dismissed EB-2 NIW Case: Fluid Mechanics And Heat Transfer

U.S. Citizenship 
and Immigration 
Services 
MATTER OF N-S-M-K-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 29, 2016 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a fluid mechanics and heat transfer researcher, seeks classification as a member of 
the professions holding an advanced degree. See Immigration and Nationality Act (the Act) 
section 203(b)(2), 8 U.S.C. § 1153(b)(2). The Petitioner also seeks a national interest waiver of the 
job offer requirement that is attached to this immigrant classification. See § 203(b)(2)(B)(i) of the 
Act, 8 U.S.C. § 1153(b)(2)(B)(i). U.S. Citizenship and Immigration Services (USCIS) may grant 
this discretionary waiver of the required job offer, and thus of a labor certification, when it is in the 
national interest to do so. 
The Director, Nebraska Service Center, denied the petition. The Director found that the Petitioner 
qualified for classification as a member of the professions holding an advanced degree, but that she 
had not established that a waiver of a job offer would be in the national interest. 
The matter is now before us on appeal. In her appeal, the Petitioner argues that she possesses a 
degree of expertise significantly above that ordinarily encountered in her field and that she satisfies 
the national interest waiver requirements. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
To establish eligibility for a national interest waiver, a petitioner must first demonstrate qualification 
for the underlying visa classification, as either an advanced degree professional or an individual of 
exceptional ability in the sciences, arts, or business. Because this classification normally requires 
that the individual's services be sought by a U.S. employer, a separate showing is required to 
establish that a waiver of the job offer requirement is in the national interest. 
Section 203(b) of the Act states, in pertinent part: 
(2) Aliens who are members of the professions holding advanced degrees or aliens of 
exceptional ability.-
Matter of N-S-M-K-
(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) National interest waiver. ... the Attorney General1 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. 
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, lOlst Cong., 1st Sess., 11 (1989). 
Matter of New York State Department of Transportation, 22 I&N Dec. 215, 217-18 (Act. Assoc. 
Comm'r 1998) (NYSDOT), set forth several factors which must be considered when evaluating a 
request for a. national interest waiver. First, a petitioner must demonstrate that he or she seeks 
employment in an area of substantial intrinsic merit. ld. at 217. Next, a petitioner must show that 
the proposed benefit will be national in scope. ld. Finally, the petitioner seeking the waiver must 
establish that he or she will serve the national interest to a substantially greater degree than would an 
available U.S. worker having the same minimum qualifications. ld. at 217-18. 
While the national interest waiver hinges on prospective national benefit, a petitioner's assurance 
that he or she will, in the future, serve the national interest cannot suffice to establish prospective 
national benefit. ld. at 219. Rather, a petitioner must justify projections of future benefit to the 
national interest by establishing a history of demonstrable achievement with some degree of 
influence on the field as a whole. Jd. at 219, n.6. 
1 Pursuant to section 1517 of the Homeland Security Act of 2002 ("HSA"), Pub. L. No. I 07-296, 116 Stat. 2135, 2311 
(codified at 6 U.S.C. § 557 (2012)), any reference to the Attorney General in a provision of the Act describing functions 
that were transferred from the Attorney General or other Department of Justice official to the Department of Homeland 
Security by the HSA "shall be deemed to refer to the Secretary" of Homeland Security. See also 6 U.S.C. § 542 note 
(2012); 8 U.S.C. § 1551 note (2012). 
2 
(b)(6)
Matter of N-S-M-K-
II. ANALYSIS 
The Petitioner received her Ph.D. in Mechanical Engineering from the 
in 2013. The Director determined that the Petitioner qualified 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 according to the three-pronged analysis set forth in NYSDOT. 
On appeal, the Petitioner indicates that she also satisfies the evidentiary requirements at 8 C.F .R. 
§ 204.5(k)(3)(ii) and (iii), and thus qualifies as an individual of exceptional ability. As the Petitioner is 
already eligible for the underlying immigrant classification as a member of the professions holding an 
advanced degree, an additional finding of exceptional ability would serve no meaningful purpose in this 
matter. Pursuant to section 203(b)(2)(A) of the Act, individuals of exceptional ability are generally 
subject to the job offer/labor certification requirement; they are not exempt by virtue of their 
exceptional ability. NYSDOT, 22 I&N Dec. at 218, 222. Therefore, whether the Petitioner seeks 
classification as an individual of exceptional ability, or as a member of the professions holding an 
advanced degree , she cannot qualify for a national interest waiver just by demonstrating a degree of 
expertise significantly above that ordinarily encountered in her field of expertise. The national 
interest waiver is an additional benefit , separate from the classification sought, and therefore 
eligibility for'the underlying classification does not demonstrate eligibility for the additional benefit 
of the waiver. 
The Petitioner argues that her "field of expertise is most properly focused on the area of ' fluid 
mechanics & heat transfer"' rather than the broader engineering discipline of mechanical 
engineering. In addition, the Petitioner requests that we consider the reference letters offered in 
support of the petition that describe her research contributions in fluid mechanics and heat transfer. 
