dismissed EB-2 NIW Case: Environmental Engineering

identifying data deleted to 
prevent clearly unwarr~nted 
invasion of personal pnvacy 
PUBLIC COpy 
DATE: JUN 22 2011 Office: NEBRASKA SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
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. § I I 53(b)(2) 
ON BEHALF OF PETITIONER: 
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 have 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 specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or 
Motion, with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must be 
filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
~erry Rhew 
t? 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) ofthe Immigration and Nationality Act 
(the Act), 8 U.S.C. § 1153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as a product development 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 classification 
as a member of the professions holding an advanced degree, 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, the AAO 
uphold the director's determination that the petitioner has not established his eligibility for the benefit 
sought. 
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 Master of Science degree in Engineering from Texas A&M 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. 
Page 3 
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, 10ist Cong., 1st 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 of New York State Dep't. ofTransp., 22 I&N Dec. 215, 217-18 (Comm'r. 1998) (hereinafter 
"NYSDOT"), has set forth several factors that U.S. Citizenship and Immigration Services (USCIS) 
must consider when evaluating a request for a national interest waiver. First, the petitioner must show 
that the alien seeks employment in an area of substantial intrinsic merit. Id. at 217. Next, the petitioner 
must show 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, the 
petitioner must establish 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 use of the term 
"prospective" requires 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. 
The AAO concurs with the director that the petitioner works in an area of intrinsic merit, waste 
reclamation and monitoring engineering, and that the proposed benefits of his work, improved waste 
recycling, reclamation and elimination systems as well as improved sensor or monitoring technology, 
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, U.S. Citizenship and Immigration Services (USCIS) generally does not 
accept the argument that a given project is so important that any alien qualified to work on this 
Page 4 
project must also qualify for a national interest waiver. NYSDOT, 22 I&N Dec. at 218. Moreover, it 
cannot suffice to state that the alien possesses useful skills, or a "unique background." Special or 
unusual knowledge or training does not inherently meet the national interest threshold. The issue of 
whether similarly-trained workers are available in the United States is an issue under the jurisdiction 
of the Department of Labor. Id. at 221. 
At issue is whether this petitioner's contributions in the field are of such unusual significance that the 
petitioner merits the special benefit of a national interest waiver, over and above the visa 
classification he seeks. By seeking an extra benefit, the petitioner assumes an extra burden of proof. 
A petitioner must demonstrate a past history of achievement with some degree of influence on the 
field as a whole. !d. at 219, n. 6. In evaluating the petitioner's achievements, the AAO notes 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. 
On appeal, the 
petitioner works, compares the petitioner's duties with the normal duties of an industrial engineer as 
listed on O*Net and concludes an engineer with the same qualifications could not perform the 
petitioner's duties. The job duties for an industrial engineer on O*Net do not include any design 
responsibilities. While the petitioner's degree is in industrial engineering, his duties are close to those 
of an environmental engineer. O*Net states that environmental engineers "design and supervise the 
development of systems processes or equipment for control, management, or remediation of water, air 
or soil quality." This statement describes much of what the petitioner has been doing. 
The AAO also accessed the Department of Labor's Occupational Outlook Handbook (OOH), available 
at http://www.bls.gov/oco/ocos027.htm#nature on June 7, 2011 and incorporated the information about 
engineers into the record of proceeding. Specifically, the OOH provides far more detailed information 
about the nature of various occupations. The OOH specifically provides the following information 
about the nature of engineering positions: 
Many engineers develop new products. During the process, they consider several 
factors. For example, in developing an industrial robot, engineers specify the 
functional requirements precisely; design and test the robot's components; integrate 
the components to produce the final design; and evaluate the design's overall 
effectiveness, cost, reliability, and safety. This process applies to the development of 
many different products, such as chemicals, computers, powerplants, helicopters, and 
toys. 
In addition to their involvement in design and development, many engineers work in 
testing, production, or maintenance. These engineers supervise production in 
factories, determine the causes of a component's failure, and test manufactured 
products to maintain quality. They also estimate the time and cost required to 
complete projects. Supervisory engineers are responsible for major components or 
Page 5 
entire projects. (See the statement on engmeenng and natural sciences managers 
elsewhere in the Handbook.) 
