dismissed EB-2 NIW Case: Civil Engineering

identifying data deleted to 
prevent clearly .mwarranted 
invasion of personal pnvacy 
PUBLTCCOPY 
FILE: 
IN RE: Petitioner: 
Beneficiary: 
{!.s. f)epartment of IInml'land SccurU\ 
U.S. Citizenship and Immigration Services 
Administrative Appeals Oflice (1\;\0) 
20 MassachuseUs Ave .. N.W .. MS 2()90 
\\'ashine:ton. DC 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
Office: NEBRASKA SERVICE CENTER Date: 
JAN 1 2 2011 
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: 
SELF-REPRESENTED 
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)(I)(i) requires that any motion must be 
filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you. 
~
OtoJY)tL 
Perry Rhew 
Chief. Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Nebraska 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 U.S.C. § I I 53(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as a civil engineer. The petitioner asserts that an exemption from the 
requirement of a job oller. 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 ajob offer would be in the national interest of the United States. 
On appeal, the petitioner submits a personal statement. continuing to mischaraeterize much of the 
evidence submitted. For the reasons discussed below. we uphold the director's decision. 
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. 
(8) 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. in Engineering from the University of New Hampshire. 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 otfer requirement, and thus an alien employment 
certification, is in the national interest. 
Neither the statute nor pertinent regulations define the tenn "national interest.·' Additionally. Congress 
did not provide a specific definition of the phrase. "in the national interest." The Committee on the 
Page 3 
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, 101 st Cong., 1st Sess., II (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 
benefiC [required of aliens seeking to qualifY as "exceptionaL"] The burden will rest 
with the alien to establish that exemption trom, or waiver of, the job offer will be in the 
national interest. Each case is to be judged on its own merits. 
Maller a/New York State Dep'l. of Tran.lp" 22 I&N Dec. 215, 217-18 (Comm'r. 1998) (hereinafter 
"N YSDOT"), 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. Id. at 217. Next, it must be shown 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 prospeclive national benetit. it clearly 
must be established that the alien's past record justifies projections of future benefit to the national 
interest. Id. at 219. The petitioner's subjective assurance that the alien wilt in the future, serve the 
national interest cmmot suffice to establish prospective national benefit. The inclusion of the teml 
"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. Id. 
We do not contest that the petitioner works in an area of intrinsic merit. construction material quality 
control, and that the proposed benefits of his work, improved interstate highway construction, 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. At 
issue is whether the alien employment certification process should be waived in the national interest 
because the petitioner would benefit the national interest to a greater extent than an available U.S. 
worker who is also qualified for the job. Given the repeated assertions of several of the petitioner's 
references, it is significant that the alien employment certification process does not require an 
employer to settle for an available U.S. worker who is not sufficiently qualified for the job. 
Eligibility for the waiver must 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 
Page 4 
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, we note that original 
innovation, such as demonstrated by a patent, is insufficient by itself. Whether the specilic 
innovation serves the national interest must be decided on a case-by-case basis. Jd. at 221, n. 7. 
Initially, the petitioner submitted what he claims are two "books," one in English and one in Chinese. 
In his initial statement, the petitioner asserted: 
The groundbreaking nature of my research is shown in its being selected for publication 
either separately in book form or in other professional publications in the field. [Exhibit 
numbers omitted.] It is worth noting that those publications appear in either Chinese or 
English, the two most widely used languages in the world. As a result, my scientific 
contributions have reached a much wider audience in the scientific community than 
those of others published in only one language. 
The "books," however, while bound, are not books published by a commercial publisher. They bear no 
indicia of commercial publication, such as a publishing company, copyright date or ISBN number. The 
bound manuscripts are, in fact, the petitioner's Ph.D. and Master's dissertations. The petitioner's 
bound copy of his Ph.D. dissertation bears the original signatures of his dissertation committee 
members. An original dissertation is a requirement for an engineering advanced degree and does not 
set the petitioner apart from other Ph.D. recipients. Without evidence that these bound manuscripts 
have been disseminated and utilized to some degree in the field, they do not demonstrate any influence 
in the field. 
