dismissed EB-2 NIW Case: Civil And Environmental Engineering

CLWLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Wash~ngton, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: WAC 03 082 50991 Office: CALIFORNIA SERVICE CENTER Date: XP 0 2 2005 
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. 5 1 153(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. 
u %Robert P. Wiemann, Director 
Administrative Appeals Office 
WAC 03 082 50991 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, California Service 
! ' ' Center. The Administrative Appeals Office (AAO) dismissed a subsequent appeal. The matter is now before 
the AAO on motion.' The motion will be granted, the previous decision of the AAO will be affirmed and the 
petition will be denied. 
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 an alien of exceptional ability or a member of the professions holding an 
advanced degree. 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 had 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 submitted a brief not merely contesting the conclusions reached in the decision, but the 
reviewing officer's command of the English language. The AAO concluded that the record did not support 
counsel's most serious accusations and dismissed the appeal. 
Counsel continues to accuse Citizenship and Immigration Services (CIS) of incompetence and bias on motion. 
Counsel's most persuasive assertion relates to the witness letters referenced by counsel in his initial cover letter 
but missing from the record of proceedings when reviewed by the AAO. We did not and will not speculate, as 
counsel does, as to why those letters were absent from the file. Those letters are now part of the record and will 
be considered below. While counsel's motion is responsive to that concern raised by the AAO, counsel does not 
address or submit evidence relating to another issue raised by both the director and the AAO, the lack of 
evidence supporting claims that the petitioner has been cited. As this deficiency has been repeatedly noted, such 
evidence cannot be considered in support of any future motions. See Matter of Soriano, 19 I&N Dec. 764 
(BIA 1988); Matter ofobaigbena, 19 I&N Dec. 533 (BIA 1988). 
Counsel's assertion that the AAO is "an apologist for stupidity," is not supported by the record. In our previous 
decision, the AAO withdrew certain findings by the director that were inconsistent with the relevant precedent 
decision, although we would not characterize those findings as "stupid." We affirm that the AAO's authority 
over the service centers is comparable to the relationship between a court of appeals and a district court. The 
AAO is not bound to follow a decision of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 
WL 282785 (E.D. La.), aff'd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
In response to counsel's repeated concerns that this office contains biased "judges" appointed by a previous 
administration, we simply note that the adjudicators at this office are hired by office management through 
typical civil service hiring procedures; they are not political appointees. Thus, counsel's personal opinions 
regarding the quality of appointments made by that administration have no relevance to this matter. 
I Counsel lists the receipt number for the national interest waiver petition at issue. He also, however, 
references "extraordinary ability" at the top of the motion and references the denial of a "companion NIW 
case." Given the specific references in the remainder of the motion to the national interest waiver denial, we 
presume that this is a motion on the national interest waiver decision. 
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Finally, we fail to see the relevance of counsel's alleged role in having an immigration judge removed from 
office other than as a direct threat. Such language is unambiguously contumelious and has no place in these 
proceedings. We fail to see how responding favorably to such assertions, in the absence of evidence of 
eligibility, would provide the type of "reasoned decision" requested by counsel. 
The relevant law was quoted in our previous decision and need not be repeated here. The sole issue is whether 
the petitioner has established that a waiver of the job offer requirement, and thus a labor certification, is in the 
national interest. 
The controlling precedent is Matter of New York State Dep 't. of Transp., 22 I&N Dec. 2 15 (Comm. 1998), 
which 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. 
As stated in our previous decision, 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, civil and environmental 
engineering, and that the proposed benefits of her work, improved sensor technology, 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. 
More specifically, 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 she 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. 
On motion, counsel's sole concern is that the AAO failed to give sufficient weight to the reference letters and 
quoted them out of context. The motion was counsel's opportunity to challenge all of our conclusions. Thus, 
we presume that counsel does not contest our conclusions regarding the other evidence of record. 
Specifically, we affirm our conclusion that the acceptance letters for other graduate programs have no 
relevance to this petition. Academic performance, measured by such criteria as grade point average, cannot 
alone satisfy the national interest threshold or assure substantial prospective national benefit. Id. We cannot 
conclude that any graduate applicant who gains admission to prestigious universities warrants a waiver of job 
offer requirement in the national interest. 
Similarly, counsel does not contest that the article in the University of Illinois at Chicago's College of 
Engineering Magazine discussing the work of Professor the petitioner's collaborator, does not 
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address a project on which the petitioner worked. Finally, counsel does not contest that the grant proposal does 
not identify the petitioner as key personnel or at all. 
