dismissed EB-2 NIW Case: Computer Science

Identifyingd~t0 rt~1etedto
preventclc.:' uranted
iDvaaiooofpersonalprivacy
PUBLIC COpy
u.s.Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
LIN 05 152 50615
Office: NEBRASKA SERVICE CENTER Date: JUL 2 3 2.1
INRE: Petitioner:
Beneficiary:
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:
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.
~)jJlUrtt tJudf/eiL
rRobert P. Wiemann, Chief
t--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 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. § 1153(b)(2), as an alien of exceptional ability or a member of the professions
holding an advanced degree. The petitioner is currently a Ph.D. student and computer programmer who
seeks employment in the computer sciences. 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 the classification sought, 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, the petitioner submits a statement and new evidence. For the reasons discussed below, we
uphold the director's decision. The petitioner has not established that his track record in computer
science, the field he intends to pursue, warrants a waiver of the alien employment certification process
in the national interest.
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 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.
The petitioner holds a Ph.D. in Entomology from the University of Idaho. The petitioner, however,
does not intend to pursue employment in that field. Nevertheless, the petitioner holds a Master's
degree in Computer Science from the University of Idaho and is currently pursuing a Ph.D. in that field
at the same institution. 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.
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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 "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).
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 0:[, 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. ofTransp., 22 I&N Dec. 215 (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 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 concur with the director that the petitioner works in an area of intrinsic merit, computer science,
and that the proposed benefits of his work, improved survivable network systems, 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.
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
that any alien qualified to work on this project must also qualify for a national interest waiver.
Page4
Matter ofNew York State Dep't of Transp. , 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. Id. 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. Id. 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 specific
innovation serves the national interest must be decided on a case-by-case basis. Id. at 221, n. 7.
The petitioner studied and worked in the field of entomology in China through 1992. In 1992, the
petitioner began pursuing both a Ph.D. in Entomology and a Master's degree in computer science,
both of which he received in 1997. From 1998 through 2003, the petitioner worked as a network
engineer and a senior information systems engineer for private U.S. companies. In 2003, the
petitioner began pursuing his Ph.D. in computer science. The petitioner had not authored a single
article in the field of computer science that had been published as of the date of filing. In fact, the
petitioner had not published a single article since 1992.
_,an associate professor at the University of Idaho and the petitioner's computer
~earch advisor, discusses the petitioner's work. _explains that Survivable
Network Systems (SNS) and Survivable Systems Engineering ~oth initiated in 1999 at
Carnegie Melon University. Survivability is "the capability of a system to fulfill its mission, in a
timely manner, in the presence of attacks, failures or accidents." Since that time, there has been
increasing awareness of the potential for Internet attacks on telecommunications networks. The
petitioner's Ph.D. dissertation proposes a new approach to studying SNS by emulating
biological/ecological systems similar to an immune system. _ predicts that this work "will
produce cutting-edge technology in the area of SNS and SS~e very promising in offering
architectural solutions for built-in survivability and security products."
_ asserts that the petitioner's approach "is solidly based on his deep understanding of
several fields apparently unrelated on the surface." Specifically, the petitioner is relying on his
experience in computer networking and security, insect biology and ecology, survival analysis
statistics and mathematical ecology. notes that the petitioner's Ph.D. thesis in
~introduced survival analysis and catastrophe theory to the study of insect populations.
_ concludes:
The new direction [the petitioner] has proposed and led - approaching to [sic] SNS
from the perspectives of biology/ecology systems and using survival analysis as a
Page 5
modeling tool, is a natural expansion of his core expertise and remarkably broad
knowledge domain. For example, his current attempt to develop a "Fault
Aggregation" model and "Fault Aggregation Critical Point" is based on his early
population aggregation critical density (PACD) model for spatial distribution pattern
of insect population. His comparative studies of insect nerve systems,
communication messengers (pheromones), and endocrinology (hormone control) with
network systems may provide extremely valuable principles and mechanisms for
designing network architecture and control mechanisms with enhanced survivability.
The relationship between biodiversity and stability in ecosystem and community
studies may provide hints for building or enhancing survivability by adjusting
protocol diversity or the redundancy of communication channels.
then goes on to discuss all of the petitioner's accomplishments in entomology, including
receipt of a prestigious research funding award limited to young (under 40) faculty members in
China. We acknowledge that the petitioner has extensive experience in entomology, including
numerous articles, the research funding award and service on an editorial board. According to
Professor_ of Beijing Forestry University (BFU), the petitioner authored a widely
used textb~t management, founded the Laboratory of Insect Theoretical Ecology and
Computer Modeling at BFU and developed and released three software packages widely used for
managing pine forests. We also acknowledge that the petitio· is
entomology research at the University of Idaho, as ex lained b a
professor of entomology at the University of Idaho. asserts that the petitioner
"programmed his models (in CIC++) an essentially insurmountable task for most Ph.D. students of
entomology." The issue, however , is not whether the petitioner has unusual computer skills for an
entomologist. The petitioner seeks to work in the area of computer science, not entomology.
