dismissed EB-2 NIW Case: Materials Research

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
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. $ 1153(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. 
pobert P. Wieu, Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition, which 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. 
 11 53(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as a research assistant. The petitioner asserts that an exemption from the 
requirement of a job offer, and thus of an alien employment certification, is in the national interest of 
the United States. The director found that the petitioner qualifies for the classification sought, but that 
the petitioner had not established that an exemption from the requirement of a job offer would be in the 
national interest of the United States. 
On appeal, counsel asserts that the director misstates the law and facts and ignores the independent 
evidence, including the advisory opinions submitted. For the reasons discussed below, we uphold the 
director's decision. 
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 ofjob 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 petitioner holds a Master's degree in Mechanical Engineering from Toyohashi University of 
Technology. The petitioner's occupation falls within the pertinent regulatory definition of a profession. 
The petitioner thus qualifies as a member of the professions holding an advanced degree. The 
remaining issue is whether the petitioner has established that a waiver of the job offer requirement, and 
thus an alien employment certification, is in the national interest. 
Neither the statute nor pertinent regulations define the term "national interest." Additionally, Congress 
did not provide a specific definition of the phrase, "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, 101 st Cong., 1 st Sess., 1 1 (1 989). 
A supplementary notice regarding the regulations implementing the Immigration Act of 1990 
(IMMACT), published at 56 Fed. Reg. 60897,60900 (Nov. 29, 1991), states, in pertinent part: 
The Service 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 Dep 't. of Transp., 22 I&N Dec. 2 15, 2 17- 18 (Commr. 1998)(hereinafter 
"NYSDOT"), 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. Id. at 2 17. Next, it must be shown that the proposed benefit will be national 
in scope. Id. 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. Id. at 2 17- 1 8. 
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. Id. at 219. The petitioner's subjective assurance that the alien will, in the future, serve the 
national interest cannot sufiice to establish prospective national benefit. The inclusion of the term 
"prospective" is used here to require hture 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. Id. 
We concur with the director that the petitioner works in an area of intrinsic merit, materials research, 
and that the proposed benefits of her work, the development of improved high-energy absorbent 
materials, would be national in scope. 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. 
In response to the director's request for additional evidence, counsel asserts that the adjudicative test 
is whether the alien will benefit the national interest to a greater extent than an available worker with 
the same minimum qualifications. Under counsel's analysis, however, we would be relying on a 
subjective comparison: that of the alien to others with the minimum qualifications for the job. 
Rather than accept bare statements that the alien's abilities exceed those of other researchers 
qualified for the position, however, we look for specific accomplishments that have influenced the 
field and therefore justify a prediction of future benefit. 
Specifically, eligibility for the waiver must rest with the alien's own qualifications rather than with 
the position sought. In other words, we generally do not accept the argument that a given project is 
so important that any alien qualified to work on this project must also qualify for a national interest 
waiver. NYSDOT, 22 I&N Dec. at 21 8. Moreover, it cannot suffice to state that the alien possesses 
useful skills, or a "unique background." Id. at 221. Special or unusual knowledge or training does 
not inherently meet the national interest threshold. The issue of whether similarly-trained workers 
are available in the United States is an issue under the jurisdiction of the Department of Labor. Id. 
At issue is whether this petitioner's contributions in the field are of such unusual significance that the 
petitioner merits the special benefit of a national interest waiver, over and above the visa 
classification she seeks. By seeking an extra benefit, the petitioner assumes an extra element of 
proof. A petitioner must demonstrate a past history of achievement with some degree of influence on 
the field as a whole. Id. at 219, n. 6. In evaluating the petitioner's achievements, we note that 
original innovation, such as demonstrated by a patent, is insufficient by itself. Whether the specific 
innovation serves the national interest must be decided on a case-by-case basis. Id. at 22 1, n. 7. 
On appeal, counsel asserts that the director did not give sufficient weight to the opinions of 
independent experts. Counsel cites a non-precedent decision by this office for the proposition that 
expert witness letters must be afforded evidentiary weight. While 8 C.F.R. 8 103.3(c) provides that 
AAO precedent decisions are binding on all Citizenship and Immigration Services (CIS) employees 
in the administration of the Act, unpublished decisions are not similarly binding. 
Counsel also relies on a July 30, 1992 correspondence memorandum from Lawrence Weinig, Acting 
Assistant Commissioner, to the then Director of the Nebraska Service Center, James M. Bailey. Mr. 
