dismissed EB-2 NIW Case: Chemistry

ucnti@ing data deleted to 
prevent clearly unwarranted 
invasion of pemona1 privacy 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rrn. 3000. 
Washington, D.C. 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
PUBLIC COW 
SRC 07 192 54188 
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. $ 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. 
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. 3 103.5 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. fj 103.5(a)(l)(i). 
A DJ. & 11 
r John F. Grissom, Acting Chief 
-r Administrative Appeals Office 
DISCUSSION: 
 The Director, Texas 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. § 11 53(b)(2), as a member of the professions holding an advanced degree. At the 
time he filed the petition, the petitioner was a senior analytical chemist at- 
Louisville, Kentucky. The petitioner asserts that an exemption fiom 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, counsel argues that the evidence submitted previously supported approval of the petition. 
Section 203(b) 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, 10 1 st Cong., 1 st Sess., 1 1 (1 989). 
Page 3 
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 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 bre 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. 
We note that Part 4, line 6 of the Form 1-140 petition (whtch the petitioner signed under penalty of 
perjury) asks the question: "Has any immigrant visa petition ever been filed by or on behalf of this 
person?" The petitioner answered "no," but this answer is false. On March 1,2004, the petitioner filed 
a petition, with receipt number LIN 04 104 50669, seeking to classifL himself as an alien of 
extraordinary ability under section 203(b)(l)(A) of the Act. The director, Nebraska Service Center, 
denied that petition on June 1, 2005. The petitioner appealed that decision, and the AAO dismissed the 
appeal on April 1 1,2006. The petitioner filed his second petition (under review here) on June 1 1,2007, 
only 14 months after the AAO dismissed his prior appeal. 
In a personal statement submitted with the petition, the petitioner stated: 
1 am a Senior Research Associate (P-3 Chemist) in the Kentucky division of = 
. . . This is a permanent position for research and environmental 
sampling and testing open to further promotion. In this position, I supervise and conduct 
research, conduct environmental on-site soil, water and oil sampling and testing for 
organic hazardous wastes. . . . 
During my more than ten years science and technology research and application practice 
I have made many important contributions on the hazardous waste management, 
remediation, recycling and disposal. Although I cannot publish all my work due to the 
business and national security reason[s], I have received a highest China national award 
for my exceptional contributions to both national science and technology progress and 
society benefit in 1998. . . . One of my selected works was published on international 
high levels in [an] international high level science and technology journal and cited by 
some international highly public accessed science and technology search sources. My 
research work on-site at USEPA Cincinnati will be published in the near future. 
Eventually these results will be [a] guide or fbndamental for the remediation of US 
hazardous organic waste contaminated sites. . . . 
testing and analytical laboratory groups. . 
The Kentucky Division's primary capabilities include: storm water, moundwater, and 
wastewater testing and sampling; environmental remediation; environmental soil testing 
and sampling; RCRA regulatory analysis; and food microbiology testing. . . . 
I have been working in the field of hazardous waste management and disposal since 
1990. . . . In - and :- 
division, I exp[a]nded my working field to organic hazardous waste management and 
disposal research (remediation) and onsite services (sampling, testing and consulting). 
(Emphasis in original.) The petitioner submitted several witness letters discussing his work with 
hazardous waste remediation. The single largest source of those letters is the China Institute of Atomic 
Energy (CIAE), where the beneficiary worked fiom 1990 to 1998. An illustrative example is f?om 
, director of the hiational Research Center of Isotope Engineering and ~echnolo~~ 
atdstated: 
[The petitioner] joined a research group in ~IAE conducting a China National Eighth 
Page 5 
talent, astute insight, as well as hard work had established the solid foundations for the 
following superb research work. 
[The petitioner] had developed several crucial and critical technologies after he joined 
the group. With [the petitioner's] technologies and discoveries the group overcame 
some scientific and technological difficulties and was able to move further. 
