dismissed EB-2 NIW Case: Electronic Engineering

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FILE: 
IN RE: Petitioner: 
Beneficiary: 
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u.s. Citizenship 
and Immigration 
Services 
Office: NEBRASKA SERVICE CENTER Date: 
JAN 12 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. § IIS3(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 havc 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 specitic requirements for filing such a request can be found at 8 c.r.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by tiling a Form 1-290B, Notice of Appeal or 
Motion, with a fee of $630. Please be aware that 8 C.F.R. § I 03.5(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, 
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 an alien of exceptional ability or a member of the professions 
holding an advanced degree. The petitioner was a Ph.D. student at the time of filing and indicated on 
the petition, Part 6, that his proposed employment was as a researcher and teacher. The subsequent 
unsigned job offers submitted, however, offer employment as an engineer. 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. 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. 
(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. 
It appears from the record that the petitioner seeks classification as an alien of exceptional ability. This 
issue is moot, however, because the record establishes that the petitioner holds a Master's degree in 
Electronics Engineering from the University of Science and Technology of China. 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 
Page 3 
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 the phrase, "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, 101 st Cong., 1 st Sess., 11 (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 
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 o{New York State Dep·t. ofTransp., 22 I&N Dec. 215, 217-18 (Comm'r. 1998) (hereinafter 
"NYSDOT"), 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 prospective national benefit, 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 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. Id 
We concur with the director that the petitioner works in an area of intrinsic merit, electronic 
engineering, and that the proposed benefits of his work, improved integrated circuits and the 
semiconductor industry in general, would be national in scope. On appeal, the petitioner asserts that 
because the director found that the petitioner meets the first two factors, his "future contributions are 
bound to have a national impact." We cannot conclude that meeting the first two factors creates a 
presumption that the alien meets the final factor, which is the only factor that looks at the alien's 
personal accomplishments rather than the nature of the proposed employment and, thus, involves 
Page 4 
entirely separate considerations. Notably, the alien in NYSDOT was found to meet the first two 
factors but not the final factor. 
The petitioner and several references note the importance of the semiconductor industry. Eligibility for 
the waiver, however, 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. ld. 
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. 
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 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. 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 documented his student and graduate student membership in the Institute of Electrical 
and Electronics Engineers (IEEE). The record, however, does not indicate that IEEE requires that 
student members demonstrate any accomplishments beyond their status as a student for membership. 
Thus, this membership does not appear to set the petitioner apart from other engineering students. 
Regardless, professional memberships are one criterion for eligibility as an alien of exceptional ability, 
8 C.F.R. § 204.5(k)(3)(ii)(E), a classification that normally requires an approved alien employment 
certification from the Department of Labor. 
Similarly, some of the petitioner's references assert that he has won first and second place at robotics 
competitions in China in 2003 and 2004, although the certificates submitted only verifY his 
participation in these events. The petitioner also submitted evidence that he received a travel grant 
from his university. Even if the petitioner won recognition at the robotic competitions and had 
demonstrated the significance of the travel grant, such evidence falls under the final criterion for aliens 
of exceptional ability, 8 C.F.R. § 204.5(k)(3)(ii)(F). By statute, "exceptional ability" is not, by itself 
sufficient cause for a national interest waiver. Id at 218, 222. Thus, we cannot conclude that 
evidence relating to or even meeting two criteria or even the requisite three criteria warrants a waiver 
of that requirement. 
In addition, the petitioner submitted evidence of his academic scholarships and his invitation to join 
the Golden Key International Honor Society at the University of Illinois, Chicago (UIC) based on his 
ranking in the top 15 percent of his class. Academic performance, measured by such criteria as grade 
--Page 5 
point average (the basis of class ranking), cannot alone satisfY the national interest threshold or 
assure substantial prospective national benefit. In all cases the petitioner must demonstrate specific 
prior achievements that establish the alien's ability to benefit the national interest. Id. at 219, n.6. 
The petitioner also submitted evidence that, after the date of filing, he was nominated for inclusion in 
Who's Who in America. As evidence of the significance of this publication, the petitioner submitted 
materials about the publication on Wikipedia. Acknowledging that the director specifically requested 
additional evidence that predates the filing of the petition, the petitioner asserted that events after the 
date of filing should be considered because research is ongoing and publications after the date of 
filing can represent work performed prior to that date. 
