dismissed EB-2 NIW Case: Chemical Engineering

U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Ofice of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
b 
Identifying data deleted to 
 U. S. Citizenship 
and Immigration 
prevent clearly unwarranted 
invasion of persoital privacy 
PUBLIC COPY 
FILE: - Office: NEBRASKA SERVICE CENTER   ate: MAY 0 4 2009 
LIN 07 200 52366 
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. § 1 153(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. 9 103.5 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. § 103.5(a)(l)(i). 
sdHL 
6 
John F. Grissom 
Acting Chief, Administrative Appeals Office 
Page 2 
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 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 a member of the professions holding an advanced degree. At the 
time she filed the petition, the petitioner was a postdoctoral researcher at the National Renewable 
Energy Laboratory (NREL), Golden, Colorado. 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. 
On appeal, the petitioner submits a brief &om counsel and copies of documents already in the record. 
Section 203@) 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, 101 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. 215 (Cornrnr. 1998), has set forth 
several factors whch 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. 8 204.5(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. 
In a statement accompanying the initial submission of the petition, the petitioner indicated that she has 
a "strong background in both the Pulp and Paper Technology and Chemical Engineering fields." The 
petitioner stated that her "main task at the NREL is to develop the best technology to make ethanol fiom 
the lignocellulosic materials as an alternative transportation fuel," and that her past experience in pulp 
and paper technology (which involved removing the lignin fiom wood pulp, leaving behind cellulose 
and other complex carbohydrates) has prepared her for research in converting biomass to fuel. 
Several witness letters accompanied the petitioner's initial submission. 
 A number of witnesses 
described the petitioner's background and the im~ortance of her field of research. but offered little 
further detail;' others provided additional info&ation. , who 
supervised the petitioner's doctoral studies at the University of Maine, Orono, stated: 
For the last four years, [the petitioner] has demonstrated exceptional research skills. Her 
novel PhD thesis called "Kinetics and Mechanism of Oxygen Delignification" has been 
well received in both academia and the industrial field. The following is a brief listing 
of [the petitioner's] important and original contributions to oxygen delignification, an 
important and environmentally friendly process used for the production of wood pulp. 
#1: Designed and commissioned a new Berty Reactor for oxygen delignification 
#2: Performed kinetic and mathematical modeling studies on oxygen 
delignification 
#3: Conducted kinetic studies to determine the reaction mechanism and kinetic 
parameters 
#4: Modeled the reaction rate of residual lignin in pulp during oxygen 
delignification based on elementary chemical equations. 
[The petitioner] has made important contributions to our understanding of oxygen 
delignification, and I am sure that her published papers will be seen in the future as key 
original references in the field. 
Manager of Manufacturing Excellence at International Paper, Mansfield, Louisiana, 
described the petitioner's "work as an engineering summer intern in our mill" in 2005. The projects 
included "developing operational centerlines for a corrugating medium machine," and clearly had more 
to do with preparation of commercial paper products than with alternative he1 research, although Mr. 
asserted that the petitioner's "expertise in wood chemistry and lignocellulosic material and her 
exceptional ability ha[ve] prepared her for her. . . current research activities in the bio-fuels field." 
a Principal Biochemical Engineer and Research and Development Manager at 
NREL, recruited the petitioner after encountering her work at a 2006 conference. - 
described the petitioner's current work: 
[The petitioner] is currently working as a post doctoral researcher in the Biorefining 
Process R&D group I lead at N&L. . . . Through her academics focused on pulp and 
paper science and engineering, she has developed an in depth understanding of the 
composition, structure and physical and chemical properties of lignocellulosic materials. 
And through her thesis work using a differential reactor to study the kinetics and 
mechanisms of oxygen delignification of unbleached wood pulp she has gained 
Page 5 
firsthand knowledge of lignocellulose fractionation processes. . . . After only a few 
months at NREL, [the petitioner] is already performing high quality work and making 
significant research contributions to the Pretreatment and Enzymatic Hydrolysis 
research task she supports. 
a Project Manager with the Golden (Colorado) Field Office of the U.S. Department of 
Energy, stated: 
[An] important part of Golden Field Office's mission is to oversee the National 
Renewable Energy Laboratory. . . . My role as a Project Manager has me directly 
overseeing the execution of a portfolio of projects focused on converting biomass to 
liquid transportation fbels. . . . 
I do not know [the petitioner] personally. However, aRer reviewing her impressive 
resume and discussing her current work with a former colleague at NREL, I am very 
familiar with the area of her research in the production of biofbels fiom biomass. . . . 
One of the key technical challenges in the biofuels development path is the cost effective 
breakdown of cellulose and hemicellulose to fermentable sugars. This is precisely the 
research area she is currently focused on. 
did not elaborate on the petitioner's individual contributions to the research efforts described 
above. He discussed the importance of the area of research, which addressed intrinsic merit and 
national scope, but he did not explain why it would be in the national interest for the petitioner, rather 
than another qualified researcher, to be conducting this research. 