In a subsequent letter, _ indicates that the petitioner is a research scientist on a project
funded by the Idaho National Laboratory, U.s. Department of Energy, with the goal of developing
analytical methods that can predict the performance and Quality of Service (QoS) stability in Mobile
Ad Hoc Networks MANETs). This research relates to the maintenance of unmanned aerial vehicles
(UAVs). x lains that MANETS are vulnerable to intruders and more prone to fail than
other networks. asserts that the petitioner's work on this project will "seek inspirations
from the natural world, such as biological/ecological systems." ~, however, merely
discusses proposals. It is not clear that the petitioner had accomplished any influential results on this
project as of the date of filing. _ another professor at the University of Idaho, speculates
only that the petitioner's "current progress in his research foresees potentially very significant
advancement to the modeling of network survivability."
In a third letter, _asserts that the petitioner has identified problems with existing models
and has proposed "several very promising mathematical theories and methods, in particular, Survival
Analysis, Swarm Intelligence and Random Graph theory," to address these problems.
discusses each theory but does not assert that the petitioner has already produced influential results.
In fact, concedes that the petitioner "has been steadily acqumng the necessary
mathematical theories such as Random Graph to accomplish the final stage of his research." While
I explains that the theory is a "fluid open research topic and few researchers outside the
domain of pure mathematics command sufficient background to access it," it remains that, as of the
date of filing, the petitioner had yet to produce any final results and widely disseminate those results
in the field through publication.
The petitioner has asserted that the letters submitted should be accorded significant weight because
they are from experts in the field who, while having worked with the petitioner, have no reason to be
biased. We do not question the sincerity and expertise of the petitioner's references. Letters from
one's immediate circle of colleagues, however, cannot establish th r' in uence beyond
that circle. While the petitioner did provide a letter from Professor director of a
research project in France who has not worked with the petitioner, Professo oes not indicate
how he learned of the petitioner's work in computer science and states only that the petitioner's
proposals have the potential to produce significant results. Letters from independent experts are far
more persuasive when they are from experts who have learned of the petitioner through his work
disseminated in the field and who have applied that work themselves.
On appeal, the petitioner focuses on his publication record in China. He states:
Instead of calculating citation of a particular paper, which could be very tedious, an
approximation estimate of the citations of all my papers indexed by
scholar.Google.com site can be made by multiplying the number of entries and the
average citations per entry. In my case, the total entries are approximately 250, and
the citations per entry range from 1 to 32, and most are under 15. Take an average 7
or the even more conservative 5. The total citation should be around 1250 for all my
papers.
The petitioner is not persuasive. The petitioner searched for any inclusion of his name, which may
be a popular name, not simply those results listing his name within the author category.' Thus, the
250 results obtained by the petitioner (370 on appeal) do not represent 250 or 370 articles by him. It
can be expected that the petitioner is aware of the number of articles he has actually written as he
only lists 27 published articles on his curriculum vitae and submits evidence of no additional articles
into the record. It can also be presumed that the petitioner, alleged to be an expert in math, is aware
that multiplying the "average" number of citations per article by a number almost 10 times greater
than the number of articles he has personally authored will grossly exaggerate the total number of
citations of his work. Thus, the petitioner's credibility is diminished. Moreover, the petitioner has
not explained how he determined that one of his articles has been cited 32 times. The only article
cited 32 times in the Google Scholar results provided on appeal is a 1991 article that references the
1 The advanced search option on www.scholar.google.com allows the user to search for a name only within
the author category. The petitioner did not submit the results of such a search.
Page?
petitioner's name but is not authored by him. Specifically, the Chinese characters in the petitioner's
name do not appear among the authors of this 1991 article but occur later in the article. The highest
number of citations for any article authored by the petitioner is six. Most of the petitioner's articles
have been cited once or twice. While the petitioner has previously asserted that scholar.Google.com
is not complete, it remains that the record lacks evidence that the petitioner's articles have been
widely cited by articles not indexed by this site. Thus, the petitioner has not demonstrated that he is
widely and frequently cited in entomology.
Regardless, the petitioner's published articles all involve entomology. We do not question that the
petitioner is attempting to apply his entomology knowledge within the context of computer science
or that his immediate circle of colleagues find such a pursuit promising. It remains, however, that, as
of the date of filing, the petitioner has yet to produce any influential results in this area. Any future
accomplishments would have to form the basis of a new petition. See 8 C.F.R. § 103.2(b)(12);
Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg. Comm. 1971). At best, the petition was filed
prematurely, before the petitioner obtained significant results in SNS and disseminated those results
within the field through publication. Thus, the influence of the petitioner's SNS work cannot be
gauged.
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.
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.