dismissed EB-2 NIW Case: Engineering

identifying data deleted to 
prevent clearly unwarrantel 
invasion of personal privac: 
PUBLIC COPY 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
OfJice of Administrative Appeals, MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
APR 1 3 2010 
SRC 08 0 13 5098 1 
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. fj 1 153(b)(2) 
ON BEHALF OF PETITIONER: 
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. fj 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. fj 103.5(a)(l)(i). 
Perry Rhew w V Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition and reaffirmed that decision on motion. 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. tj 1 1 53(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as a senior 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 did not contest that the petitioner qualifies for classification as a 
member of the professions holding an advanced degree, but concluded 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, counsel submits a brief and additional evidence, some of which is already part of the record 
of proceeding. While we withdraw the director's unexplained conclusion in the initial decision that the 
petitioner does not work in an area of intrinsic merit, we uphold the director's ultimate conclusion that 
the petitioner has not demonstrated that a waiver of the alien employment certification process would 
be 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 Attomey 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. degree in Engineering from the University of Akron. The petitioner's 
occupation, a senior engineer for BD Medical, falls within the pertinent statutory definition of a 
profession. The petitioner thus qualifies as a member of the professions holding an advanced degree. 
Page 3 
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 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. 5 5, 1 0 1 st Cong., 1 st Sess., 1 1 (1 989). 
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 of New York State Dep 't. of Transp., 22 I&N Dec. 2 15, 2 17- 1 8 (Comm'r. 1 998) (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 2 17. 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 2 1 7- 1 8. 
It must be noted that, while the national interest waiver hinges onprospective 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. 
As noted by counsel, in the initial decision, the director concluded without explanation that the 
petitioner does not seek to work in an area of intrinsic merit. The petitioner works in liquid 
crystalline polymer (LCP) design and investigation. The record contains media coverage confirming 
that these polymers have many commercial applications in aerospace, electronics and health. Thus, 
we are persuaded that the petitioner works in an area of substantial intrinsic merit. We concur with 
the director that the proposed benefits of the petitioner's work, improved medical devices, 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. 
On appeal, counsel submits evidence about the reputation of the petitioner's employer. Nothing in 
the statute, regulations or NYSDOT, 22 I&N Dec. at 215 suggests that there are employers whose 
reputations alone warrant a waiver of the alien employment certification process for every alien they 
wish to hire. We are not persuaded that Congress intended the waiver as a blanket waiver for every 
distinguished employer. 
The petitioner also submits evidence regarding the importance of the catheters on which he works. 
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. NYSDOT, 22 I&N Dec. at 21 8. 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 submitted evidence that he is a member of the Materials Research Society (MRS). The 
letter from MRS Member Services Representative, indicates that members must be 
"actively enga ed in work relating to the research and development of advanced materials or materials 
processes." does not suggest that membership is indicative of influence in the field. 
Significantly, professional memberships are one type of evidence that can be submitted to support 
classification as an alien of exceptional ability. 8 C.F.R. tj 204.5(k)(3)(ii)(E). By statute, however, 
"exceptional ability" is not, by itself, sufficient cause for a national interest waiver. Section 
203(b)(2)(B)(i); NYSDOT, 22 I&N Dec. at 218. Thus, submitting evidence that relates to one 
criterion, or even the requisite three evidentiary criteria, for that classification does not warrant a 
waiver of the alien employment certification in the national interest. Id. at 21 8,222. 
The petitioner also submitted two published articles. While published articles may demonstrate 
exposure of the petitioner's work, it does not necessarily demonstrate the influence of that work. On 
motion, the petitioner submitted a single citation of one of her articles. While the citation predates 
the filing of the petition, a single citation is not indicative of a significant influence on the field as a 
Page 5 
whole. Thus, we concur with the director's conclusion in the final decision that the petitioner's 
publication record is not persuasive evidence that the alien employment certification should be 
waived in the national interest. 
In addition, the petitioner submitted evidence that he has reviewed manuscripts for Polymer 
Engineering & Science. an assistant professor at the University of Southern 
Mississippi, asserts that the editorial board of this journal strictly selects the reviewers. We note that 
there are numerous peer reviewed journals that all rely on many volunteers to review the large 
number of manuscripts submitted. The petitioner has not demonstrated that Polymer Engineering & 
Science relies on a small number of credited elite reviewers or submitted other evidence confirming 
that participating in the widespread peer review process demonstrates the petitioner's influence in the 
field. 
