dismissed EB-2 NIW Case: Chemistry

U.S. Department of Homeland Security 
20 Mass. Ave.. N.W., Rm. 4,3042 
Washlngton, DC 20529 
b:. ;Tarranted p~pp'eve;;. ;' "'. ::.j U. S. Citizenship 
UVW.~U ui pemd privacy and Immigration 
FILE: EAC 03 127 50314 Office: VERMONT SERVICE CENTER Date: AUG 2 4 2005 
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 Immigration 
and Nationality Act, 8 U.S.C. 5 11 53(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your dase. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Administrative Appeals Office 
EAC 03 127 50314 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the employment-based immigrant visa petition. 
The matter 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. § 1153(b)(2), as an alien of exceptional ability. The petitioner seeks employment as a research chemist 
at Advanced Technology Materials, Inc. (ATMI). 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. 
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 exceptioni~l 
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. Counsel asserts that the petitioner qualifies for classification as an alien of exceptional ability in the 
sciences. The petitioner, however, readily qualifies for classification as a member of the profession!; holding 
an advanced degree. The more involved process of determining eligibility as an alien of exceptional ability 
would serve no useful purpose here; it would neither make any further benefit available to the petitioner, nor 
would it inherently improve the chances of approval of the waiver request. Therefore, the sole substantive 
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: 
EAC 03 127 50314 
Page 3 
The Service [now Citizenship and Immigration Services (CIS)] 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 (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. 
Counsel discusses the petitioner's work: 
Today, the process known as chemical vapor deposition (CVD) is one of the cornerstones of 
modern technology. The CVD process has become crucial for the microelectronics industry 
. . . and the compound semiconductor industry, as well as for materials used in integrated- 
circuit interconnects and plugs. Materials that can be deposited include copper, aluminum, 
tungsten, metal silicides, molecular organic conductors, carbons, diamond, and hard and 
protective coatings. . . . 
[The petitioner's] research with ATMI centers around employing his expertise in CVD to 
further ATMI's goal of materials development for advancing semiconductor process 
efficiency. . . . 
The Petitioner's research at the University of Tennessee centered around the synthesis anti 
characterization of novel group IV, V and VI metal amides, imides and silyl complexes being 
CVD . . . precursors used widely in advanced microelectronic materials. . . . The Petitioner 
also performed research analyzing the structures of tailored hybrid inorganic-organic 
materials that are used for the treatment and disposal of toxic metal ions from wastes at and 
around many U.S. Department of Energy sites. . . . 
[The petitioner's] achievements are cited by national and international experts. As of the datt: 
of this writing, there are 24 scientific articles in Chinese . . . and international journals . . 
citing his results. 
The petitioner submits a list of 25 articles that are said to cite his work. He submits copies of a small number 
of these articles, and a list of the remaining articles. The source of the list is not shown. Therefore, the list 
amounts, in essence, to a claim rather than actual evidence of citation. Of the 25 citations, 12 are self- 
EAC 03 127 50314 
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citations by the petitioner and/or his co-authors. The 25 claimed citations are divided among six articles; the 
highest number of claimed citations for any one article is 14, nine of which are self-citations by the petitioner 
and/or his co-authors. 
Several witness letters accomDanv the initial filing. Most of the witnesses have worked with the petitioner at 1 d ./ 
the University of Tennessee, where the petitioner earned his doctorate. For instance, ~rofessor- 
who supervised the petitioner's studies, lists the petitioner's achievements: 
(1) Discovery of an Unusual Exchange between Alkyl-Alblidene-Alkylidyne Ligands. This 
discovery was the first time that this chemistry was observed, although the exchange had 
been speculated to exist for some time. . . . Our subsequent research led to further 
understanding of the unusual chemistry including the exchange kinetics. . . . 
(2) Observation of an Unexpected Migration of a Silicon-Containing Group in a Metd 
Complex. The migration of the silicon-containing group in the presence of oxygen points to 
previous[ly] unknown chemistry. [The petitioner] also observed an unusual reaction of 
oxygen with another metal complex. The chemistry that [the petitioner] developed may find 
applications in the formation of microelectronic gate materials. . . . 
