dismissed EB-2 NIW Case: Human Factors Engineering

identifying data deleted to 
prevent clearly un warran tea 
invasion of personal privacj 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Ofice of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
PUBLIC COPY 
SRC 07 232 5 1235 
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 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. 
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). 
'"LA- cpLv'a"- 
%erry Rhew 
Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will 
dismiss the appeal. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. fj 1153(b)(2), as an alien of exceptional ability in the sciences. At the time he filed 
the petition, the petitioner was a human factors specialist at Charlotte, North 
Carolina. The petitioner later took a position as a principal engineer at Westinghouse Electrical 
Company. The petitioner asserts that an exemption fiom 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 petitioner 
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. 
On appeal, the petitioner submits a brief fiom counsel, documentation of his most recent activities, and 
information regarding citation of his published work. 
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. -- 
(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 petitioner qualifies as a member of the professions holding an 
advanced degree. The petitioner claims eligibility for classification as an alien of exceptional ability in 
the sciences. The record readily establishes that the petitioner, whose occupation requires at least a 
bachelor's degree and who holds a doctoral degree, qualifies as a member of the professions holding an 
advanced degree. A determination regarding the petitioner's claim of exceptional ability would be 
moot; it would occupy significant space in this decision, without affecting the ultimate outcome thereof. 
Page 3 
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, 10lst Cong., 1st Sess., 11 (1989). 
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 U.S. Citizenship and Immigration Services (USCIS)] 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. 215 (Commr. 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. 
We also note that the regulation at 8 C.F.R. 5 204.5(k)(2) defines "exceptional ability" as "a degree 
of expertise significantly above that ordinarily encountered" in a given area of endeavor. By statute, 
aliens of exceptional ability are generally subject to the job offerllabor certification requirement; 
they are not exempt by virtue of their exceptional ability. Therefore, whether a given alien seeks 
classification as an alien of exceptional ability, or as a member of the professions holding an 
advanced degree, that alien cannot qualify for a waiver just by demonstrating a degree of expertise 
significantly above that ordinarily encountered in his or her field of expertise. 
The petitioner filed the petition on July 27, 2007. In a statement accompanying the initial filing, the 
petitioner described his work (referring to himself in the thrd person) and explained why he believes he 
qualifies for the national interest waiver: 
A veteran in the research of Human Factors Engineering / Cognitive Ergonomics, 
Human-Automation Interaction and Industrial Automation, [the petitioner's] 
contribution has been recognized nationally and internationally as exceptional and 
having achieved significant[ly] higher levels than people of similar qualifications. 
Currently, his research is focused on the study of situation awareness in complex 
systems (e.g., nuclear power plant process control, driving and vehicle control), human- 
automation interaction and associated interface design, etc. 
. . . [The petitioner's current work involves] research and development of human factors 
engineering in nuclear power plant control room design [at] . The 
primary objective of the research is to define situation awareness in nuclear power plant 
process control and improve human-automation interaction and associated interface 
design. . . . This work is critical because it ensure[s] there is no or minimum human error 
during the nuclear power plant operations. The TMI (Three Mile Island) accident and 
the Chemobyl disaster resulted fiom a poor control room design with no human factors 
engineering (or human-centered design) involved. . . . [The petitioner] is one of the 
leading researchers in the area. 
The petitioner stated that his doctoral research at North Carolina State University (NCSU) involved 
studying the effects of distractions on automobile drivers, "research on the human performance and 
workload in human-robot interaction," and "investigat[ing] the effects of physical workload (standing, 
walking and jogging on a treadmill) on cognitive task performance and situation awareness." The 
petitioner stated that he "has been able to successfully transition his knowledge of situation awareness 
in complex systems from the driving domain to nuclear power systems." 
According to his initial statement, the petitioner had published three articles as of the filing date, with 
two more in press. He listed four citations of one 2005 article. Three of those four citations were self- 
citations by the petitioner and his co-author, Thus, the petitioner's initial submission 
identified one independent citation of his work. Furthermore, all of the petitioner's identified articles 
arose from his graduate student work with automobile control. He claimed no publication record 
relating to his more recent work with nuclear power plant control rooms. 
supervised the petitioner's graduate studies, stated: 
[The petitioner] is an excellent researcher with a strong analytical skill set. His work has 
focused on situational awareness in complex systems control and human-automaton 
interaction in vehicle systems and nuclear power plant design. While at NC State, [the 
petitioner] studied the perception of presence in virtual reality, virtual task workload and 
performance. . . . This work demonstrated [the petitioner's] strong propensity to conduct 
research. [The petitioner's] dissertation focused on defining the concept of situation 
awareness in the context of driving and quantifying the impact of cellular phone use and 
in-vehicle navigation devices on driver perception, comprehension and projection of 
roadway environments. He developed a new model of driver situation (roadway) 
awareness for operational, tactical and strategic behaviors and demonstrated how 
secondary distracter tasks, like talking on a mobile phone, mediate the achievement and 
maintenance of "good" roadway awareness. . . . This work demonstrated [the 
petitioner's] excellence in research and laid the foundation for his reputation in the field 
of human factors engineering. 
