dismissed EB-2 NIW Case: Chemical Engineering

PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000. 
Washington, DC 20529 
FILE: WAC 05 056 52687 Office: CALIFORNIA SERVICE CENTER Date: (li;l Q 2 2@ 
...- - 
IN RE: 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. 8 1153(b)(2) 
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. 
Administrative Appeals Office 
WAC 05 056 52687 
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DISCUSSION: 
 The Director, California 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. 5 1153@)(2), as an alien of exceptional ability or a member of the professions 
holding an advanced degree. The petitioner seeks employment as a research associate. The petitioner 
asserts that an exemption fi-om' 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 had not established 
that an exemption fi-om the requirement of a job offer would be in the national interest of the United 
States. 
On appeal, counsel submits a brief and a new reference letter. For the reasons discussed below, we 
uphold the director's decision. While one of the petitioner's articles attracted a little attention in the 
field, that article was in a different area than his current focus and his overall track record is insufficient 
to warrant a waiver of the job offer requirement in the national interest. 
Section 203@) 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 of Job Offer. 
(i) . . . the Attorney General may, when the Attorney General deems it to 
be in the national interest, waive the requirement of subparagraph (A) 
that an alien's seryices in the sciences, arts, professions, or business be 
sought by an employer in the United States. 
It appears from the record that the petitioner seeks classification as an alien of exceptional ability. This 
issue is moot, however, because the record establishes that the petitioner holds a Ph.D. in Chemical 
Engineering from Louisiana State University (LSU). The petitioner's occupation falls within the 
pertinent regulatory definition of a profession. The petitioner thus qualifies as a member of the 
WAC 05 056 52687 
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professions holding an advanced degree. The remaining issue 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 pertinent regulations define the term "national interest." Additionally, Congress 
did not provide a specific definition o'f "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., 11 (1989). 
Supplementary information to the regulations implementing the Immigration Act of 1990 (IMMACT), 
published at 56 Fed. Reg. 60897, 60900 (November 29, 1991), states: 
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 (Cornm. 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 concur with the director that the petitioner works in an area of intrinsic merit, chemical 
/ 
mechanical planarization, and that the proposed benefits of his work, more efficient and 
environmentally sound semiconductor manufacturing, 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. 
The director concluded that the record lacked evidence of the petitioner's impact in the field, such as 
letters from several independent experts or evidence of wide and frequent citation. On appeal, counsel 
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asserts that Matter of New York State Dep't of Transp. 22 I&N Dec. at 21 5 does not explicitly require 
the submission of letters from independent experts and that, regardless, the petitioner did submit such 
letters. Counsel further asserts that the petitioner has authored "many scientific publications" and 
submitted evidence of "extensive citations of his published research by established researchers beyond 
his circle of close colleagues." 
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. 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 burden of proof. 
, 
 While Matter of New York State Dep 't of Transp., 22 I&N Dec. at 15 may not expressly require 
letters from independent experts, it does provide that 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. While letters 
from the alien's immediate circle of colleagues are important in providing details about the 
petitioner's role for various projects, they cannot by themselves establish the petitioner's influence 
over the field as a whole. 
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 
(Comm. 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 795-796. CIS may even give less weight to an 
opinion that is not corroborated, in accord with other information or is in any way questionable. Id. 
at 795; See also Matter of Soffici, 22 I&N Dec. 158, 165 (Comrn. 1998) (citing Matter of Treasure 
Craft of California, 14 I&N Dec. 190 (Reg. Comm. 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 far 
more persuasive than letters from independent references who were not previously aware of the 
petitioner and are merely responding to a solicitation to review the petitioner's curriculum vitae and 
work and provide an opinion based solely on this review. 
The petitioner received his Ph.D. from LSU in 2002. He then accepted a postdoctoral appointment at 
the National Science Foundation (NSF) 1 Semiconductor Research Corporation (SRC) Engineering 
Research Center (ERC) for Environmentally Benign Semiconductor Manufacturing at the University of 
Arizona. The petitioner is currently a senior research and development scientist at Araca Inc. in 
Arizona. 
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~r. the petitioner's dissertation advisor at LSU, asserts that the petitioner 
, 
wor e on iCoFe ternary a oy electrodeposition, an area with tremendous recent interest due to their 
unique magnetic and thermophysical properties. Dr that while "considerable 
progress has been achieved in establishing plating practical operation 
still relies much on empiricism due to its complex mechanism." Moreover, while "the anomalous 
depositions behavior has been investigated since the 1920's . . . [the] mechanism is still not well 
understood." 
The petitioner produced experimental data that allows for a determination of proper plating conditions 
to obtain desired alloys and "proposed a mathematical model that successfully simulates the metal ion 
concentration's effect on the alloy composition and most importantly, captured the anomalous 
deposition behavior." The 
 model "can be used to simulate 
 combination of the iron- 
group binary (NiFe, NiCo and CoFe) alloy 
 tions." Dr 
 y states that this work has 
been published and referenced by Professo 
 at the University o A1 erta. She further asserts that 
the petitioner's "dissertation has been sent to the Sandia National Laboratories to be used as a 
~efirence." She concludes: "there is no doubt that [the petitioner's] research on NiCoFe ternary alloy 
deposition has provided a better understanding of the anomalous deposition, benefiting the entire 
research community." 