On motion, the petitioner submitted an invention disclosure record for an inventive concept 
completed July 15, 2008, after the filing of the petition. The petitioner must demonstrate his 
eligibility as of the filing date. See 8 C.F.R. $5 103.2(b)(l), (12); Matter ofKatigbak, 14 I&N Dec. 
45, 49 (Reg'l. 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. Matter of Wing's Tea House, 16 I&N 
Dec. 158, 160 (Reg'l. Cornm'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. 1 14 
(BIA 1981) for the proposition that we cannot "consider facts that come into being only subsequent 
to the filing of a petition.") Consistent with these decisions, a petitioner cannot secure a priority date 
in the hope that his as of yet incomplete inventive concept will subsequently be disclosed, patented 
and 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). Even if we considered this disclosure, whether a specific 
innovation serves the national interest must be decided on a case by case basis. NYSDOT, 22 I&N 
Dec. at 221, n.7. 
The remaining evidence consists of reference letters. On appeal, counsel asserts that the director did 
not read or understand the letters. Counsel states: 
First, [the petitioner] is the first scientist to synthesize PSHQ4-7CNCOOH, a 
completely new liquid crystalline polyester polymer with combined main-chain and 
side-chain liquid crystalline structure design. By virtue of this fact, it is obvious that 
[the petitioner] accomplished something more significant [than] other members of the 
profession with similar credentials and conducting similar work, since no other 
scientist has been able to accomplish this feat. Second, the [petitioner] has submitted 
a number of letters from those who do not personally know [the petitioner]. 
(Emphasis in original.) We will consider the letters in depth below. At the outset, however, we 
reiterate that original innovation, by itself, is insufficient. Id. Each innovation will be evaluated on a 
case by case basis as to its demonstrated influence in the field. Significantly, the Department of 
Labor's Occupational Outlook Handbook, http://www.bls.gov/oco/ocos027.htm (accessed April 1, 
2010 and incorporated into the record of proceedings), states that it is the nature of materials 
engineering to create and study new materials. While counsel stresses that the petitioner is the first 
engineer to synthesize a specific polymer, counsel is not persuasive that this fact separates the petitioner 
from other materials engineers who, while they have not synthesized this specific polymer, have likely 
synthesized other materials. Research work that is unoriginal would be unlikely to secure an engineer a 
master's degree or warrant a patent or publication in a journal. Novelty in and of itself, is insufficient 
without evidence of the influence of that original work. 
At the University of Akron, the petitioner worked in the laboratory of The 
petitioner did not submit a letter from explaining the nature of the petitioner's contribution to 
their ioint work. The ~etitioner did submit a letter from another member of the facultv at the Universitv - -- 
of &on, -. affirms that the petitioner synthesized P~HQ~-~CNCOOH, 
"a totally new LCP with combined main-chain and side-chain liquid crystalline structure" that is "in 
very pure and stable nematic mesophase." - explains that the petitioner's polymer "is of 
potentially great importantance [sic] to technological applications such as alignment layers in liquid 
crystal displays (LCDs) to obtain high pretilt angles." hrther asserts that the petitioner's 
work "bridges the gap between the theoretical study, application and development of combined main- 
chain and side-chain LCPs." Finally, concludes that the petitioner's "stunning achievements 
will be a milestone in the near future research and design of both LCPs and other new functional 
polymer materials." does not, however, provide examples of new lines of research that have 
arisen due to the petitioner's influence. 
1, an associate professor at Case Western Reserve University in Cleveland, 
Ohio, explains that there has been a growing demand for high barrier packaging materials. While LCPs 
have low gas permeability, as explained by one of the challenges with these materials is 
that they need to have a reasonably low melting temperature. According to the petitioner 
"did not follow traditional methods in design and synthesis" in developing a new polymer. The 
resulting polymer, explains, "has not only a low clearing temperature, but also a very 
stable glassy mesophase without any clystallization behavior over the very wide temperature range 
(90°C)." concludes with several reasons why the petitioner works in an important field 
but does not explain how the petitioner's results are already being used in the field. 
