dismissed EB-2 NIW Case: Chemistry And Materials Science

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBtlCCOPY 
DATE: MAR 0 5 2012 OFFICE: NEBRASKA SERVICE CENTER 
INRE: Petitioner: 
Benefic iary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Al ien of Exceptional Ability Pursuant to Section 203(b )(2) of the Immigration 
and Nationality Act, 8 U.S.c. § I I 53(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. 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 $630. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
~~ 
,) Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
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. § l1S3(b)(2), as a member of the professions holding an advanced degree. At the 
time he filed the petition, the petitioner identified himself as a visiting professor at the University of 
California, Los Angeles (UCLA) and a faculty member of Chengshiu University in Taiwan. On the 
Form 1-140 petition, the petitioner indicated that he seeks a position teaching chemistry and materials 
science, specializing in synthesis of nanomaterials, polymer materials, nanoinorganic materials and 
green materials. 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 submits a brief from counsel, published materials, and supporting exhibits. 
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, 101st Cong., 1st Sess., 11 (1989). 
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 (Act. Assoc. Comm'r 1998), has 
set forth several factors which must be considered when evaluating a request for a national interest 
waiver. First, the petitioner must show that the alien seeks employment in an area of substantial 
intrinsic merit. Next, the petitioner must show 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 United States worker having the same minimum 
qual ifications. 
While the national interest waiver hinges on prospective national benefit, the petitioner must establish 
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 intention behind the term "prospective" is 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 AAO also notes that the regulation at 8 C.F.R. § 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 offer/labor 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 December 31, 2007. In a statement accompanying the initial 
submission, counsel stated that the petitioner's "work has among other things led to the development of 
more durable and efficient circuit boards and to significant advances in the organic semiconductor 
field." Instructed to provide the address where he intended to work, the petitioner provided an address 
in Taiwan. 
Page 4 
The petitioner submitted copies of his published articles and abstracts of his conference presentations. 
These documents show that the petitioner is a productive researcher, but by themselves these materials 
are not evidence of the extent to which his work has influenced others or advanced the field. 
Several witness letters - nearly all of them printed in blue ink on A4 size (210 mm x 297 mm) paper­
aC(;Onlp(JmH~d the s initial submission. The . submitted two letters from _ 
Currently [the petitioner] is a visiting professor in the Department of Molecular and 
Medical Pharmacology at UCLA. ... [The petitioner] is carrying out research sponsored 
by the national science foundation on the Conducting Polymer Nanowire. This work is 
of fundamental importance in nano-materials, which is of key importance to the 
biosensor. ... 
[The petitioner] is one of my best professors honored in my university .... [The 
petitioner] investigated an improvement upon the epoxy resin for use as the matrix 
material for printed circuit boards is called for. His finding in printed circuit board area 
can lead to improved thermal and dimensional stability and decreased moisture 
absorption property. 
In the second letter, _ described the petitioner's work in greater technical detail, stating that the 
petitioner has "investigated ... polymer nanocomposite to improve properties" and created compounds 
for use in "a new Organic Light Emitting Diodes (OLEDs) materials system," among other 
achievements._asserted that the petitioner's "outstanding work has led to great advances in 
the field that will significantly improve our capability in characterization of nanocomposites and 
OLEDs materials." 
[The petitioner] is a widely recognized expert in Synthetic Organometallic Chemistry 
and has conducted extraordinary and novel research in the area of iridium, zinc and 
aluminum organometallic complexes ... used as Organic Light-Emitting Diode 
(OLED) .... His work in this area represents a fundamental breakthrough and provides 
researchers in the field with a radically different way of looking at the synthetic aspects. 
He has provided a much easier and flexible method to synthesize this important class of 
material. ... Because of [the petitioner's] extraordinary contributions to this very line of 
work, the United States has gained some magnificent advances in both industrial and 
academic aspects of this field. 
Page 5 
who worked for various technology companies in the United States before "serving 
as Legislative Yuan in Taiwan Parliament from 2004 till now" (and whose surname is spelled "Marr" 
on some documents), stated: 
[The petitioner's] inventive and outstanding research in the field of polymer/clay 
nanocomposite has led to groundbreaking discoveries. He has demonstrated these 
polymer nanocomposites to improve properties including enhanced mechanical 
properties at low loading of nanofillers, increased gas barrier properties while retaining 
clarity, dimensional stability, etc., and his invention enhance[s] circuit boards lifetime 
and signal carrying. 
