dismissed EB-2 NIW Case: Hydrogeology

identifiing data deleted to 
. 
a. prcvent clearly unwarranted 
L invasion ofpetsomil privay 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, D.C. 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PUBLIC COPY 
LIN 07 038 51496 
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 Wher 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). 
$%oh F. Grisso !d , Acting Chief 
Administrative Appeals Office 
Page 2 
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 classification pursuant to section 203(b)(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. 8 1153@)(2), as a member of the professions holding an advanced degree. At the 
time he filed the petition, the petitioner was a doctoral student at Rice University, Houston, Texas. 
After completing hs degree, the petitioner became a postdoctoral researcher at the same university. 
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 petitioner 
qualifies for classification as a member of the professions holding an advanced degree, but that the 
petitioner has not established that an exemption fi-om the requirement of a job offer would be in the 
national interest of the United States. 
On appeal, the petitioner submits a brief from counsel. 
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 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. 5 5,lO l 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 U.S. Citizenship and Immigration Services] 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 (Cornrnr. 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 achevements, 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. 
Several witness letters accompanied the petitioner's initial submission. of Lamar 
University, Beaumont, Texas, where the petitioner earned his master's degree, stated: 
I am very enthusiastic about [the petitioner's] research because it greatly advanced our 
understanding of biodegrading process of chlorinated benzenes in groundwater by 
injection of Oxygen Releasing Compound (ORC) into a contaminated aquifer. . . . 
[The petitioner] conducted thus far the most detailed investigation on the natural 
attenuation of chlorinated benzenes in groundwater incorporating injection of Oxygen 
Releasing Compound. Firstly, he creatively developed one-dimensional and two- 
dimensional models of the transport and degradation of contaminants in groundwater to 
access existence of natural attenuation of the contaminants from a test site. [The 
petitioner] is extremely knowledgeable in the field of numerical modeling. He worked 
as a primary researcher and planner to develop a program coupling a regression of 
concentration versus distance for stable plumes and an analytical solution for one- 
dimensional, steady-state, contaminant transport. By doing so, he accurately quantified 
total decay rate constants based on monitored field data. . . . The results and findings 
from his first-stage project is no doubt a breakthrough in our research, which also 
significantly contributes to the national and international hydrogeologic modeling field. 
[The petitioner's] results provide a theoretical platform for all hydrogeologic modelers 
to understand how contaminated groundwater flows and what are the key factors 
influencing biodegradation rate in the subsurface. Therefore, cost-effective rernediation 
strategies for any groundwater-contaminated site in the nation can be designed based on 
his findings in order to clean up the site in a shorter duration, and protect Americans in a 
safer way. 
. . . He discovered that total remediation duration for recovering the contaminated site 
could be shortened from forty-two years to three and a half years by injecting Oxygen 
Releasing Compound into the groundwater. 
The record does not continue that the petitioner continued his research into groundwater remediation 
after he completed his master's degree in 2003. 
petitioner's work at that university: 
The primary focus of [the petitioner's] research is to develop and enhance a radar-based 
flood warning system to achieve more accurate, and timely flood forecasts for Houston 
and other flood-prone areas in the U.S. Since his joining my research group, [the 
petitioner] has been playing a major role in developing the next-generation flood alert 
system. This system has been operational during the last 30 storm events and 
success~lly provided precise and timely information to governmental emergency 
center. By directly utilizing available radar (NEXRAD) rainfdl data coupled with the 
real-time hydrologic model, [the petitioner's] new system is able to provide visual and 
quantitative identification of severe storm rainfall, as well as a linkage between the 
rainfall and likelihood of flooding. It is a major step forward from traditional flood alert 
methods. 
Page 5 
Counsel identified 
 as being independent of the petitioner. Louisiana State 
University Associate stated: 
Although I have only met [the petitioner] on a couple of occasions, I am hlly aware of 
the importance of his research. His work on real-time modeling of hydrologic and 
hydraulic responses provides a completely novel approach in the real-time flood 
warning and prevention fields. . . . 
[The petitioner's] pioneering' work is the first to provide accurate flood warning 
information with two to four hours of lead time under extreme weather conditions. . . . 
His work will not only provide a better understanding of the flood inundation process in 
urban areas under extreme weather conditions but also offers key decision making 
information for urban planning and design. 
a consultant with Houston's Public Works and Engineering Department, stated: 
I was very impressed by [the petitioner's] research results from the advanced flooding 
warning system that the presented at the Annual Conference of American Water 
Resources Association (AWRA) in Houston, Texas in May of this year. . . . 
[The petitioner] developed the advanced techniques necessary to provide warnings and 
flood prediction at specific urban locations affected by the complex interaction between 
local and riverine flooding, and hydrodynamics of storm surge and sea level rise. . . . 
[The petitioner's] advanced flood warning system can protect critical infrastructures 
fiom rainfall and storm surge flooding and wind associated with severe storms. His 
system is also able to provide better design information to prevent the release of 
chemicals from at-risk facilities during potential catastrophic events. 
