dismissed EB-2 NIW Case: Civil Engineering

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: EAC 02 280 5043 1 Office: VERMONT SERVICE CENTER Date' FEE 2 5 2005 
- 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Fmmigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptiorlal Ability Pursuant to Section 203(b)(2) of the Immigration 
and Nationality Act, 8 U.S.C. $ I. 153(b)(2) 
ON BEHALF OF PETITIONER: 
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 inqulry must be made to that office. 
I 
i Administrative Appeals Office 
EAC 02 280 5043 1 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Vermont Service 
Center, and is now before the Administrative Appr:als Office on appeal. The appeal will be dismissed. 
The petitioner seeks classification pursuant to selction 203(b)(2) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. 8 1153(b)(2), as an alien of excepitional ability. The petitioner seeks employment as a research 
scientist. The petitioner asserts that an exempticon 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. 
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 de:grees or their equivalent or who because of their 
exceptional ability in the sciences, arts, olr 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. 
It appears from the record that the petitioner seeks classification as an alien of exceptional ability, although prior 
counsel referenced the term "exceptional" generally without addressing the regulatory criteria for this 
classification. This issue is moot, however, because the record establishes that the petitioner holds a Ph.D. 
degree in Civil Engineering from Columbia Unikersity. 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. 
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 "l'ocused on national interest by increasing the number and 
proportion of visas for immigrants who would benefit the llnited States economically and otherwise. . . ." 
S. Rep. No. 55, I0 l st Cong., 1 st Sess., 1 1 (1 989). 
Suppleme he regulations implementing the Immigration Act of 1990 (IMMACT), published 
at 56 Fed. ovember 29, 199 1 ), states: 
EAC 02 280 5043 1 
Page 3 
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 ofikr will be in the national interest. Each case is to be 
judged on its own merits. 
Mutter of New York State Dep '2. of Trunsp., 22 I&N Dec. 2 1 5 (Comm. 1998), has set forth several factors 
which must be considered when evaluating a request for a national interest waiver. First, it must be shown that 
the alien seeks employment in an area of substantial intrinsic merit. Next, it must be shown that the proposed 
benefit will be national in scope, Finally, the petitioner seeking the waiver must establish that the alien will 
serve the national interest to a substantially greater degree than would an available U.S. worker having the same 
minimum qualifications. 
It must be noted that, while the national interest waiver hinges on prospective national benefit, it clearly must be 
established that the alien's past record justifies projections of future benefit to the national interest. The 
petitioner's subjective assurance that the alien will, in the future, serve the national interest cannot sufice 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, engineering. Without 
discussion, the director concluded that the proposed benefits of his work, improved damage detection and 
structural health monitoring, would not be national in scope. As the petitioner's work relates the safety of 
bridges, the proposed benefits of his work is vely similar to the proposed benefits at issue in Mutter ($New 
York State Dep't. of Transp., 22 I&N Dec. at 21 7. As that precedent decision held such proposed benefits to 
be national in scope, we withdraw the director's contradictory finding on this issue. 
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. On appeal, counsel asserts that the labor 
certification only tests for the availability of qualified employees without consideration of individual talents. 
Eligibility for the waiver, 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. At 
issue is whether this petitioner's contributions in the field are of such unusual signiticance 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. Id, at 219, n. 6. 
a professor at Columbia University, asserts that the petitioner has produced "unique 
of the field" but provitles no examples of these advances. Rather, he discusses the 
focus of the petitioner's work, the generation of' methods to create mathematical models that are nonlinear, 
damage to cvil engineering structures after natural disasters or from aging. 
examples of structures that have been evaluated using the petitioner's 
a member of the petitioner's Ph.D, defense committee at Columbia University, 
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provides similar information, affirming the importance of the "class of problems" to which the petitioner's work 
is applicable, but providing no examples of how the petitioner's work has been applied. 
a professor at the University of Southern California who met the petitioner at a conference, 
information to that discussed above. Two other faculty members at Columbia University 
discuss the importance of the petitioner's area of research and his goals. They provide general praise of the 
petitioner's skills, but provide no specifics regarding how his work has impacted the field. 
former fellow graduate teaching assistants at 
more detail. sserts that the 
to a wide variety of mechanical/civil 
locations and amount of damage in 
of the petitioner's current project, 
advances towards that goal. 
Based on the needs of instantaneous and automatic real-time trachng of structural health 
condition (extremely important in case!; of sudden damage), [the petitioner] developed a 
practical on-line identification approach to identi@ on-line the occurrence and amount of 
damage in structures subjected to loads. 'The procedure he created is the adaptive identification 
scheme that has proven to be successful in various civil engineering applications and relies only 
on few measurement data. This is a quite realistic scenario in civil engineering applications 
where usually only few sensors are available and the recorded signals are strongly affected by 
noise. To practically identify structural systems in model-unknown structures, [the petitioner's] 
research work also developed a suitable power series modeling proved to be very effective in 
enhancing the entire adaptive identification methodology. 
d 
oes not provide examples of structures where the petitioner's evaluation methods were used and the 
recor contains no attestations Erom governrnent agencies confirming application of the petitioner's 
methodologies. 
asserts that the petitioner's identification methodology "has impressively solved a long-lasting 
the nonlinear structural identification technology can be effectively implemented on-line even in a 
large earthquake." xpresses his belief that the petitioner's research "will have widespread 
implementation as an approach." The record, however, lacks attestations from government agencies expressing 
their interest in applying the petitioner's approach. 
Several references assert that the petitioner is being considered for a faculty position at another institution. 
Ability to secure employment is not a basis for waiving the labor certification process. The references also 
claim that the petitioner's influence in the field is demonstrated by his publications and invitations to present his 
work. The petitioner failed to submit copies of the first pages of his published articles, the proceedings of the 
conferences where he presented his work, or the programs evidencing his presentations. The director 
determined that the record contained no evidence that independent researchers have cited the petitioner's work. 
On appeal, counsel asserts that the director "overlooked [the petitioner's] attainment in this regard." The 
petitioner submits three articles that cite his work at length. All three articles, however, are dated after the date 
EAC 02 280 5043 1 
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of fi ling and cannot be considered evidence of his eligibility as of that date. See 8 C.F.R. $ 103.2(b)(12); Mutter 
of Katigbak, 14 I&N Dec. 45, 49 (Reg. Comm. 1971). A petitioner cannot file his petition based upon 
completed research that he hopes will prove influ'ential at some future date. Mqreover, it is difficult to see how 
the director "overlooked" evidence that was not submitted prior to the appeal. 
While the petitioner's research is no doubt of value, it can be argued that any research must be shown to be 
original and present some benefit if it is to receive funding and attention from the scientific community. Any 
Ph.D. thesis or postdoctoral research, in order .to be accepted for graduation, publication or funding, must 
offer new and useful information to the pool of knowledge. It does not follow that every researcher who 
performs original research that adds to the general pool of knowledge inherently serves the national interest 
to an extent that jwtifies a waiver of the job offix requirement. The petitioner has not demonstrated a track 
record of success with an influence beyond his immediate circle of colleagues. 
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 shoirld 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. 
4 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.