The petitioner also submitted what purports to be published material about him relating to his work in 
the field. The documents include a newsletter published by 
_ at' Hampshire that mentions the petitioner as a graduate student 
working with on the 
_and 
welcoming its new members, including the petitioner. Mention as a graduate student 
a published by the university where the petitioner was studying does not establish the 
petitioner's influence in the field. Similarly, inclusion in a list of new members is not published 
material about the petitioner and cannot demonstrate his influence in the field. 
In addition to documenting his membership in NCSBCS, the petitioner also documented his 
membership in the American Society of Mechanical Engineers (AS ME) and his student membership in 
the American Society of Civil Engineers (ASCE), including membership in the society's 
Transportation and Development Institute. Professional memberships are merely one of the regulatory 
categories of evidence for which a petitioner must submit evidence to establish eligibility as an alien of 
exceptional ability. 8 C.F.R. § 204.S(k)(3)(ii)(E). By statute, "exccptional ability" is not by itself 
sufficient cause for a national interest waiver. Section 203(b)(2) of the Act; NYSDOT, 22 I&N Dec. 
at 218. Thus, even if the petitioner had demonstrated that these memberships are indicative of a degree 
of expertise significantly above that ordinarily encountered in the sciences, the regulatory standard for 
that classification as set forth at 8 C.F.R. § 204.S(k)(2), the memberships would not warrant a waiver of 
the alien employment certification process in the national interest. NYSDOT, 22 I&N Dec. at 2 18, 222. 
The petitioner also submitted evidence of academic scholarships, research assistantships and academic 
honors. The translations of the foreign language academic honors are not certified as required under 
8 C.F.R. § I03.2(b)(3) and, thus. those documents have no evidentiary value. Regardless, the record 
lacks evidence that these academic honors are indicative of the petitioner'S influence in the field. 
Academic performance, measured by such criteria as grade point average, cannot alone satisty the 
national interest threshold or assure substantial prospective national benefit. Jd. at 219, n.6. 
The petitioner submitted his proposal for alkali silicate reaction (ASR) mitigation using lithium in 
existing pavement structures but no evidence that this proposal was published or adopted. While the 
petitioner also submitted quarterly reports listing ~s the principal investigator, these reports 
do not appear to mention the petitioner by name and do not reflect on the petitioner's personal influence 
in the field. 
presented his work as a poster at 
As evidence of "citation," the petitioner submitted a list poster pre:sel1tatiolGS 
that meeting posted on Inclusion in a list of poster presentations that includes all of 
the poster presentations is not a "citation." Rather. citations are understood to be 
footnoted references to the petitioner's work in peer-reviewed journals or other notable publications 
and can be useful evidence of the petitioner's influence if they demonstrate reliance on the petitioner's 
work in the field as a whole. While the petitioner continues to assert on appeal that this listing 
constitutes a "citation" by a government entity. we concur with the director that the record contains no 
evidence of citation. 
The petitioner asserts on appeal: 
l T]he number of citations alone is no basis on which to judge the degree of influence of 
a scientist and engineer in the field. That is apparently why there is no specific mention 
of it in the Immigration and Nationality Act or other laws and government regulations 
regarding the matter. 
Page 6 
We acknowledge that citations are not required evidence. That said, it is still the petitioner's burden to 
demonstrate his influence on the field as a whole. In the absence of citations, the petitioner must 
provide other objective and credible evidence of that influence. The petitioner further asserts on appeal 
that the necessarily subjective opinions of experts in the field are more reliable than citations and 
"should definitely carry more weight." The petitioner continues that because "the law and regulations 
have consistently emphasized and ollen relied on expert's opinions, it is wrong to dismiss them in my 
case by refusing to recognize them as 'objective documentary evidence.'" The petitioner cites no 
specific law or regulation that emphasizes reliance on expert opinion over other evidence. That said, 
we will review the reference letters below. 
At the outset, we must note that some of the letters in the record contain at least some common phrases, 
such as: "It is a pity that [the petitioner's] abilities and achievements as outlined above cannot be 
effectively reflected through the labor certification process."' This use of boilerplate language in the 
reference letters from different individuals suggests that while the authors are affirming the information 
in the letters with their signature, the language is not their own. Moreover, as will discussed below, the 
letters are primarily concJusory with few supporting examples of the petitioner's influence in the field. 
