dismissed EB-2 NIW Case: Engineering

identifying data deleted to
prevent dearly unwarrantee
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u.s.Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000,
, Washington, DC 20529
U;S. Citizenship
and Immigration
Services Q.
'US
LIN 05 070 51768
Office: NEBRASKA SERVICE CENTER Date: JAN 29 200t
INRE: Petitioner:
Beneficiary: ,
PETITION: ImmigrantPetitionfor 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. §,1~53(b)(2) ,
ONBEHA.LF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office ,in your case: All documents have been returned to '
the office that originally decided your case. Any further inquiry must be made to that office.
.... ~~~~
5- Robert.P, Wiemann, Chief '
Administrative Appeals Office
, www.uscis.gov
I'
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 tosection 203(b)(2) of the Immigration and Nationality Act
(the Act), 8 U.S.C. § 1153(b)(2), as a meniber of the professions holding an advanced degree. The
petitioner seeks employment as a postdoctoral research associate. 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 ajoboffer would be in the national interest ofthe United States.
. ,
On appeal, counsel submits a brief. For the reasons discussed below, while the director referenced
some types of evidence not required forthe benefit, sought, we concur with the director's ultimate
conclusions.
Section 203(b) ofthe Act states in pertinent part that:
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of
. Exceptional Ability. -- ' '
(A) In Ge~eral. -- 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. '
. i
(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 Engineering from Louisiana Tech University. The petitioner's
occupation falls within 'thepertinent 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.. .
Page 3
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 AC,t 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 alienseeking 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: 215 (Comm. 1998), has set forth several
factors which must be considered when evaluating a requestfora national interest waiver. First, it must
be shown that the alien seeks employment in an area of substantial intrinsic merit. Next, it mustbe
shown that the proposed benefit will be national in scope. Filially, 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 hingeson 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, Micro-Electro­
Mechanical 'Systems (MEMS) research, and that the proposed' benefits of his 'work,' better gas
detection 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. ' .:
'." '. . . .
The director noted that the record lacked evidimce that the petitioner's published articles had been
well cited 'and asserted that the reference letters discuss the potential of the petitioner's
accomplishments and that "many" of them derive from the petitioner's close colleagues. The
director further concluded that the letters were not supported by evidence thatthe petitioner hasbeen
asked to provide "guidance ~dadvice" or review manuscripts. '
, On appeal, counsel asserts that' the director applied too high a standard, requiring the type of
evidence necessary for the extraordinary ability classification set forth at section 203(b)(1)(A) of the
Act. Counsel further asserts that citation is not a requirement for a national interest waiver, that the
director took certain phrases in the reference letters out of context and that four of the nine letters are
.from independent experts. .
While the director requested evidence of awards' and memberships in the request for additional
evidence, the director did not cite the lack of such evidence as the basis for the final denial. While
the director did note the lack of evidence thatthe petitioner had reviewed manuscripts submitted for
publication, the director's ultimate concern that the record lacks corroborating evidence of the
petitioner's 'influence in the field is valid. We will ,conside~ the letters in detail below.
In his initial cover letter, counsel asserts. that a "minimally qualified worker" 'could not serve the
projects on which the petitioner is working-and would be "ill equipped to continue the work already
commenced by" the petitioner. Counsel continues that "any employer who is engaged in research
which serves the national interest has the right to demand the best and the brightest and should not be
compelled to employ person[ s] who are 'minimally qualified. ,,, Counsel concludes that this situation.
"was the whole purpose of creating the national interest waiver." Counsel provides no citation to the
statute or any legislative history in support of this assertion.
It is the position of Citizenship and Immigration Services (CIS) to grant national interest waivers on a
case-by-case basis, rather than to establish blanket waivers for entire fields of specialization, such as
researchers. Id. at 2~.7. 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. Matter of New York State Dep 't of Transp., 22 I&N Dec. at 218. 'Moreover, it
cannot suffice to state that the alien possesses useful skills, of 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 ofLabor. !d. 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, rio 6. In evaluating the petitioner's achievementswe 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 acase-by-case basis. Id.at 221, n. 7.
