dismissed EB-2 NIW Case: Climate Science

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: Office: VERMONT SERVICE CENTER Date: AUO 2 5 2005 
EAC 99 034 50559 
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. § 1153(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 
DISCUSSION: The employment-based immigrant visa petition was initially approved by the Director, 
Vermont Service Center. On the basis of new information received and further review of the record, the 
director determined that the petitioner was not eligible for the benefit sought. Accordingly, the director 
properly served the petitioner with notice of intent to revoke the approval of the immigrant visa petition, and 
the reasons therefore, and ultimately exercised his discretion to revoke approval of the petition on July 5, 
2002. The matter 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. Q 1153(b)(2), as a member of the professions holding an advanced degree. At the time of filing 
on November 9, 1998, the petitioner was working as an Associate Research Scientist in the Department of 
Applied Physics, Columbia University and NASA Goddard Institute for Space Studies. 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. 
Section 205 of the Act, 8 U.S.C. 5 1155, provides that "[tlhe Secretary of Homeland Security may, at any time, 
for what he deems to be good and sufficient cause, revoke the approval of any petition approved by him under 
section 204." 
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) Subject to clause (ii), 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 Applied Mathematics from the University of Virginia. The petitioner's 
occupation falls within the pertinent regulatory definition of a profession. See 8 C.F.R. Q 204.5(k)(2). 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 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, lOlst Cong., 
1st Sess., 11 (1989). 
The 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. 
Through a precedent decision, Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Comm. 
1998), legacy Immigration and Naturalization Service (INS) 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 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. 
The petition in this case was filed on November 9, 1998. Form 1-140, Part 6, "Basic information about the 
proposed employment," indicates that the petitioner seeks employment as a "Researcher/Scientist" and that his 
work involves "[d]evelop[ing] models on super computers for research into prediction of climate, working in 
NASA (National Aeronautics and Space Administration), and develop[ing] weather models to help the U.S.A. 
avoid climate disaster." 
In a letter accompanying the petition, counsel states: 
[The petitioner] has become a leading researcher in ocean circulation and climate prediction and their roles 
in delaying the greenhouse effect upon the earth.. .. Through his recumng publications and speaking 
engagements, he has developed General Circulation Models (GCM) of the Earth. These models have aided 
the scientific community to gain a better knowledge of global warming. [The petitioner's] work is of 
significant importance to the United States, and global environment. [The petitioner] requests his 
application as.. . an advanced degree professional be granted with a waiver of labor certification in the 
national interest. 
[The petitioner's] research, publications and speaking engagements are in the field of ocean circulation and 
climate prediction and how they affect global warming. Global warming is a very important issue to the 
United States Government. Its affect on the U.S. and the world environment is of permanent 
importance.. .. [The petitioner's] work, according to the enclosed letters and publications, is the research 
crucial to understanding what President Clinton deems the most important challenge of the 21" century. 
The record contains several published articles, which counsel claims, demonstrate "the effect global warming has 
on the United States." Also submitted were several witness letters. We cite representative examples here. 
A letter from Columbia University, Department of Applied Physics, states: "[The petitioner's] 
research is crucial to the American effort to determine the appropriate response to rising concentrations of 
greenhouse gases and possible climate change." 
Inez Fung, Senior Scientist, NASA Goddard Institute for Space Studies, states: "[The petitioner's] continued 
participation and leadership is absolutely crucial to the success of NASA's program in understanding the 
climate of earth." 
Barbara Carlson, Research Scientist, NASA Goddard Institute for Space Studies, states: 
[The petitioner's] continued research is crucial to the improved reliability of climate simulations.. .. I 
request that [the petitioner] be granted permanent residence with a waiver of the labor certification 
because his continued work in promoting the understanding of what causes global climate change as 
well as climate variability (e.g., El Nino) is in the national interest. 
On the basis of the evidence presented, the petition was initially approved by the director on January 29, 1999. 
Citizenship and Immigration Services (CIS) records reflect that the petitioner was subsequently interviewed on 
July 25,2001 at the San Francisco District Office in connection with his application to adjust status to permanent 
resident. According to a memorandum from the interviewing officer, a copy of which was provided to counsel, 
the petitioner stated that he no longer worked as a research scientist for Columbia University and NASA 
Goddard Institute for Space Studies. The petitioner is presently employed by McKinsey & Company, Inc., a 
management consulting firm, and his current work involves solving complex business problems for large 
corporate clients. The San Francisco District Office issued a letter requesting that the petitioner submit 
evidence from his current employer "describing [his] duties and how they relate to the national interest." The 
petitioner responded by submitting three witness letters that will be addressed below. 
On May 14, 2002, the director advised the petitioner of CIS' intent to revoke the approval of the petition. The 
director stated that the national interest waiver petition was approved based on the petitioner's work "in the field 
of ocean circulation and climate prediction and their roles in delaying the greenhouse effect upon the earth." The 
director noted that the petitioner was no longer "working in the field for which the national interest waiver was 
granted." 