In light of counsel's specific concerns regarding our analysis of reference letters, we will revisit our analysis 
of those letters, including those that were not in the record of proceedings on appeal. In our previous 
decision, we carefully considered every reference letter included in the record of proceedings, including the 
"advisory letters." Counsel expresses outrage at the AAO's statement that "advisory letters are just that, 
advisory." While we fail to see how that statement relies on flawed logic, were that the only statement made 
on this issue, we could understand counsel's concern. Counsel, however, takes this statement out of context. 
The full paragraph that begins with that sentence continues: 
While letters from high-ranking experts in the field are useful in evaluating a petitioner's 
claimed contributions to the field, the content of the letter must be evaluated and the record as a 
whole must be the basis of the final determination. In evaluating the content of reference 
letters, Citizenship and Immigration Services (CIS) considers letters that identify specific 
contributions and explain how those contributions have already influenced the field more 
persuasive than letters that simply discuss the importance of the project and provide general 
praise of the petitioner's skills and rank the petitioner in relation to others in the field. 
(Emphasis added in this decision.) We see no reason to withdraw any of the above language. We 
acknowledge that the director requested advisory letters. We agree that such evidence, especially when 
specifically requested, should not be ignored. The AAO, however, has not "ignored" any letters, as alleged 
by counsel. Rather, the content of the letters was carefully considered in the context of the entire record of 
proceedings. To suggest that the submission of an advisory letter is automatic evidence of eligibility 
regardless of what is stated in that letter and the remaining evidence of record defies logic and is an 
untenable position for this office to take. As will be discussed below, while we agree with counsel that 
several references do identify specific contributions, they fail to explain how those contributions have 
already influenced the field. 
Counsel then challenges the AAO's analysis of the letters. For example, counsel quotes the following 
language from our initial decision: 
~econdsserts that the petitioner is a "key developer" for the Adaptive Real-Time 
Geoscience and Environmental Data Analysis, Modeling and Visualization a new 
technology to protect the environment and forecast natural disasters. oes not, 
however, identify a specific contribution made by the petitioner to this project or attest to 
any success this project has enjoyed. 
(Emphasis added in this decision.) Counsel concludes: 
This sentence is patently false, as anyone who actually read-letter (included, 
Appendix B) will easily see, but even worse, [the AAO] is substituting his lay opinion of 
what is important and what is not important in this highly technical field for that of an 
acknowledged expert. He does the very same thing with all of the other letters from experts. 
WAC 03 082 50991 
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has successfully developed a PVDF 
Is this not a specific contribution? Why did [the AAO] ignore this and other sentences in the 
letter? 
By quoting only our second paragraph regarding letter, counsel, once again, takes our discussion out 
of context. The first paragraph of our discussion bears repeating in its entirety: 
a professor at UC Irvine, asserts that she knows the petitioner professionally 
and classifies her as an extraordinary researcher who has successfully worked on projects 
"founded" by the National Science Foundation (NSF) and the U.S. Air Force. First, 
w explains that monitoring technology is vital to securing the integrity of structural sys ems 
including buildings, bridges and utility facilities. She further asserts that conventional 
monitoring systems are not used in large numbers because they are large, expensive, require 
high power and require electrical cables for signal transmission and power supply, making them 
susceptible to lightening strikes. According tohe petitioner developed a cheaper, 
wireless PVDF sensor for structural monitoring that shows "great potential for overcoming the 
difficulties associated with conventional sensors." Later in the letter, serts that the 
does PVDF sensor is the first in the world and can monitor a full-scale skyscraper. 
not identify a skyscraper that has been successfully monitored by PVDF or an agency that has 
adopted or licensed the sensor technology. 
Thus, the AAO did not fail to acknowledg~comments about PVDF sensors, but made the valid 
observation that whileaffirmed the potential for these sensors, she did not indicate that anyone was 
adopting them. It is clear that the PVDF monitoring system is a completely separate project than the Adaptive . - - - . . 
Real-Time Geoscience and Environmental Data Analysis, ~odelin~-and visialization. Thus PVDF is not a 
specific contribution "to this project." Given counsel's concerns on this issue, we will quotementire 
discussion of the Adaptive Real-Time analysis project: 
[The petitioner] is also a key developer for the project Adaptive Real-Time Geoscience and 
Environmental Data Analysis, Modeling and Visuulization. This is a very important new 
technology to protect our national environmental [sic] and forecast natural disasters. This 
project includes a database of environmental information, wireless communication, [a] data 
analysis model, [and a] finding and forecasting system. This research will help our country to 
set up a real-time, highly reliable, economic environmental monitoring and protection system. 