I first came to know [the petitioner] from his publication in the International Journal of 
Industrial Er onomics on 2005 sic]. My co-author and I actually cited his work co- 
authored with win one of my publications. I also know - 
[the petitioner's] former advisor. I've get [sic] more and more familiar with [the 
petitioner] since he submitted a manuscript to a special issue of Ergonomics on Driver 
Safety in Ergonomics. I was the Editor-in-Chief for the special issue. I also invited him 
as a referee to review one of the submittals to the special issue in Ergonomics. . . . 
[The petitioner's] primary area of scientific investigation is situation awareness in 
driving, human-automaton interaction and its applications. . . . He has quantified the 
measure of situation awareness in the domain of driving and developed a new model of 
driver situation awareness for operational, tactical and strategic driving behaviors. This 
model is very important because it could be used to predict driver cognition and driving 
performance when a new in-vehicle technology is introduced. . . . [The petitioner] is 
now continuing and transferring his situation awareness in complex systems research 
into nuclear power plant control rooms. . . . [The petitioner] is one of the leading 
individuals in his area of expertise, without whom there would be a significant vacuum 
in this area of scientific research. 
Regarding the claim that the petitioner "is one of the leading individuals in his area of expertise,'= 
letter seems to indicate that the petitioner's expertise lies in driver awareness, rather than in 
nuclear power plant design (a specialty to which the petitioner is still "transferring his . . . research). 
conference, stated: 
[The petitioner] developed a new model of driver situation awareness for operational, 
tactical and strategic driving behaviors under normal driving conditions. This model has 
the potential to be a basis for predicting the impact of new in-vehicle technologies on 
driver situation awareness and errors in driver performance. 
acknowledged the petitioner's work for AREVA NP, but stated that the petitioner's "future 
work would include expanding the model of situation awareness in driving and to predict driver 
performance under normal and hazard conditions." 
Northeastern University, Boston, Massachusetts, also used similar language to describe the petitioner's 
work: "He conducted rigorous experiment studies on situation awareness in driving while introducing 
in-vehicle automation and multitasking. He further developed a new model of driver simulation 
awareness for operational, tactical and strategic driving behaviors. All of his efforts are transferring to 
his current work." 
of the University of Western Ontario, Canada, also met the petitioner at a 
professional conference. stated: "With his strong background in industrial automation and 
research experience in human factors engineering, his diligence and intelligence, [the petitioner] is 
superior in performing this human factors engineering research in nuclear power plants." 
University of Oklahoma ~ssistant who studied alongside the petitioner at North 
Carolina A&T University in 2001, stated that the petitioner's "research is critical to driving safety.' 
petitioner] for a Human Factors researcher position" and "was impressed by his excellent training in 
automation, control engineering, and human factors engineering," but the petitioner's immigration 
status prevented full consideration of the petitioner's application. 
The letters discussed above indicate that the witnesses hold high opinions of the petitioner's skills as a 
researcher, but they do not establish the extent of the petitioner's influence on his field. The letters 
contain little discussion of the petitioner's intended work with nuclear power plants, apart from the oft- 
repeated assertion that the beneficiary's prior work with driver attention relates to other endeavors. 
The petitioner submitted other exhibits as well, such as documentation of his conference presentations 
and membershps in associations. The significance of these exhibits is not self-evident, and the record 
does not objectively show that these materials show anything other than that the petitioner is a properly 
qualified researcher in his field. 
On December 3 1,2008, the director issued a request for evidence, instructing the petitioner to provide 
more documentary evidence of the impact and importance of his work. In response, the petitioner 
submitted a printout from http://scholar.~oo~le.com, showing 2 1 citations of the petitioner's published 
work. His 2005 article had earned 14 citations, with one or two citations each for five other papers. 
The petitioner submitted partial copies articles and student papers citing to his work. An accompanying 
exhibit list indicated that the petitioner had submitted "13 papers," but the submission contains two 
duplicates, representing only eleven unique papers and articles. One paper was co-authored by 
and two others were written by students, leaving eight citations outside of rn 
research group. The citations relate to the petitioner's work on driver attention, rather than his 
later work with nuclear power plants. 
The petitioner also submitted what were described as "media reports on [the petitioner's] work," most 
of which simply repeat, verbatim, a NCSU press release fiom 2005. At least one of the "media reports" 
appears to be a "blog" post that quotes at length fiom the press release. 