Page 5 
In response, counsel cites an April 7, 1999 Immigration and Naturalization Service (legacy INS) memorandum 
concerning national interest waivers. That memorandum "instructs that all national interest waivers approved 
before the decision in Matter of New York State Dept. of Transportation should be honored in 245 or immigrant 
visa proceedings, provided that beneficiaries continue to seek employment in the professional activity that 
provided the basis for approval." Counsel states: 'The [interviewing officer's] actions were completely in 
opposition to the INS Field Guidance on National Interest Waivers. The [approved national interest waiver 
petition] was not honored even though the beneficiary has continued to work in the same professional activity that 
provided the basis for approval." 
Contrary to counsel's statement, we find the actions of the interviewing officer entirely appropriate. First, the 
April 7, 1999 memorandum cited by counsel states that national interest waivers approved prior to August 7, 
1998 should be honored in section 245 of the Act or immigrant visa petition proceedings. Here, the petitioner's 
case was approved on January 29, 1999 (more than five months after Matter of New York State Dept. of 
Transportation was designated as a precedent decision). Therefore, we find that the interviewing officer's actions 
were not in opposition to the legacy INS field guidance on national interest waivers. Second, according to 
counsel's detailed initial statements and the wealth of evidence presented with the petition, "the professional 
activity that provided the basis for approval" of the national interest waiver petition in this case was (as clearly 
stated in the opening sentence of counsel's October 28, 1998 letter) the petitioner's work as a "leading researcher 
in ocean circulation and climate prediction and their roles in delaying the greenhouse effect upon the earth." 
Based on the evidence presented in support of the petition, it is apparent that the petitioner is no longer working in 
the same research field that served as the basis for the approved national interest waiver, nor is the prospective 
new employment in the same or similar occupation. 
In response to the San Francisco District Office's request for evidence, the petitioner submitted letters from two 
individuals from McKinsey & Company, his current employer. 
[The petitioner's] duties at McKinsey & Company are as follows: doing research, writing letters of 
proposal, and presenting research results. His research is fundamentally mathematical problem solving 
(the unit of measure in this case being mostly U.S.$). 
We can use his mathematical and computational expertise to model complex economic and business 
systems in application areas such as telecommunications, electronics, transportation and logistics, 
electric power and natural gas, the insurance industry . . . . 
Our clients are the biggest and best corporations in the world - they include 80 of the 100 largest 
corporations in America .... The work undertaken by McKinsey teams and associates is seen by 
4 
McKinsey's clients to substantially benefit these companies and industries and therefore the national 
economy and the welfare of the United States of America. 
Dr. Dietrich Chen, Senior Associate, McKinsey and Company, echoes Mr. Prema's assertions concerning the 
petitioner's specific job duties. Dr. Chen adds: 
[The petitioner's] expertise in both numerical and mathematical modeling has been tremendously 
helpful in aiding our clients make the right decision about their business. He has modeled complex 
economic and business systems in application areas such as telecommunications, electronics, 
transportation and logistics, and electric power and natural gas. 
The petitioner also provided a letter from Research Scientist, Columbia University, who served 
along with the petitioner as a postdoctoral researcher at NASA Goddard Institute for Space Studies during the 
1990's. Dr. Cairns states: "[The petitioner's] work at Columbia University involved writing proposals, writing 
papers, and presenting research. Specifically: solving various problems using mathematical and numerical 
modeling techniques.' letter offers a general listing of the petitioner's prior duties at Columbia 
University in an attempt to show that those duties mirror his current duties at McKinsey & Company. 
Counsel argues that the director ignored guidance pertaining to section 106 of the American Competitiveness 
in the Twenty-First Century Act (AC21), Public Law 106-313. The guidance was issued in the form of a 
memorandum from Michael Cronin, Acting Executive Associate Commissioner for Programs, dated June 19, 
2001. Section 106(c) of AC21, establishing section 204(j) of the Act, states: 
A petition under subsection (a)(l)(D) [since re-designated section 204(a)(l)(F) of the Act] for an 
individual whose application for adjustment of status pursuant to section 245 has been filed and 
remained unadjudicated for 180 days or more shall remain valid with respect to a new job if the 
individual changes jobs or employers if the new job is in the same or a similar occupational 
classification as the job for which the petition was filed. 
Section 204(a)(l)(F) of the Act states: "Any employer desiring and intending to employ within the United 
States an alien entitled to classification under section 203(b)(l)(B), 203(b)(l)(C), 203(b)(2), or 203(b)(3) may 
file a petition with the Attorney General for such classification." 
Counsel's argument is flawed because the stated ground for revocation in this case is not the petitioner's 
change of employers, but, rather, that he is no longer working in the same or similar occupational 
classification that served as the basis for the national interest waiver. 
