dismissed EB-2 NIW Case: Civil And Environmental Engineering

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
1iUBtIC COpy 
DATE: Office: TEXAS SERVICE CENTER 
MAY 3 1 2011 
INRE: Petitioner: 
Beneficiary: 
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 
FILE: 
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. § 1153(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 1-290B, Notice of Appeal or 
Motion, with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(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, Texas Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) 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 US.c. § 1153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as a research scientist / civil and environmental engineer. The petitioner 
asserts that an exemption from the requirement of a job offer, and thus of an alien employment 
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 submits a brief and additional evidence. For the reasons discussed below, the 
petitioner has not established his eligibility for the benefit sought. Specifically, the question is not 
whether engineers benefit the United States. Rather, at issue is whether the proposed benefits of the 
petitioner's employment in the United States outweighs the national interest inherent in the alien 
employment certification process such that the petitioner should be exempt from that process. 
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 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 petitioner holds a Ph.D. from the University of Wisconsin-Madison. While counsel correctly notes 
that the director listed the wrong degree from the wrong school, the director did not contest that the 
petitioner has the requisite advanced degree. The remaining discussion of the evidence relates to the 
petitioner. Thus, the director's incorrect reference to the beneficiary's education is harmless error. 
Page 3 
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 an 
alien employment certification, is in the national interest. 
Neither the statute nor pertinent regulations define the term "national interest." Additionally, Congress 
did not provide a specific definition of the phrase, "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). 
A supplementary notice regarding the regulations implementing the Immigration Act of 1990 
(IMMACT), published at 56 Fed. Reg. 60897, 60900 (Nov. 29, 1991), states, in pertinent part: 
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, 217-18 (Comm'r. 1998) (hereinafter 
"NYSDOT"), has set forth several factors that U.S. Citizenship and Immigration Services (USCIS) 
must consider 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. Id at 217. Next, the petitioner 
must show that the proposed benefit will be national in scope. Id 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. Id at 217-18. 
It must be noted that, 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. !d. at 219. The petitioner's subjective assurance that the alien will, in the future, serve the 
national interest cannot suffice to establish prospective national benefit. The use of the term 
"prospective" is meant to require future contributions by the alien and is not intended to facilitate the 
entry of an alien with no demonstrable prior achievements, and whose benefit to the national interest 
would thus be entirely speculative. Id 
The AAO concurs with the director that the petitioner works in an area of intrinsic merit, civil and 
environmental engineering, and that the proposed benefits of his work, improving the efficiency of 
the U.S. transportation system, would be national in scope. It remains, then, to determine whether 
Page 4 
the petitioner will benefit the national interest to a greater extent than an available U.S. worker with 
the same minimum qualifications. 
Eligibility for the waiver must rest with the alien's own qualifications rather than with the position 
sought. In other words, U.S. Citizenship and Immigration Services (USCIS) generally does 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. NYSDOT, 22 I&N Dec. at 218. Moreover, 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 United States is an issue under the jurisdiction 
of the Department of Labor. ld. at 221. 
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 he 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. ld. at 219, n. 6. In evaluating the petitioner's achievements, the AAO notes that 
original innovation, such as demonstrated by a patent, is insufficient by itself. Whether the specific 
innovation serves the national interest must be decided on a case-by-case basis. ld. at 221, n. 7. 
The petitioner submitted evidence of his membership in the American Society of Civil Engineering 
(ASCE) and the Construction Institute (CI). Professional memberships are one type of evidence that a 
petitioner may submit to establish exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(E). Because 
exceptional ability, by itself, does not justify a waiver of the job offer/labor certification requirement, 
arguments hinging on professional memberships, while relevant, are not dispositive to the matter at 
hand. ld. at 222. 
The petitioner also submitted four journal articles. In response to the directors' request for additional 
evidence, the petitioner submitted the anonymous review of one of his articles recommending 
publication and a single citation. On appeal, counsel asserts that the journals have low acceptance rates 
and that the main evaluation criterion is how the work has "made a significant impact on the field." 
Counsel concludes the publication of these articles alone demonstrates the petitioner's impact on his 
field. Finally, counsel asserts that citations can take several years to appear. The unsupported 
assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 
1988); Matter of Laureano, 19 I&N Dec. 1, 3 n.2 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N 
Dec. 503, 506 (BIA 1980). 
Counsel does not explain how a journal can require that a manuscript submitted for publication already 
have made an impact prior to publication. Research that has yet to be disseminated in the field is 
unlikely to have already had an impact. The review of the beneficiary's submission to the Journal of 
Transportation Engineering is a cover sheet only and, while listing the top ranking, does not contain 
the actual critique. The review of the beneficiary's submission to the Canadian Journal of Civil 
Page 5 
Engineering does not suggest that the reviewer found the submission to have already impacted the 
field. Rather, the review stated that the beneficiary's "attempt" to address the subject of construction 
contractor evaluation using an objective approach "should be encouraged." The reviewer further 
suggests that the research "is suitable for launching more research" but does not suggest it has already 
served as the foundation for subsequent research. The review concludes: "The paper and future spin­
off applications will be of great service to construction managers." The reviewer references no 
examples of how it is already a service to construction managers. Moreover, the petitioner's 2005 
article in the Canadian Journal of Civil Engineering cites several articles published in 2004. Thus, it 
does not necessarily take five years from publication to citation as stated by counsel on appeal. 
The citation, by a researcher in Kentucky, cites a 1998 article and the petitioner's 2004 article as 
examples of the application of panel data in predicting the performance of infrastructural facilities. On 
page 91, however, the authors reveal that they actually used based estimation 
method reported in 1991. Thus, this citation is not evidence of independent researchers using the 
petitioner's model. 