The petitioner must demonstrate his eligibility as of the filing date. See 8 C.F.R. §§ 103.2(b)(I), 
(12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'1. Comm'r. 1971). In this matter, that means that 
he must demonstrate his track record of success with some degree of influence on the field as a 
whole as of that date. All of the case law on this issue focuses on the policy of preventing petitioners 
from securing a priority date in the hope that they will subsequently be able to demonstrate 
eligibility. See Matter o[Wing's Tea House, 16 I&N Dec. 158, 160 (Reg'\. Comm'r. 1977); Matter of 
Katigbak, 14 I&N Dec. at 49; see also Matter of Izummi, 22 I&N Dec. 169, 175-76 (Comm'r. 1998) 
(citing Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981) for the proposition that we cannot 
"consider facts that come into being only subsequent to the filing of a petition.") Consistent with 
this policy, the petitioner may not establish a priority date in the hope that his recently completed 
work will subsequently prove influential. Ultimately, in order to be meritorious in fact, a petition 
must meet the statutory and regulatory requirements for approval as of the date it was filed. 
Ogundipe v. Mukasey, 541 F.3d 257, 261 (4th Cir. 2008). 
Regardless, there are no assurances about the reliability of Wikipedia, an open, user-edited internet 
site. l See Lami/em Badasa v. Michael Mukasey, 540 F.3d 909 (8th Cir. 2008). Moreover, the 
information provided by the petitioner from this site is not necessarily helpful to his claim as it 
indicates that Who's Who publications offer features associated with a "vanity press," such as selling 
J Online content from Wikipedia is subject to the following general disclaimer: 
WIKIPEDlA MAKES NO GUARANTEE OF VALIDITY. Wikipedia is an online open-content 
collaborative encyclopedia, that is, a voluntary association of individuals and groups working to 
develop a common resource of human knowledge. The structure of the project allows anyone with 
an Internet connection to alter its content. Please be advised that nothing found here has necessarily 
been reviewed by people with the expertise required to provide you with complete, accurate or 
reliable information .... Wikipedia cannot guarantee the validity of the information found here. The 
content of any given article may recently have been changed, vandalized or altered by someone 
whose opinion does not correspond with the state of knowledge in the relevant fields. 
See http://en.wikipedia.orglwiki/Wikipedia:General disclaimer, accessed on December 3, 2009, a copy of 
which is incorporated into the record of proceeding. 
merchandise. Wikipedia does not indicate who is eligible to nominate individuals, including whether 
or not someone can nominate himself. The information on Wikipedia also suggests that the 
publication contains more than 100,000 biographies. We are not persuaded that appearing as one of 
hundreds of thousands of biographical blurbs in a for-profit dictionary is indicative of the petitioner's 
influence in the field. 
The record also contains evidence that the pelitlOner reviewed abstracts for IEEE's 2008 
International Symposium on Circuits and Systems (ISCAS) and a 2006 Great Lakes Symposium on 
Very-Large-Scale-Integration (GLSVLSI) prior to the date of filing. The list of reviewers for the 
GLSVLSI symposium identifies 138 reviewers. The record does not establish the number of 
reviewers for the IEEE symposium. The large number of reviewers for GLSVLSI suggests that 
serving as a peer reviewer does not separate the petitioner from other engineers or demonstrate his 
past influence in the field. 
In response to the director's request for additional evidence, the petitioner submitted unsigned job 
offers from Intel, Mentor Graphics and Trading Technology, all dated after the date of filing. As 
stated above, the petitioner must establish his eligibility as of the date of filing. See 8 C.F.R. 
§§ 103.2(b)(l), (12); Matter of Katigbak, 14I&N Dec. at 49. Regardless, the job offers have no 
evidentiary value because they are unsigned. Moreover, while the petitioner notes the prestige of 
Intel, the petitioner's ability to secure employment, even with a large distinguished employer, is not 
evidence that the alien employment certification process, which must be initiated by an employer, 
should be waived in the national interest. 
The remaining evidence constitutes the petitioner's theses (which he characterizes as "books"), his 
publications, his presentations at conferences, citations of his work and listings on citation databases 
and reference letters. On appeal, the petitioner asserts that the director did not fully consider or 
understand this evidence. We will consider all of this evidence in detail below. 
Regarding the letters, U.S. Citizenship and Immigration Services (USCIS) may, in its discretion, use 
as advisory opinions statements submitted as expert testimony. See Matter of 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 
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. Jd. at 795; see also Matter of Soffici, 22 I&N Dec. 158, 
165 (Comm'r. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'1. 
