We concur with the director that the petitioner works in an area of intrinsic merit, tire mechanics, and
that the proposed benefits of his work, improved vehicle safety, 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 sameminimum qualifications.
Eligibility for the waiver must rest with the alie~'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
'. LIN 06 11753547
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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." Id. at 221. 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~ Id.
At issue is whether this petitioner's contributions in the field are of such unusual significance that the
petitioner merits the special benefit of a national interest waiver, over and above the visa
classification he seeks. By seeking an extra benefit, the 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.
Counsel .and some references note the petitioner's membership. in professional associations,
including the Society of Automotive Engineers (SAE), which has 90,000 members. The petitioner's
memberships appear, commensurate with the petitioner's education and experience. Regardless,
membership in professional associations is one of the regulatory criteria for aliens of exceptional
ability, a classification that normally requires an 'alien employment certification. Section
203(b )(2)(A) of the Act, 8 U.S.C. § 1153(b)(2)(A). We cannot conclude that meeting one criterion,
or even the requisite three criteria, warrants a waiver of that requirement in the national interest. Id.
at 222.
According to the Form ETA-750B signed by the petitioner, he has the following education and
experience in the field. Initially, as stated above, he received his Ph.D. in Automobile Engineering
from Jilin University of Technology in China in June 1996. He then worked as a postdoctoral fellow
through May 1998. From June 1998 through June 2000, the petitioner worked as an associate'
professor at Tsinghua University in China. From October 2000 through September 2003, the
petitioner worked as a postdoctoral scientist, As of the date of filing, the petitioner was working as a
research assistant professor at the University of Alaska, Fairbanks.
The petitioner provided no letters from his colleagues in China describing his research there. The
petitioner's collaborator in Alaska, Dr.~ two of the independent references, however,
discuss the petitioner's research in China. Dr.. asserts that in China, the petitioner "made
significant advancements on dynamic force-slip analysis from which vehicle
driving/braking/comering force generation and creating active vehicle dynamic unite." Specifically,
the petitioner's research results on vehicle shimmy responses "provide a valuable method to build
real-time vehicle control models." The petitioner also "explored" a method of evaluating tire tread
andcarcass problems simultaneously, previously only considered separately. The petitioner's road
profile using both tire normal stiffness and suspension attempts to contribute to ride comfort under
variations of tire load and' inflation' pressure, which "will impact many fields, such as power
spectrum density (PSD), vertical acceleration, suspension control, load transfer and vibration."
LIN 06 11753547
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Dr. a professor emeritus at Carleton University in Canada , asserts that he has known
. the petitioner "for a number of years," but does not indicate how he came to know the petitioner. Dr.
T 2 provides similar information about the petitioner 's research in China as that provided by Dr.
• Dr. asserts that this work is of fundamental importance in controlling vehicle vibration .
Dr. _ further asserts that the significance of this work is apparent from its publication and the
petitioner's promotion to the position of Associate Professor at Tsinghua University. Several other
references make similar statements. We will not presume the petitioner's influence in the field from
the mere fact that his articles have been published and the fact that he has been promoted to a faculty
position at a competitive university.
Dr. Head of the University of Michigan Transportation Research Institute, asserts
that he kllows the petitioner through interaction at conferences and through his publications. Dr.
further asserts that the petitioner's research in China produced "significant publications on
the technique of tire mechanics and modeling ." .Dr. explains the difficulty in modeling tire-
ground interactions , which "are 'of major significance in vehicle virtual design , active control and
numerical simulation for better handling the strong nonlinearities of the interface .and decreases in
-, design and test costs and cycles. " . , i
The petitioner did not previously submit any evidence of the petitioner 's influence in China ,
including in response to the director 's request for additional evidence . As stated above , on appeal ,
the petitioner now submits e vidence that nineteen of the petitioner 's Chinese articles , including his
dissertation, have been cited between one and five times each . As also stated above , however, per
Matter ofSoriano, 19 I&N Dec. at 764, we will not consider that limited citation evidence.
Dr. Director of the Center for Computer Aided Design (CCAD) at the
University ofIowa, discusses the petitioner's work at the National Advanced Driving Simulator and
Simulation Center (NADS) at the University of Iowa. Dr. asserts that he and the ,
petitioner were working on projects with "common bottlenecks concerning the conception and .
development of our numerical simulations" and that they shared fruitful discussions and exchanges . ,
Dr. praises the petitioner's technical skills and "quick learning."
Dr.~ elaborates that at NADS , the petitioner 'addressed the slope stop-still issue in vehicle real-. . '
time modeling , important because real -time modeling involves "non-steady states, such as urgent
turning, rapid accelerating , obstacle avoidance , crosswind response , slalom, etc." Dr._ concludes
that this work is "highly beneficial to the field as it increases simulation fidelity and decreases
vehicle design and test costs. Dr. _hen discusses the petitioner 's work in Fairbanks, concluding
that . t~e petitioner i~ an indi~of his research team , whic~ foc.uses 01). ~ehicle
mobility for cold regions . Dr. ......... Dean of the College of Engineering and MUles at
the University of Alaska, Fairbanks , praises the petitioner's contributions to the field in general.
