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
u.s.Citizenship
and Immigration
Services
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. § 1153(b)(2)
FILE:
INRE:
PETITION:
LIN 05 12650194
Petitioner:
Beneficiary:
Office: NEBRASKA SERVICE CENTER Date:
J'JN 0 7 2001
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 .
.AilLlJ't'''- Ve t~tl11n:
l'/Robert P. Wiemann, Chief
.-(..., Administrative Appeals Office
www.uscis.gov
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Page 2
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa
petition and reaffirmed that decision on motion. 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. § 1153(b)(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 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 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. Thus, on September 28, 2005, the director denied the petition
accordingly.
On November 1, 2005, the petitioner filed an appeal of the director's decision, requesting 30 days in
which to supplement the appeal. As the appeal was filed untimely, the director elected to treat the
appeal as a motion pursuant to 8 C.F.R. § 103.3(a)(2)(v)(B)(2), implying that the I-290B Notice of
Appeal met the requirements of a motion to reopen or reconsider.' On January 5, 2006, the director
advised the petitioner that the untimely appeal would be treated as a motion and afforded the petitioner
30 days to supplement the appeal. The director cited no legal authority that allows a petitioner to
supplement a motion.' In response, counsel submitted a brief asserting that the director misapplied a
precedent decision relating to the classification sought. On March 30, 2006, the director reaffirmed the
initial denial in an ambiguous decision. Specifically, while the director implies that the appeal did not
meet the requirements of a motion, he reaffirms the director's previous decision based on a review of
the record including the new submissions. On May 1, 2006, the petitioner timely filed the instant
appeal, asserting that the director's initial decision was in error.
The AAO reviews appeals on a de novo basis. Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989).
As noted above, the director treated the appeal as a motion and ultimately reaffirmed his initial
decision rather than dismissing the motion for failing to meet the requirements of a motion. Thus,
we will adjudicate the appeal before us by addressing the merits of the director's initial decision,
reaffirmed on motion without further discussion. For the reasons discussed below, we uphold the
director's initial finding that a waiver of the alien employment certification process in this matter is
not warranted in the national interest. Specifically, we find that the petition was filed before the
petitioner had had any meaningful opportunity to influence the field as a whole.
1 The regulation at 8 C.F.R. § 103.3(a)(2)(v)(B)(2) only requires the director to consider an untimely appeal
as a motion if it "meets the requirements" of a motion to reopen or reconsider.
2 The regulation addressing motions to reopen and reconsider, 8 C.F.R. § 103.5, does not expressly allow a
petitioner to supplement a motion. Cf 8 C.F.R. § 103.3(a)(2)(vii) expressly permitting requests for
additional time to supplement an appeal.
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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 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.
The petitioner holds a Ph.D. in Chemical Engineering from the Colorado School of Mines. 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 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 "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, 101st 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.
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Matter of New York State Dep't. of Transp., 22 I&N Dec. 215 (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.
We concur with the director that the petitioner works in an area of intrinsic merit, molecular
simulation, and that the proposed benefits of his work, carbon sequestration, 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.
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.
Matter ofNew York State Dep 't of Transp., 22 I&N Dec. at 218. Moreover, it cannot suffice to state
that the alien possesses useful skills, or a "unique background." 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 221.
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.
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.
As stated above, the petitioner received his Ph.~ Engineering from the Colorado
School of Mines in 2003. His thesis advisor was _ In 2004, the petitioner joined the
laboratory of_ at the University of Notre Dame in Indiana. As of the date of
filing, the pet~only a single published article based on his Ph.D. research. His
remaining four manuscripts were in preparation to be submitted. Thus, the vast majority of the
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petitioner's research had yet to be widely disseminated in the field as of the date of filing, the date on
which the petitioner must establish eligibility. See 8 C.F.R. § 103.2(b)(12); Matter ofKatigbak, 14
I&N Dec. 45, 49 (Reg. Comm. 1971).
The petitioner relies on several reference letters. On appeal, counsel cites several non-precedent
decisions for the proposition that letters from independent experts are persuasive evidence. 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 SofJici, 22 I&N Dec. 158, 165 (Comm. 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 contammg mere assertions of potential
applications and a 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.
_ asserts that the petitioner was able to produce results applicable to industry while a Ph.D.
student because he had previously worked in industry before pursuing his Ph.D. Specifically, the
petitioner developed experimental force field values and a model to use in simulation. This work is the
subject of the petitioner's only published article. The record lacks evidence that this article has been
cited by independent research teams or, in fact, at all.
an associate professor at the Colorado School of Mines, asserts:
Although [the petitioner's] force field cannot yet be used for polymer systems, the
method (and math model) to optimize the force field can be applied to my polymer
simulations. This is the reason that I am particularly interested in [the petitioner's]
work. From his work, I can ensure that my methodology will work for small molecules
(such as alkanes, alcohols, etc.). I also believe that with minor modifications, the
methodology is ready for complex molecules.
While these statements suggest that the petitioner's work has applications beyond his own research, it
does not show that his work has already influenced the field beyond the Colorado School of Mines,
where the petitioner received his Ph.D.
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, a prOfess. Young University, asserts that he met the petitioner at a
2003 symposium in Colorado. praises the petitioner's Ph.D. research and notes that it was
published in a top peer-reviewe joumai. We will not presume the significance of an article from the
journal in which it appeared. Rather, it is the petitioner's burden to demonstrate the influence of the
individual article. _does not identify other research teams using the petitioner's values and
models and does not suggest that he himself is doing so.