A Substantial Intrinsic Merit 
The Petitioner seeks to continue her work as an assistant professor of mechanical engineering in the 
department of mechanical and aerospace engineering at She submitted documentation 
showing that her research concerning fluid mechanics and heat transfer is in an area of substantial 
intrinsic merit. Accordingly, the record supports the Director's determination that the Petitioner 
meets the first prong of the NYSDOT national interest analysis. 
B. National in Scope 
The Petitioner provided evidence indicating that the proposed benefit of her research in ferrofluids 
and fire behavior has national and international reach, as the results from her work are disseminated 
to others in the field through conferences and journals. Therefore, the record supports the Director's 
determination that the Petitioner meets the second prong ofthe NYSDOT national interest analysis. 
3 
(b)(6)
Matter of N-S-M-K-
C. Serving the National Interest 
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 
determined 
that the Petitioner's impact and influence on her field did not satisfy the third prong of the 
NYSDOT national interest analysis. 
In addition to documentation of her published work, conference presentations, peer review activities, 
research projects, and academic credentials, the Petitioner submitted various reference letters 
discussing her work in the field. For example, several of the Petitioner's references mentioned her 
activities with the chair of the 
department of mechanical and aerospace engineering at explained that in 2007, the 
school's partnered with the and the 
through the 
program. The and 
collaborated "to study firefighting tactics and strat~gies for wind-driven high-rise fires via live burns 
and scientific simulations." indicated that the Petitioner "assisted the fire 
research team to successfully complete three projects" funded by the program, but there 
is no supporting 
documentary evidence indicating that the Petitioner was identified as an investigator 
on any ·funded grants, and insufficient evidence of the extent ofher assistance to the team. 
a senior scientist and manager with the described one of the 
projects, stating (note: errors in the original text have not been changed): 
conducted a research with 
and MN 
multimedia training 
and the fire departments from 
developed a web-based, interactive 
to disseminate firefighter-related research and to educate firefighters 
for a wide variety of topics. 
With respect to the Petitioner's work with the a professor of mechanical 
engineering at and the Petitioner's Ph.D. advisor, indicated that in 2008, the Petitioner 
"assisted the fire research team during 14 live burn tests conducted on 
noted that 'the aforementioned "experiments evaluated and demonstrated the 
ability of positive pressure ventilation fans (PPV), wind control devices (WCD) and floor below 
nozzles to create tenable conditions for rescue firefighters." In addition, 
mentioned that the Petitioner "assisted in conceptualizing and developing the trammg 
methodology." further stated that the Petitioner's "ability to statistically analyze and 
interpret the data helped the team to scientifically validate the efficacy of "a registered 
copyrighted computer program," which "is currently in beta-testing with several fire departments." 
While resume lists the copyright among his research 
accomplishments, there is no intellectual property documentation or other evidence reflecting that 
the Petitioner was 
also an author or co-inventor of the firefighter training module. 
4 
(b)(6)
1\1atter ofN-S-M-K-
The record includes various articles about that were written or contributed to by 
and and that are available at 
and The submitted articles do not mention 
the Petitioner or discuss any of her specific contributions to to corroborate the references' 
claims that she conceptualized or developed the training methodology. Furthermore, 
although the Petitioner 's colleagues at contend that she "helped the team to scientifically 
validate the efficacy of there is no evidence that she has contributed to any of the 
published research articles concerning the training tool. For example, and 
authored an article about m entitled 
The Petitioner is not listed as an author or identified anywhere in the 
acknowledgements section of the aforementioned article, and she provided no evidence of any work 
that she has published as a result of her participation with the training tool. 
While the Petitioner may have provided support and assistance to the projects and 
the training tool, the record does not demonstrate that her specific work has influenced the 
field at a level sufficient to waive the job offer requirement. Furthermore, there is no documentary 
evidence indicating that any findings from the Petitioner's fire behavior and heat transfer research 
have been frequently 
cited by independent researchers or have otherwise affected the field as a 
whole. 
Additional references mention the Petitioner's fluid mechanics research. For instance, 
professor of physics at stated that the Petitioner's "research articles are excellent 
and make important contributions to the technically important field of ferrofluids," but did not further 
describe these contributions. Regarding her published and presented work, there is no presumption 
that every published article or conference presentation demonstrates influence on the field as a 
whole; rather, the Petitioner must document the actual impact of her article or presentation. In this 
instance, there is no evidence showing that once disseminated through publication or presentation, 
the Petitioner's work has garnered a significant number of independent citations or that her findings 
have otherwise influenced the field offerrofluids as a whole. 
associate professor of mathematics at mentioned that the Petitioner "has 
extended theoretical models of ferrofluids and made measurements of their essential properties" and 
that her work "has important applications for the construction of sensors," but did not provide any 
examples indicating that her work has altered sensor construction practices or has otherwise affected 
the field as a whole. Although the Petitioner's fluid mechanics and heat transfer research has value, 
any research must be original and likely to present some benefit if it is to receive funding and 
attention from the academic or scientific community. In order for a university, publisher, or grantor 
· to accept any research for graduation, publication , or funding, the research must offer new and useful 
information to the pool of knowledge. Not every scientist who performs original research that adds 
to the general pool of knowledge in the field inherently serves the national interest to an extent that 
is indicative of influence on the field as a whole. 
