dismissed EB-2 NIW Case: Civil And Environmental Engineering

U.S. Department ofHomeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Wash~ngton, DC 20529 
FILE: WAC 03 082 50991 Office: CALIFORNIA SERVICE CENTER Date: JAN 3 1 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@)(2) of the lrnrnigratlon 
and Nationality Act, 8 U.S.C. 5 1 153(b)(2) 
ON BEHALF OF PETITIONER: 
Ths is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
ecided your case. Any further inquiry must be made to that off~ce. 
v~obert 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, and is now before the Adrmnistrative Appeals Office on appeal. The appeal will be dismissed. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Tmmigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(,)(2), as an alien of exceptional ability or a member of the professions holding an 
advanced degree. 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 had not 
established that an exemption fkom the requirement of a job offer would be in the national interest of the United 
States. 
On appeal, counsel submits a brief not merely contesting the conclusions reached in the decision, but the 
reviewing officer's command of the English language. Counsel's most serious accusations are not supported by 
the record. Most serious1 counsel accuses the reviewing officer of failing to consider a 
letter fro 
m 
in addition to leaving off the last name when referencing a second lett 
The decision here is totally nonsense. It makes no sense. It demonstrates that the examiner 
responsible hasn't even read what was submitted. 
It is quite clear that this examiner is not competent at either reading or writing in the English 
[Ilanguage. Obviously, based upon this sloppiness and apparent inability to understand the 
English [llanguagej he should not be doing this job. This job requires a native English spealung 
person who is capable of understanding law and technology. This examiner is certainly neither. 
While counsel accurately claims that the initial letter fro-as quoted in counsel's initial cover letter, 
which referenced a different classification, counsel is incorrect that the letter was included in Amendix A of the . . 
initial submission or two other letters quoted by counsel in the 
initial cover letter, fio are also missing from Appendix A in this 
record of proceedin ted on appeal and will be considered 
below. 
Counsel continues: 
I am totally sick to death of getting ths kind of response from people who are obviously 
incapable of doing a job ths complex. The decision is also written in Pidgin English, as shown 
above. See also the bottom of page 2, where "job duties" apparently include several run on 
sentences taken off of the ETA-750, which, in the previous paragraph, is stated not to have been 
submitted. 
I am sick to death of having to argue all my cases two or there times because of lazy or 
incompetent examiners. It is time the Service Center remedied this problem. Either that or 
Congress will. 
WAC 03 082 50991 
Page 3 
While the director's decision contains a few grammatical and spelling errors, we do not find that such errors 
suggest that the author of the decision had no command of English or speaks "Pidgin English." We note that the 
second letter fro- contains a grammatical error.' Yet this office makes no suggestion that Dr. Liu has 
no command of the English language. 
Further, counsel confuses the Form ETA 750A, certified by the Department of Labor, with the Form ETA 750B, 
completed by the alien. The director correctly noted that the petitioner had not submitted a certified Form ETA 
750A as the petitioner is requesting a waiver of that requirement. In response to the director's request for 
additional evidence, the petitioner submitted the Form ETA 750B, which is required even when the job offer 
requirement is ~aived.~ 
Finally, we note that all appeals are given due consideration regarding matters of law and fact irrespective of 
claims of gross incompetence. For the reasons discussed below, while some of the director's concerns have 
little merit, counsel's legal and factual assetions do not sufficiently address the director's legitimate concerns. , 
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 
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 requirement 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 petitioner holds several advanced degrees, including a Ph.D. in material engineering from Tongji University 
awarded in 1999, a Master's in Materials Science from the University of Illinois at Chicago awarded in May 
2001, and a Master's Degree in Electrical Engineering from the University of Massachusetts awarded in May 
2002. The petitioner was a Ph.D. student in Systems Engineering at the University of California, Berkeley (UC 
Berkeley) at the time of filing. The petitioner's occupation falls within the pertinent regulatory definition of a 
profession. The petitioner thus qualifies as a member of the professions holding an advanced degree. The 
remaining 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. 
1 
i 
The first line of the final paragraph on page one includes the phrase, "having you read anything that has 
been submitted so far?" 
8 C.F.R. tj 204.5(k)(4)(ii). 
WAC 03 082 50991 
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Neither the statute nor 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, 1Ols.t Cong., 1st Sess., 11 (1989). 