(3) Synthesis and Characterization of New Metal Complexes. [The petitioner] has prepared 
and characterized several new compounds that may find applications in the formation of 
microelectronic diffusion materials. . . . 
(4) Determination ofX-ray Crystal Structures. [The petitioner] has been the student operator 
. . . for the X-ray diffractometer in our group. . . . [The petitioner's] work contributed to our 
studies of the reaction pathways in the formation of diffusion barriers in copper-based ney 
generation of microelectronic devices. 
Ngee Sing Chong, an assistant professor at Middle Tennessee State University, "came to know [the 
petitioner] while attending a conference sponsored by the National Science Foundation at University of 
Tennessee. I am very intrigued by his exceptional work on organometallic materials and . . . CVD 
precursors." Dr.asserts that the petitioner has made "outstanding contributions to the field of 
materials research," and that the petitioner's "research work on CVD composites has a potentially profound 
impact on the commercialization of new microelectronic devices and the develo ment of defense-related 
weapon systems." With regard to the petitioner's specific contributions, Dr.tates that the petitioner 
"solved numerous crystal structures, including structures of organometallic compounds for treatment of toxic 
metal wastes at the Department of Energy facilities, using X-ray diffraction; and trained users in the operation 
of research instruments and edited a users' operational manual." 
, senior scientist at the National Renewable Energy Laboratory, Golden. Colorado, who states 
that he first met the petitioner at a 2001 conference, states that the petitioner "has made significant, original 
contributions to the fields of organometallic chemistry and chemical vapor deposition," but he does not 
elaborate on what those contributions are or why they are especially significant. None of the witnesses 
represent ATMI or discuss his work there. 
The director denied the petition, concluding (among other things) that the petitioner has not shown that his 
work is national in scope. We have held, however, that scientific research at major institutions is inherently 
national in scope, because the results are disseminated nationally (and internationally) through publications 
EAC 03 127 503 14 
Page 5 
and conferences and because the findings of such research tend to apply universally rather than only locally. 
We therefore withdraw the director's finding that the petitioner's work lacks national scope. 
The director indicated that the range of witness letters and the frequency of independent citation of the 
petitioner's work are not sufficient to show that the petitioner's accomplishments in his field are at a level that 
would warrant the special benefit of a national interest waiver. The director determined that the record 
contains no documentary evidence to show that the petitioner's work has had an especially significant impact 
on his field of expertise, and that the petitioner's reputation is primarily confined to institutions where he has 
worked. 
On appeal, counsel states that "the number of subsequent research papers citing the Petitioner's then-existing 
work has more than tripled, to 79 citations," about half of which, counsel acknowledges, are self-citations. As 
with the previously claimed citations, the petitioner submits actual documentation of only a small number of 
citations. This unattributed list does not have the same weight as an official listing from a citation index or (at 
least partial) copies of the citing articles; the list is, essentially, an unsubstantiated claim. 
Counsel discusses recent work by the petitioner, including what counsel describes as "a long-[alwaited 
breakthrough . . . on the implementation of carbon-doped oxides (CDO) in the chip-making process." The 
record contains no documentation about the petitioner's most recent work, and the assertions of counsel do not 
constitute evidence. Matter of Laureano, 19 I&N Dec. 1, 3 (BIA 1983); Matter of (lbaigbena, 19 I&N Dec. 533, 
534 (BIA 1988); Matter of Ramirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
Furthermore, much of the newly discussed work appears to have taken place after the petition's filing date. For 
example, counsel identifies three patent applications, all of which were filed after the March 2003 filing date. 
This work cannot retroactively demonstrate that the petitioner was already eligble at the time ol' filing, as 
required by Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg. Comm. 1971). If the petitioner desires 
consideration of his most recent work, then the proper course of action would be the filing of a new petition. 
Indeed, CIS records show that a petitioner has filed a new petition on the alien's behalf, and that the new 
petition was approved on April 28, 2005. The alien's application for adjustment of status (receipt number 
EAC 05 150 50046), based on that approval, is already pending. Approval of a national interest waiver at this 
point would neither expedite, nor increase the chances for approval of the alien's adjustment application. 
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. 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.