[The petitioner] also developed the novel inorganic complexes emitting diodes materials 
being in measure of the inexpensive, high efficiency, easy synthesis. [The petitioner] 
has made innovative advances in this area, and his ... work in this field represents a 
fundamental significant advance and to furnish researchers in the field with a 
fundamentally different way [to] observe the synthetic aspects. He has provided a much 
easier and flexible method to synthesize this significant class of material. 
and a graduate student at 
Michigan State University, stated that role in developing and 
improving the quality of products at With his 
contribution, we are moving toward a new era of Biotech products." Large portions letter 
are identical to portions of _ letter. This use of identical language, along with the unusual use 
of blue ink for most of the witness letters, suggests common origin of at least some of those letters. The 
AAO acknowledges the endorsements of these witnesses, but the use of substantial passages of shared 
language greatly reduces the letters' weight as supposedly independent evidence. 
The AAO also notes that, although _letter shows a return address in East Lansing, Michigan, 
the letter itself is on A4 paper, a paper size common internationally but not normally used in the United 
States (where 8.5 in. x 11 in. remains the standard). The use of this paper size is yet another similarity 
between_letter and others, supposedly prepared independently. 
_ claimed to be "leading a group of internationally well-known scientists to develop high­
throughput Organic and Inorganic Nano-particles Application, cosmetics ingredients innovation, and 
biotech products research, development and trade," but the record contains no evidence that Grace 
Biotechnology is an active company at all, let alone an employer of "internationally well-known 
scientists." _herself claimed no professional training in the fields listed in her letter. Instead, she 
claimed to hold degrees in "Chinese Literature" and "Family Studies." She did not claim how she had 
the expertise to offer a meaningful evaluation of the petitioner's work. 
The witnesses did not identify any ongoing commercial or industrial use of the petitioner's materials. 
The record does not show the reaction (if any) to the petitioner's work by the manufacturers of such 
Page 6 
materials. The petitioner's initial submission contained no objective documentary support for the 
witnesses' claims. 
On April 9, 2008, the director instructed the petitioner to submit evidence of the impact of his work, 
such as citations of his work in articles by other researchers. In response, the petitioner submitted 
copies of three articles that contain independent citations of his work. The petitioner did not establish 
that this is a significant citation rate for a researcher in his field who claimed ten published articles as of 
the filing date. 
[The petitioner] has managed to increase the production of an unique and original 
nanomaterial ... [that] is useful in electronics for the production of printed circuits and 
conductive plates, which shows good thermal and profile stability and low 
hygroscopicity .... 
One of the most important contributions that [the petitioner] has made is the design of a 
material extremely suitable for the engineering of a special type of blood glucose 
biosensor, which uses a newly-developed polymer nanocomposite to replace an enzyme 
used to break down blood glucose .... 
Another application of [the petitioner's work with] polymer/nano-silver is for the 
sterilization .... These developments will benefit people living in a new nano-industrial 
environment which is more clean and safe. 
published by 
apparently representing the back cover of the book (including a bar code), indicated: 
contains the newest applications of OTFT that [the petitioner] synthesized and fabricated in 2005 to 
Microstrip patch antenna." The pages in the record resemble first-generation computer printouts rather 
than scanned or photocopied pages from a printed book, and the submitted excerpts contain 
grammatical errors (including in the title on the book cover). The record does not establish that 
Marsland Press is a recognized or reputable publishing house. 
director of research and development for _ 
The similarity of the names and~ 
proximity of the two entities (located in adjacent suburbs of Lansing, Michigan) suggest a connection 
between the two entities which would mean that _ essentially self-published the book 
discussed above. _ and the petitioner have collaborated on several articles. In a letter on the 
petitioner's behalf,_stated that the petitioner's "published research has attracted international 
interest," but the assertions of a collaborator are not first-hand evidence of that claimed interest. 
Page 7 
impact on the published research of other scientists in the same field. For instance, 
_is one of the many scientists intrigued by [the petitioner's] report blished in the Journal 
Organometallic Chemistry in 2006." The record contains nothing from _ 
_ and his colleagues cited the petitioner's work along with eight other articles in a single 
collective footnote. This reference is not sufficient to support the claim that took special 
interest in the petitioner's work rather than simply considering it along with the general body of 
research in the area. The AAO notes that _ holds degrees in biochemistry and plant physiology, 
and it is not immediately clear how this background overlaps with the petitioner's area of claimed 
expertise in nanomaterials research. 
Previously submitted materials identified as the executive secretary of , a 
journal published by This is further evidence that the petitioner's 
associates control and related entities. The curriculum vitae accompanying_ 
letter does not mention at all, but shows that ~orked in East Lansing before 
moving to New York claimed as a base for and it lists numerous articles co-
authored by Many of those articles appeared in Nature and Science, 
published by The record, therefore, indicates a pattern of self-publication by the 
petitioner's associates. The petitioner himself was an associate editor of Nature and Science at the time 
he filed the petition. Therefore, evidence regarding its related publications, and its 
officials has negligible weight in terms of establishing the petitioner's reputation among independent 
scientists. The record, instead, points to the conclusion that is a "boutique" publishing 
house that publishes the work of its own officials. 