It should be noted that environmental monitoring, simulation and visualization is perhaps one of 
the [the] most complicate[d] areas in information system development, because it requires not 
only [a] solid understanding of environmental science and engineering, physics, chemistry and 
mathematical modeling, but also computer science. 
Nothing in the above paragraphs identifies specifically what the petitioner personally has contributed to this . -. 
Thus, there is nothing "patently fals2' about the statement quoted by counsel, which used hrase 
"this project." As noted by the AAO but omitted by counsel, the AAO separately addressed am 
conclusions regarding the Adaptive Real-time technology. Specifically, the AAO acknowledged that- 
WAC 03 082 50991 
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attests to the technology's complexity and predicts that this area of research will be useful nationally. As is 
confirmed by the letter from-an associate professor at Lehigh University, however, the 
Adaptive Real-Time analysis project was in its early stages at the time of filing. We continue to find that the 
petitioner has not established the influence of this at the time of filing. In light of the above, 
we find that counsel's concerns regarding our analysis o etter have no merit. 
In his initial letter, program Director of the Division of Civil and Mechanical Systems in the Directorate 
for Engineering at the National Science Foundation (NSF), asserts that he first met the petitioner while she was 
a student at Tongji University and currently interacts with her during his frequent visits to UC Berkeley. m 
describes the petitioner's research on two projects "founded"* by NSF and a U.S. Air Force project as "truly 
outstanding." Specifically, asserts that the petitioner "successfully measured and modeled the low 
frequency response and the hybrid characteristic of the PVDF materials and then developed a very promising 
PVDF sensor, which could meet the needs for the civil structure monitoring in an unusually effective way - the 
first of this kind in the professional domain." Regarding the petitioner's work on Adaptive Real-Time 
Geosciences and Environmental Data Analysis, Modeling and ~isualization,sserts that the petitioner 
worked with piezo-material sensors, ultrasonic sensors, and non-destructive testing of structures and materials. 
concludes that this work "has been well known and highly raised and valued by her colleagues, 
professional and users." As noted by the AAO, oes not provide any examples of "users." 
On motion, counsel challenges our concern that the "users" have not been identified as "inane," but fails to 
explain our error in noting this lack of information. If, in fact, there are users of this technology, that 
information is material and could significantly bolster the petitioner's claim of eligibility. We need not, 
however, accept an unsupported assertion that such "users" exist, especially when they have not been identified, 
let alone submitted their own letters of support confirming their use of the petitioner's technology. Going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof 
in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure 
Crarft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
The AAO further acknowledged the second letter fromn which he emphatically asserts that his initial 
letter constitutes an advisory opinion. ontinues: 
The fact that I am taking time to write a SECOND Advisory Opinion when your examiner 
couldn't take the time to read the first letter is a strong indication that [the petitioner] is 
INCREDIBLY VALUABLE TO NSF PROJECTS THAT ARE IN THE NATIONAL 
INTEREST, and THAT WE FULLY EXPECT THAT THE PROSPECTIVE BENEFIT OF 
ISSUING THlS WAIVER TO HER WILL RESULT IN RESEARCH THAT WILL BENEFIT 
THE NATIONAL INTEREST. 
[The petitioner] is working on a project that is funded by NSF. As 1 stated in my previous 
letter, she is UNIQUELY QUALIFIED TO DO THIS WORK, and her results so far have been 
spectacular. 
As made apparent in our previous decision, several reference letters include "founded" where the author 
presumably meant "funded." While we draw no conclusion from this same error appearing in several letters, 
it bears noting. 
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(Emphasis in original.) The AAO concluded that this letter does not add any examples of specific contributions 
or explain how they have influenced the field beyond being original. We affirm that conclusion on motion. 
Bluster cannot substitute for substance. 
who recruited the petitioner to the University of Massachusetts, Lowell, asserted that she 
designed an optical sensing machines (MEMs) for wavefront sensing under a 
could be used for monitoring and finding 
hidden targets. of Massachusetts or the U.S. Air Force patented 
this system. The record does not include letters 
from the U.S. Air Force explaining the significance of this project. Counsel once again concludes that our 
concerns regarding the lack of confirmation from the Air Force is "inane," without any explanation as to why 
that information is not relevant or material. We will not withdraw this concern. The Air Force is in the best 
position to explain how the petitioner's work benefited them, and they have not done so. 
The remaining letters in the record of proceedings at the time of appeal were considered at length in our 
appellate decision and that analysis need not be repeated. Ultimately, the AAO concluded that the witnesses all 
discuss the importance of the petitioner's projects, an issue neither the director nor the AAO contested. 
