dismissed EB-2 NIW Case: Engineering

data deWcd r 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Of$ce ofAdministrative Appeals, MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
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. 5 1153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All docilments have been returned to 
the office that originally decided your case. Any hrther 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. 5 103.5 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). 
Aerry Rhew 
V 
Chief, Administrative Appeals Office 
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. 5 1153(b)(2), as an alien of exceptional ability or a member of the professions 
holding an advanced degree. The petitioner seeks employment as a postdoctoral researcher. 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, counsel submits a brief and additional evidence. 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. 
The petitioner holds a Ph.D. from Pennsylvania State University. 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 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., 1 1 (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 of New York State Dep 't. of Trunsp., 22 I&N Dec. 2 15, 21 7-1 8 (Cornrn'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 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 futwe 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, engineering, and 
that the proposed benefits of his work, improved machine control and power electronics, 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. Id. 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 22 1. 
Page 4 
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 2 19, 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 22 1, n. 7. 
As stated above, the petitioner received his Ph.D. from Pennsylvania State University and continued 
there as a lecturer and postdoctoral researcher upon graduating. The petitioner submitted evidence that 
he is a member of the Institute of Electrical and Electronics Engineers (IEEE). The petitioner also 
submitted evidence that membership is open to those who meet specific education or experience 
requirements. Thus, this membership does not appear to set the petitioner apart fiom any other 
engineers. Even if the petitioner had established that IEEE membership is indicative of a degree of 
expertise significantly above that ordinarily encountered in the field of engineering, such memberships 
are but one criterion for establishing eligibility as an alien of exceptional ability, 8 C.F.R. 
fj 204.5(k)(3)(ii)(E), a classification that normally requires an approved alien employment certification. 
We cannot conclude that meeting one of the criteria for that classification, or even the requisite three 
criteria, warrants a waiver of the alien employment certification process in the national interest. Id. at 
218,222. 
The petitioner also submitted reference letters discussing his work at Pennsylvania State University, his 
manuscripts and published articles, a patent application listing the petitioner as an inventor and media 
coverage of the device discussed in the patent application fiom years before the petitioner worked on 
the project and the patent application was submitted. 
In evaluating the content of the letters, we note the following. 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. Id. at 795; 
see also Matter of SofJici, 22 I&N Dec. 158, 165 (Comm'r. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg'l. Comm'r. 1972)). 
In evaluating the reference letters, we note that letters containing mere assertions of generic 
"contributions" and a positive response in the field are less persuasive than letters that provide 
specific examples of how the petitioner has influenced the field. In addition, letters from 
Page 5 
independent references who were previously aware of the petitioner through his reputation and who 
have applied his work are the most persuasive. 
an associate professor at Pennsylvania State University and the petitioner's thesis 
advisor, concludes that the petitioner's research at that institution "has been nothing short of 
incredible." While we do not question sincerity or expertise, more ersuasive are 
explanations as to how the petitioner has influenced the field. More specifically, m 
discusses the petitioner's thesis project, which involved the development of a speed sensor-less control 
system for an induction machine based on carrier signal injection and the smooth-air-gap induction 
machine model. In completing this work, according to the petitioner resolved the 
following disadvantages with previous attempts in the field: "1) they utilized second-order effects, 2) 
they required physical modification of the rotor structure, 3) they lacked rigorous proof of the stability 
of the technique, or 4) they were subject to error due to noise." notes that the petitioner 
presented and published the results of this work, but provides no examples of how it is already 
influencing the field. 
, a professor at the University of Sheffield, does not explain how he became aware of 
the petitioner's work. begins by explaining the importance of the petitioner's area of research, 
which is not contested in this proceeding. then asserts that the petitioner "successfully utilized 
a two-time-scale method for the speed sensor-less control of an induction machine so that unlike the 
techniques proposed by the others previously, this technique is not based on second-order variables, but 
it has a better SNR and is less susceptible to noise." further discusses additional improvements 
on previous models, stating that one of these problems had been "haunting researchers' minds for quite 
some time, and many scientists have failed to reach a solution because the multi-variable and nonlinear 
nature of induction machines." concludes that the petitioner's "success in solving this problem 
has almost certainly supplied a conclusion for this perplexing issue. The remaining work left will 
simply be to refine the details since the structure has already been set u thanks to [the petitioner]." 