Supplementary information to the regulations implementing the Immigration Act of 1990 (IMMACT), published 
at 56 Fed. Reg. 60897,60900 (November 29, 1991), states: 
The Service 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 Dep't. of Transp., 22 I&N Dec. 215 (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 
sewe the national interest to a substaikially 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, sewe 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 alie;, 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. 
a professor at UC Irvine, asserts that she lu~ows 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. xplains that monitoring technology is vital to 
securing the integrity of structural systems and utility facilities. She hrther asserts 
that conventional monitoring systems are not .used in large numbers because they are large, expensive, require 
high power and require electrical cab1 for signal transmission and power supply, making them susceptible to 
lightening strikes. According 
B the 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-sserts that the PVDF sensor is the first in the world and can monitor a 
WAC 03 082 50991 
Page 5 
full-scale slofscrapers not identify a slyscraper that has been successfully mdnitored by PVDF or 
an agency that has adopted or licensed the sensor technology. 
~econdlsserts 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." not, however, identify a specific contribution made by the petitioner to 
this proj'ect or attest to any success this project has enjoyed. attests to the technology's 
complexity and predicts that this area of research "will help our country to set up a real-time, highly reliable, \ 
economic environmental monitoring and protection system." 
- associate professor at Lehigh University, provides similar information. 
explains that the goal of the Adaptive Real-Time Geoscience and Environmental Data 
Visualization project is tt~ develop "Smart Dust" capable of sensing and responding to changes in temperature, - humidity, sound, light, electromagnetic waves, displacement and accelgation. The applications for "Smart 
Dust" include monitoring for upstart forest fires and monitoring enemy activities in war. 
professor at the University of Pavia in Italy, discusses the importance of sensor technology 
and asserts that the petitioner "has successfully developed a structural monitoring system based on PVDF 
material that allows, for example, the structural-integrity of a high-rise building orbridge to be tested after a. 
potentially weakening event." 9 
a senior research scientist at the Institute of Construction Materials, University of 
general praise of the petitioner's credentials and*responsibilities at UC Berkeley. 
In his initial lettea 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 ~erkele~.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 y n 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 ~isualiratio-asserts that the petitioner 
piezematerial 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, 
and use-does not provide any examples of "users." 
who recruited the petitioner to the University of Massachusetts, Lowell, asserted that she 
sensing system usin micromechanical machines (MEMs) for wavefront sensing under a 
grant from the U.S. Air Forced asserts that this system could be used for monitoring and finding 
hidden targets. not assert that the University of Massachusetts or the U.S. Air Force patented 
this system or t at the military has begun experimenting with this system. The record does not include letters 
from the U.S. Air Force explaining the significance of this project. 
WAC 03 082 50991 
Page 6 
In response to the director's re uest for additional evidence, including advisory opinions, the petitioner 
submitted a second letter qemphatically asserts that his initial letter constitutes such an 
opinion.continues: 
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 THIS WAIVER TO HER WILL RESULT IN RESEARCH THAT WTLL BENEFIT 
THE NATIONAL INTEREST. 
[The petitioner] is working on a project that is funded by NSF. As I stated in my previous 
. letter, she is UNIQUELY QUALFIED TO DO THIS WORK, and her results so far have been 
, speqtacular. 
(Emphasis in original.) This letter does not add any examples of specific contributions or explain how they have 
influenced the field beyond being original. As stated abo\.llllinitial letter is not included among the 
initially submitted documents in the record of proceedings but has been considered on appeal. 
irector of the kechanics and Materials Program, Engineering Directorate, NSF, asserts that 
the petitioner's unique combined education allows her to successfully complete her research-her 
asserts that the petitioner's PVDF sensor is "one of the best systems in the world for monitoring the full scale 
structure's health and safety." oncludes that the petitioner's current work on a projeci "founded" by 
NSF involves "developing a set of real-time, integrated database management ahd field data acquisition tools for 
rapid and adaptive assessment of key parameters during and following major catastrophic events." 
Resilient Systems and Operations at the National Aeronautics and Space 
Agency (NASA) Ames enter, provides similar information, concluding that the federally "founded" 
research projects on which the petitioner has worked "are self-evidently in the national interest of the United 
States." -does not assert that NASA as an agency has expressed any interest in utilizing the 
petitioner s sensors. 
The witnesses all discuss the importance of the petitioner's projects. We have already acknowledged the 
intrinsic merit of the petitioner's area of work. 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. 