The director denied the petition on February 13, 2009, noting the "minimal" citation rate of the 
petitioner's articles and the lack of truly independent evidence of the importance of the petitioner's 
work. 
On appeal, counsel states: "Citations do not solely determine one's impact on the field; [the petitioner] 
has shown that he is a uniquely qualified researcher AND that he has experience as a Chemistry 
Professor both in China and the U.S. as a visiting professor at UCLA." Counsel is correct that citations 
are not the only possible measure of the petitioner's impact, but in the absence of heavy citation of his 
work, the petitioner must submit some other form of equally persuasive and reliable evidence. 
The record contains no first-hand evidence to confirm that the petitioner was ever a visiting professor at 
UCLA. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 
1998) (citing Matter of Treasure C Cal" 14 I&N Dec. 190 (Reg'l Comm'r 1972)). Only 
one of the petitioner's witnesses, did not say that the 
petitioner was a visiting professor there. A Department the petitioner's 
"exchange visitor category" as "research scholar." The petitioner is a visiting 
Page 8 
professor at UCLA is, therefore, an unproven claim rather than evidence in support of the waiver 
application. 
Having claimed that the director relied too heavily on citations, counsel then contends that the petitioner 
"has an exceptional record of citations and publications by his field's standards." Counsel states that 
the petitioner has continued to publish new articles, and "has had 11 citations to his papers to date 
which is considered above average in his field for someone who has published recently" (counsel's 
emphasis). 
An applicant or petitioner must establish that he or she is eligible for the requested benefit at the time of 
filing the application or petition. 8 C.F.R. § 103.2(b)(1). USCIS cannot properly approve the petition at 
a future date after the petitioner or beneficiary becomes eligible under a new set of facts. See Matter of 
Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). In this instance, articles that the petitioner 
published after the 2007 filing date cannot retroactively show that he already qualified for the waiver as 
of that filing date. Also, some of the newly claimed citations relate to those new articles. 
The petitioner's most-cited article, from in 2005, showed six citations on an 
http://scholaLgoogle.com printout submitted on appeal. petitioner does not show how many of 
these are i~s. The petitioner submits copies of articles showing that he has cited his 
own 2005 _ in later works. 
The petitioner documents the impact factors (average per-article citation rates) of several journals, 
including _ which has an impact factor of 2.615. The petitioner's 2005 article 
exceeded t~the success of this one article does not establish a consistent pattern of 
influence in the field. 
Counsel asserts that previously submitted witness letters establish the petitioner's impact on his 
field. The Board of Immigration Appeals (BIA) has held that testimony should not be disregarded 
simply because it is "self-serving." See, e.g., Matter of S-A-, 22 I&N Dec. 1328, 1332 (BIA 2000) 
(citing cases). The BIA also held, however: "We not only encourage, but require the introduction of 
corroborative testimonial and documentary evidence, where available." Id. If testimonial evidence 
lacks specificity, detail, or credibility, there is a greater need for corroborative evidence. Matter of 
Y-B-, 21 I&N Dec. 1136 (BIA 1998). 
The opinions of experts in the field are not without weight and have been considered above. USCIS 
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'r. 1988). However, USCIS 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; USCIS may evaluate the content of those letters as to whether they support 
the alien's eligibility. See id. at 795; see also Matter of V-K-, 24 I&N Dec. 500,502 n.2 (BIA 2008) 
(noting that expert opinion testimony does not purport to be evidence as to "fact"). USCIS may even 
Page 9 
give less weight to an opinion that is not corroborated, in accord with other information or is in any 
way questionable. [d. at 795; see also Matter of Soffici, 22 I&N Dec. 165. 
As discussed above, a number of the petitioner's witnesses work in other disciplines and do not 
show any expertise in the petitioner's field. Others are the petitioner's own collaborators. The 
petitioner's involvement with Marsland/Marslands appears to have inflated his publication record, 
and further questions arise from the submission of letters of uncertain authorship, as well as the 
petitioner's reliance on a letter from the self-described president of a biotechnology company with 
no evident training in any field related to biotechnology. 
The petitioner has clearly been a productive researcher, producing useful articles in peer-reviewed 
scholarly journals. The record as a whole, however, does not support many key claims about the 
significance of the petitioner's work or of some of the journals that have published it. This lack of 
support, in concert with the petitioner's failure to document fairly basic elements of his claim, such 
as the assertion that he held a visiting professorship at UCLA, inevitably undermines confidence in 
the petitioner's claims. 
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.