Comm'r. 1972)). 
In evaluating the reference letters, we note that letters containing mere assertions that the petitioner 
has contributed to the field are less persuasive than letters that provide specific examples of how the 
petitioner has influenced the field. In addition, letters from independent references who were 
previously aware of the petitioner through his reputation and who have applied his work are the most 
persuasive. 
As stated above, the petitioner received his Master of Science degree from the University of Science 
and Technology of China and was a Ph.D. student at UIC as of the date of filing. Initially, the 
petitioner submitted letters associate professor at the Univ~ce 
and Technology of China; petitioner's advisor at UIC; _ a 
prin~ngineer at mem of the lion committee; 
and _ a senior electronics systems engineer at who is the only 
independent reference to support the petition. In response to the director's request for additional 
evidence, the petitioner submitted a letter from Dr. Ashfaq Khokhar, a professor at UIC. 
~ss,crrs that the petitioner's undergraduate design project involved the design and 
impleme:nt,ltion of "a wireless data sampling syst~ using Microchip MCU and the Nordic 
wireless communication mo~rding to ~is system was "considered one of the 
best of its kind by experts." ~urther asserts that, based on this project, the petitioner was 
admitted to the graduate program where he "designed and implemented a dancing robot control 
system, and a small soccer robot wireless communication system and control system." In addition, 
according to petitioner "designed, simulated and did the layout of a 0.25 urn 
technology circuit using Cadence Virtuosos schematic, layout and Spectre circuit 
simulator." concludes that the petitioner further distinguished himself at Chinese robot 
•
om etitions, although the petitioner has only documented his participation in these events. _ 
does not explain how the petitioner's work is b~emented in the field or provide 
specific examples of the petitioner's influence. Rather, _ asserts that only an experienced 
researcher could appreciate the petitioner's accomplishments and concludes: "suffice it to say that 
they are important contributions in critical areas of electronics engineering and information science 
research of far reaching practical significance." While we concede that we do not have the scientific 
expertise to evaluate complex technical discussions, we can of independent 
research institutions applying the petitioner's work, examples that does not provide. 
pnlis<:s the petitioner's publication record, asserting 
research "breaks new ground in the study of nanometer integrated circuit[ s)." 
not suggest, however, that the petitioner's Ph.D. thesis has been as a a 
advanced by the petitioner but not supported in the record. Rather, the copy of the petitioner's thesis 
in the record is an unpublished manuscript. Moreover, any Ph.D. thesis, in order to be accepted for 
graduation, 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 justifies a waiver of the job offer requirement. 
More specifically, three projects pursued by the petitioner at UIC. First, 
the petitioner proposed a fast algorithm to acc~he global interconnect performance at 
the presence of capacitive coupling noise. _ concludes that this algorithm "will 
~rove the design and verification efficiency of the future large integrated circuit." 
__ does not identify any academic institution or circuit developer utilizing or even 
expressing an interest in these results. 
Second, the petitioner's promising preliminary results in developing a 
technique as a better circuit design tool and effectively facilitate the debugging of 
current integrated circuits. This work appears to be too early in the process to have influenced the 
field as of the date of filing. 
Finally, --iSCUssesMl!he etitioner's analysis and optimization of interconnect 
pipeIinin~ifically, speculates that the petitioner "will develop a 
methodology to optimize the repeater size an t e number of flip-flops inserted, maximizing a user­
specified figure of merit, and achi~e tradeoff between wire delay, [bit error rate 
(BER)] and power consumption." ~her speculates that this work "will help chip 
designers optimize the global interconnect wires of current and future large integrated circuit so as to 
reduce the power consumed by the interconnect wires of current and future large integrated circuit so 
as to reduce the power consumed by the interconnect wires while increasing the solidity at the same 
time." Once again, this work appears to have been in too early a stage at the time of filing to be 
considered part of the petitioner's alleged past track record of success with some degree of influence 
on the field. 
ll";U""" the same projects as those discussed by Once again, • 
_ iscussion of the final two projects does not suggest that they were far enough along as of 
e a e of filing to have influenced the field. Rather, _also speculates as to their eventual 
impact. Regarding the first project, _ asserts that the petitioner greatly accelerated the 
timing verification and evaluation process of the design stage of large integrated circuits in 
comparison with the traditional transient simulation software HSPICE. _ does not, 
however, assert that Motorola where he works or any other integrated circuit developer is pursuing a 
shift from HSPICE to the petitioner's algorithm. 