The record contains the petitioner's articles on NiCoFe ternary alloy electrodeposition and the citation 
record for those articles. As of the date of filing, one of the petitioner's articles, "An Experimental 
Kinetic Study," had been cited eight times, five of which are from independent research teams 
including professor In response to the director's request for evidence, the petitioner submitted 
evidence that this article had been cited 12 times. at least three of which are self-citations bv the 
petitioner or ~rl 
each. Dr. 1 
participant w 
Two of the petitioner's other articles had been cited three times 
Gfessor at the Massachusetts Institute of Technology and faculty 
z: "I understand that [the petitioner's] dissertation has also been requested by 
the Sandia National Laboratories for reference." ~r.does not profess any affiliation with the 
laboratory. The record lacks confirmation from Sandia National Laboratories confirming that they 
requested the petitioner's dissertation and explaining the significance of that request. 
The petitioner's work with ternary alloys has only been minimally cited. We acknowledge that the 
petitioner received the 2002 Outstanding Dissertation Award from the American Institute of Chemical 
Engineers, but note that the award was limited to the "Baton Rouge Section." Moreover, recognition 
for achievements from peers is merely one criterion for aliens of exceptional ability, a classification that 
normally requires a labor certification. We cannot conclude that meeting one, or even the requisite 
three criteria for that classification warrants a waiver of that requirement. While independent 
references attest to the importance and significance of the petitioner's doctoral work, none of them 
affirm applying his work in their own laboratories, such as relying on his models. The record lacks 
evidence from industry officials confirming their interest in his models or confirmation from Sandia 
WAC 05 056 52687 
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National Laboratories confirming their interest in his work. Thus, the petitioner has not established that 
this work has had some degree of influence on the field as a whole. 
As noted by several references, the petitioner began working in an entirely new area of integrated 
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at the university of Arizona, chemical mechanical ~lanarization (CMP). Dr. 
a professor at the University of Arizona, explains that copper is used at the 
due to its low resistivity and high electromigration resistance. 
In addition, CMP is used extensively & the semiconductor industry "fir producing optically flat and 
damage fiee surfaces in state-of-the-art integrated circuit fabrication." The petitioner's completed work 
in this area as of the date of filing included tribological, thermal and kinetic studies. 
The petitioner's tribological studies involved an investigation of the effects "of polishing pressure, 
relative pad-wafer sliding velocity, slurry additives and abrasive particle concentration on friction force 
and lubrication mechanism during copper polishing." These elements have a significant influence on 
the life of polishing pads, which constitute one-sixth of the cost of the process. The petitioner's results 
"can be used to optimize the polishing condition to achieve longer pad life and reduce the cost of 
ownership for the process." 
In his thermal studies, the petitioner expanded on previous results indicating that copper removal rates 
increase with applied polishing power by showing that the removal rate exhibited a dramatic drop at 
certain polishing conditions. The petitioner demonstrated that the copper removal rate "was closely 
correlated to the pad temperature." According to ~r. based on this work, the petitioner 
and other researchers at the University of Arizona have applied for a patent disclosure through the' 
University of Arizona for their wafer carriers that directly measure wafer temperature during copper 
polishing. ~r.m further asserts that many "industrial researchers are very interested in this 
finding becaus for them to avoid such polishing regions to maintain the stability of the 
polishing process." 
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The record includes only one letter fiom an independent industry researcher. Dr. Chief 
Technology Officer for Neopad, who acknowledges that the petitioner's thermal studies "clearly 
illustrated the significance of temperature control during the copper CMP process."   ow ever, 
does not indicate that Neopad is considering licensing the petitioner's wafer carriers or otherwise 
applying the results of the petitioner's thermal studies. 
In his kinetic studies, the beneficiary used a modified Langmuir-Hinshelwood model to successfully 
predict copper removal rates and also simulated the chemical and mechanical action dominance upon 
the removal rate. Using this model, the petitioner is able to identifjr a chemically or mechanically 
controlled polishing region and optimize polishing conditions to achieve a balanced process, whch 
reduces the consumption of slurry and pads. Thus, according to Dr. d other references, 
this work contributes to a "more efficient and more environmentally benign CMP process." Once 
again, however, the record lacks industry confirmation that any manufacturing company is considering 
adopting the petitioner's models. 
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Finally, Dr 
 discusses the petitioner's future projects, one of which has received funding. 
While this information confirms that the petitioner intends to continue working in an area of intrinsic 
merit that has the potential for benefits that are national in scope, the petitioner has not yet produced 
any results from these projects. 
The remaining letters provide identical information to that discussed above. As stated above, while Dr. 
u 
s independent of the 
 and his employer, he does not claim to be influenced by the 
pe 1 loner's work. 
 ecarne aware of the petitioner's work. 
Much of his discussion appears derived from Dr. 
 letter. Thus, it is not clear that he had 
ever heard of the 
 to provide a reference letter. While the reference 
letter submitted on appe 
 a professor at Clarkson University, is from an 
independent researcher, D 
 that he is basing his opinion on a review of the 
petitioner's curriculum vitae and publication record. He does not indicate that he was aware of the 
petitioner's work prior to being contacted for a reference. Moreover, hs letter provides similar 
information to that contained in the other letters. 
While the petitioner's research is no doubt of value and has gained the respect of his colleagues, 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 fi-om the scientific community. Any Ph.D. thesis or other 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. or is working on 
a project with potential national benefits inherently serves the national interest to an extent that 
justifies a waiver of the job offer requirement. The record does not establish that the petitioner's 
work has had a notable degree of influence on the field as a whole. 
Ultimately, while the petitioner's past projects attracted some attention as evidenced through the 
citations of one article, the record contains no similar interest in the petitioner's current work. The 
petitioner's overall track record is simply insufficient. 
As is clear fiom 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. $ 1361. The petitioner has not sustained that burden. 
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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.