dismissed EB-2 NIW Case: Computational Electromagnetics

identifying data deleted to 
prevent clearly ~nwarranted 
invasion of personal privacy 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. $ 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
vrry Rhew 
Chief, Administrative Appeals Office 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will 
dismiss the appeal. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. 1153(b)(2), as a member of the professions holding an advanced degree. At the 
time he filed the petition, the petitioner was a postdoctoral fellow at Clemson University, Clemson, 
South Carolina. U.S. Citizenship and Immigration Services (USCIS) records indicate that he now 
works at Washington University, St. Louis, Missouri. 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. The director found that the petitioner qualifies for classification as a member of the professions 
holding an advanced degree, but that the petitioner has not established that an exemption from the 
requirement of a job offer would be in the national interest of the United States. 
On appeal, the petitioner submits a brief from counsel, a new witness letter, and copies of materials 
already in the record. 
Section 203(b) of the Act states, in pertinent part: 
(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 director did not dispute that the petitioner qualifies as a member of the professions holding an 
advanced degree. The sole issue in contention 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 the 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, 10 1 st Cong., 1 st Sess., 1 1 (1 989). 
Supplementary information to regulations implementing the Immigration Act of 1990 (IMMACT), 
published at 56 Fed. Reg. 60897, 60900 (November 29, 1991), states: 
The Service [now USCIS] 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 Dept. of Trunsportation, 22 I&N Dec. 215 (Commr. 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 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. 
We also note that the regulation at 8 C.F.R. 5 204.5(k)(2) defines "exceptional ability" as "a degree 
of expertise significantly above that ordinarily encountered" in a given area of endeavor. By statute, 
aliens of exceptional ability are generally subject to the job offerllabor certification requirement; 
they are not exempt by virtue of their exceptional ability. Therefore, whether a given alien seeks 
classification as an alien of exceptional ability, or as a member of the professions holding an 
advanced degree, that alien cannot qualify for a waiver just by demonstrating a degree of expertise 
significantly above that ordinarily encountered in his or her field of expertise. 
The petitioner filed the petition on October 29, 2008. Counsel described the petitioner's area of 
endeavor: 
[The petitioner] has been conducting research in computational electromagnetic: 
electromagnetic compatibility . . . , printed circuit board design, and automotive 
electronics design. In the course of his career, [the petitioner] has exhibited considerable 
expertise in this field and made major contributions. 
Page 4 
Perhaps the most significant example of [the petitioner's] many contributions is his 
development of a LU recombination method to improve the performance of boundary 
element methods at low frequencies. . . . His method greatly reduces the complexity 
when analyzing electromagnetic problems in both low and high-frequency range. 
Several witness letters accompanied the initial filing of the petition. 
stated: 
[The petitioner] is currently working under my direction as a post-doctoral researcher in 
the Clemson Vehicular Electronics Laboratory. I have known [the petitioner] since 
2001 when he joined my group as a Ph.D. candidate at the University of Missouri-Rolla. 
. . . He has played a key or leading role in each project he has been a part of in my 
program. . . . He is a top researcher in the area of electromagnetics and I expect him to 
continue to produce great breakthrough works in the future. 
. . . [The petitioner's] research work yielded a major breakthrough in the application of 
full-wave electromagnetic modeling techniques at low frequencies. . . . This cutting- 
edge research plays and will continually play a vital role in the development of 
improved numerical modeling tools to provide a more sophisticated and diverse range of 
services. . . . 
[The petitioner] has been working on several projects at Clemson and has cultivated a 
number of successes. For example, [the petitioner] works with several students on a 
project supported by the US Army Research Office to evaluate and document the state- 
of-the-art in numerical electromagnetic modeling software. With his profound 
knowledge and expertise in computational methods, he efficiently directs the students' 
work, which has already yielded fruitful results. 
who "started to collaborate on a research project" with the petitioner after 
meeting the petitioner "through his advisor' stated that a 2006 paper in which the 
petitioner "proposed a new original method of calculating static charge distribution . . . was a major 
contribution to the analysis of low frequency magnetic field and numerical modeling of 
electromagnetics." 
formerly the University of Missouri-Rolla, served on the beneficiary's doctoral dissertation committee 
and collaborated with him on various projects. stated that the beneficiary "is on his 
way to becoming a top researcher in this field," having "conceived and developed a unique 
mathematical formulation to improve the performance of different types of numerical electromagnetic 
tools at low fiequencies." 
after [the petitioner] left, I did not get a chance to work with him directly, though I have been highly 
impressed with his published works." According to urriculum vitae in the record, m 
attended Tsinghua university from 1989 to 1997; the petitioner attended the same university from 1993 
to 2001. ~lso, studied at MST from 1997 to 2000, and collaborated withduring 
that time, before leaving MST in 2000 and returning in 2007. 
stated that the petitioner "has made significant contributions in the field of numerical 
electromagnetic techniques and their applications to complex and challenging problems, such as the 
practical printed circuit board design. What impressed me most is . . . [the petitioner's] LU 
recombination method." 
of the University of Mississippi, who served with on the 
editorial board of the Applied Computational Electronics Society Journal, stated: 
Although I do not know [the petitioner] personally, I have read his papers on the subject 
of full-wave modeling. . . . 1 am impressed by [the petitioner's] research and his great 
achievements in the improvement of full-wave modeling techniques. . . . His work 
addressed the low-frequency instability, which is an inherent limit of most boundary 
element methods. As I know, [the petitioner] is the first to solve the problem in a post- 
processing manner. . . . This property enables simplified incorporation of [the 
petitioner's] improved method into a variety of applications without affecting their 
performance at high frequency. 