USCIS need not accept primarily concJusory assertions. See 1756. Inc. v. The Allorney General of" 
the United States. 745 F. Supp. (D.C. Dist. 1990). 
a former graduate student at the University of New Hampshire while the 
lUUV Ill" at that institution, asserts that the study of coatings in China 
water supply pipeline . 
•••••••••••• makes a similar assertion. Neither 
explains how he has first hand knowledge of the application of the petitioner 
The record contains no confirmation of this application of the petitioner's work In 
otlicials in China. _further asserts that the petitioner contributed to 
to structural reliability under different combinations of general extreme events. 
While that this program has contributed to public safety,_asserts only 
that this project "strives to ensure public safety and minimize adverse effects~from bridge 
collapse by providing specifications and designing procedures based on uniform reliability." Once 
again, neither_ nor _explains his first hand knowledge of this work and the record 
lacks letters ~endent engineers confirming their use of the 
-. 
dis,cusses the petitioner's work with. mitigation in recycled concrete funded by_ 
notes that the petitioner evaluated the effect of applying lithium nitrate on the mitigation of 
djstre~;ses caused by. on slabs from Route 1-95 in Maine. While_ speculates that this 
work "will definitely lead to longer service life of existing pavements," he does not provide any 
examples of the petitioner's work being investigated or applied outside of his immediate circle of 
colleagues. 
_continues that the petitioner used recycled materials such as fly ash. slag and silica as 
~ mitigation agents. working towards successfully developing a detailed mix de~ 
procedure to make concrete that uses recycle aggregate and lasts as long as traditional concrete. _ 
~peculates: 
The result of this project will not only provide a solution to disposal of waste materials 
and related environmental issues but also produce enormous economic benefits by 
substituting natural aggregate with recycled aggregate. It will pave the way for many 
more projects at_ to promote the use of waste materials in civil engineering. 
_speculation of broad general benefits at some point in the future is insufficient. _ 
~provide any examples of government agencies or civil engineering firms applying or 
considering applying the petitioner's detailed mix design procedure or any other specific examples of 
the petitioner's influence in the field. 
_notes that much of the petitioner's Ph.D. research was funded by the U.S. Federal Highway 
Administration. It can be argued, however, that most research. in order to receive funding. must 
present some benefit to the general pool of scientific knowledge. It does not follow that every 
researcher working with a government grant inherently serves the national interest to an extent that 
justifies a waiver of the job offer requirement. 
including 
provide mostly 
generalized and conclusory statements about without providing 
examples of specific accomplishments that have demonstrably influenced the field at the national 
level. For example._ asserts that the petitioner collected field data. conducted in-situ tests. 
performed structura~analysis, evaluated _ reaction potential. performed s~ 
durability tests and evaluat.ed concrete field cores for future _expan~ntial._ 
does not explain. however. how this work is being applied in the field. _ merely lists the 
petitioner's projects, concluding that the petitioner's research on _. if its goal is realized. "can 
save maintenance costs" and "will not only provide a solution to disposal of waste materials and 
related environmental issues but al~enormous economic benefits by substituting natural 
aggregate with recycled a~e:_ further concludes that this work "will pave the way 
for many more projects at _ to promote the "se of waste materials in civil engineering as well." 
These statements are highly speculative and _does not support his conclusions with 
examples of state transportation departments or private engineering firms across the United States 
utilizing the petitioner's results to transition to the use of recycled aggregate. 
I Whil~s currently at the 
that he was a graduate student at the 
institution. 
his curriculum vitae indicates 
during the petitioners studies at that 
Page 8 
a materials lab supervisor at the Massachusetts Highway Department. explains 
the petitioner's duties at that department. Specifically, __ asserts: 
As a Civil Engineer in the Department. [the petitionerl has responsibilities which 
include conducting construction materials quality control to make sure that every 
bridge or road material is tested before use. [The petitioner's 1 many years of 
education and work experience make him a very exceptional and important member 
of the engineering staff at the Department. The skills he acquired in different research 
institutions around the world enable him to play an irreplaceable role in many 
research projects he has been engaged in and ensure success in his current position. 