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. 
Nanotechnology, which involves the creation of high-performance materials and 
components by integrating atoms and molecules, also is introducing entirely new 
principles to the design process. 
* * * 
Environmental engineers use the principles of biology and chemistry to develop 
solutions to environmental problems. They are involved in water and air pollution 
control, recycling, waste disposal, and public health issues. Environmental engineers 
conduct hazardous-waste management studies in which they evaluate the significance 
of the hazard, advise on its treatment and containment, and develop regulations to 
prevent mishaps. They design municipal water supply and industrial wastewater 
treatment systems, conduct research on the environmental impact of proposed 
construction projects, analyze scientific data, and perform quality-control checks. 
Environmental engineers are concerned with local and worldwide environmental 
issues. Some may study and attempt to minimize the effects of acid rain, global 
warming, automobile emissions, and ozone depletion. They also may be involved in 
the protection of wildlife. Many environmental engineers work as consultants, helping 
their clients to comply with regulations, prevent environmental damage, and clean up 
hazardous sites. 
In light of the above, simply having design, development and testing duties does not distinguish the 
petitioner from any other engineer with the same education and experience. Moreover, simply 
successfully performing his assigned tasks demonstrates competence rather than an ability to benefit the 
national interest to a greater extent than an available U.S. worker with the qualifications for the 
position. 
The petitioner submitted the following: (1) preliminary disclosures listing himself as one of the 
inventors, (2) internal progress and final reports on projects prepared by the petitioner and his 
coauthors, (3) a Disclosure of Invention and New Technology filed with the National Aeronautics and 
Space Administration (NASA) listing the petitioner as an innovator, (4) project funding proposals 
listing the petitioner as the engineer or one of the engineers who would work on the project under the 
supervision of the principal investigator and (5) a paper presented at a 2006 Society of Automotive 
Engineers (SAE International) conference. A February 12, 2007 letter advises the petitioner that the 
SAE 2006 Transactions Journal of Aerospace would include the petitioner's paper as "among the most 
outstanding technical papers of 2006." The letter indicates that the issue will include 720 of the best 
SAE technical papers. 
The above evidence reveals that the petitioner has been and will be involved in several government 
funded projects and disseminated one of his papers at a conference and in a journal. Most research, in 
order to receive funding, must present some benefit to the general pool of scientific knowledge. It 
does not follow that every researcher working with a government grant inherently serves the national 
interest to an extent that justifies a waiver of the job offer requirement. 
The AAO acknowledges that the petitioner has been working on confidential projects that involve 
intellectual property concerns. Such work is typically reported in confidential reports as documented 
in the record rather than published. There is no opportunity for other, independent engineers and 
researchers to consider and potentially cite confidential reports. That said, while the lack of citations 
does not preclude a finding that the petitioner has influenced the field, it is the petitioner's burden to 
provide some type of evidence to establish such an influence. The inclusion of the petitioner's 
technical paper as one of 720 papers selected for publication in an SAE International journal does 
not single out the petitioner's work as influential. 
In response to the director's request for additional evidence, the petitioner submitted confirmation 
that he attended the NASA Lunar Surface Systems and Small Business Innovation Research (SBIR) 
Technology Workshop in November 2009, after the petitioner filed the petition. The purpose of the 
workshop was to allow for open communication and learning about technologies developed through 
the program and to develop Phase 3 opportunities. The petitioner presented a Phase 2 project. This 
meeting, as it postdates the filing of the petition, cannot establish the petitioner's eligibility as of that 
date. See 8 C.F.R. §§ 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l. Comm'r. 
1971). 
The petitioner also submitted a September 11, 2009 email advising that the petitioner was "specified 
as an Innovator in the NASA eNTRe system on a New Technology Report." The petitioner's report 
on this is "Pending Internal Review." According to 
are steps 
eNTRe system. First, the innovator creates the New Technology Reporting (NTR), second the 
innovator submits the NTR to NASA, third NASA reviews the NTRfor completeness, and fourth, 
NASA enters the NTR into the database. There is no step in this process whereby NASA reviews 
the NTR for significance or influence. Regardless, the petitioner was listed in eNTRe after he filed 
the petition. Thus, the evidence cannot establish his eligibility as of that date. See 8 C.F.R. 