. . . To get high purity medical use molybdenum and properly manage and dispose [the] 
hazardous radioactive waste (gas, liquid and solid) is the most difficult part of the 
technologies. And at the same time the group faced another challenge, the uranium in 
precipitate high radioactive waste must be recycled since it is the precious national 
control nuclear hel. 
Facing these challenges, [the petitioner] developed several innovative technologies at 
some of the critical steps for the project. . . . By using his methods the whole 
molybdenum recovery increased from 70% to 85%. . . . 
The un-reacted uranium was co-precipitated with all other solid hazardous radioactive 
wastes. These wastes cannot be disposed as high radioactive solid waste before the 
uranium is recycled. . . . [Using the petitioner's method, t]he recovery of uranium is 
more than 99%. . . . This study was published in one of the top international nuclear 
science journal[s], Journal of Radioanalytical and Nuclear Chemistry. 
, a senior engineer at CIAE, states that the petitioner's innovations "have been serving 
the company for many years." - stated that the 
- ~ 
 - 
petitioner's "contributions . . . cannot be overstated." 
, technical directive manager at the National Risk Management Resource 
Laboratory, U.S. Environmental Protection Agency (EPA), described work that the petitioner 
performed for the EPA while he was a student at the University of Cincinnati: 
Remediation of polychlorinated biphenyls (PCBs) has been a major problem in the 
United States. . . . After [he] joined the group [the petitioner] played a key role as a team 
leader. It is the first work in the world to investigate the PCBs bimetallic system 
degradation reaction kinetics systematically. . . . [The petitioner] discovered that 
bimetallic system degradation does not produce any intermediate products even in [a] 
very short time. This discovery made it easy for the environmental risk assessment after 
the remediation. . . . During his on-site research period at USEPA, [the petitioner] made 
many significant contributions on the PCB in aqueous and sediment slurry matrix 
rernediation. With his excellent research works our research group [remains a] pioneer 
in the field. 
Page 6 
work: 
In my laboratory, [the petitioner] keeps playing an important role on the organic 
hazardous waste sampling, analyzing, management, remediation and disposal. Except 
routine environmental services, [the petitioner] and the laboratory also [have] the 
responsibility for the emergency environmental needs for Kentucky and the neighbor 
states. In the middle of January, the greater Louisville Area was stunned to learn that a 
train had derailed off Highway 1020 in the nearby city of [Blrook. To put the 
magnitude of the disaster in focus, the derailment fire, which ignited 90,000 gallons of 
Butadiene, lasted six days. Our laboratory acted at the first time to collect and analyze 
the samples. We provided the first hand data promptly for the environmental 
remediation. [The petitioner] played a key role in this project to develop analytical 
method and analyze all the contaminated water and soil samples. Although he just 
started his work in my laboratory, [the petitioner] already made great contributions on 
our organic hazardous waste sampling, analyzing, remediation, management and 
disposal. 
The petitioner and several witnesses discussed awards that the petitioner has received, such as the 
National Science and Technology Progress Award. (According to the record, the petitioner was one of 
3,461 people who received the award in 1998.) Pursuant to 8 C.F.R. 5 204.5(k)(3)(ii)(F), government 
awards for significant contributions to the field can form part of a claim of exceptional ability, but 
cannot alone justify a finding of exceptional ability. The plain wording of the statute at section 
203(b)(l)(A) of the Act shows that aliens of exceptional ability are, typically, subject to the job offer 
requirement. Therefore, partial evidence of exceptional ability has limited value as evidence of 
eligibility for the national interest waiver. 
On December 11, 2007, the director issued a request for evidence (WE), instructing the petitioner to 
submit additional information and documentation about the impact and recognition of the petitioner's 
work. The director specifically requested documentation regarding citation of the petitioner's published 
work and evidence that awareness of the petitioner's work is not limited to institutions where he has 
worked or studied. 
In response, the petitioner submitted additional witness letters and various documents. One of the new 
letters, fi-om , a forensic toxicologist at Virginia Commonwealth University, 
Richmond, Virginia, reads, in part: 
I have not worked at length with [the petitioner]. I only know him through an interview 
analytical chemist who would be responsible for maintaining the instrumentation used 
for high volume of drug of abuse testing and R&D projects . . . . I suggested = 
recruit [the petitioner] for the critical position from all the nation wide candidates. I met 
him again at Kroll while I was working as government regulatory auditor. 
