dismissed EB-2 NIW Case: Chemical Engineering

. . U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
pmvent deady unwtu?m&d 
invasion of persollal prhrllrg 
U. S. Citizenship 
and Immigration 
Services 
( 
FILE: Office: VERMONT SERVICE CENTER Date: %P IC 7 1005 
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. $ 1 1 53(b)(2) 
ON BEHALF OF PETITIONER: . 
TNSTRUCTIONS: 
This is the decision ofthe Administrative Appeals Ofice in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
& Robert P. Wiemann, Director 
Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the employment-based immigrant visa petition. 
The matter 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. tj 1153(b)(2), as a member of the professions holding an advanced degree. At the time he filed the 
petition, the petitioner was a research assistant and doctoral student at the New Jersey Institute of Technology 
(NJIT). 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 from the requirement of a job offer would be in the national interest of the United 
States. 
Section 203(b) of the Act states in pertinent part that: 
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of Exceptional 
Ability. -- 
(A) In General. -- Visas shall be made available . . . to qualified immigrants who are members of 
the professions holding advanced degrees or their equivalent or who because of their exceptional 
ability in the sciences, arts, or business, will substantially benefit prospectively the national 
economy, cultural or educational interests, or welfare of the United States, and whose services in 
the sciences, arts, professions, or business are sought by an employer in the United States. 
(B) Waiver 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, 
1 Olst Cong., 1 st Sess., 1 1 (1989). 
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 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 
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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. 21 5 (Comm. 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. 
Counsel discusses the petitioner's work in the field of chemical engineering, stating that the petitioner 
"established himself as an emergent leader early in his career," "conducted groundbreaking research," and is 
"[r]ecognized as a leading researcher in bioseparation and chromatography." Regarding the petitioner's most 
recent work, counsel states: 
[The petitioner] has been instrumental in the significant development of a novel integrated 
membrane filtration and chromatography process for fast and economical bioproduct 
recovery and purification. The novel device configuration increased the protein loading 
capacity and separation significantly. He conducted the simulation of loading and elution 
behaviors of the unit, and optimized the design and operating parameters to further improve 
the protein separation performance. He observed a protein enhancement phenomenon 
through the membrane in the novel integrated process and provided a theoretical analysis to 
explain the mechanism. . . . 
[The petitioner's] current research has been focused on the direct capture and purification of 
the bioproducts from unclarified feed such as fermentation broth or cell culture harvest 
utilizing his novel integrated membrane filtration and chromatography process. 
Along m.ith copies of and patent documents, the petitioner submits six 
witness letters. Professor M,~O serves on the petitioner's doctoral advisog. 
committee at N.IIT. resource" who works in an im~ortant - - . . . . . . . - . - - . . . . . - . , -....-- .--- ~~ ~-~- 
field, but Prof. fers no specific comments about the petitioner's work or its impact on the 
field. Profess - who has supervised the petitioner's doctoral studies at NJIT, describes 
the petitioner's work: 
Advances in biotechnology have made it possible to use cells as green factories for 
chemicals, antibodies, enzymes and other therapeutic proteins. But the era of large-scale 
production using biotechnology will not come soon until we get some breakthrough in the 
area of effective and economical bioseparation technology. . . . The breakthrough research 
work of [the petitioner] is just ideal to break this logjam. The integrated membrane filtration- 
cum-chromatography that he has developed . . . offers direct recovery and purification of the 
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target products from unclarified cell suspensions, resulting in reduction of the processing time 
and costs for large-scale production of the needed specialty chemicals and therapeutic 
proteins. . . . 
[The petitioner] has made significant and original contributions to membrane and 
bioseparation technology. He invented a partial coating device and technique to modify 
hollow fiber and other membrane modules, which increased the protein separation capacity of 
the integrated unit by five to seven times. . . . His ingenious and conceptually novel ideas 
have made him a leading member of our research team and enabled him to contribute new 
technologies to the chemical and pharmaceutical industries. 
The burden is on the petitioner to show that the chemical and harmaceutical industries have, in fact, availed 
themselves of the petitioner's contributions. dellow and program manager for Process R&D 
at CPKelco Inc., "a company producing biopolymers using biotechnology," states: 
Recovery and purification of bioproducts is a critical and expensive part of the nowadays 
production process, often accounting for over three-fourths of total production costs. . . . With 
more and more health care products as well as other chemicals . . . being produced using 
biotechnology, the food and pharmaceutical industries are waiting for the breakthrough 
bioseparation technology to increase the output and reduce the large-scale production costs so 
that people can get the health care products sooner and much cheaper. 