§§ 103.2(b)(I), (12); Matter of Katigbak, 14 I&N Dec. at 49. 
The petitioner's response also included at June 10, 2009 Letter of Interest from I contracts 
manager at Boeing. advises ~d the petitioner that Boeing is interested in 
_research aimed at capturing CO2 from the atmosphere for use in fuel production. The letter 
further invites a proposal from Lynntech for support of this research by Boeing. While this letter 
Page 7 
documents some outside interest in the petitioner's work, it postdates the filing of the petition and, thus, 
cannot establish the petitioner's eligibility as of that date. See 8 C.F.R. §§ 103.2(b)(1), (12); Matter of 
Katigbak, 14 I&N Dec. at 49. 
The remaining evidence consists of letters. One of the letters is purportedly from , a 
and a former fellow student at Texas A&M 
nn''''''''''PT, did not sign his letter. Thus, the letter has no evidentiary value. 
simply lists all of the projects on which the petitioner has 
worked and the funding applications to which he has contributed. Without an explanation as to how 
any of these projects has already influenced the field, a list of projects is not particularly informative. 
~plains the toxicity of ga~ by the combustion of fossil fuels and the 
~onitoring these emissions. ~sserts that no sensor able to monitor gases in 
the presence of interferences exists in the market today. . that the petitioner 
"designed, built and tested a novel micro-porous solid array sensor and sensor chamber to detect 
gaseous combustion pollutants in a complex gas mixture at elevated temperatures." 
not suggest that any industrial plant or government agency has expressed any interest III uV'~Uu'" 
petitioner's sensor. 
~xt explains the need for cost-effective and energy friendly novel adsorbents that can 
adsorb carbon dioxide and carbon monoxide efficiently at various pressures and temperatures in the 
presence of high humidity. ontinues that the petitioner "secured proof of concept 
funding to take a common in bent and perform surface modifications in order that it 
could capture more total carbon dioxide, and adsorb this gas in the presence of high humidity." • 
_ asserts that the petitioner developed a material that is significantly better than currently 
available media and obtained more funding to develop the material into a commercial product. The 
record, however, lacks evidence that the petitioner did develop the material into a commercial product 
and that industrial or government representatives have expressed an interest in licensing or otherwise 
using this material. 
Finally, pellucmer's work on the remediation and disinfection of air and 
water using advanced oxidation. explains: 
[The petitioner] has successfully applied photocatalytic oxidation to the destruction of 
pyrogens in hemodialysis water for the National Institutes of Health (NIH), the 
reclamation of both water and air for astronauts for NASA, and under the sink drinking 
water purification for the NIH. He has applied photolysis and hydroxyl radical 
generation (from both UV light with ozone and UV light with hydrogen peroxide) to 
water sampling for NASA. [The petitioner] was also an integral contributor to the 
development of a household vacuum cleaner that disinfects the carpeting aw it vacuums 
for a leading consumer products company. 
Page 8 
The record does not reflect that NIH or NASA is applying or in the process of applying the petitioner's 
methods for treating water and air. The record also lacks a letter from a vacuum company confirming 
the petitioner's contribution to their vacuum cleaner. 
-'<J.""'''''''_'' her collaborations with 
that the objective of the Phase II water treatment project funded by NIH 
"is to design fabricate and test a new, small-scale photocatalytic oxidation system for [point-of-use] 
water treatment." She further explains that the aim of the project is "to provide a unique, low-cost 
consumer device designed to effectively eliminate· and microorganisms at the 
location where water is consumed." While how Lynntech's proposed 
system is an improvement over other systems, examples of companies expressing 
an interest in licensing, commercializing or otherwise utilizing this technology. Instead, she concludes 
that the petitioner's disinfection systems have "a high potential for use in many areas where high 
quality water is needed." 