Regarding how the petitioner's work has been used in the field, however, h merely states that he 
looks "forward to employing the principals of [the petitioner's] creative solution for speed sensor-less 
control of induction machines in my own research on controlling permanent magnetic machines, and 
we are looking forward to seeing breakthroughs." does not suggest that he has already 
successfully applied the petitioner's work. 
an associate professor at the Institute of Electrical Engineering, Chinese Academy of 
Sciences as well as a visiting professor at Michigan State University, asserts that he became aware of 
the petitioner's the petitioner's presentation in 2005 on speed sensor-less control of 
an induction 1 provides similar information about the significance of this work to that 
discussed above. 
[The petitioner's] creative solution opened a new path for speed sensor-less electric 
machine control. The stability analysis method he used in his paper helped me to solve 
the stability proof of my projects, which have the similar characteristics and the stability 
are difficult to prove otherwise. The method [the petitioner] used to minimize the 
torque ripple also inspired me in the design of similar control systems. 
, asserts that the petitioner "has inspired me to solve similar problems in my research and 
development projects." 
research that is not original or useful would be unlikely to qualify for graduation, funding or 
publication. That two researchers claim to have found the petitioner's models useful does not establish 
the petitioner's influence on the field as a whole. The record does contain evidence that the petitioner's 
research on speed sensor-less control has been minimally cited. With the exception of two citations, 
however, the citations are of a 2001 article published in the Journal of the Tsinghua University 
reporting the petitioner's Master's degree studies. The record, however, contains no letters from his 
colleagues in China explaining his role on research projects while a Master's degree student. We are 
not persuaded that this citation record is indicative of a sufficient influence in the field as a whole. 
We acknowledge the submission of non-precedent decisions by this office that, according to counsel, 
demonstrate that heavy citation is not necessary. While 8 C.F.R. 5 103.3(c) provides that AAO 
precedent decisions are binding on all USCIS employees in the administration of the Act, 
unpublished decisions are not similarly binding. Regardless, while citations can serve as probative 
evidence of an alien's influence in the field, other evidence may certainly exist in the alternative. In 
this matter, however, we are not persuaded that the record contains sufficient evidence of any type 
that demonstrates the petitioner's influence in the field as a whole. 
however, that Aura Systems was previously interested in the petitioner's work and, in 2006, obtained 
promising results with the petitioner's method, resulting in Aura System's adoption of that type of 
induction machine control scheme in their next generation products. The record, however, contains no 
work- it Aura systems after the date of filing. Such testimony, however, does not relate to the 
petitioner's eligibility as of the date of filing. See 8 C.F.R. $5 103.2(b)(l), (12); Matter of Katigbak, 
14 I&N Dec. 45,49 (Reg'l. Cornm'r. 1971). 
further asserts that the petitioner also successfully completed other projects during his 
Ph.D. studies as follows: 
He successfully developed a 30 KW DC power supply with bidirectional power flow 
capability and power factor correction for use in an EMALS (Electromagnetic Aircraft 
Launch system) testbed. He has developed stabilizing control algorithms for DC-DC 
converters with input LC filters. He has conducted a series of characterizations of 
ceramic capacitors capable of operating under extreme conditions (cryogenic 
temperatures, high voltage, high temperature, etc.) using power electronic circuits. 
According to at least some of the 
above projects were carried out for TRS. explains the importance of developing 
ceramic capacitors that maintain their dielectric constant at extremely low tem eratures for space 
missions as well military and civilian applications of superconductor motors. further 
explains that in order to develop such capacitors, researchers need a com lete power electronics testing 
system, which the petitioner "effortlessly accomplished." opines that such a system 
could not have been developed by someone with "mere basic competence in the respective disciplines." 
continues that the petitioner developed characterization circuits with different 
topologies of DCDC converters and measured the voltage across the capacitors with his own computer 
program. affirms that the petitioner's testing confirmed the performance of TRS' 
cryogenic capacitors, contributing to an award for the second phase of the project. ~inall~,l 
discusses other projects on which the petitioner worked, including capacitor packs that 
are in "final test at our customer." 
