dismissed EB-2 NIW Case: Environmental Engineering

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
Office: NEBRASKA SERVICE CENTER Date: aJN 0 4 2008 
EAC 06 0 18 53404 
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. 9 1 153(b)(2) 
ON BEHALF 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. 
L+ 
ZRober-t P. Wiemann, Chief 
Administrative Appeals Office 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa petition. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner seeks to classify the beneficiary pursuant to section 203(b)(2) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 5 1 153(b)(2), as a member of the professions holding an advanced degree. The petitioner, 
an engineering firm (since acquired by Siemens Power Generation), seeks to employ the beneficiary as an 
environmental engineer. The petitioner asserts that an exemption from the requirement of a job offer, and thus of 
a labor certification, is in the national interest of the United States. The director found that the beneficiary 
qualifies for classification as a member of the professions holding an advanced degree, but that the petitioner has 
not established that an exemption from the requirement of a job offer would be in the national interest of the 
United States. 
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 director did not dispute that the beneficiary qualifies as a member of the professions holding an advanced 
degree. The sole issue in contention is whether the petitioner has established that a waiver of the job offer 
requirement, and thus a labor certification, is in the national interest. 
Neither the statute nor the 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, 
10 1 st Cong., 1 st Sess., 1 1 (1 989). 
Supplementary information to regulations implementing the Immigration Act of 1990 (IMMACT), published at 
56 Fed. Reg. 60897,60900 (November 29, 1991), states: 
The Service [now Citizenship and Immigration Services (CIS)] 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 Dept. of Transportation, 22 I&N Dec. 21 5 (Comm. 1998), 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. Next, it must be shown that the proposed 
benefit will be national in scope. 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. 
It must be noted that, while the national interest waiver hinges on prospective national benefit, it clearly must be 
established that the alien's past record justifies projections of future benefit to the national interest. 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. 
The "Nontechnical Description of Job" found on the Form 1-140 petition reads: "Development and design of 
low NOx [nitrogen oxide] burners, overfire systems and other equipment to reduce emissions from coal-fired 
power plants in US and Asia." The director acknowledged the intrinsic merit and national scope of such 
work. The present decision will, therefore, focus on the merits of the individual alien rather than on the larger 
issue of cleaner coal-burning technology. 
In an introductory statement, 
 President of the petitioning entity, asserted: 
[The beneficiary] is in a unique position and offers significant benefit which considerably 
outweighs the inherent national interest in protecting U.S. workers through the labor 
certification process. . . . His educational achievements, research and development of 
products to serve the Chinese power industry have provided significant benefit, not only to 
[the petitioner], but to the entire relationship between the U.S. and China. 
According to the Environmental Protection Agency, reductions in emissions from 2003-2004 
can be attributed to improvements to coal-fired boiler plants. The work of [the petitioner] 
and [the beneficiary] played no small part in those results. [The beneficiary] has established 
himself as an original thinker and has contributed, in no uncertain terms, to the power 
industry's reduction in emissions as mandated by President Bush. . . . 
There is an increasing demand for environmental engineers and a short supply, if any, of 
environmental engineers with [the beneficiary's] qualifications. [The beneficiary] has made, 
and will continue to make, unique contributions to the power industry. His ability to work in 
the U.S. permanently will provide a significant benefit to the national interest in working to 
put the U.S. at the forefront of environmental technology to limit the amount of harmful gases 
emitted by coal-fired power plants. His knowledge and experience with the Chinese power 
industry, along with his ability to communicate fluently in both English and Chinese, 
considerably outweighs the inherent national interest in protecting U.S. workers through the 
labor certification process. . . . 
Given the uncertainty of the period of time necessary to process a labor certification, the 
increasing demand for environmental engineers, and the impetus placed upon this industry by 
the President of the United States and by the Chinese government, it is respectfully submitted 
that [the beneficiary's] unique qualifications make him a perfect candidate for a national 
interest waiver. 
(Evidentiary citation omitted.) In Matter of New York State Dept. of Transportation, the AAO found that the 
national interest waiver was not intended as a means to address worker shortages (Id. at 2 18) or to avoid delay 
or inconvenience from the labor certification process (Id. at 223). The AAO will give full consideration to the 
merits of the petitioner's claims, but the waiver is not merely a procedural "shortcut"; it exists to benefit the 
United States, not the petitioner or the beneficiary. 
In a separate letter, 
 described the beneficiary's duties: 
From our office in Pluckemin, NJ, [the beneficiary] will utilize his expertise and skills in the 
engineering of coal-fired power plants to develop new low emission combustion systems. 
