dismissed EB-2 NIW Case: Industrial And Systems Engineering

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COpy 
U.S. Department of Homeland Security 
U.S. Citizenship and Innnigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
DATE: 
JUN 23 2011
0FFICE: NEBRASKA SERVICE CENTER 
INRE: 
PETITION: 
Petitioner: 
Beneficiary: 
Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuantto Section 203(b)(2) of the Immigration 
and Nationality Act, 8 U.S.C. § 1153(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 I-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
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 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. § 1153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks as director of research and development at 
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 from the requirement ofajob 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. 55, 10Ist Cong., 1st Sess., 11 (1989). 
Page 3 
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 (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 achievements, and whose benefit to the national interest would thus be entirely 
speculative. 
The AAO also note\s that the regulation at 8 C.F.R. § 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 offer/labor 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 Form 1-140 petition on February 23,2009. In a statement accompanying the 
initial submission, counsel described IS as 
an industrial engineering firm that specializes in developing sophisticated operations 
research models for large-scale problems in the transportation and logistics industry. 
[The petitioner] directs leading research on transportation scheduling problems, with 
applications in the railroad, airline and trucking industries. [The petitioner's] work in 
Page 4 
the field of industrial and systems engineering is internationally recognized for its 
contributions to the efficiency and productivity of U.S. transportation systems .... 
[The petitioner] is an internationally known expert in the field of industrial and 
systems engineering and is considered by leading figures to be among the few in the 
field who have risen to the very top of his field of endeavor. 
An alien need not be "an internationally known expert ... [at] the very top of his field" to qualify for 
the national interest waiver. Counsel has chosen nevertheless to make that claim about the 
petitioner, at the risk of his credibility. A reputation of that magnitude will leave concrete evidence 
in its wake, and failure to provide such evidence is not conducive to a finding in the petitioner's 
favor. 
The petitioner submitted documentation of his participation at various conferences and programs, as 
well as copies of two published articles and the manuscript of a conference presentation. The 
petitioner prepared all the papers in 2003-2004, while he was a doctoral student at the University of 
Florida (UF). The papers all feature UF faculty members as co-authors. One of the two published 
papers appeared in Naval Research Logistics in 2005, the other in INFORMS Journal on Computing 
in 2007. 
The petitioner submitted three citation lists, two pertaining to his 2005 article and the third relating 
to his 2007 article. The lists, at first glance, appear to show 11 citations, but there are redundant 
listings. One article appears on two of the lists. Another article appears a total of four times, twice 
each on two lists with the order of authors rearranged. Therefore, the lists show only seven different 
articles. Five of those seven articles (including the repeated listings) are by the petitioner and/or his 
co-authors, citing their own work. This leaves two documented, independent citations of the 
petitioner's published work. The publication history, therefore, does not establish the petitioner's 
impact or influence in his field. The petitioner must tum to other means to do so. 
Ten witness letters accompanied the petitioner's initial filing. Most of the witness letters date from 
between September and November 2007. The letters are originals, rather than photocopies of letters 
submitted in support of any prior petition. The record does not explain the delay of over a year 
between the execution of the letters and the filing of the petition. 
All ten witnesses have some kind of demonstrable ties to the petitioner. 
the president and chief executive officer of IS, as well as a professor at 
Through my extensive consulting activities with airlines and railroads, I realized that 
there was a need for optimization-based decision support systems for large 
transportation companies unmet by current consulting companies. To address this 
need, I founded the company Innovative Scheduling, Inc. The company specializes in 
developing customized as well as off-the-shelf decision support systems for very 
Page 5 
large-scale and complex optimization problems arlSlng In the logistics and 
transportation field .... 
I have known [the petitioner] very well since 2000, when he was admitted into the 
Ph.D. program in the Industrial and Systems Engineering Department at the 
University of Florida, and I was a member of his supervisory committee. [The 
petitioner] distinguished himself from his peer fellows by his superior research skills, 
innovative ideas, and productivity. During his graduate research, [the petitioner] 
focused on the research and development of optimization models to solve very 
complex and difficult supply-chain problems, including the multi-period single­
source problem, the continuous-time single-source problem, and the multi-period 
flexible demand assignment problem. These problems are among the most important 
problems arising in real-life supply-chain application. The solutions to these 
problems are essential to improving the efficiency of the domestic and international 
distribution network, a vital factor in the growth of the US economy in the current 
world of globalization. However, these problems are extremely difficult to solve 
because of their large scale and their intensely mathematical nature. [The petitioner] 
has ... contributed significantly to the research needed to solve these problems .... 
During his first year of graduate study, [the petitioner] worked on a real-life project 
for UPS to develop a model to solve its vehicle routing problem. [The petitioner] not 
only developed an efficient heuristic to solve this difficult problem, but he also 
created a very user-friendly graphic interface to display the route of the vehicle .... 