The remaining evidence consists of reference letters. Dr. the beneficiary's Ph.D. 
advisor at the University of Wisconsin-Madison, lists the petitioner's research interests and concludes: 
"I believe that his research is key to improving the efficiencies of our transportation system." USeIS 
need not accept primarily conclusory assertions. 1 Dr. does not provide examples of specific 
accomplishments and explain how they have impacted the field. Instead, he states that the 
petitioner's skills "are critical" for U.S. competitiveness and that the United States "has a high need 
for qualified engineers." Any objective qualifications necessary for the performance of the 
occupation can be articulated in an application for alien employment certification. NYSDOT, 22 I&N 
Dec. at 220-21. Moreover, 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. 
In a subsequent letter, Dr. asserts that the petitioner is the first researcher to apply panel data 
analysis and modeling techniques to highway pavement research. Dr continues: 
Because this modeling technique will give significant benefits to many highway 
pavement researches [sic], he will be one of the significant research scientists who [are] 
contributing to highway pavement research areas in national impact level. 
This statement, presuming a future impact, is highly speculative. Dr. _ next discusses the 
petitioner's dynamic prediction model for as-built roughness, a factor when measuring highway 
pavement performance. Dr. notes that the petitioner published this research, which has an 85 
percent prediction accuracy. Once again, however, Dr. merely predicts that this model "will be 
significantly beneficial to many researches [sic] sponsored by federal and state highway agencies." He 
provides no examples of federal or state sponsored research actually using the petitioner's models. 
1 1756, Inc. v. The Attorney General of the United States, 745 F. Supp. 9, 15 (D.C. Dist. 1990). 
Page 6 
Dr. I another professor at the University of Wisconsin-Madison, concludes that the petitioner 
"contributed significantly in the area of highway construction with [the] quality prediction model he 
developed." As stated above, uscrs need not accept primarily conclusory assertions.2 Dr. ..... 
asserts generally that the petitioner developed "a remarkable dynamic model for highway pavement" 
but provides no examples of any other engineer using this model. 
Senior Project Manager for asserts that the beneficiary was a 
"dedicated member" of Mr construction management staff in 2002 and 2003. Mr. ••• 
explains that the project involved the $50 million rehabilitation of the dispatch communication 
centers being constructed for the New York City Fire Department. Mr. ' states: 
As Office Engineer [the petitioner] was personally responsible for the establishment 
of the policies and procedures for the processing and maintaining of all projects 
records as well as coordinating the submission and approval of all required Contractor 
shop drawing to the Architect Engineer. [The petitioner] also assisted in the 
preparation and updating of the project master schedule. 
While Mr. concludes that the petitioner performed his assigned duties above expectations, these 
duties appear to have involved record management and scheduling rather than innovative engineering 
designs. Mr. does not suggest this project utilized the petitioner's model. 
Deputy Program Director for the New York City Department of Design and 
••••••• liliiii •••••••• , asserts that the petitioner worked for the company that the 
department hired as a consultant for a school renovation program in 2002. Mr._ explains that the 
projects were challenging and states that the petitioner "helped to closeout many projects by resolving 
various engineering issues." Simply completing an engineering assignment is not evidence of the 
petitioner's influence on the field as a whole. 
Dr._ an assistant professor at San Jose State University, states: 
Personally, r have also reviewed [the petitioner's] journal papers in order to perform my 
funded research project. Although r decided not to use panel data analysis due to no 
expertise in our research team, r found that [the petitioner's] methodology was very 
useful to find the significant factors that affect pavement performance and r adopted his 
methodology for my research. 
Dr. j does not explain what methodology he used if not the petitioner's panel data analysis model. 
Dr. _also fails to submit a report or manuscript citing the petitioner's research. This single 
ambiguous anecdote cannot demonstrate the petitioner's influence on the field as a whole. 
2 1756, Inc., 745 F. Supp. at 15. 
Page 7 
an engineer at the New York State Department of Transportation, states that the 
petitioner's "researches [sic] have implemented outstanding prediction models for highway pavement 
performance using an advanced analytical method such as Panel Data Analysis and Modeling 
techniques." Mr.~, however, does not suggest that the department is adopting the petitioner's models 
and techniques. 
The Board of Immigration Appeals (the Board) 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 Board 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 the petitioner to submit 
corroborative evidence. Matter ofY-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, as this decision has done above, 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, n.2 (BIA 2008) (noting that expert opinion testimony does not purport to be evidence as to 
"fact"). USCIS may even give less weight to an opinion that is not corroborated, in accord with 
other information or is in any way questionable. Id. at 795; see also Matter of Soffici, 22 I&N Dec. 
158, 165 (Comm'r. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'!. 
Comm'r. 1972»). 
The letters considered above primarily contain bare assertions of contributions without providing 
specific examples of how those innovations have influenced the field. Merely repeating the legal 
standards does not satisfy the petitioner's burden of proof.3 The petitioner also failed to submit 
corroborating evidence in existence prior to the preparation of the petition, which could have 
bolstered the weight of the reference letters. 
Ultimately, the petitioner is an engineer who developed a model while a doctoral student that has yet 
to be implemented beyond his own research. While the petitioner has performed his engineering 
assignments satisfactorily, the record lacks evidence that the petitioner has qualifications that cannot 
be articulated on an application for alien employment certification. Thus, he has not explained why 
it is necessary to waive that process in the national interest. 
3 Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 1990); 
Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). Similarly, USCIS need not accept 
primarily conclusory assertions. 1756, Inc., 745 F. Supp. at 15. 
Page 8 
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 alien employment 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.