[The petitioner's] contributions regarding electromagnetic modeling techniques are quite 
significant and impressive. I got to know of his research when I served as the chairman 
of [the] 2006 Applied Computational Electromagnetic Society Conference. I had the 
honor to present the 2006 Best Paper Award to [the petitioner] for his paper regarding 
low-frequency boundary element techniques. . . . Out of 34 papers eligible for this 
award, [the petitioner's] stood out as the best based on the criteria of scientific 
excellence. 
. . . [The petitioner's] method undoubtedly is a great advance for the development of 
computational tools in electromagnetics, and has wide applications with the rapid 
development of new electronic products and techniques. 
of the National University of Singapore, also a laboratory director at the Institute of 
High Performance Computing, stated: 
I knew about [the petitioner's] work initially through reading and reviewing a couple of 
his scientific papers, and thereafter we had interacted at [a] number of international 
Page 6 
conferences and meetings. . . . Very recently, I attended his presentation at the 2008 
IEEE International Symposium on Electromagnetic [Clompatibility. . . . I would 
highlight that his presentation is great where he presented his recent research work on 
benchmark studies of the key computational electromagnetic techniques. His research 
findings definitely have a great impact on various industries including microlnano- 
electronic industry, automotive, aerospace and communication industries. 
The witnesses have praised the broad applications of the petitioner's method, but the record does not 
establish that the petitioner's method is, in fact, in wide use or has gained significant recognition outside 
of conferences where the petitioner presented his work. The petitioner submitted copies of his own 
published and presented work, but no evidence to show the extent, if any, to which other researchers 
have cited that work. 
The director denied the petition on April 30, 2009. The director acknowledged the intrinsic merit and 
national scope of the petitioner's occupation, but found that the petitioner had not shown that he "has 
accomplished anything more significant than other capable members of their profession holding similar 
credentials and conducting similar work." 
On appeal, the petitioner submits a witness letter repared in October 2008, but not included in the 
initial filing of the petition. of the University of Illinois at Urbana-Champaign 
stated that the petitioner's "technique opens another way to analyze the low-frequency problem" and 
that the petitioner's "research in the development of EM modeling techniques holds great technological 
merit." The letter is, overall, similar to previously submitted letters, and as such it adds little to the 
record. 
Counsel's appellate brief consists primarily of a discussion of the petitioner's initial submission. 
Counsel asserts that the petitioner's "innovative LU recombination method . . . has inspired and 
influenced the work of several non-affiliated researchers" (emphasis in original). The petitioner has 
been able to locate witnesses who attest to the significance of his work, but the record contains no 
evidence of the implementation of his ostensibly ground-breaking methods, either in theory (through 
independent citation of his published work) or in practice (through new research or manufacturing 
techniques adopted on a significant scale from his work). Unless we make the indefensible finding that 
the job offerllabor certification requirement applies only to researchers whose work has been 
completely devoid of any influence, it cannot suffice for the petitioner to produce a handful of anecdotal 
accounts of how his work has been of use to other researchers. 
Counsel asserts that the director did not give sufficient weight to the petitioner's "receipt of a Best 
Paper Award from the Applied Computational Electromagnetics Society." Counsel has asserted that 
this was "a major award," but the assertions of counsel do not constitute evidence. See 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 ofliamirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
Furthermore, under 8 C.F.R. 5 204.5(k)(3)(ii)(F), institutional recognition such as the Best Paper Award 
amounts to part, but not all, of a successful claim of exceptional ability in the sciences. As we have 
noted, aliens of exceptional ability in the sciences, including award recipients, are typically subject to 
the job offedlabor certification requirement. Therefore, a fiagment of an exceptional ability claim is not 
presumptive evidence that the petitioner qualifies for the waiver, which is a special benefit over and 
above the underlying classification. 
Upon consideration of the evidence presented, we find that the petitioner has failed to submit 
objective documentation to support the subjective claims of witnesses whom the petitioner has 
selected to support his petition. With time, the witnesses may well be proven right in their 
confidence of the petitioner's promise, but the record does not show that the petitioner had had a 
significant impact on his field at the time he filed the petition. 
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. 5 1361. The petitioner has not sustained that burden. 
This decision 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.