Through the application of his innovations at Innovative Scheduling, [the petitioner] 
is making significant contributions to railroads worldwide and to the US economy. 
[The petitioner] played a key role in the development of two of our major products: 
Innovative Railroad Blocking Decision Support System (IRB-DSS) and Innovative 
Train Scheduling Decision Support System (lTS-DSS) .... In the past, the processes 
of overhauling the operations plan for a major US railroad were completely manual. 
They usually took more than six months to finish and only resulted in minor 
improvements. Using the products, in which [the petitioner] is taking a lead role in 
development, major US railroads can now create far optimized and better operating 
plans within a week. This results in a savings of at least $30 million in annual 
operations costs for each major U.S. railroad. This software has already been 
licensed by BNSF Railway (second largest railroad in US) and is very likely to be 
licensed by Union Pacific (the largest railroad in US). [The petitioner] has also 
played a leading role in the development of the Network Optimizer software, which 
has been used by CSX to explore the possibilities of relocating its yards and 
expanding its capacities. Currently, [the petitioner] is leading the Network Planning 
Project for Pacer Stacktrain, a major intermodal transportation service provider in 
North America. 
Page 6 
who served on the petitioner's supervisory committee and reviewed his 
doctoral dissertation, stated: 
[The petitioner] applied an innovative technique called Very-Large Scale 
Neighborhood (VLSN) Search to develop[] highly efficient heuristics to produce 
near-optimal solutions for [complex and difficult logistical problems]. . . . [The 
petitioner] implemented these algorithms very efficiently to enumerate and evaluate 
trillions of neighbors in fractions of a second. Thus the algorithms can be used to 
solve large-sized problems that no other researchers have solved. 
UF Professor beneficiary'S doctoral advisor, covered much of the same ground 
as the witnesses previously quoted, and stated that the petitioner "led the development of several of 
[IS's] flagship products." 
an associate professor at UF, "served as a member of [the petitioner's] 
supervisory committee and had the opportunity to closely examine [the petitioner's] outstanding 
research work." _ stated that the petitioner's "talent is indispensable for the growth of_ 
and, therefore, U.S. transportation sectors." 
associate professor at the University of Sao Paulo, Brazil and a senior 
consultant [the petitioner's] pioneering and innovative research work" ".urin m 
visit to the University of Florida, Gainesville, between August 2003 and April 2004." 
numbered the petitioner among _ "key personnel in converting proven academic models or 
solving railroad operations planning problems to commercial-grade software applications." 
now an assistant professor at Binghamton University, studied alongside the 
petitioner at Tsinghua University in Beijing, China. _discussed projects at various stages 
of the petitioner's career, and stated: 
Recently, [the petitioner] has [led] a project to build a Global Network Planning and 
Flow Writing System (GNPFS) for United Parcel Service (UPS) to perform a variety 
of what-if analys[ e]s and identify opportunities for cost cutting and service 
improvements. Fortunately I have partially participated in this project and have the 
opportunity to work closely with [the petitioner]. ... [T]he current UPS system takes 
days to validate a plan and there is no system [that] can validate minor plan changes 
in real time. The goal of this project is to build a system that can validate a plan in 
less than one hour and validate minor plan changes in seconds .... Largely due to 
[the petitioner's] outstanding work, the project finished successfully and a prototype 
system is built. UPS has tested the prototype and is very pleased. It has decided to 
go to [the] next phase to build a real time system as its global operating planning 
system .... Such a system will no doubt benefit not only the shipping industry and its 
customer by reducing cost but also the whole economy and environment with much 
improved efficiency. 
Page 7 
deemed the petitioner "one of the few 
individuals particularly talented to develop such optimization-based, web-enabled software 
applications, from which the U.S. railroad industry will benefit greatly." 
stated: 
1 came to know [the petitioner] in 2004 when he participated in a yard location 
configuration and capacity extension study to determine at the strategic level how 
••• should invest its capital and resources in the growth of the U.S. transportation 
market. ... [The petitioner] rapidly developed a geographic information system 
(GIS)-enabled decision support tool. This tool played a key role in the study. It 
provided a very user-friendly interface for the analysis and visualized the network 
configuration changes. 
assistant vice president of equipment at Pacer Stacktrain and a former director of 
operations research at_, stated: 
[The petitioner] is currently leading 
1 believe that NPM will playa key role in improving the efficiency of the operations 
of , an important component of the national intermodal transportation 
system, with better equipment utilization, improved velocity, reduced transportation 
costs, and increased revenues in potential millions of dollars .... 