Page 7 
letter indicates that the petitioner has left his environmental remediation work at Microbac 
in order to work for KLS, which is a drug testing company. The petitioner submitted background 
information about drug addition and drug testing, but he submitted no evidence to show that he, as an 
individual, had any impact at all on the drug problem prior to filing the petition in June 2007. The 
petitioner must qualify for the benefit sought as of the petition's filing date; subsequent developments 
cannot retroactively make him eligible. See Matter of Katigbak, 14 I&N Dec. 45, 49 (Regl. Comrnr. 
1971). 
The remainder of the letters submitted in response to the RFE discuss the petitioner's background in 
hazardous waste processing, a field that the petitioner has now abandoned. The petitioner also 
submitted various documents concerning nuclear waste processing, but he did not present any evidence 
that he has been or will be involved in nuclear waste processing in the United States. 
Regarding citation of his work, the petitioner stated that his publications have been "cited by some 
public access science and technology research in formation [sic] systems." The petitioner apparently 
refers to the inclusion of his work in various databases that catalog scholarly articles. These are not the 
citations to which the director refmed. The record does not show that other researchers, in their own 
articles, have relied on the petitioner's past work and included bibliographic references to the 
petitioner's articles. 
The director denied the petition on March 27,2008. In the denial notice, the director acknowledged the 
witness letters and other evidence, but concluded: "The evidence on record does not sufficiently set the 
alien apart from his peers to such a degree that the impact made, or any future impact to be made, could 
affect the welfare of the entire nation." 
On appeal, counsel submits additional letters and asserts: "Numerous letters have testified to the impact 
the petitionerlbeneficiary has had on the field." Counsel adds that the petitioner has documented 
international use of the nuclear waste reprocessing technology that he helped to develop in China, and 
that this evidence shows "a substantial impact on the field." It is not clear what counsel means by "the 
field," because the record does not indicate that any entity in the United States has employed or sought 
to employ the petitioner in the fieId of nuclear waste reprocessing or recycling. Even if we consider the 
petitioner's "field" to be, broadly, the handling of hazardous waste, the record indicates that the breadth 
and significance of the petitioner's impact has been diminishing rather than expanding. The record does 
not indicate that the petitioner has produced any published work since he finished his master's degree in 
2003, and there is no objective evidence that the petitioner has more recently been an especially 
significant figure in the field of environmental remediation, compared to others of similar rank in that 
field. 
The national interest waiver is not a reward for an alien's past achievements, but rather a means by 
which the United States seeks to secure the services of aliens who will prospectively benefit the United 
States. 
 The petitioner initially based his waiver application on the importance of environmental 
Nevertheless, the 
Page 8 
petitioner left Microbac in Kentucky shortly after he filed that petition, to work at KLS in Virginia in a 
capacity that has nothing to do with environmental remediation. (The petitioner filed the petition in 
June 2007; correspondence from the petitioner indicates that he "moved to Richmond VA by the end of 
August" that same year.) Both positions involve chemistry, but there is otherwise little connection 
between the petitioner's prior work at Microbac and elsewhere and his later work at KLS. This change 
in the petitioner's employment indicates either that the petitioner no longer intends to work in 
environmental remediation, or else he has been unable to secure employment in that field. Neither of 
these situations would lead the AAO to conclude that the petitioner merits a national interest waiver on 
the basis of his environmental remediation work. 
Also, we briefly note here that the record shows that KLS operates several regional laboratories to test 
individual samples. The petitioner has not shown, or even directly claimed, that the work of one 
chemist at one KLS facility possesses the national scope required by Matter of New York State Dept. of 
Transportation. This observation conforms to the AAO's broader conclusion that the petitioner's work 
and influence are contracting rather than expanding. 
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. 5 136 1. 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.