His primary responsibility will be the creation of new products and prototypes and to explore 
applications of novel technologies to these problems. He will also be developing 
relationships with Chinese and other Asian users of low emission coal combustion 
equipment. The position requires independent work as a single contributor, and participating 
in a small team environment. 
We note that's second letter contains what appear to be contradictory assertions regarding the 
position's requ~rements. In the letter's third paragraph, he stated: "the position requires that the incumbent 
possess a doctorate in Environmental Engineering or Thermal Science." In the very next paragraph, however, 
states that the beneficiary "exceeds our academic re uirement iven the fact that it only remains 
for him to defend his Ph.D. dissertation at Lehigh University." 
 's other letter contains the similar 
rn 
assertion that the beneficiary "exceeds the academic requirement for the position offered given the fact that 
this vear he will com~lete the final reauirement (defense of his dissertation) to earn his Ph.D. in Mechanical 
--~ - 
~n~tneerin~." Thus, according to 
 ";he position requires [someone who] possesses a doctorate," 
but the beneficiary, who did not yet possess a doctorate, "exceeds our academic requirement." It is difficult 
to reconcile these two statements. 
The petitioner has submitted several witness letters, regarding which stated the beneficiary's 
"work has impressed many of the industry's top scientists and professionals. Attached please find advisory 
opinions from prominent experts in the field of environmental engineering attesting to the scope and nature of 
[the beneficiary's] work, as well as, his unique, original and crucial contribution to the industry." Generally, 
the witnesses credit the beneficiary with developing new means of reducing nitrogen oxide (NOx) emissions 
from coal-fired power plants, and with introducing this technology to clients in China. 
Many of the letters include common passages of varying lengths. 
 Four letters, signed respectively by 
and , contain so much shared language that 
they are virtually identical except for the discussion of each person's credentials and the circumstances under 
which each met the beneficiary. Several of the remaining letters contain shorter extracts of the same shared 
language. The true author of the shared passages is not identified. Given this common authorship, the AAO 
accepts that the witnesses have endorsed the petition, but the AAO gives diminished weight to the exact 
wording of the letters. One of the recurring passages is the assertion that the beneficiary "has written several 
articles that have been published in journals of international circulation and his articles are cited by others in 
his field." The petitioner's initial submission included no documentary evidence of such citation. 
On October 3 1, 2006, the director issued a request for evidence. The director informed the petitioner that a 
worker shortage is not grounds for granting the waiver, and that it cannot suffice for the petitioner merely to 
assert that the beneficiary has unique training or qualifications; the petitioner must also show "the 
beneficiary's ability to serve the national interest to a substantially greater extent than the majority of his 
colleagues." With respect to citation of the petitioner's work, the director instructed the petitioner to "submit 
copies of any published articles by other researchers citing or otherwise recognizing the beneficiary's research 
and/or contributions." 
In response, the petitioner submitted copies of the beneficiary's published work. The petitioner did not, 
however, submit any evidence of citation of that work. Instead, counsel cited an unpublished AAO decision 
in which the AAO found "the lack of frequent citation is not a bar to eligibility where other objective 
evidence of the petitioner's eligibility exists." While 8 C.F.R. 5 103.3(c) provides that AAO precedents are 
binding on all CIS employees in the administration of the Act, the cited appellate decision is not a binding, 
published precedent. Nevertheless, it is certainly permissible for a petitioner to rely on other evidence in the 
absence of heavy citation of the beneficiary's work, and it is often the case that an individual influences his or 
her field in a manner that does not produce citations in scholarly journals. That being said, however, once a 
petitioner claims that the beneficiary's work has been cited, the burden is on the petitioner to show that the 
claim is true. 
In the present proceeding, the petitioner voluntarily chose to submit numerous witness letters all alleging, in 
identical language, that the beneficiary's "articles are cited by others in his field." When the director, in a 
request for evidence, called upon the petitioner to produce documentation of the claimed citations, the 
petitioner abandoned this claim rather than substantiate it, and relied instead on the argument that citations are 
not crucial to a finding of eligibility. This tactic not only calls the petitioner's credibility into question, it also 
casts doubt on the witness letters, many of which referred to the citations. Doubt cast on any aspect of the 
petitioner's proof may lead to a reevaluation of the reliability and sufficiency of the remaining evidence 
offered in support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). 
