dismissed EB-2 NIW Case: Chemical Engineering

U.S. Department of Homeland Security 
20 Mass, N.W., Rrn. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: Office: VERMONT SERVICE CENTER Date: JUN 0 3 mS 
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 Immngration 
and Nationality Act, 8 U.S.C. § 1153(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. 
bL* 
%Robert P. Wiemann, Director 
Administrative Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Venrlont Service 
Center, and 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(b)(2), as an alien of exceptional ability. The petitioner seeks employment as a researcher. 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 had 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 sf 
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 
services 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 
Leeds University. The petitioner's occupation falls withn the pertinent regulatory definition of a profession. The 
petitioner thus qualifies as a member of the 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 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, 
l0lst Cong., 1 st Sess., 1 l (1989). 
Supplementary information to the regulations implementing the Immigration Act of 1990 (MMACT), 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 seelung 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 allen to establish that 
Page 3 
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 Tramp., 22 I&N Dec. 2 15 (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 seelung 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 onprospective 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. 
The director did not dispute that the petitioner works in an area of intrinsic merit or that the proposed benefits of 
her work would be national in scope. The petitioner focuses on the use of catalytic reactions (catalysis) to remove 
the toxic byproducts of burning biomass. -~reviousl~, the ed fir the ~ational ~enewable Energy 
Laboratory (NRJ3L). While this work was funded by it appears to have applications to the 
renewable energy plants. At the time of filing, however, 
the petitioner was Counsel asserts, and several of the references affirm, that 
the petitioner's work at to pollution reduction as well as developing a safer 
cigarette. The pollution reduction and safer cigarettes, are in the - 
national interest. Often, little evidence is needed to establish that a researcher's area of work has intrinsic merit 
and that the benefits will be national in scope. Nevertheless, it is still the petitioner's burden to meet each of these 
elements. We do not question that reduced pollution from biomass burning plants has intrinsic merit and that the 
benefits will be national in scope. 
The proposition that less toxic cigarettes are similarly in the national interest, however, is a complex one that 
warrants supporting evidence from disinterested parties outside the tobacco industry, preferably in the health 
field. While we do not find that the development of less toxic cigarettes is definitely not in the national interest, 
some questions remain unanswered by the record. Specifically, if the cigarettes are only "safer" without being as 
safe as not smoking at all, it becomes relevant whether such cigarettes would discourage from quitting some 
smokers who might have otherwise quit or encourage nonsmokers to start smoking who otherwise might not have 
started. Without views fiom health experts outside the tobacco industry, such as high-level officials at the 
American Lung Association or the American Cancer Society, we cannot conclude as met her 
burden on this issue. Thus, the petitioner has not established that anyone other tha ill benefit 
fi-om her work on reducing the toxic levels of cigarettes. 
In light of the above, we will only consider whether the petitioner's current and proposed work at is 
likely to produce the proposed benefits of reduced pollution from biomass-burning plants. Elig~ I ity or the 
waiver must rest with the alien's own qualifications rather than solely with the position sought. Irl 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 she seeks. By seeking an extra benefit, the 
petitioner assumes an extra burden 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. That said, we look to the petitioner's 
past record of achievement only insofar as it relates to the possibility of hture contributions. The national interest 
waiver is not an award for past achievement, but a means of securing future benefits to the national interest. 
Thus, the work the petitioner intends to pursue is as relevant as her past achievements. 
At the outset, we acknowledge that biomass-burning plants produce many of the same toxins as cigarettes. Thus, 
we acknowledge that the petitioner's slulls are applicable to both issues. Nevertheless, the more directly the 
benefits flow from the petitioner's work, the less speculation is required to conclude that the petitioner is likely to 
produce those benefits. In other words, it is more speculative to presume that other industries will adopt the 
petitioner's results than to presume that her employer will. For example, on appeal, the petitioner submitted a 
patent application listing her as an inventor for an innovation relating to cleaner burning cigarettes. 'The record 
lications for biomass-burning plants that either list the petitioner as an inventor or cite 
her work at 
Initially, the petitioner submitted letters detailing her work prior to 
supervisor of the petitioner's Master's thesis, asserts that this work - A 
used in an enginee>ng process to clean toxic gas streams through the saved energy resulting from more efficient 
mass transfer. While ths work involved a collaboration with Germany, Mr.Ws not explain how this work 
impacted the area of catalysis, in which the petitioner now works. 
he petitioner's Ph.D. thesis advisor, praises this work, noting that it led to 10 published articles. 
the focus of this work, however, discussing instead the importance of the pr:titioner7s 
subsequent work with controlled pyrolysis. 