-1 of Texas A&M University, who has "never worked with" the petitioner, 
offered more details about the petitioner's work. He stated: 
[The petitioner] has made a number of contributions to better understand wood 
chemistry and oxygen delignification. In the past, kinetic studies of oxygen 
delignification were mostly performed in batch reactors where the hydroxide and 
dissolved oxygen concentrations change constantly with regard to dime in the reactor. 
This makes it difficult to determine an accurate rate expression. Also the lignin and 
cellulose concentrations as well as the molecular weight of the cellulose are only 
established at the end of the experiment when the sample is removed fiom the reactor. 
[The petitioner] successfully developed a flow-through differential reactor to overcome 
these deficiencies. . . 
At NREL, [the petitioner] has applied different pretreatment and enzymatic hydrolysis 
methods to various biomasses, including switchgrass, corn stover, and wheat straw to 
get better biofuel conversions. Because of her strong pulp and paper background and 
expertise, she has provided the NREL biomass program with unique insight and 
knowledge. 
The petitioner submitted copies of her published and presented research, which predate her involvement 
in biomass fuel research, and background documents which address the merits of biomass fuel research 
but do not deal with the petitioner's work in that area. 
On May 8,2008, the director issued a request for evidence, instructing the petitioner to submit evidence 
to establish that she will benefit the United States to a substantially greater degree than other qualified 
workers in her field. The director requested evidence of the petitioner's past influence in her field of 
research, including independent citations of her published research. In response, the petitioner 
submitted new letters and other materials. 
 The petitioner asserted: "I believe that the enclosed 
documents persuasively establish that I have made substantially greater contributions than most other 
researchers working in the field of biorefining and biomass conversion." The petitioner added: 
It is well established that a labor certification application can only be obtained if a 
person is employed in a permanent position with hisher employers. It is equally well 
established that the positions of postdoctoral researchers . . . are not permanent position. 
Since I am employed in such a position, which is not a permanent position, my 
employer cannot file a labor certification on my behalf. 
Whlle the petitioner's argument is correct as far as it goes, it begs the question of why the petitioner 
requires permanent immigration benefits for her admittedly temporary position at NREL. The 
petitioner was obviously already able to work at NREL at the time of filing, because she was in fact 
employed there at the time. USCIS records show that NREL filed a nonimmigrant petition on her 
behalf, with receipt number WAC 08 01 1 51480. That petition was approved, allowing the petitioner to 
work for NREL as an H-1B nonimmigrant until April 6,201 1, with the possibility of extension.' 
, a Principal Scientist at NREL, asserted that, for administrative and hding reasons, it 
is difficult to create new permanent positions at NREL. 
 As noted, the petitioner's existing 
nonimmigrant status permits her to work temporarily at NREL, and even if the petitioner were to 
receive a national interest waiver, this would not create a permanent position for her at NREL. 
Former NREL researcher 
 now Biomass Program Manager at Abengoa Bioenergy New 
Technologies, Inc., Chesterfield, Missouri, stated: 
Since 2003 Abengoa Bioenergy has been collaborating with NREL, where [the 
petitioner] currently works, on the application of enzymes for cellulosic ethanol 
production. . . . 
I 
 The AAO notes that, while the petitioner's H-1B status would have permitted her to work at NREL until April 201 1, 
the University of North Dakota filed a new nonimmigrant visa petition, with receipt number WAC 09 099 50837, in 
February 2009. While that petition remains pending at the time of this writing, its very existence does not suggest that 
the petitioner intends to remain at NREL even until 20 1 1, let alone permanently. 
Page 7 
In cellulosic ethanol production, effective pretreatment and high solids fermentation are 
critically important to reduce capital and operating costs. This is a major goal of [the 
petitioner's] research project. To meet these goals, [the petitioner] performed 
outstanding and independent research in pretreatment, enzymatic cellulose hydrolysis 
and ethanol fermentation at high substrate concentrations. Her achievements have been 
very impressive. 
of the University of California, Riverside, was an NREL official fiom 
1978 to 1997. He stated: 
I do not know [the petitioner] personally. However, after reviewing her curriculum vitae 
and discussing her work with my former colleagues at the National Renewable Energy 
Laboratory, I am confident that her work is most certainly within the national interest 
and that she more than meets the criteria for a national interest waiver. Our nation has 
greatly benefited and will continue to benefit fi-om her expertise in lignin chemistry and 
biomass conversion technologies. . . . I believe her papers will be seen as key original 
references in the field. 