The petitioner also submitted three new witness letters. Unlike the initial witnesses, the new witnesses 
concentrated on the petitioner's work relating to nuclear power plants. owner of a 
"consulting company that focuses on probabilistic risk analysis and human reliability analysis in nuclear 
power plants," stated that the petitioner "is a leading and foremost expert in the research and design of 
applying human factors in the compact and advanced control room for the third generation of nuclear 
power plants." described the petitioner's papers and presentations in that specialty, most of 
which appeared after the petition's filing date. 
conference, stated that the petitioner's "research findings have important safety implications for crew 
performance in 3rd generation nuclear power plants." 
The above two witnesses did not specify to what extent, if any, the petitioner's work has been 
implemented at nuclear power plants in the United States or elsewhere, nor did they identify any plants 
that have concrete plans to implement the petitioner's work in the future. - 
Factors Specialist at the lnstitute for ~nei~~ Technology's OECD Halden Reactor Project, Norway, 
provided more information about the implementation of the petitioner's work. The work he described, 
however, took place after the petitioner had moved from AREVA NP to Westinghouse Electric 
Company, sometime after the petition's filing date. An applicant or petitioner must establish that he or 
she is eligible for the requested benefit at the time of filing the application or petition. 8 C.F.R. 5 
103.2(b)(l). Therefore, subsequent events cannot cause a previously ineligible alien to become eligible 
after the filing date. See Matter ofKatigbak, 14 I&N Dec. 45,49 (Regl. Commr. 1971). 
The petitioner showed that he won an in-house award from Westinghouse in July 2008. We will not 
discuss this award in detail, because it cannot retroactively demonstrate that the petitioner already 
qualified for the waiver a year earlier, before Westinghouse hired him. An application or petition shall 
be denied where evidence submitted in response to a request for evidence does not establish filing 
eligibility at the time the application or petition was filed. 8 C.F.R. tj 103.2(b)(12). See also Matter of 
Izummi, 22 I&N Dec. 169, 175 (Commr. 1998) (A petitioner may not make material changes to a 
petition that has already been filed in an effort to make an apparently deficient petition conform to 
USCIS requirements). 
We will note, however, that honors of this type fall under 8 C.F.R. tj 204.5(k)(3)(ii)(F). Such 
recognition constitutes part of a successful claim of exceptional ability, but cannot by itself establish 
exceptional ability. Therefore, it is self-evident that partial evidence of exceptional ability cannot 
persuasively establish eligibility for the national interest waiver, which is an additional benefit over and 
above a finding of exceptional ability. 
The director denied the petition on April 22, 2009, stating: "The contributions of the petitioner1 
beneficiary are speculative. There is no evidence that the petitioner/beneficiary7s research has been 
incorporated in current nuclear plant design." The director found that the petitioner's published citation 
rate did not support a finding in the petitioner's favor. 
On appeal, counsel argues that the petitioner "has made impressive contributions to human factors 
engineeringlcognitive ergonomics research." Counsel then lists the petitioner's past research projects, 
and observes that the petitioner's 2005 article "has been cited as many as 17 times by other scientists 
from all over the world." The record contains no persuasive evidence to show that the petitioner's 2005 
research into how cellular phone use affects driver safety has any direct, straightforward connection to 
the design of nuclear power plants. For that matter, the record does not show that the petitioner 
originated the now commonplace idea that it can be dangerous to use a cellular phone while driving. 
The petitioner submits updated information regarding citation of his work. Counsel states: 
[Tlhe number of non-self citations of his first authored papers was two (2) when he 
submitted his original NIW petition, it increased to eighteen (18) at the time of filing his 
response to [the] WE, and it continued to increase to twenty-six (26) at the time of 
filing this appeal, demon st rat in^ a consistent pattern of recognition and influence of 
his research on the research community. 
(Counsel's emphasis.) Counsel thus acknowledges that the petitioner had a negligible citation record at 
the time he filed the petition. Counsel does not explain why a later "pattern" retroactively establishes 
eligibility, in direct conflict with USCIS regulations and case law. We further note that the 26 citations 
documented on appeal all relate to articles published between 2002 and 2006. None of the cited articles 
pertain to nuclear power plant design. Thls citation record, therefore, clearly cannot serve as evidence 
of the petitioner's influence in the field of nuclear power plant design. At best, these citations establish 
the petitioner's influence in areas of research that he no longer pursues, and therefore they are of 
negligible importance in this proceeding. As such, the petition appears to have been filed prematurely, 
at a time when the petitioner intended to pursue a career in the design of nuclear power plant control 
rooms but before he had amassed significant achievements in that area. 
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 decision 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.