Guidance in the June 19,2001 memorandum provides that the labor certification or approval of a Form 1-140 
employment-based (EB) immigrant petition shall remain valid when an alien changes jobs, if: (1) a Form 
1-485, Application to Adjust Status, on the basis of the employment-based immigrant petition has been filed 
and remained unadjudicated for 180 days or more; and (2) the new job is in the same or similar occupational 
classification as the job for which the certification or approval was initially made. 
Counsel states: "The [director] is simply not following the standards established by the law. [AC21] was 
created because employers were stifling the ability of workers to move during the lengthy INS adjudicating 
period. This problem created positions of involuntary servitude." We note here that CIS has a documented 
history of granting national interest waivers in cases involving aliens who changed employers but continued 
working in the same field. We find in this case, however, that the petitioner is no longer working in the 
research field (ocean circulation and climate prediction) in which he initially proposed that his employment 
would substantially benefit prospectively the national interest of the United States. 
Counsel's assertion is not persuasive. The three letters provided in response to the July 25, 2001 request for 
evidence do not demonstrate that the petitioner is seeking employment in the "same or similar occupational 
classification" as the job which provided the basis for approval of the national interest waiver. Simply 
providing a listing of several overlapping job skills does not automatically establish that the new job is in the 
same or similar occupational classification as the petitioner's prior job. More persuasive than the subjective 
witnesses' letters provided in response to the request for evidence would be contemporaneous evidence in the 
form of the original job offer letter from McKinsey & Company to the petitioner (outlining the position 
offered and its related duties). We note here that the letter from McKinsey & Company does not specifically 
identify the petitioner's job position at the firm or his occupational title. Based on the evidence presented, the 
AAO finds that the petitioner has not shown that his new job is in the same or similar occupational 
classification as the Associate Research Scientist position. 
The record is clear that the petitioner is no longer working in the field of ocean circulation and climate 
prediction. The submission of witness letters claiming that general similarities exist in the petitioner's past 
duties as a scientific researcher and his present duties as a management consultant does not overcome the 
issues raised in the notice of intent to revoke. While the director has previously found that the petitioner's 
research related to global climate change is in the national interest, it is apparent that the petitioner is no 
longer working in that field. It should be emphasized that CIS initially approved the petition and waived the 
job offerflabor certification requirement so that the petitioner could continue his research related to ocean 
circulation and climate prediction and their roles in delaying the greenhouse effect upon the earth. That being 
the case, it simply defies logic to assert that the director should ignore that the petitioner no longer works in 
the scientific research field that formed the basis for the director's approval of the national interest waiver. 
On July 5, 2002, the director issued a notice revoking the approval of the national interest waiver petition. 
The director properly exercised his discretion to revoke approval of the petition in this case. 
In Matter of Ho, 19 I&N Dec. 582 (BIA 1988), the Board of Immigration Appeals (BIA) found that approval of a 
visa petition vests no rights in the beneficiary of the petition but is only a preliminary step in the visa or 
adjustment of status application process, and the alien is not, by mere approval of the petition, entitled to an 
immigrant visa or to adjustment of status. The BIA further found that because "there is no right or entitlement to 
be lost, the burden of proof in visa petition revocation proceedings properly rests with the petitioner, just as it 
does in visa petition proceedings." The decision also notes that, pursuant to section 205 of the Act, CIS may 
revoke the approval of a petition "at any time for good cause shown." We find that Matter of Ho supports CIS' 
determination. 
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On appeal, counsel submitted a one-page letter briefly outlining the arguments discussed above. Counsel 
indicated that he would submit a brief andlor evidence to the AAO within thirty days. The appeal was filed on 
July 23, 2002. As of this date, the AAO has received nothing further. 
Throughout this proceeding, counsel has largely ignored that it was the proposed benefit of the petitioner's 
research in ocean circulation and climate prediction that formed the basis for the director's initial approval of 
the national interest waiver petition. Because of his career change, the proposed future benefit to the national 
interest of the petitioner's work pertaining to climate research (subsequent to his admission as a permanent 
U.S. resident) no longer exists. According to Mitesh Prema's letter cited above, the proposed national benefit 
of the petitioner's work has now changed from environmental science to economics. In that regard, while 
petitioner's current work may benefit various business projects undertaken by his employer, his ability to 
impact the field beyond his firm's projects has not been demonstrated. The performance of economic 
research and mathematical modeling for a given business client is of interest mainly to that particular client. 
If the petitioner so chooses, he may file a new national interest waiver petition regarding the economic 
benefits associated with his present work for McKinsey & Company with the appropriate supporting evidence 
and fee. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
$ 1361. The burden remains with the petitioner in revocation proceedings to establish eligibility for the 
benefit sought under the immigration laws. Matter of Cheung, 12 I&N Dec. 715 (BIA 1968), affirmed in 
Matter of Estime, 19 I&N Dec. 450 (BIA 1987) and Matter of Ho, supra. Here, the petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.