, Senior Researcher and Laboratory Manager at InterChem Inc., Liberty, Texas, 
stated: 
While at the University of Maine working on ha doctoral dissertation, [the petitioner] 
developed a new "Berty Continuous Stirred Tank Reactor'' used to investigate the 
kinetics and mechanism of oxygen delignification (N.B. this is currently the world's first 
reactor both developed and used for oxygen delignification research). [The petitioner's] 
hands on engineering ths particular piece of equipment is by no means a minor 
accomplishment; rather it is significant and will be utilized in industrial applications by 
research scientists in the pulp and paper field for many years to come. [The petitioner's] 
original findings in oxygen delignification will allow scientists to proceed forward in 
research by allowing them to utilize their time more efficiently. An added benefit of the 
oxygen delignification process is it's environmentally [sic] friendliness - in that it 
replaces the necessity of utilizing chlorine to remove lignin from the woody material. 
[The petitioner's] findings of first order reaction kinetics can be utilized by the pulping 
industry to improve the production yield and therefore improve the economy. 
The petitioner submitted documentation showing that she participated in peer review of manuscripts 
submitted by others for journal publication. Every dated document referring to the petitioner's peer 
review work is dated after the petition's July 5, 2007 filing date. Therefore, even if peer review 
were a qualifying activity, these activities cannot retroactively establish that the petitioner was 
already eligible as of the filing date. The petitioner of an immigrant visa petition must establish 
eligibility at the time of filing. See 8 C.F.R. $8 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. 
45,49 (Regl. Cornrnr. 1971). 
Page 8 
Furthermore, dates aside, the petitioner did not establish that such participation is in any way 
unusual or a privilege reserved for a relative few. A "form" letter with the salutation "Dear Valued 
ACS Reviewer" suggests that such letters are printed in bulk, for sizeable numbers of reviewers. 
The petitioner submitted copies of her articles and abstracts as well as her doctoral thesis. The 
petitioner claimed that her writings had been cited an aggregate total of 16 times. The only documented 
published citations, however, are the petitioner's self-citations of her own prior work. Self-citation is a 
common and accepted practice, but it is not indicative of wider impact or influence. A citation to the 
petitioner's work appears i-, unpublished master's thesis, submitted on August 27, 
2007, nearly two months after the petition's filing date. The thesis identified instructor as 
one of the petitioner's mentors. The works cited are the petitioner's own doctoral 
thesis (also written under 
 guidance) and a 2006 conference presentation co- 
authored by 
The director denied the petition on July 21,2008. The director noted that, while the petitioner claimed a 
number of citations of her work, she documented only one that was not a self-citation (the 
aforementioned thesis). The director acknowledged the overall importance of the petitioner's area of 
research, but found that the record lacks "demonstrable evidence of her influence," despite witnesses' 
speculation that the petitioner's work will eventually be regarded as important. 
On appeal, counsel lists the petitioner's past accomplishments and asserts: "we had shown evidence 
that the petitioner's past record achievement justifies projections of future benefit to the national 
interest." Simply listing the petitioner's past activities, however, does not establish eligibility for the 
waiver, even if counsel asserts that those prior accomplishments are "major contributions." The 
unsupported assertions of counsel do not constitute evidence. See Matter of Obaigbena, 19 I&N Dec. 
533, 534 n.2 (BIA 1988); Matter of laureano, 19 I&N Dec. 1, 3 n.2 (BIA 1983); Matter of Ramirez- 
Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
Counsel asserts that the petitioner's "publications have . . . been cited at least 13 times by other 
researchers and academics in the field." As the director already noted in the denial notice, the petitioner 
did not document these citations; she simply asserted their existence. The record does not contain any 
published independent citation of the petitioner's work, and even if the number of claimed citations is 
correct, there is no evidence to show that any of the published citations are independent rather than self- 
citations. When the director observes that a given claim is unsupported by evidence, it is no remedy 
simply to repeat the unsupported claim. 
One paragraph after claiming that the petitioner has accumulated a "particularly impressive" citation 
record, counsel protests that the director "insisted that PetitionerIAppellant must demonstrate proof of 
heavy citations." The director did not "insist" upon evidence of heavy citation. Rather, the director 
noted that citations are one objective means of measuring a researcher's impact. It is true, however, that 
if the petitioner claims independent citation of her work, she must actually document such citation. 
Counsel notes that the petitioner "received the Queens [sic] Scholarshp for the Asian Environment 
Development Program from the Government of Thailand," which counsel claims "is one [ofl the most 
prestigious awards available in Thailand." The petitioner received this scholarship in 2001, while still a 
master's student; established, fblly-credentialed scientists are ineligible for scholarships because their 
education is complete. It seems, therefore, highly unlikely that a prize specifically reserved for students 
is one of Thailand's "most prestigious awards." 
Counsel asserts that the director should have given more weight to the witnesses' letters, because "it is 
not for the service center to judge how one should compare an alien beneficiary's contributions . . . 
against others." It is, however, for the service center to judge who qualifies for a waiver and who does 
not. By counsel's own logic, this decision cannot be left to the petitioner's colleagues who have no 
apparent expertise in immigration law. The assertions of witnesses are taken under advisement, but the 
opinions of those witnesses are not, and cannot be, binding upon USCIS adjudicators (who, in turn, 
must be free to compare witnesses' claims to the objective documentation in the record). 
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. 8 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.