dismissed EB-2 NIW Case: Chemistry

identifying data deleted to 
prevent clearly unwamted 
invasion of personal privacb 
US. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
OfJice ofAdrninistrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
LIN 07 171 51475 
IN RE: 
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. fj 1153(b)(2) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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. fj 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form 1-290B, 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). 
kf,?:zinistrative 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 AAO will 
dismiss the appeal. 
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 a member of the professions holding an advanced degree. At the 
time he filed the petition, the petitioner was a postdoctoral fellow at the University of South Carolina 
(USC), Columbia. He has subsequently begun working as a postdoctoral fellow at Oak Ridge National 
Laboratory (ORNL) in Tennessee. 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 argues that the director did not sufficiently consider the evidence. 
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, I0 1 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] 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. 2 15 (Cornmr. 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 also note that the regulation at 8 C.F.R. 5 204.5(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. 
The petitioner filed the petition on May 29, 2007. In a statement accompanying his initial submission, 
the petitioner stated: "My research is focused on the development of self-assembling systems for 
molecular recognition. . . . My research achievements have been highly evaluated by peers and have 
huge potential for significant applications in industry." When he filed the petition, the petitioner had 
one published article, in the Journal of the American Chemical Society. The petitioner submitted 
evidence showing that his "paper has been cited 4 times in just six months." A peer reviewer's 
comments indicated that the finding reported in the article "is a nice result" that "is a continuation of 
work first published in J Am. Chem. Soc. in 2003." The petitioner did not contribute to the 2003 article. 
Chinese Academy of Sciences stated "I knew [the petitioner] since 1998 when he joined my research 
ou as an assistant researcher," but 
 did not describe the petitioner's work there. m~ 
hdstated that the petitioner's later "achievements in his field are indicative of his innovative and 
pioneering qualities in transition metals separation research." 
a staff member of the Chemistry Division of Argonne National Laboratory, stated: 
University) . . . , [the petitioner] spent a number of weeks training in the use of 
radiotracers under my supervision and applying this knowledge to separations pertinent 
to the treatment of nuclear wastes using a new family of metal ion extractants . . . 
developed by him in naboratory. . . . [The petitioner's] ligand design 
insights played a critical role in achieving progress in these studies, and have yielded 
new lanthanide extractants of improved efficiency that may prove useful in the 
processing of nuclear wastes or the isolation of rare earth elements fiom their ores. 
fellow in July 2005. . . . I have found [the petitioner] to be a highly dedicated, capable and very hard- 
working post-doc." described the petitioner's work in technical detail, stating for instance 
that the petitioner "started a new project in my group on the synthesis of amphiphilic macrocyclic bis- 
ureas as rigid models of helical antibacterial peptides." stated that the petitioner's work 
shows "we can generate a range of porous materials that are broadly applicable as confined 
environments for reactions." More specifically, "porous crystals formed fiom bis-urea macrocycles can 
be used as a container to promote a highly selective photoreaction of 2-cyclohexenone in high yield. 
The product can be easily removed from the crystals by extraction and the empty crystals recovered by 
filtration and reused, much like zeolites." 
I have never personally met [the petitioner], but I know him through his work in the 
field of supramolecular self-assembly and molecular recognition. 
 He is currently 
working in 
 research group, which is very active and fruitful in 
supramolecular chemistry. . . . 
In the United States, zeolites are employed in the petrochemical, nuclear, agricultural, 
medical, and detergent industries. The ability of zeolites to trap and release small acid 
molecules has made them viable catalysts in the petrochemical industry. . . . The nuclear 
industry uses zeolites because they have found that the micro-pores provided effective 
traps for nuclear wastes and they are robust and resistant to degradation by radiation 
processes. . . . Zeolites can adsorb and remove certain gases and have also found use in 
producing medical grade oxygen for patients. Since zeolites trap and sequester certain 
ions from solution, they have been used as potent water softeners, as well as in detergent 
manufacture. 
[The petitioner] has been actively engaged in research aimed at expanding the uses and 
improving the properties of novel organic zeolites. [The petitioner] has outstanding 
organic synthetic skills. 
I do not know [the petitioner] personally, but I am aware of him and hls significant and 
original contributions from the publication of his high quality paper in the field of 
supramolecular self-assembly and molecular recognition. . . . 
His work is a very good example of employing supramolecular chemistry to develop 
new materials which are easily to be synthesized and can mimic the biological catalytic 
systems. . . . 
It is inconceivable that anyone else with a comparable level of education and experience 
could even approximate the contributions to this task that [the petitioner] has performed 
and will continue to perform in the future. His presence in the United States is an 
absolute necessity for the continuation of critical project [sic] and for the continuous 
benefit of this nation. 