, a Technical Manager and Chemistry Modeling Specialist at BP Chemicals, asserts
that the petitioner's force field research will allow researchers "to predict viscosity more accurately than
was available beforehand." He does not assert that researchers are now doing so or that BP is adopting
the petitioner's values and models. The record contains no other letters from independent researchers
or industry scientists applying the petitioner's force field values and models.
_ further asserts that the petitioner determined that the force field fo_ort properties is
rans era le among molecules, a previously unknown phenomenon. Finally, asserts that it is
standard in the industry to use commercial software, but that the petitioner created his own software,
which allowed him "to do much more detailed simulation work than would have been possible using
the commercial software packages."
The record contains no evidence that the petitioner has licensed his software to other research teams.
_speculates that the petitioner's SOftw_· used not only in the scientific setting, but
also will be applied in the industrial field." does not suggest that BP or any other
independent research team has any plans to license or otherwise utilize the petitioner's software.
.~
asserts that he was impressed with the petitioner's accurate simulations on thermal
conductivity, an area often overlooked due to its complex nature. While _ asserts that this
work is "broadly applicable," he does not provide examples of other teams applying this work. Finally,
_ affirms his "understanding" that the petitioner has written his own software but does not
~sethe software himself.
_ notes that the petitioner's current work is sponsored by the Department of Energy, "which
demonstrates that is recognized as important to our country." We have already acknowledged the
intrinsic merit and national scope of the petitioner's area of research. The petitioner cannot secure a
waiver of the alien employment certification process simply by working with a government grant._1
_ explains that the petitioner works with ionic liquids, which cannot escape into the atmosphere
and, thus, are good candidates for carbon s~ The petitioner's goal is to determine which
ionic liquids would best sequester carbon. _ asserts that the petitioner "has already made
great strides on this work." Specifically, he completed the ab initio quantum mechanical calculations
of different ionic liquids, "an extremely~procedure." This work is necessary before
designing and d I b rbent. _ then discusses the petitioner's future research
proposals. other professor at the University of Notre Dame, provides similar
information an associate professor at the University of Notre Dame, asserts that
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the petitioner has an extensive understanding of molecular simulation and speculates that the
petitioner's innovative work "will" improve this area of research.
In a second letter,_ eXPlainslllitioner's position is not "permanent" due to the year­
to-year funding of his project. Thus, cannot pursue the labor certification process in the
petitioner's behalf. On appeal, counse notes t at the director incorrectly stated that no reason was
presented why the alien employment certification process could not be utilized. That said, while the
inapplicability of the alien employment certification process will be given due consideration in
appropriate cases, it cannot be viewed as sufficient cause for a national interest waiver; the petitioner
still must demonstrate that he will serve the national interest to a substantially greater degree than do
others in the same field. Matter ofNew York State Dep 't of Transp., 22 I&N Dec. at 218, n. 5. Thus,
he must still demonstrate his track record of success with some degree of influence on the field as a
whole.
As stated above, none of the petitioner's work in laboratory had been published as of the
date of filing. In fact, the petitioner had not even presented this work beyond the University of Notre
Dame as of the date of filing. The record contains no letters from industry affirming their use of the
petitioner's results or even their interest in his work.
a research associate professor at the University of Tennessee, asserts that he met the
petitioner at a conference and has followed the petitioner's work since that time. He expresses his
understanding that the petitioner's current research "is extremely promising" and "may lead to the
development of chemical engineering processes that will allow coal to be burned much more efficiently
and cleanly throughout the United States." He does not explain how the petitioner's work has already
influenced the field.
a professor at the University of Buffalo, asserts that he knows of the petitioner
through discussions with the petitioner's collaborators and his "publications," although the petitioner
had only authored a ~cation as of that date. In answering how the petitioner's research "will"
impact the field or _ own rese~ responds by discussing the petitioner's rare
understanding of molecular simulation. _Iconcludes that the "vast potential offered by
molecular simulation will remain untapped without researchers who understand molecular simulation
and molecular modeling with sufficient depth to improve its capabilities." These statements do not
explain how the petitioner had already influenced the field.
Finally, subsequent to filing the petition, the petitioner has submitted evidence that_ his own
Ph.D. advisor, has requested his assistance in reviewing a manuscript for publication and that the
petitioner has been invited to a conference. This evidence relates to events after the date of filing and
cannot be considered. See 8 C.F.R. § 103.2(b)(12); Matter ofKatigbak, 14 I&N Dec. at 49.
The record shows that the petitioner is respected by his colleagues and has made useful contributions
in his field of endeavor. It can be argued, however, that most research, in order to receive funding,
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must present some benefit to the general pool of scientific knowledge. It does not follow that every
researcher working with a government grant or contributing to the general pool of knowledge
inherently serves the national interest to an extent that justifies a waiver of the job offer requirement.
Moreover, the petitioner's use of his own software and his previous industry experience are
insufficient without evidence that these skills have already influenced the field. Simple training in
advanced technology or unusual knowledge, while perhaps attractive to the prospective U.S. employer,
does not inherently meet the national interest threshold. Matter ofNew York State Dep 't of Transp.,
22 I&N Dec. at 221. In addition, as stated above, simple innovation is insufficient without evidence
that the innovation has already had an influence on the field. Id. at 221, n.7. Furthermore, with regard
to experience, the regulations indicate that ten years of progressive experience is one possible criterion
that may be used to establish exceptional ability. Because exceptional ability, by itself, does not justify
a waiver of the job offer/alien employment certification requirement, arguments hinging on the
petitioner's experience, while relevant, are not dispositive to the matter at hand. Id. at 222.
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 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.