LIN 06 117 53547
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Dr. _ asserts that the petitioner "pioneered a number of innovations in real-time high-fidelity
vehicle modeling and simulation, which greatly expedite vehicle development and design processes."
While Dr. ~ asserts that the results are applicable to the U.S. Army Future Combat Systems
(FCS) Program, he does not assert that the petitioner's work is already being applied in the that
program. Dr. ~ further discusses the petitioner's work in Fairbanks but concedes that this work
had yet to be published in peer-reviewed journals although five manuscripts had been prepared.
Dr. a professor at Concordia University, Canada, asserts that he is familiar with
the petitioner's work, which he characterizes as cutting-edge. He affirms its importance to the U.S.
Army without explaining his familiarity with the U.S. Army. Dr. concludes that the
petitioner's "methodology could enable us to develop techniques and technologies for enhancing the
efficiency and fidelity ofreal-time vehicle modeling and simulation." While Dr. asserts that
the petitioner's "proven track record of contributions to the field of vehicle-terrain interactions is
well known among the peers in the international community," he does not provide any examples of
independent designers or research laboratories utilizing the petitioner's models.
.In response to the director's request for additional information, the petitioner submitted a letter from
IIIIiiIII I, Technical Director of the U.S. Army Cold Regions Test Center. While Mr.
asserts that his work at the center allows him to understand the petitioner's contributions,
he does not suggest that the U.S. Army has adopted the petitioner's models. The mere fact that the
U.S. Army is funding the petitioner's research is not, by itself, sufficient. All research must provide
some potential benefit to secure funding. It does not follow that every researcher who is working
with a government grant inherently serves the national interest to an extent that justifies a waiver of
the job offer requirement. '
Dr. the Ford Motor Company Chair in Electromechanical Systems at The Ohio
State University, asserts that he "came to know" the petitioner through the petitioner's work in
Fairbanks. While Dr. characterizes the petitioner as a "pioneer" in the field, Dr.••••
ultimately discusses work that had yet to be published as of the date of filing. It is difficult to gauge
the impact of work that has yet to be published and, thus, disseminated in the field. Thus, such work
cannot be considered evidence of eligibility as of that date. See 8 C.F.R. § 103.2(b)(l2); Matter of
Katigbak, 14 I&N Dec. 45, 49 (Regl. Commr. 1971).
, '
The remaining independent letters submitted in response to the director's request for additional
evidence are similar, many of them appearing to focus on work that was published after the date of
filing in this matter. They provide general praise, asserting that the petitioner's models constitute a
significant breakthrough in the field and that the petitioner is a well-known pioneer in the field
without providing specific examples of how the petitioner's models are being used in the field.
While Dr. , a professor at the University of Michigan, asserts that the petitioner's
"work has become a foundation for the other scientists in this critically important component of
automotive research and technology," he does not identify any other scientist relying on the
petitioner's work and does not claim to be using the petitioner's models himself.
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Also in response to the director's request for additional evidence, the petitioner submitted evidence
that, after the date of filing, he received a request to review a manuscript for an upcoming conference
and a certificate of recognition from the SAE Military Vehicle Committee of the SAE 2006 World
Congress. In addition, the petitioner also submitted evidence of additional conference presentations.
This evidence does not relate to the petitioner's eligibility as of the date of filing. See, 8 C.F.R. §
103.2(b)(12);.Matter ofKatigbak, 14 I&N Dec. at 49.
The bulk of the evidence In this matter consists of the petitioner's publication record and the letters
discussed above.: The petitioner's publication record establishes that the petitioner is a prolific
author. It is inherent to the field of research to publish one's findings, and a researcher in the field
for several years can be expected to have produced several published articles and to have presented
his work. We will not presume that every. researcher .. who has authored several articles has
influenced the field. At issue is the significance of the individual articles. The record before the
director included only a single citation and the context of that citation is unknown as the petitioner
only provided the reference page. While the petitioner has submitted more citations on appeal, no
one article by the petitioner has been cited more than five times and only.one article has been cited
that many times. While we concur with counsel that citations are not the only evidence that can
demonstrate an influence in the field, the letters in this matter, while from experts in the field, are not
persuasive. .
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 of .
those letters as to whether they support the alien'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. jd. at 795: See also Matter of Sofjici, 22 I&N Dec. 158, 165 (Commr. 1998) (citing
Matter ofTreasure Craft,ofCalijornia, 14 I&N Dec. 190 (Regl. Commr. 1972)).
In evaluating the reference letters, we note that letters containing mere assertions of industry interest
, and positive response in the field are less persuasive than letters that provide specific examples of
how the petitioner has influenced the field. In addition, letters from independent references who
were previously aware of the petitioner through his reputation and who have applied his work are the.
most persuasive. While all of the independent letters in this matter provide general praise and
describe contributions that are alleged to be groundbreaking, the references fail to provide a single
example of the petitioner's models being applied in independent research laboratories. It can be.
expected that a model that is truly groundbreaking and is serving as the foundation for future
research in the area, as is alleged in this matter, would have been adopted in multiple laboratories.
The petitioner has not established that this is the case. .
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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 ofthe 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.