'. As stated above, the petitioner received his Ph.D. from Louisiana Tech University i~ May2004. The
petitioner performed his doctoral research in the laboratory of Dr. The
PageS
petitioner's doctoral work also involved a collaboration with scientists at Oak Ridge National,
Laboratory. The petitioner then accepted a postdoctoral research associate position at the University
of Illinois at Urbana-Champaign (Ull.K') in 'the laboratory of Dr. Rich Masel. The petitioner must
establish eligibility as of the date of filing. See 8C.P.R. § 103.2(b)(12); Matter ofKatigbak, 14I&N
Deb. 45,49 (Reg. Comm. 1971). The petitioner filed the petition on January 7,2005, eight months
after starting work at UIVC.' The record does not reflect that the petitioner had presented or
published any of his work at UIVC as of the: date of filing. As such, the petitioner bears a heavy
burdenof establishing that any of his work at UIVChad been influential as of that date.
We will consider the petitioner's letters below. At the outset, however, we note that Citizenship and
Immigration Services (CIS) may, in its discretion, use as advisory opinions statements submitted as
expert testimony. See Matter of Caron International, 19 I&NDec. 791, 795 (Comm. 1988).
However, CIS is ultimately responsible for making the final determination regarding an alien's
eligibility for the benefit sought. !d. The submission ofletters from experts supporting the petition
is not presumptive evidence of eligibility; CIS may evaluate the content of those letters as to whether
they support the alien's eligibility. Seeid. at 795-796. CIS may even give less weight to an opinion
that-is not corroborated, in accord with other information or is in anyway questionable. Id. at 795;
See als~ Matter ofSoffici, 22 I&N Dec. 158', 165 (Comm. 1998) (citing Matter of Treasure, Craft of
California, 14 I&N Dec. 190(Reg.Comm. 1972)f ' "
. .
In evaluating the reference letters, we note that letters containing mere assertions of the novelty and
.importance of a given project 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 ofthe petitioner through his reputation and who have applied his work are far more
,persuasive than letters from independent references who were,not previously aware of the petitioner
and are merely responding to a solicitation to review-the petitioner's curriculum vitae and work and
provide an opinion based solely on this review. "
Dr.. discusses the importance and multiple applications for microcantilever biosensors. The
petitioner's focus in Dr.. laboratory was "to fabricate and characterize micro/nanocantilevers using
processing widely employed in microelectronics and microelectromechanical systems (MEMS) and
nano technology." According to Dr. • '
[The petitioner] developed a Si02 microcantilever array with novel process. This work
resulted in a published paper in [the] Journal ofSensors and Actuators, a pending patent
, '
application and a report in Micro/Nano Newsletters. This microsensor was used to
, detect HF and F with unprecedented 'sensitivity and selectivity. [The petitioner]
continued to explore micro/nano fabrication technology. He came up with a new idea
of hyperhydrophobicnanoneedle film synthesized by a reactive ion etching (RIE)
technique: This film .was implemented-and with an unprecedented contact angle at
179.8°.
Page 6
While counsel asserts that the.director erred in failing to consider thepetitioner's past achievements and
focusing on the future predictions of the petitioner's influence, it is noted that it is this completed work
that Dr. Ji asserts "will receive worldwide attention as a highlypromising technique in the development
of micro chem./biosensors." (Emphasis added.)
Finally, Dr.• asserts that the United States is experiencing a gap.between the supply and demand of
top researchers in this field. Dr." concludes that "it would be a great mistake to require labor
certification for the best and brightest of talents in these fields when so many positions are unfilled and
so many opportunities are unrealized." As stated above, the issue of whether similarly-trained
workers are available in the United States is an issue under the jurisdiction of the Department of
Labor. Matter ofNew York State Dep't ofTransp., 22 I&N Dec at 221.
Dr. and Dr. of Oak Ridge National Laboratory also praises the
petitioner's Ph.D. research. While counsel asserts on appeal that these scientists are independent of
. the petitioner, both scientists are listed as coauthors of the petitioner's 2004 article in Analytical
Chemistry. Dr. Idiscussesthe petitioner's development of ~ Si02 microcantilevermicrosensor.
Dr. notes that this work was highlighted by Micro/Nano Newsletters and asserts that it "will be
of benefit to other researchers in the field" and "will be cited by other researchers in this field." Once
again, Dr. 7 is opining that the petitioner's completed research will prove influential. Thus, we
are not persuaded by' counsel's assertion that the director took these speculative assertions out of
context.
In addition, Dr. _ asserts that they collaborated on a Si02 microcantilever sensor used to detect
femtomolar concentrations of hydrogen fluoride' (HF), a major component of many nerve agents.
While Dr. I discusses the many applications of this work, he fails to assert that any manufacturer,
military laboratory or other government agency has expressed any interest in manufacturing or using
this sensor. .