The petitioner also submitted two letters from colleagues at NREL. Dr. Steven Slayzak focuses mos1:ly on the 
's area of research ~~NREL, giving some general-praise of the petitioner's 
abilities. Dr. rovides more discussion of her actual projects. He explains that the petitioner 
temperature chemical conversion systems. He further explains that this work 
"includes the practice of molecular beam mass spectrometry (MBMS) for the study 
systems, with emphasis on biomass and biopolymer thermo-catalytic conversion." Dr. ontitiues that 
the petitioner is one of twenty doctoral-level researchers with experience in this 
is also an expert practitioner of multivariate statistical analysis. Simple exposure to advanced technology 
constitutes, essentially, occupational training which can be articulated on an application for a labor cert~fication. 
Special or unusual knowledge or training, while perhaps attractive to the prospective U.S. employer, does not 
inherently meet the national interest threshold. Id. at 221. vbrther states that the petitioner "developed 
kinetic modeling techniques for the data from these techniques, a owing the empirical modeling of extremely 
complicated chemical reactions." He concludes that the "research community is anticipating that her continued 
work in this area will provide an understanding of biomass thermal conversion." While he concedes that the 
petitioner no longer works "in bioenergy," he nevertheless asserts "the work she is presently doing and publishing 
will greatly aid my colleagues and me in continuing to develop new approaches to the study of our biomass 
conversion." Without additional explanation, ths last prediction appears somewhat speculative. 
a letter from Dr. a senior principal scientist a- 
at NREL and in is currently workn,g. Dr. 
discussion of the petitioner's work, but it is unclear if he is 
and he fails to explain the goals of the petitioner's current work at 
the last several years" the petitioner's findings "in the area of th 
Page 5 
conversion of biopolyrners have led to a significant understanding in pathways leading to fixmation of 
undesirable products such as polycyclic aromatic hydrocarbons (PAHs) with a [sic] great health and 
environmental impacts." He concludes that the petitioner's "previous and current work in the areas of renewable 
energy source, reduction of harmful by-products of gasification and combustion systems on environment and 
reduction o risk in ci tte smolung are exceptional." 
NREL and- 
groups both the petitioner's work for 
together in the same sentence, whether the petitioner's current 
and proposed work will contribute to reduced pollution from biomass-burning plants. 
In support of the claims made in these letters, the petitioner submitted resentations and published 
articles. She also submitted a list of citations of her work prepared by While counsel focuses on 
the total number of citations, we note that while the petitioner's 1998 16 and 17 times, her most 
published in 1999 have been cited six and nine times. All of these articles were coauthored with Dr. 
and, thus, appear to represent her Ph.D. thesis work. None of her more recent articles have been cited 
more than four times. As stated above, Dr. implies that the petitioner's thesis work was in a diiyerent area 
than her current work. 
The petitioner also submitted evidence of her professional memberships and fellowship at the University of 
Leeds. The petitioner did not submit any evidence that her memberships are indicative of an influence in the 
field. For example, the materials for the American Chemical Society (ACS) indicate that "membership is for 
everyone," that it has 163,000 members and that all that is needed for full membership is a certain level of 
education and experience. Regardless, professional memberships are 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. Finally, the 
fellowship appears to cover the petitioner's studies for her Ph.D. Fellowships based on academic ach~evements 
are not persuasive. Specifically, academic performance, measured by such criteria as grade point average, 
cannot alone satisfy the national interest threshold or assure substantial prospecttve national benefit. In all 
cases the petitioner must demonstrate specific prior achievements that establish the alien's ability to benefit 
the national interest. Matter of New York State Dept. of Transp. at 2 19, n.6. 
The director concluded that the affidavits did not establish that the petitioner's work constitutes a breakthrough in 
her field and that the record did not establish that a similarly trained researcher could not make similar 
contributions. 
On appeal, counsel reiterates the importance of efficient biomass-burning plants, a point we do not contest. 
Counsel quotes from the letters submitted previously and those now submitted on appeal, concluding that the 
petitioner's contnbutions to the field have been remarkable and sustained. For the reasons discussed atmve, we 
find that the attestations in the initial letters are too speculative regarding the claim that the petitioner's proposed 
employment will produce the proposed benefits in the national interest. We will consider the new letters below. 