~rovides broad assertions, such as the claim that the petitioner has excelled in projects 
~ach of the majority of native U.S. researchers and the claim that the petitioner "turned 
out a stunning amount of high quality research results." Such broad, va~e only 
persuasive when supported by specific examples of the petitioner's influence. _asserts 
that the petitioner's recognition as an expert and growing influence are demonstrated by the 
invitations to review abstracts for conferences. As stated above, however, at least one of these 
conferences utilized 138 reviewers to assist with the necessary peer review process that must be 
undertaken at every peer reviewed . and by every peer reviewed journal, of 
which there is a great number. Significantly, not provide examples of the growing 
utilization of the petitioner's algorithms. 
Page 9 
discusses the difficulty of using the alien employment certification process to 
secure employment of especially creative foreign engineers in the semiconductor arena because 
there is no shortage of U.S. workers who are trained engineers in this area. 
that Congress designed the national interest waiver to address this problem. It IS to assert 
that an employer would be unable to secure an approved alien employment certification in behalf of 
the petitioner, an issue that is ultimately under the jurisdiction of the Department of Labor. The 
petitioner must demonstrate that he personally will serve the national interest to a greater extent than 
an available U.S. worker with the same minimum qualifications. It is also insufficient to simply 
provide a letter from a close colleague stating that this is the case. Rather, the petitioner must 
provide evidence of his influence beyond his immediate circle of colleagues. 
As stated only independent reference letter is from currently a Ph.D. 
candidate. that his knowledge of the petitioner the petitioner's 
conference presentations, publications and curriculum vitae. _ asserts that the petitioner's 
presentation on "Better Leakage Reduction by Exploiting the Built-in MOSFET -Vth Characteristics" 
was original, innovative and produced breakthrough results. _explains that based on this 
presentation, he reviewed the petitioner's other ~ions and presentations from 2006 and 
2007, which amount to an "incredible number." ~ter concludes that this "large" number 
of publications is sufficient to establish the petitioner's influence, although _oes not affirm 
using the petitioner'S algorithms or otherwise being influenced by the petitioner's work. 
The record establishes that the petitioner has authored three theses, none of which are documented as 
published books despite the petitioner's claims. The petitioner also documented five articles 
published prior to the date of filing between 2004 and 2007. The petitioner also presented his work 
at 12 conferences in 2006 and 2007. Some references assert that this number alone is evidence of the 
petitioner's influence. Assuming the petitioner is a prolific author, he must still demonstrate the 
influence of these articles. The petitioner did document citations of his work. On appeal, the 
petitioner asserts that the director erred in concluding that all of the citations are self-citations by a 
coauthor. A careful review of the evidence reveals that while all of the English citations are, in fact, 
by a coauthor, the Chinese-language citations are independent. Five articles have cited the 
petitioner's 2005 article on soccer robots. The remaining evidence reflects no more than two 
citations of any of the petitioner'S other articles individually. 
On appeal, the petitioner asserts that citations are not the only evidence that can demonstrate an 
impact and notes that it takes time for citations to appear. We concur with the petitioner that 
citations are not required evidence. That said, the petitioner must demonstrate a record of success 
with some degree of influence in the field. Absent citation evidence consistent with such an 
influence, the petitioner must provide other evidence of his influence, such as letters from 
independent reference who have utilized his results. The record lacks such evidence. While we also 
understand that citations take time to appear, even assuming that additional citations are 
forthcoming, the petition in this matter was filed prematurely, before the impact of the petitioner's 
work can be demonstrated. 
We concur with the director's concern that self-citations by a coauthor, in this case 
do not demonstrate the petitioner's influence outside his own labo~eal, the petitioner 
notes that he is the first author of some of the cited work and that_ cites his work in 
collaboration with researchers with whom the petitioner has not collaborated. While true, it remains 
that the petitioner's own advisor is the only individual citing the petitioner's Ph.D. research. Such 
citation, while a normal and expected practice, cannot demonstrate the petitioner's influence outside 
his own laboratory. 
The record shows that the petitioner is respected by his colleagues and has made useful contributions 
in his field of endeavor. As stated above, however, it can be argued that most Ph.D. research, in 
order to be accepted for graduation, must be original and present some benefit to the general pool of 
scientific knowledge. It does not follow that every researcher publishing original results in an area of 
importance to the U.S. economy inherently serves the national interest to an extent that justifies a 
waiver of the job offer requirement. 
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.