The petitioner submitted copies of his writings, including a co-authored chapter fiom Coastal 
Hydrology and Processes, one journal article, a paper for the Texas Water Resources Institute, and 
abstracts of eight conference presentations. The petitioner did not establish the extent to which these 
published and presented works have influenced his field. On a related note, the petitioner's initial 
submission did not include evidence of implementation of the petitioner's flood warning system except 
at the most local level, at certain specified sites in Houston. 
On February 7, 2008, the director issued a request for evidence, instructing the petitioner to submit 
evidence of "a degree of influence on [the] field that distinguishes [the petitioner] from other 
Engineering researchers with comparable academic/professional qualifications." The director 
specifically requested "copies of additional published articles [by other researchers] that cite or 
otherwise recognize [the petitioner's] research achievements." 
Page 6 
In response to the director's notice, the petitioner submitted copies of newer writings by the petitioner, 
but no evidence of citations by other researchers. The petitioner also submitted additional independent 
witness letters. a Research Associate and Program Manager at the University of 
Texas at Austin, credited the petitioner with "a significant contribution to the real-time flood warning 
and floodplain mapping field." sserted that the system "has great potential to be used as a 
prototype in other areas in the United States," but the only example of existing 
implementation that named was "the advanced hydraulic prediction feature for a critical 
evacuation corridor (State Highway 288)." 
a Principal Engineer at the South Florida Water Management District, stated: 
As an associate editor of ASCE's Journal of Hydrologic Engineering, I firstly became 
familiar with [the petitioner] and his research work through my review of a technical 
manuscript that he submitted to the journal. . . . [The petitioner] furthered a unique 
hydraulic prediction tool - Floodplain Map Library (FPML) to dynamically provide 
hydraulic inundation information to local emergency agencies. [The petitioner's] FPML 
system will provide end users with comprehensive understanding of dynamic flood 
response allowing emergency personnel to promptly determine likelihood of road 
inundations and begin flood preparations with as much lead time as possible. His 
research work is a remarkable milestone in the area of real-time floodplain mapping. 
The FPML system is a very novel and important tool for flood alert purpose, and will 
find great applications in the field. 
Other witnesses also discussed the FPML system in varying levels of detail. The AAO can find no 
mention of implementation of the FPML system in the petitioner's initial submission. Even when Prof 
Bedient discussed the petitioner's work with maps, he did not specifically discuss FPML or indicate that 
the petitioner's efforts had yielded a functional system. The documents submitted in response to the 
request for evidence indicate that the FPML system was introduced in mid-2007, several months ah 
the petition's November 2006 filing date. 
The beneficiary of an immigrant visa petition must be eligible at the time of filing; a petition cannot 
be approved at a future date after the beneficiary becomes eligible under a new set of facts. See 
Matter of Katigbak, 14 I&N Dec. 45, 49 (Regl. Cornrnr. 1971). The 2007 introduction of a 
"prototype" version of FPML cannot establish that the petitioner already qualified for a national 
interest waiver in 2006. 
The director denied the petition on May 1, 2008. In the decision, the director acknowledged the 
intrinsic merit and potential national scope of the petitioner's work, but found that the petitioner's 
submissions failed to establish that the petitioner's work has, thus far, had significant impact and 
implementation within the field. On appeal, counsel argues that Matter of New York State Dept. of 
Transportation requires only "some degree of influence on the field as a whole," and that the petitioner 
has met this standard by submitting letters and other materials that establish "some degree of influence." 
The cited passage, quoted more fully, reads: 
The alien . . . clearly must have established, in some capacity, the ability to serve the 
national interest to a substantially greater extent than the majority of his or her 
colleagues. The Service here does not seek a quantified threshold of experience or 
education, but rather a past history of demonstrable achievement with some degree of 
influence on the field as a whole. . . . In all cases the petitioner must demonstrate 
specific prior achievements which establish the alien's ability to benefit the national 
interest. 
Id. at 219 n.6. In context, it is clear that the use of the word "some" was not meant to rule or to imply 
that an alien qualifies for the waiver simply by showing more than no influence. Also, the petitioner has 
not established that the petitioner has influenced "the field as a whole." Rather, the petitioner has 
established tentative, limited testing of a prototype version of a system introduced after the filing date. 
Counsel cites letters from witnesses who stated that they have adopted the petitioner's findings into 
their own work. These letters, submitted in response to the request for evidence, relate to the 
implementation of work that dates fiom after the petition's filing date. Even then, the petitioner's 
impact appears to be heavily (although not entirely) concentrated in coastal Texas and adjacent areas. 
The record affords little basis for an objective comparison between the petitioner's achievements and 
those of others in his field. 
The AAO has not disregarded the witness letters and other materials submitted in support of the 
petition, but the record as it stands indicates that that the petitioner's impact has been limited, and even 
then much of that impact post-dates the petition's 2006 filing. The AAO finds that, whle the 
petitioner's career is certainly not without potential, the filing of the petition while the petitioner was 
still a student was premature at best. 
As is clear fiom 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 fiom 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.