I knew [the petitioner] by his presentation in an AIChE [American Institute of Chemical 
Engineers] Annual Meeting. . . . His work on separation and purification of proteins directly 
from fermentation broth drew great attentions from both academic and industrial scientists. 
Integrating the membrane filtration and chromatographic separation in one unique device, 
[the petitioner] developed a very effective and low-cost novel bioseparation process to 
recover and purify the proteins from the fermentation broth. 
a research fellow at Merck Research Laboratories, states that the petitioner's new 
to" "recover, concentrate and purify the biologics in a single step." He offers no 
indication that self a major has adopted the petitioner's technology or 
has taken concrete steps toward doing so. a research engineer at MEDALJAir Liquide (a 
DuPont subsidiary), states that, in above, the petitioner "has also made 
original and important contributions in other technical areas pertaining to the separation and recovery of key 
solutes from broths and mixtures. More recently, he completed an advanced theoretical study of the 
transmembrane mass transfer enhancement phenomenon due to the permeate-side adsorption." 
and a former chair of AIChE's Separations Division, asserts that the petitioner's work "has the potential for a 
major reduction in separation and purification time and costs for biobased manufactured chemicals and 
healthcare products." He states that the petitioner "has been very active at North American Membrane 
Society and AIChE meetings, the most influential conferences on membrane and chemical engineering 
technologies. His presentations in these meetings and his remarkable research work are highly regarded in 
the scientific community." 
The director denied the petition, noting the witnesses' claims but asserting that "[tlhe record contains 
insufficient contemporaneous documentary evidence of the [petitioner's] claimed preeminence in the field," 
Page 5 
such as "extensive lists of scientific citations for his published works or other evidence that the [petitioner's] 
methodologies have been widely adopted by others in the field." 
On appeal, the petitioner submits materials showing a total of ten citations of three articles; one article was 
cited eight times, and the other two were cited once each. Some of these citations are self-citations by the 
petitioner and/or his collaborators, rather than independent citations demonstrative of wider recognition. This 
citation rate does not corroborate the assertion that the petitioner's work has generated high interest 
throughout the field. 
Similarly, a December 15, 2004 letter from~~1~'s assistant vice president for Technology 
Development, indicating that NJlT is "currently working to commercialize the patented technology," an 
indication that the technology was not actually in use as of December 2004, over a year after the petition's 
September 2003 filing date. The record contains a copy of a United States patent application, filed May 12, 
2003, but there is no indication that a patent has been issued for the petitioner's invention. This is consistent 
with witness statements that discuss the "potential" of the petitioner's work rather than its existing, 
demonstrable impact on the field. The petitioner argues that letter "demonstrates that the 
petitioner's patented technology will be marketed and it demonstrates only that 
NJIT intends to attempt marketing and commercialization. Also, the petitioner's reference to "patented 
technology" seems to imply, incorrectly, that the patent application has already been approved. 
The record does show the petitioner's name on two Chinese patents issued in 1998, but the record is silent as 
to the implementation of these patented devices. While the petitioner is the credited inventor of two Chinese 
patents, there is no indication that the petitioner's work in the United States has yielded any approved patents. 
The petitioner argues on appeal that the waiver should not "be limited only to aliens whose work has enjoyed 
'widespread implementation."' This is a reasonable assertion on its face, but we must consider the facts and 
circumstances of each particular case. In this instance, the petitioner's claim of eligibility rests heavily on one 
research project that the petitioner undertook at NJlT, and his work on that project is said to serve the national 
interest because of the tremendous savings it would generate in the manufacture of pharmaceutical products. 
Given that this commercial application is fundamental to the claim, the lack of evidence of commercial 
interest is significant. The petitioner's device will not significantly serve the national interest unless it is, in 
fact, widely implemented. No inherent benefit arises simply from the existence of the concept or the filing of 
a patent application. 
Evidence and statements submitted on appeal show that the petitioner completed his doctorate in January 
2004, and now works at JFC Technologies. The record contains no details about the petitioner's current 
work, and therefore the petitioner has not shown that his current work is as beneficial as the earlier, now- 
completed projects that formed the nucleus of his waiver request. We further note that the petitioner's H-I B I 
nonimmigrant status allows him to work for JFC Technologies through September 2007, during which time 
JFC Technologies is permitted to pursue an application for labor certification should it choose to do so. The 
denial of the present petition in no way affects the beneficiary's ability to work in valid nonimmigrant status. 
While some of the witnesses' evaluations of the petitioner's work are certainly enthusiastic and optimistic, the 
record as a whole suggests that the waiver request is, at best, premature. There is no persuasive evidence to 
show that the petitioner has already had an influence on the manufacture of pharmaceutical products 
significant enough to justify the inference that nationally significant benefits are probable. 
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. $ 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.