5 
(b)(6)
Matter ofN-S-M-K-
professor of physics and pharmaceutical sciences at 
described the Petitioner's work concerning the "behavior of field-assisted magnetic nanoparticles in 
a colloidal suspension." indicated that the Petitioner's research findings "have advanced 
understanding of enhancement in heat transfer rate of ferrofluids that can be used in thermal 
systems" and noted that he is "collaborating with her on developing [a] new system of imaging and 
treating the brain tumor by using magnetic nanoparticles." With regard to their collaboration, 
expressed his belief that "society will benefit from this research in the future." Similarly, 
professor of biomedical engineering at the indicated: 
"[The Petitioner's] research methodologies and findings could be applied to my work, with the 
potential to yield results to improve biomedical imaging systems or develop new instrumentations." 
While and attested to the potential impact ofthe Petitioner's work, they did not 
offer any examples indicating that her work already has been utilized in any thermal systems, has 
altered diagnostic or treatment protocols for brain tumors, has improved biomedical imaging 
systems, has affected the development of new medical instrumentation, or has otherwise influenced 
the field as a whole. A petitioner cannot successfully file a petition under this classification based on 
the expectation of future eligibility. Eligibility must be established at the time of filing. 8 C.F.R. 
§ 103.2(b)(1), (12); lvfatter of Katigbak, 14 I&N Dec. 45, 49 (Reg'] Comm'r 197!). 
The Petitioner submitted letters of varying probative value. We have addressed the specific 
affirmations above. Generalized conclusory statements that do not identify specific contributions or 
their impact in the field have little probative value. See 1756. Inc. v. U.S. Att 'y Gen., 745 F. Supp. 9, 
15 (D.D.C. 1990) (holding that an agency need not credit conclusory assertions in immigration 
benefits adjudications). In addition, uncorroborated statements are insufficient. See Visinscaia v. 
Beers, 4 F.Supp.3d 126, 134-35 (D.D.C. 2013) (upholding USCIS' decision to give limited weight to 
uncorroborated assertions from practitioners in the field); see also Matter of Caron Int 'l, Inc., 19 I&N 
Dec. 791, 795 (Comm 'r 1988) (holding that an agency "may, in its discretion, use as advisory 
opinions statements ... submitted in evidence as expert testimony," but is ultimately responsible for 
making the final determination regarding an alien's eligibility for the benefit sought and "is not 
required to accept or may give less weight" to evidence that is "in any way questionable"). The 
submission of reference letters supporting the petition is not presumptive evidence of eligibility; 
USCIS may evaluate the content of those letters as to whether they support the petitioner's 
eligibility. Id 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"). As the submitted reference letters 
did not establish that the Petitioner's work has influenced the field as a whole, they do not 
demonstrate her eligibility for the national interest waiver. 
Regarding the Petitioner's services as a peer reviewer for 
it is common for a publication to ask multiple experts to review a manuscript and to offer 
comments. The publication's editorial staff may accept or reject any reviewer's comments in 
determining whether to publish or reject submitted papers. Thus, peer review is routine in the field, 
and thereis no evidence demonstrating that the Petitioner's occasional participation in the widespread 
6 
Matter of N-S-M-K-
peer review process is an indication that she will serve the national interest to a substantially greater 
degree than would an available U.S. worker having the same minimum qualifications. 
With respect to the documentation reflecting that the Petitioner has presented her findings at 
scientific meetings and engineering conferences, we note that many professional fields regularly 
hold meetings and conferences to present new work, discuss new findings, and to network with other 
professionals. Professional associations, educational institutions, engineering organizations, 
employers, and government agencies promote and sponsor these meetings and conferences. 
Although presentation of the Petitioner's work demonstrates that she shared her original findings 
with others, there is no documentary evidence showing, for instance, frequent independent citation 
of her work, or that her findings have otherwise influenced the fields of fluid mechanics and heat 
transfer at a level sufficient to waive the job offer requirement. 
III. CONCLUSION 
Considering the letters and other evidence in the aggregate, the Petitioner has not established by a 
preponderance of the evidence that she has a past record of demonstrable achievement with some 
degree of influence on the field as a whole or that she will otherwise serve the national interest to a 
substantially greater degree than would an available U.S. worker having the same minimum 
qualifications. Therefore, the Petitioner has not demonstrated that a waiver of the job offer 
requirement will be in the national interest of the United States. Accordingly, the appeal will be 
dismissed. The burden is on the Petitioner to show eligibility for the immigration benefit sought. 
Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). 
Here, the Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter ofN-S-M-K-, ID# 77~81 (AAO Sept. 29, 2016) 
7