Further, many of the above witnesses focus on the petitioner's multidisciplinary background. While we 
acknowledge 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 22 1. 
WAC 03 082 5099 1 
Page 7 
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. 
In addition to the above letters, the petitioner submitted her acceptance letters for graduate schools that she did 
not attend. Academic performance, measured by such criteria as grade point average, cannot alone satis@ 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. 
The petitioner also submitted an article in the University of Illinois at Chicago's College of Engineering 
Magazine discussing the work 04-he petitioner's PVDF collaborator. The article, 
published in the Fall of 2001, asserts tha-magnetic sensor was to be installed in the 
Kiswaukee Bridge in Northwest Illinois. The article does not mention the petitioner by name. According to one 
of the articles authored by the petitioner, PVDF is the abbreviation for Polyvinylidene fluoride. The abstract for 
that article references PVDF film, but no mention is made of magnets or magnetism. It can be expected that if 
the petitioner's sensor were actually in use, one of the petitioner's references would have mentioned it. It 
remains, the petitioner has not established that her PVDF work relates to the magnetic sensors installed on the 
Kiswaukee Bridge. 
The petitioner also submitted an article about a California team, also funded by NSF, devising a wireless sensor 
using quartz crystals. This article merely serves to establish that other groups are also working towards 
developing wireless sensors. As stated above, we acknowledge that the petitioner works in an area of intrinsic 
merit and that the benefits of developing a cheap wireless sensor would be national in scope. 
The director noted the lack of frequent citation by independent researchers and opined that original results are 
inherent to the field. The director her noted that none of the references describe how the petitioner's work 
influenced their own work. The director concluded that that the record did not distinguish the petitioner's 
publications from other published work in the field and that the claims that she would benefit the national 
interest were hypothetical and based on possible future achievements. 
On appeal, counsel states: 
ALL THREE AGENCY ADVISORY OPINIONS, PLUS THE ONE ORIGINALLY 
SUBMITTED WITH THlS PETTTION, WERE IGNORED. The obvious question is, was this 
examiner even aware that an agency opinion was solicited, what it was, or that it had some 
value? Why is an Advisory Opinion being solicited if it is then ignored? What is going on at 
the CSC? 
WAC 03 082 5099 1 
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The Advisory opinion letters here say it all. High ranking officials at NSF and NASA AMES 
state that this petitioner is incredibly valuable to our national interest, that she is a key research 
on key NSF funded projects, that she is unique and cannot be replaced and yet we still get an 
idiotic denial letter. 
After four advisory opinion letters, we still get the incredible conclusion, "Although the self- 
petitioner appears to be a talented researcher in her field, there is little evidence to persuade the 
Service that granting a waiver of the job offer requirement would be in the national interest in 
this case." 
Unbelievable! 
(Emphasis in original.) Advisory opinions are just that, advisory. 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 identi@ 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. 
We acknowledge that some of the director's concerns have little merit. For example, most scientific work is the 
result of collaborations and we disagree ,that collaborative efforts necessarily diminish the contributions of 
individual collaborators. Moreover, the director's conclusion that the letters are highly complimentary conflicts 
with his conclusion that they do not evaluate the petitioner. In addition, Matter of New York State Dep't. of 
Transp., 22 I&N Dec. at 219, n.6 specifically states that "the alien's past record need not be limited to prior 
work experience." Thus, the director's apparent dismissal of the petitioner's accomplishments simply because 
the petitioner was a student at the time is in error. It would be more consistent with that precedent decision to 
say that original work is expected of graduate students and, thus, original research performed as a graduate 
student is not sufficient to warrant the national interest waiver without additional evidence that the research was 
influential in the field to some degree. 
Ultimately, however, the director based his decision on valid concerns. Specifically, we concur with the director 
$.. 
that the letters do not explain how the field has already been influenced by the petitioner. Moreover, while we 
do not question the credibility of the references, the claims they make would obviously be more persuasive if 
supported by objective evidence. For example, Dr. states that the petitioner is "highly cited." Evidence 
of 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. On appeal, counsel fails 
to address the director's plainly worded concern on page 6 of his decision regarding the lack of citation 
evidence. 
Finally, 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. 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 
WAC 03 082 5099 1 
Page 9 
evidence. The petitioner's references claim that she is among the key personnel on various research projects, 
but the record lacks grant applications identifying her as such. 
' 
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. 
3 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.