According to the Department of Labor's Occupational Outlook Handbook, accessed at 
http:llwww.bls.govloco/ocos027.htm#nature on January 20,20 10 and incorporated into the record of 
proceedings, engineers use computers extensively to produce and analyze designs; to simulate and 
test how a machine, structure, or system operates; to generate specifications for parts; to monitor the 
quality of products; and to control the efficiency of processes. In addition, electrical engineers 
design, develop, test, and supervise the manufacture of electrical equipment. Some of this equipment 
includes electric motors; machinery controls, lighting, and wiring in buildings; radar and navigation 
systems; communications systems; and power generation, control, and transmission devices used by 
electric utilities. Thus, the fact that the petitioner provided development and testing services to TRS 
does not set him apart from other engineers. The record contains no evidence that the products on 
which the worked for T* have generated trade or general media attention as being 
particularly notable improvements in electrical engineering or comparable evidence of the 
significance of the petitioner's work for TRS. 
In 2006-2007, he developed the power electronic circuitry for an energy harvesting 
backpack, which revolutionarily generated 12 W of usable power from a human being 
walking, as part of a Phase 1 STTR sponsored by ONR [the Office of Naval Research]. 
Due to [the petitioner's] exceptional work on this project, we have secured Phase I1 
funding. 
a biology professor at the University of Pennsylvania and founder of m 
he has known the petitioner since beginning a collaboration with - 
Page 8 
and the development of the Energy Harvesting Backpack. explains that the backpack was 
designed to address the growing demand for electric devices such as satellite phones and the limits of a 
human's ability to carry loads. that 25 percent of a soldier's load may 
consist of replacement batteries. the backpack generates electric energy to 
power devices or charge batteries and the ergonomic design of the backpack reduces the peak force of 
the individual carrying the load. asserts that the petitioner "was the one who carried out the 
crucial development" of the electronics of the backpack, which produces 12 W as compared with other 
human-driven energy harvesting systems that produce less than i W. 
The petitioner submitted several general media articles discussing the invention of the backpack dated 
in September 2005. These articles reference the report of this backpack in a 2005 edition of Science. 
The petitioner does not list any articles published in Science on his curriculum vitae and the record does 
not contain the 2005 Science article referenced in the media articles. curriculum vitae, 
however, contained in the record, does list an article entitled "Generating Electricity from Normal 
Human Movement," published in a 2005 issue of Science. Significantly, the petitioner is not a listed 
author of this article. Moreover, as quoted above, indicates that the petitioner did not 
become involved in this project until 2006, after the article in Science and the general media coverage. 
We acknowledge that the record contains a 2008 patent application for the backpack listing the 
petitioner as the third of three inventors. In addition, the January 2008 edition of Scientific American 
lists the backpack as one of 50 innovations to receive a SciAm 50 award. 
Based on the above, it does not appear that the petitioner was involved in the initial design of the 
backpack reported in Science in 2005 that generated considerable media coverage. Rather, the 
petitioner joined the project later and is a listed inventor of the ultimate patent-pending design. The 
backpack clearly generated media attention in the general media in 2005 and in Scientific American in 
2008 based on its potential. The record, however, does not establish that the backpack has lived up to 
the initial hype. Specifically, the record contains no evidence that the military or a designer of search 
and rescue equipment has expressed any interest in licensing the patent for the backpack or otherwise 
acquiring the backpacks. 
While the petitioner's research is no doubt of value, it can be argued that any research must be 
shown to be original and present some benefit if it is to receive funding and attention from the 
scientific community. Any Ph.D. thesis or postdoctoral research, in order to be accepted for 
graduation, publication or funding, 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. 
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 
Page 9 
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. tj 136 1. 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.