Finally, Dr. 7 notes that the petitioner "co-holds an institutional report of invention" for new
sensor micromanufacturing techniques; such as the hyperhydrophobic surface with the unprecedented
angle.. The record includes a letter from Louisiana Tech University documenting that the petitioner is a
named co-inventor on two, inventions filed with their Office of Economic Development and
Technology Assessment but the letter does not indicate whether or not the office decided to file a patent
application for these inventions. Moreover, as stated above, an alien cannot secure a national interest
waiver simply by demonstrating.that he or she holds apatent. Whether the specific innovation serves
the national' interest must be decided on a case-by-case basis. Matter of New York State Dep't. of
Transp., 22I&N Dec. at 221, n. 7. The record lacks evidence that any manufacturer or other entity has
expressed an interest in licensing these inventions.
Dr. 2EEl&&1 provides similar information. Dr. provides no explanation, however, for his
assertion that the petitioner's work "has resulted in"well-cited published papers." The record contains
no evidence of any independent citations ofthe petitioner's work. Dr. also asserts that the
Page 7
petitioner's "work has "potential clinical applications," such' '!-S pulse monitors and the
hyperhydrophobic .nanomaterial used in health care settings as microporous vents. The record lacks
evidence from medical equipment manufacturers or medical facilities confirming that they are pursuing
these uses ofthe petitioner's work.
The record does contain two letters from independent researchers. Dr. _,' Chief Scientific
Officer and Co-Founder of a research and service company in Chicago, asserts that he
became aware of the petitioner's work during a 2004 American Chemistry Society (ACS) meeting in
California. Dr. I Lasserts that the petitioner's work constitutes a significant contribution to the
field, but does not indicate that he has been influenced by the petitioner's work. In fact, Dr. 2
, curriculum vitae does not reveal any experience with MEMS, the petitioner's area of research. Thus,
Dr. has not established his qualifications to evaluate the petitioner's work.
The remaining independentletter is from Dr. , Director of the
Lab at the University of Missouri-Columbia. Dr. _ does not explain, however, how he came to
know of the petitioner's work, only that he "wouldlike to review" it. Although Dr. _ and the
petitioner both obtained their bachelor degrees at Nanjing University of Aeronautics and Astronautics,
their time there did not overlap. The petitioner lists Dr. ~one of his references on his curriculum
, vitae "but, does not explain their association. Dr .... asserts that the petitioner's work is
"unprecedented'; in that it is original. Any research, in order to be accepted for publication, must' '
offer new and useful information to the pool of knowledge. It does not follow that every published
researcher serves the national interest to an extent that justifies a waiver of the job offer requirement.
Dr. ~ does not claim to be applying the petitioner's work and provides no examples of other
laboratories that are doing so. Rather, he asserts vaguely that the petitioner'swork has "given a great'
push.in such topics." ,
We acknowledge that Micro/Nano published a brief summary of the, petitioner's article on
, microsensors in Sensors and Actuators. The article does not mention the petitioner by name and,
instead; credits '_and colleagues" at Louisiana Tech University with the development of the
cantilever. The record contains no" evidence regarding the significance of inclusion in' this
publication. We note-that none of the summaries have a byline, suggesting that they are more akin to
press releases by the innovators rather than 'independent journalistic coverage of the work discussed.
Citations of the petitioner's work or licensing agreements would be far more persuasive evidence
that his work is actually being applied beyond his own laboratory. '
'Dr. _'discusses the petitioner's work at VIDC. While none ofthis work had been preseritedor
published as of the date of filing.Dr. _ asserts that the petitioner had already "achieved great'
results"in,reproducing gas chromatograph on a scale .as small as a millimeter. Dr. asserts that
the petitioner's results are an improvement over previous standards and that these results have
applications "too numerous to enumerate." He concedes, however, that the laboratory still needs to
take exact measurements and conduct performance trials before even publishing this work. Thus, the ,
record does not establish that this work has already proven influential.
Page 8
.' .
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 notfollow that every researcher who performs original research that adds to the general pool
of knowledgeinherently 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'aprofession in the United States should be exempt from the requirement of a job
offer b~sed 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 ofa 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 ofthe United States. .
I,'
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 newpetition by a United States employer
accompanied by an alien employment certification certified by the Departrilent of Labor, appropriate
supporting evidence and fee.' I
ORDER:· The appeal is dismissed.