Experience and education are qualifications that can be enumerated on an application for alien 
employment certification. Moreover, extensive experience and education are two categories of 
evidence that can establish exceptional ability, a classification that normally requires an approved 
alien employment certification. Section 203(b )(2) of the Act. Evidence pertaining to exceptional 
ability, therefore, is not grounds for waiving that requirement. NYSDOT. 22 I&N Dec. at 218, 222. 
Finally, 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. Jd. at 221. 
In a second letter, asserts that the petitioner's "versatility" is exemplified by the 
institutions where he has been employed. We will not infer the petitioner's int1uence in the field 
from his affiliation with prestigious institutions. Rather, he must demonstrate his int1uence. _ 
Bautista continues that the petitioner "made a name for himself' through his graduate work atfue 
University of New Hampshire. notes that _ is a "national center" that 
represents a collaboration between the University of New Hampshire, other universities and the 
I'ederal Highway Administration. concludes that the petitioner played "a critical and 
indispensable role" on the fact that the petitioner's photograph appears on 
an RMRC report. an engineer at Gandhi Engineering where the petitioner now 
works, makes a similar assertion. 
The internal_ report is not evidence of the petitioner's int1uence in the field. In discussing the 
project's progress, the report lists the determination_ and the petitioner "are trying" to 
make and the tests that "will" be performed. The report does not suggest that the . has dll'"dUIV 
produced useful results being applied beyond the University of New Hampshire. 
subsequent speculation that the petitioner's work "is bound to have a significant int1uence on future 
generations of engineer[ s] in the field:' strongly suggests that it has yet to do so. Finally, while _ 
_ discusses the Massachusetts Highway Department and asserts that the petitioner "was ~ 
to fulfill his many responsibilities and help bring [the department's] work to a new level of 
excellence," he fails to provide any examples of specific projects or how those projects have 
impacted the field at the national level. 
Page 9 
The director concluded that the above letters were from the petitioner's immediate circle of 
colleagues. On appeal, the petitioner challenges this characterization, asserting "some of the letters 
were written by people beyond my past and present education institutions and circle of colleagues." 
As an example, the petitioner notes that _ works at the Virginia Department of 
Transportation, where the petitioner has never worked. _ however, was a graduate student 
at the University of New Hampshire while the petitioner was also studying there. While letters from 
the petitioner's immediate circle of colleagues are useful in explain the nature of the petitioner's 
work, they cannot, by themselves, typically demonstrate the petitioner's influence in the field at a 
national level. 
The opinions of experts in the field are not without weight and have been considered above. U.S. 
Citizenship and Immigration Services (USCIS) may, in its discretion, use as advisory opinions 
statements submitted as expert testimony. See Matter o[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 we have done 
above, evaluate the content of those letters as to whether they support the alien's eligibility. See id. 
at 795. 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 Maller ofSolfiei, 22 I&N Dec. 158, 
165 (Comm'r. 1998) (citing Maller of Treasure Craji oj CalijiJrnia, 14 I&N Dec. 190 (Reg'1. 
Comm'r. 1972)). 
The letters considered above primarily contain bare assertions of recognition for contributions 
without providing specific examples of how those contributions have already influenced the field. 
Merely repeating the language of the legal requirements does not satisfy the petitioner's burden of 
proof2 The petitioner also failed to submit persuasive corroborating evidence, which could have 
bolstcred the weight of the reference letters. 
Ultimately, the petitioner challenges the director for noting the absence of citations and letters from 
independent sources. While we concur with the petitioner that neither form of evidence is 
necessarily required, the petitioner did not submit any comparable evidence that might demonstrate 
his influence in the field beyond his immediate circle of colleagues. Rather, the facts of this case 
appear analogous with those in NYSDOT. 22 I&N Dec. at 215, a civil engineer working for the New 
York Department of Transportation on the roads and bridges of that state with no demonstrated 
influence beyond that state. 
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 Unitcd States should be exempt from the requirement ofajob 
, Fedin Bros. Co., Ltd v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), a/rd, 905 F. 2d 41 (2d. Cir. 1990): 
Avyr Associates. Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
Page 10 
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. 
This denial is without prejudice to the filing of a new petition by a United States employer 
accompanied by an alien employment certification certified by the Department of Labor, appropriate 
supporting evidence and fee. 
ORDER: The appeal is dismissed.