[The petitioner] is a researcher of immense creativity and skill. He has demonstrated 
highly developed mathematical and computational abilities crucial to succeeding in 
the challenging area of developing technologies to solve real-life transportation 
problems. He has made real and significant contributions to the productivity of U.S. 
transportation systems, contributions that are substantially greater than those of others 
with similar backgrounds and qualifications. 
a former senior vice president of 
HH<U>\"'" and corporate development at_, and a member of_board of directors, claimed no 
expertise in the petitioner's specialty but stated: "I understand the complexity of such real-life 
problems, and the special skills they take to solve. 1 know the rail industry benefited immensely 
from [the petitioner's] modeling efforts, which ... make our transportation system more productive, 
safer, environmentally cleaner and more fuel efficient." 
On December 21, 2009, the director instructed the petitioner to "submit documentary evidence to 
establish ... a past record of specific prior achievement that justifies projections of future benefit to 
Page 8 
the national interest." The director also requested additional documentation ofthe citation history of 
the petitioner's published work. The director stated: "The evidence submitted with the petition has 
already been considered; therefore, please DO NOT re-submit the same evidence." Nevertheless, 
the petitioner resubmitted copies of the initial witness letters, with some passages highlighted in 
yellow ink for emphasis. 
In terms of new evidence, the petitIOner submitted photocopies of nine papers that contained 
citations to the petitioner's work. Setting aside self-citations by the petitioner's coauthors, this 
submission included three independent articles, including the two documented in the previous 
submission. Therefore, the petitioner's initial submission did not establish a pattern of widespread 
independent citation of the petitioner's work, and his second submission did not show significant 
growth in that pattern. 
The director denied the petitIOn on February 17, 2010, acknowledging the intrinsic merit and 
national scope of the petitioner'S occupation, but finding that the petitioner had not demonstrated his 
influence on the field. The director asserted that the petitioner's citation record is minimal, and that 
the witness letters "did not distinguish beneficiary from other Researchers in his field." The director 
quoted from several of the witness letters and, while acknowledging their sincerity, concluded that 
the "objective evidence of record simply does not support the witnesses' claim or show that the 
opinions of those witnesses represent any sort of consensus in the petitioner's specialty." 
On appeal, counsel claims that the director emphasized the beneficiary'S citation history, and "failed 
to address the other substantial evidence documenting that self-petitioner has indeed made several 
highly significant contributions to his field, regardless of the number [of] articles that cite his work." 
Counsel accuses the director of "overemphasizing one factor, the number of citations to petitioner's 
published research, to the exclusion of the other substantial documentation submitted", and of 
"inappropriately giving little significance to the several letters of recommendation by experts in 
petitioner's field and by failing to consider the content of those letters." 
It is true that citations are not always the best gauge of an alien's impact in his field. In this instance, 
the petitioner did not claim to have begun any published work after 2004, or to be at work on future 
publications. The petitioner's current role at IS appears to focus on creating proprietary products for 
his employer, rather than conducting research intended for publication. Under these circumstances, 
it would not be proper to expect the petitioner to be actively producing high-impact articles. 
Nevertheless, the record does not support counsel's charge that the director "overemphasiz[ed]" 
citations. The body of the denial notice occupies four pages, of which the director devoted only two 
paragraphs to the citation issue. In contrast, the director's discussion of the witness letters took up a 
full page, including quotations from several of the letters. 
The opinions of experts in the field are not without weight and the AAO has considered them 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 
Page 9 
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 the AAO has done above, evaluate the content of those letters 
as to whether they support the alien's eligibility. See id. at 795. 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 o/Soffici, 22 I&N Dec. 158, 165 (Comm'r. 1998) (citing 
Matter o/Treasure Craft o/California, 14 I&N Dec. 190 (Reg'l. Comm'r. 1972)). 
In this instance, the letters contain relatively specific claims about the nature of the petitioner's 
contributions to his field. The letters include claims of specific, objective fact, such as assertions 
regarding cost savings resulting from the petitioner's work. The petitioner did not submit any 
documentary evidence to support these claims. When the director asked for more documentation, 
and specifically instructed the petitioner not to merely re-submit prior submissions, the petitioner re­
submitted prior submissions with little new supporting evidence. 
If the petitioner's work has resulted in major increases in efficiency, then verifiable documentation 
should exist to support that claim. If, on the other hand, the petitioner's work has not yet yielded 
such results, then claims that it will eventually have that effect amount to speculation. 
It may well be that the petitioner's work has and will continue to have the effects claimed in the 
witness letters. Neither the director nor the AAO has made any finding that the witnesses are not 
credible or that their statements are false. Nevertheless, the director acted properly in finding that 
the petitioner has not submitted objective evidence to support the witnesses' claims. The AAO will 
affirm the director's finding to that effect. 
The AAO notes that, earlier this year, IS filed an 1-140 petition, with an approved alien employment 
certification, seeking to classify the beneficiary under the same classification he sought for himself 
in the present proceeding. USCIS approved that petition on April 27, 2011. Given this new 
development, the present proceeding involves, in effect, a request for an exemption from a 
requirement that the petitioner has already met. 
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. § 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.