a distinguished professor at Purdue University and a member of the National 
Academy of Engineering, acknowledges that he previously worked at the University of Akron but 
asserts that he knows of the petitioner's work through his publications. characterizes the 
petitioner's work as "absolutely revolutionary" and concludes that the petitioner has "significantly 
advanced the field of LCPPs from the basic theory to final practical processing stage." While we do 
not cpestion- sincerity and expertise, he does not sufficiently support his conclusions with 
examples of how the petitioner's work has already been applied. It can be expected that work that is 
"revolutionary" and that has "significantly advanced the field would have garnered some independent 
attention in the field beyond solicited letters in support of the petition and a single citation that 
acknowledges the petitioner's work but concludes that it does not "directly address [thermotropic 
LCPs], where improved basic understanding would be of the most practical benefit." 
collaboration with that company. This letter, however, does not demonstrate the petitioner's influence 
beyond the state where he was studying for his Ph.D. 
"leading research and development activities around advanced compounding extrusion methods for the 
polyurethane elastomers utilized in BD's new-generation BD ~exiva" Closed Inlravenous Catheter 
System." While speculates that the petitioner's team "will identify potential solutions 
to many serious and unsolved roblems," he does not explain how the petitioner's work has already 
become influential. -notes that the petitioner's contributions to BD Medical are 
documented in confidential technical reports and invention disclosures. The invention disclosure 
provided, however, postdates the filing of the petition and, thus, cannot be considered. See 8 C.F.R. 
55 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. at 49. In discussing the petitioner's previous 
work at the University of Akron, concludes that the knowledge gained from this 
research "has great potential for future design and development of other functionally-oriented polymer 
materials" but provides no examples of industrial or academic teams pursuing such work based on the 
petitioner's results. 
of Utah, asserts that the petitioner is a "real pioneer on new property-oriented design, synthesis and 
rheology investigation of combined main-chain and side-chain liquid crystalline polymer, and is the 
first one, as far as I am aware, to report a real glassic combined main-chain and side-chain liquid 
crystalline polymer in both thermotropic and lyotropic states." further asserts that the 
petitioner "is the first person to experimentally demonstrate the mesogen tumbling of a synthetic liquid 
crystalline polymer." As stated above, however, original innovation, by itself, is insufficient. 
NYSDOT, 22 I&N Dec. at 221, n. 7. In addressing the applications of the petitioner's work, 
provides only speculations. For example, speculates that applying the 
petitioner's work to optical limiting devices could increase the performance and lower the cost of using 
such devices "in the potential application of sensor and eye protection." further speculates 
that the petitioner's results "can be extended to many traditional polymer materials for producing more 
stable medical devices." While the petitioner is working on such projects at BD Medical, the record 
lacks evidence that BD has finalized any products based on the petitioner's work and, in fact, the only 
invention disclosure relating to the petitioner's work in the record postdates the filing of the petition. 
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 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, 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 Matter of Sofici, 22 I&N Dec. 158, 
165 (Comm7r. 1998) (citing Matter of Treasure Crafi of California, 14 I&N Dec. 190 (Reg71. 
Comm'r. 1972)). 
The letters considered above primarily contain bare assertions of talent, originality and vague claims 
of contributions without specifically identifying how those contributions have already influenced the 
field. Merely repeating the language of the legal requirements does not satisfy the petitioner's 
burden of proof.1 While the petitioner did submit independent letters, these letters do not suggest the 
authors have applied the petitioner's work and provide no examples of independent research teams 
that have done so. The petitioner also failed to submit corroborating evidence in existence prior to 
the preparation of the petition, which could have bolstered the weight of the reference letters. 
While the petitioner's research is no doubt of value, it can be argued that any research must be 
shown to present some benefit if it is to receive funding and attention from the scientific community. 
While the petitioner's research clearly has practical applications, it can be argued that any Ph.D. 
thesis or published article, in order to be accepted or published, must offer new and useful 
information to the pool of knowledge. The record lacks evidence of the petitioner's influence in the 
field such that a waiver of the alien employment certification is warranted in the national interest. 
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. § 1 36 1. The petitioner has not sustained that burden. 
' Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1 108 (E.D.N.Y. 1989), afd, 905 F. 2d 41 (2d. Cir. 1990); 
Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). Similarly, USCIS need not accept 
primarily conclusory assertions. 1756, Inc. v. The Attorney General of the United States, 745 F. Supp. (D.C. 
Dist. 1990). 
Page 9 
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.