Although I don't know [the petitioner] personally, I was aware of his research by reading 
his first authored publication in the Journal of the American Chemical Society. . . . I was 
impressed by his work and his great achievements in the use of self-assembling bis-urea 
macrocycles as nano reactors for highly selective photo-cycloaddition reactions. . . . 
[The petitioner's work] represents a great contribution to the area of host-guest 
chemistry. 
of the University of Massachusetts, Amherst, who is "aware of 
research . . . by reading his outstanding publication and also through his advisor's (Dr. 
introduction," called the petitioner's work "an excellent example of using 
supramolecular self-assembly framework for highly selective and efficient chemical reactions." 
of the University of Iowa, stated that he was familiar with 
the petitioner's work "because of our common goals in supramolecular chemistry and solid state 
synthesis. . . . [The petitioner] has been a key contributor in the development of organic nanotubes." 
On August 22,2008, the director instructed the petitioner to submit further evidence of eligibility for the 
waiver. In response, the petitioner documented 1 1 independent citations of an article published in 2006, 
and one citation of an article published in 2008, after the petition's filing date. One citation appeared in 
The petitioner submitted new witness letters, all from ORNL scientists, one of whom is - 
stated, in his September 2008 letter, that he does "not know [the etitioner] personally," 
although the beneficiary began working at ORNL in August 2008. stated that the 
petitioner's "work represented one of the most important breakthroughs in the field, and I discussed it at 
length in a major paragraph in the paper" mentioned above. A paragraph in 
 review 
article discusses several articles (mostly by 
 group) regarding self-assembly of bis-urea 
into nanotubes; one sentence refers directly to the petitioner's 2006 article, and the sentence after it may 
refer to it as well. 
Director of ORNL's Chemical Sciences Division, stated: 
I knew of [the petitioner] and his work when he came to ORNL for his interview for a 
postdoctoral research associate opening. . . . Previously, [the petitioner] was working on 
the synthesis and characterization [of] functional nanotubes. . . . 
[The petitioner] joined my group in August 2008 at ORNL, which is the Department of 
Energy's largest science and technology laboratory. . . . [The petitioner] works on a 
project to develop well defined, deuterated organic molecules that will be used to derive 
new models for the interpretation of neutron scattering data. . . . This is a very important 
study in chemical and material sciences and very valuable to industry to develop new 
materials for a variety of applications. 
ORNL Staff Scientist 
 stated that the petitioner's "research at ORNL is still in the area 
of Supramolecular Chemistry and Material Science; but this is an extension and an expansion of his 
previous experience at the University of South Carolina." 
The director denied the petition on February 13, 2009, stating: "the petitioner has offered no evidence 
showing that his publications record is noteworthy or that his work was heavily cited." The director 
noted that the petitioner apparently had only one article published prior to the filing date. The director 
acknowledged the witness letters, but found that the record lacked "objective documentary evidence" to 
support the claims in those letters. 
On appeal, the petitioner argues: "You cannot judge the influence and impact on a research field only 
based on the number of publications and the number of citations. . . . Everybody should know that for 
scientific publications, the quality is much more important than the quantity." The petitioner notes that 
his 2006 article appeared in the Journal of the American Chemical Society, and asserts that the high 
quality of that journal is evident from its high citation rate. Ths assertion seems to defeat his argument 
that "the number of citations" is not a measure of quality, as he himself uses the journal's citations as a 
sign of its quality. The petitioner's argument seems to be that the overall citation rate of the articles in a 
given journal should be as important, if not more so, than the citation rate of his individual article. 
The petitioner asserts that the Journal of the American Chemical Society is the "flagship" journal in the 
field of chemistry, and therefore it is significant that his work passed peer review for publication in that 
journal. The director did not ignore the publication of the petitioner's work in a significant journal. 
Rather, the director found that this one event does not establish a consistent track record of impact and 
influence on the field. 
The initial reaction to the petitioner's work has been positive, and the 
ORNL relates to the same general area of inquiry as his earlier work with 
 We agree with 
the director, however, that the minimal initial evidence did not 
national interest waiver claim. The petitioner's later work may well show that the witnesses' enthusiasm 
is entirely justified, but such work falls outside the scope of this proceeding. 
On the subject of the petitioner's later work, we note the existence of a second immigrant visa 
petition, receipt number SRC 09 209 50185, filed on July 6, 2008. The Director, Texas Service 
Center, approved that petition on July 24, 2009. The dismissal of the present appeal has no 
automatic effect on the approved petition, because the two petitions relate to distinct and separate 
proceedings. The petitioner, therefore, remains the beneficiary of an approved petition with a 
national interest waiver; he merely does not retain the 2007 priority date of the earlier petition. 
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. 
ORDER: The appeal is dismissed.