The petitioner has submitted letters of dubious origin, which contain assertions of purported fact that the 
petitioner has refused to confirm when called upon to do so. At the same time as the petitioner cast doubt on 
its previously submitted letters in this way, the petitioner submitted new letters. One of these new letters, 
from of Fuel Tech, Inc., includes this passage: "Given the uncertainty of the period of time 
necessary to process a labor certification . . . it is respectfully submitted that [the beneficiary's] unique 
qualifications make him a perfect candidate for a national interest waiver." These exact words had previously 
appeared in an introductory letter attributed to The continuing use of common language does not 
lead the AAO to conclude that the second round of letters is any more persuasive than the first group (which 
contained the now-abandoned claim regarding citation of the beneficiary's work). 
On appeal, counsel states: 
Simply because the letters are similar in form and the opinions expressed are comparable, 
does not mean the persons signing the letters do not support the content. Even if the letters 
may have been drafted by one person, or the signatories may have used a sample letter as a 
reference for form, the supporters reviewed, revised and were at liberty to supplement their 
respective support letter[s]. The fact is, the similarities between these letters & not 
undermine the value of the underlying opinion. 
(Counsel's emphasis.) The AAO acknowledges that the similarities between the letters do not automatically 
invalidate the letters. In this instance, however, the template or "sample letter" contained not only statements 
of subjective opinion, but also a factual claim (regarding citations) that the petitioner has been either 
unwilling or unable to support. The "one person" who wrote the template or sample letter either had personal 
knowledge of citations, but has refused to provide evidence thereof, or had no such knowledge and simply 
offered a claim that he or she was in no position to make. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of SofJici, 
22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Comm. 1972)). An unsubstantiated claim made under such circumstances is not credible, regardless of how 
many people affixed their signatures to the same doubtful claim. 
The appeal includes one 2005 article from the Chinese Journal of Power Engineering that contains a citation 
to one of the beneficiary's conference presentations. Counsel asserts that the petitioner has thus documented 
"[olne instance where [the beneficiary] was cited." This one citation does not support the prior assertion that 
the beneficiary's "articles [plural] are cited by others in his field." 
Counsel, on appeal, cites a 2003 appellate decision in which the AAO acknowledged the importance of 
witness letters. Counsel has furnished no evidence to establish that the facts of the instant petition are 
analogous to those in the unpublished decision. While 8 C.F.R. 5 103.3(c) provides that AAO precedent 
decisions are binding on all CIS employees in the administration of the Act, unpublished decisions are not 
similarly binding. Even then, in the cited decision, the AAO stated "advisory opinions from [prominent] 
sources do not automatically mandate the approval of a given petition." The cited decision does not hint at 
the credibility issues overshadowing the present proceeding. 
The record contains evidence that the beneficiary's work has been implemented at several coal-burning 
plants, but the record contains no reliable, objective evidence showing that the beneficiary's work has been 
more widely implemented than that of other engineers employed by corporations with an international 
clientele. 
 Counsel's arguments in this vein are not persuasive. 
 For instance, counsel notes that the 
beneficiary made a presentation at a conference "presented by the U.S. Department of Energy" and asks, 
"What better evidence to show that [the beneficiary's] accomplishments greatly exceed the exceptional ability 
standard than these invitations of participation from the United States government?" Counsel's rhetorical 
question hinges on the apriori assumption that one must be a highly influential researcher even to be invited 
to participate in such a conference. The record contains nothing from the Department of Energy to support or 
justify this assumption. 
The record establishes beyond dispute that the beneficiary has been active in an area of substantial intrinsic 
merit and national scope. Technical documentation, by itself, affords no comparison between the beneficiary 
and others in his field in a manner comprehensible to laypersons outside the coal-burning technology 
industry. The petitioner's witness letters are problematic for reasons already enumerated in this decision, 
including multiple iterations of an apparently false claim and the petitioner's contradictory assertions that the 
beneficiary is either overqualified or underqualified for his position with the petitioning company. 
Section 204(b) of the Act, 8 U.S.C. tj 1154(b), provides for the approval of immigrant petitions only upon a 
determination that "the facts stated in the petition are true." False, contradictory, or unverifiable claims 
inherently prevent a finding that the petitioner's claims are true. See Anetekhai v. I.N.S., 876 F.2d 121 8, 1220 
(5th Cir. 1989); Systronics Corp. v. I.N.S., 153 F. Supp. 2d 7, 15 (D.D.C. 2001); Lu-Ann Bakery Shop, Inc. v. 
Nelson, 705 F. Supp. 7, 10 (D.D.C. 1988). 
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 labor 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. 5 1361. 
The petitioner has not sustained that burden. 
This denial is without prejudice to the filing of a new petition by a United States employer accompanied by a 
labor certification issued by the Department of Labor, appropriate supporting evidence and fee. 
ORDER: The appeal is dismissed.