also discusses the importanc~f maintaining a healthy 
atmosphere in the closed system of a space module. _serts that the petitioner's 
novel photocatalytic air cleaner "could be installed in the International Space Station (ISS)." The 
record contains no agreements between NASA and_ or media coverage suggest~ 
has expressed an interest in installing the petitioner's system in the ISS. Similarly,_ 
•• lIIiIaJlains NASA's interest in recovering and processing spacecraft wastewater to provide clean 
water and asserts that the petitioner's reactor unit can be integrated into the water reclamation systems 
in the ISS. She does not suggest, however, that NASA is considering doing so. 
discusses the petitioner's currently funded research, some of which derives 
from the u.S. Department of Energy. She concludes that the petitioner's technologies "are immediately 
applicable to the nation's fossil fuel fired power plants, increasing contaminant and pollutant gas 
separation efficiencies, reducing electricity production costs and more importantly reducing greenhouse 
gas emissions to the environment." While these goals may have substantial intrinsic merit, the AAO 
generally does 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. 
................... II!!!!!~~~~ ..... discusses her collaboration with 
the petitioner on the water reclamation project. _xplains NASA's priority of recovering and 
processing spacecraft wastewater. She reiterates that the petitioner developed an~rototype 
reactor unit that can be integrated into the water reclamation system on the ISS. _onfirms 
that her laboratory evaluated the device and concluded that it increased RO flux, membrane life and 
reduced bacterial concentrations in advanced water reclamation systems. She notes that NASA listed 
the project on eNTRe. As discussed above, however, NASA only evaluates the project for 
completeness before listing it. The record contains no evidence that NASA's listing implies an interest 
in integrating the petitioner's device onto the ISS. 
Page 9 
•••• Ixplains that he has worked with the petitioner on NASA funded projects. _ asserts 
that NASA selected the petitioner's filter for the removal of trace contaminant gases project for Phase II 
funding, demonstrating its success and the merit of the technology. ~oncludes that the 
petitioner's system "will provide NASA with a low cost, low maintenance cabin air remediation option 
with reliability, longevity, size, performance and diverse flow rate capacity advantages." _ 
does not confirm that NASA intends to utilize the petitioner's technology on the ISS. 
The Board of Immigration Appeals (the Board) has held that testimony should not be disregarded 
simply because it is "self-serving." See, e.g., Matter of S-A-, 22 I&N Dec. 1328, 1332 (BIA 2000) 
(citing cases). The Board also held, however: "We not only encourage, but require the introduction 
of corroborative testimonial and documentary evidence, where available." Id. If testimonial 
evidence lacks specificity, detail, or credibility, there is a greater need for the petitioner to submit 
corroborative evidence. Matter of Y-B-, 21 I&N Dec. 1136 (BIA 1998). 
The opinions of experts in the field are not without weight and have been considered above. 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 this decision has done above, evaluate the content of those letters as to 
whether they support the alien's eligibility. See id. at 795; see also Matter of V-K-, 24 I&N Dec. 
500, n.2 (BIA 2008) (noting that expert opinion testimony does not purport to be evidence as to 
"fact"). 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 Soffici, 22 I&N Dec. 
158,165 (Comm'r. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'!. 
Comm'r. 1972)). 
The letters considered above primarily contain bare assertions of valuable skills without providing 
specific examples of how those innovations have influenced the field. Merely repeating the legal 
standards does not satisfY the petitioner's burden of proof.! The petitioner did not provide any letters 
from independent experts. More significantly, 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. 
Ultimately, the petitioner is an engineer working on government-funded projects with significant 
importance and potential. The petitioner is respected by his colleagues and has made useful 
I Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 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. 9, 15 
(D.C. Dist. 1990). 
.. 
Page 10 
contributions in his field of endeavor. It can be argued, however, that most research, in order to 
receive funding, must present some benefit to the general pool of scientific knowledge. It does not 
follow that every researcher working with a government grant inherently serves the national interest 
to an extent that justifies a waiver of the job offer requirement. The petitioner has not documented a 
track record of success with some degree of influence on the field. 
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. 
ORDER: The appeal is dismissed.