Eligibility for the waiver must, however, must ultimately 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. 
As further noted by the AAO in its previous decision, many of the above witnesses focus on the petitioner's 
multidisciplinary background. While we acluiowledge that the petitioner has obtained multiple advanced 
degrees in different areas of engineering, 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 U.S. is an issue under 
the jurisdiction of the Department of Labor. Id. at 221. Counsel does not challenge this conclusion on 
motion. 
The letters from- an associate professor at UC, Berkeley, an- a professor at 
the University of Illinois at Chicago are now a part of the record of proceedings. These letters will now be - - 
carefully considered in the context of the record of proceedings as a whole. 
asserts that the petitioner is a "key researcher" on a $1.5 million research project to provide real time 
assessment of structures after catastrophic events funded by NSF. Specifically, the petitioner is working on 
"key parts of this project to develop robust, low cost, wireless, adaptive field sensor networks capable of real 
time distributed data evaluation and transmission, and visualization and adaptive modeling of the observed 
phenomenon."asserts that the beneficiary's past projects for the U.S. Air Force "are well recognized 
and considered significant," but does not explain their impact on the field. As stated above, the petitioner has 
not submitted a letter from a high-level official with the Air Force confirming their use of the petitioner's work. 
discusses the petitioner's work in hi research center. explains that the 
petitioner s work with PVDF, "founded b NSF," resulted in sensors that can be used to sense infrared energy 
and, thus, measure stress and strain. asserts that the beneficiary "precisely measured the hybrid 
frequency response of a charge-mode curvature sensor in the range 0.1-45 (Hz) using a random vibration method 
in conjunction with a precision displacement stage." oncludes that the petitioner was the first in the 
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world to use PVDF successfully and accurately in low frequency applications and that her innovations are 
considered standard in the field. 
If the petitioner's innovations were truly the standard in the field, that would be extremely significant. Once 
again, ho~ever,~rovides no examples of government agencies, universities, or private institutions 
applying the petitioner's sensors beyond funding the initial research. Thus, we fail to see how the record 
substantiates the claim that the petitioner's innovations are now "standard in the field." It can be expected that 
the innovator of technology considered "standard in the field would be able to provide evidence of frequent 
citation and letters from independent sources who not only praise the petitioner's work but afJirm using it. The 
record lacks such evidence. 
It remains, the letters do not explain how the field has already been influenced by the petitioner. We 
reemphasize that we are not questioning the credibility of the references or substituting our opinions for theirs as 
to thk technical assertions they make. It remains, however, that the 
obviously be more persuasive if supported by objective evidence. states that the 
petitioner is "highly cited." As stated in our previous decision, but 
citation is easy to produce either through a published citation index or electronic citation database. The 
petitioner, however, has not provided evidence that any of her articles have been cited. 
Similarly, the petitioner's references claim that she has developed a first-of-its-kind wireless sensor system that 
outperforms all other sensor systems, yet they provide no examples of its use. Counsel fails to responds to our 
valid concern that it can be expected that an individual who had developed a groundbreaking sensor system 
would be able to produce a patent application for the system, evidence that manufacturers are expressing interest 
in licensing and marketing the system, and evidence that customers are expressing interest in utilizing the 
system. The petitioner has not submitted such evidence, even on motion, her opportunity to respond to these 
concerns. Finally, while the petitioner's references claim that she is among the key personnel on various 
research projects, the record lacks grant applications identifying her as such. 
At the time of filing, on appeal and even on motion, the record lacks evidence establishing that the petitioner has 
already influenced the field to any significant degree. It is acknowledged that the petitioner has developed a 
new monitoring device. While innovation of a new method is of greater importance than mere training in that 
method, such innovation is not always sufficient to meet the national interest threshold. Id. at 22 1, n. 7. The 
record lacks evidence that the petitioner has patented the device. Even if she had, the petitioner would need to 
demonstrate that there is a wide interest in licensing the system. Id. Alternatively, the record also lacks 
evidence that the petitioner's work with this device has been widely cited or otherwise adopted. Letters 
attesting to the importance of the area of research and the potential of the petitioner's work in that area are 
insufficient. As stated above, the record lacks evidence that her device is being adopted or considered for 
adoption on any building. 
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. 
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The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
(i 1361. The petitioner has not sustained that burden. Accordingly, the previous decision of the AAO will be 
affirmed, and the petition will be denied. 
ORDER: The AAO's decision of January 3 1,2005 is affirmed. The petition is denied.