In a new letter. Drsserts that "during her res~dence in the United States'' the petitioner has developed 
modeling techniques derived from her MBMS and multivariate statistical 
ambiguous regarding whether these techniques were developed at NREL or a 
petitioner as one of the top experts in the field who has made highly 
he concludes that her future work "will continue to have significant-positive impact upon her field and the United 
States" he does not explain what that future work will be or how it is applicable to biomass burning for energy. 
-asserts that the petitioner's "on-going" work for 'is a natural continuation of her studies 
of thermal and catalytic transformations directed at sustaina developments." He fkther states: 
Page 6 
Additionally, she is the co-inventor of one significant patent application, in which she utilized 
nanotechnology to destroy toxic compounds in the process of biomass conversion. 'The 
nanotechnology is a cutting-edge research area utilizing nanoscale materials (10" - 10-~rn range) 
and is used in electronic, biomedical, pharmaceutical, cosmetic, energy, catalytic and materials 
applications. Consequently, her scientific findings on the effects of such nano-material on the 
removal of toxic compounds have great impact on this research community and, indeed, led to 
the U.S. patent application in applying nano-material to biomass utilization. 
The record does not haracterization of the petitioner's patent-pending innovation as having 
broad applications. patent is "Oxidant/catalyst nanoparticles to reduce tobacco smoke 
constituents such as carbon monoxide.'" A review of the claim reveals that it involves an additive to the filler of a 
cigarettes not explain how this innovation is applicable beyond cigarette manufacture. 
-discusses the importance of the petitioner's work at NREL and asserts the petitioner '7s and will 
continue to be one of the key leading researchers" in the area of pollution control, but fails to explain how the 
petitioner's current work relates to ths area. 
Chief Technology Officer for Headwaters NanoKinetix, Inc., discusses the petitioner's 
presentations at nanotechnology conferences in 2002 and 2004 that he organized. He conclude:; that the 
petitioner's work is important "to tackle our fbture reducing our dependency on foreign oil." 
does not explain why the petitioner's work at s more vital towards this goal than the work 
of similar researchers working directly for the 
a senior staff member at Oak Ridge National Laboratory, reiterates the claim that the petitioner's 
We reiterate that it cannot suffice to state that the alien possesses useful skills, or a "uniaue 
background." Special or unusual knowledge or training does not inherently meet the naionai interest 
threshold. The issue of whether similarly-trained workers are available in the U.S. is an issue under the 
jurisdiction of the Department of Labor. Matter of New Ynrk State Dept. of Transp. 22 I&N Dec. at ,221. Dr. 
also discusses the importance of the petitioner's MBMS techniques and asserts that the results from this 
work "have been used to guide my experiments and they have provided new insights in the thermal reactions 
not establish that the MBMSWO~~ was performed while 
nd that her continued work at ill continue to advance this 
tobacco industry. 
head of a Philip Morris research department in Switzerland, acknowledges that his 
co chemistry and analysis, but professes that the petitioner's research area "is without 
doubt very industries as well as public health authorities, environmental and 
fails to identify any impact to other industries derived solely from the 
petitioner's work at Such claims would be more persuasive coming directly from those 
industries. 
~r.a professor at Louisiana State University and a member of the editorial board of iournals 
that have  publish^'^ s that she is familiar with the petitioner's work through a 
collaboration wit sserts that the results from the petitioner's work with PAH 
formation "are of sigm lcance for both health and environmental concerns." We do not contest that the - .~- . --.. 
petitioner's past research has implications for the environment and that her current work is focused on less 
toxic cigarettes, which might have health implications. The question is whether the petitioner's proposed 
Page 7 
work fo will benefit the national interest as claimed Is letter is not persuasive that 
mere speculation. 
ltant to industry, notes the importance of the petitioner's work in the reduction 
does not indicate that he is a consultant for any company in the biomass- 
or identify how the petitioner's results have been applied in that industry. 
Ultimately, the petitioner has not established that the national interest would be served by waiving the labor 
certification process. As implied by the director, the unique slalls discussed by the petitioner's references appear 
amenable to enumeration on an application for labor certification. The claim that her slulls are unique is under 
the jurisdiction of the Department of Labor. Finally, while the petitioner has clearly worked in an area of national 
importance in the past, and her current work is not unrelated to that work, her proposed employment would 
appear to be primarily aimed at benefifing her employe-e cannot conclude that the national 
interest waiver was conceived as a means to benefit a single employer. Nothlng in the legslative history suggests 
that the national interest waiver was intended simply as a means for employers (or self-petitioning aliens) to avoid 
the inconvenience of the labor certification process. Matter of New York State Dept. of Transp. 22 I6zN Dec. at 
223. 
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. fj 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.