Weinig states that "testimony from other scholars on how the alien has contributed to the academic 
field . . . would more than likely be solid pieces of evidence." Mr. Weinig issued his correspondence 
memorandum in response to an inquiry from Mr. Bailey and makes clear that he is discussing his 
personal inclinations. Moreover, correspondence memoranda issued to a single individual do not 
constitute official CIS policy and will not be considered as such in the adjudication of petitions or 
applications. Although the correspondence may be useful as an aid in interpreting the law, such 
letters are not binding on any CIS officer as they merely indicate the writer's analysis of an issue. See 
Memorandum from Thomas Cook, Acting Associate Commissioner, Office of Programs, 
SignlJicance of Letters Drafted by the OfJice ofAdjudications (Dec. 7,2000).' 
1 
 Although this memorandum principally addresses letters from the Office of Adjudications to the public, the 
memorandum specifies that letters written by any CIS employee do not constitute official CIS policy. 
A more thorough discussion of this issue is, not surprisingly, found in precedent decisions that are 
binding on us. 8 C.F.R. 5 103.3(c). CIS may, in its discretion, use as advisory opinions statements 
submitted as expert testimony. See Matter of Caron International, 19 I&N Dec. 79 1, 795 (Commr. 
1988). However, CIS is 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; CIS may evaluate the content of those letters as to 
whether they support the alien's eligibility. See id. at 795. CIS 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 of SofJici, 22 I&N Dec. 158, 165 (Commr. 1998) (citing Matter of Treasure 
Craft of California, 14 I&N Dec. 190 (Regl. Commr. 1972)). 
In evaluating the reference letters, we note that letters containing mere assertions of originality, 
industry interest and positive response in the field are less persuasive than letters that provide 
specific examples of how the petitioner has influenced the field. In addition, letters from 
independent references who were previously aware of the petitioner through her reputation and who 
have applied her work are far more persuasive than letters from independent references who were not 
previously aware of the petitioner and are merely responding to a solicitation to review the 
petitioner's curriculum vitae and work and provide an opinion based solely on this review. 
As stated above, the petitioner obtained her Master of Science degree in Mechanical Engineering 
from Toyohashi University in Japan in 2002. As of the date of filing, the petitioner was still a Ph.D. 
student at the University of Washington. In response to the director's request for additional 
evidence, the petitioner submitted her Ph.D., issued on March 17, 2006. On the date the petition was 
filed, the petitioner was working as a research assistant at the University of Washington while 
pursuing her degree there. The record does not establish the nature of her employment now that she 
-. 
has finally finished her education. 
shi University, the petitioner performed her research under the direction of 
Dr. 
 asserts that while at Toyohashi University, the petitioner "developed the 
world's first anal ical model that could predict the crack tip singularity of functionally graded 
materials." & explains that the prior models were merely numerical models that provided 
"approximate answers" and that the petitioner's model "has been an invaluable tool to scientists and 
industry researchers alike because it can accurate1 determine where and how cracks will develop 
and grow in materials used on airplanes." dk does not identify any scientist or industly 
researcher using the petitioner's model and provides no examples of the model's use outside the 
petitioner's immediate circle of colleagues. As of the date of filing, the petitioner had 
any articles reporting on this model. In 2005, the petitioner's collaborative work with 
was presented at the second JSMEIASME International Conference on Materials and Processing. 
is not clear that this presentation, entitled "Stress Wave Method for Identification of viscoeistic 
Material Property based on Finite-Element Inverse Analysis," relates to the petitioner's model for 
predicting cracks. Even if this presentation does represent the petitioner's model, the record still 
lacks confirmation from independent researchers that they are using the petitioner's model. 
At the time of filing, the petitioner was pursuing her Ph.D. under the direction of 
discusses the petitioner's research on porous nickel titanium alloys, NiTi. Dr. w asserts 
that the petitioner was the first to develop NiTi with high ductility and excellent super elasticity. Dr. 
further asserts that previous efforts to develop this material, including at Texas A&M 
University and Northwestern University, were unsuccessful. More specifically, the petitioner's NiTi 
"has a reversible strain error that is three times better than the next best material and therefore 
withstands impact better." 
I- . . 
As evidence of the significance of this development, 
 ner was one of 10 
invited speakers at the JSMEIASME International Conference. 
 , General Chair of 
the conference, confirms that the petitioner was one of the 10 invited speakers, that there were 208 
presentations total at the conference, and that invited speakers were selected based on those 
presentations that represented "the most significant contributions in specific areas of research in 
recent times." The selection of original work that has not been previously disseminated in the field 
for presentation represents an educated opinion as to the promising nature of the work. Such 
selection cannot, however, demonstrate that once disseminated, the work was ultimately found useful 
and proved influential. The record lacks any letters from independent conference attendees who are 
now pursuing the petitioner's spark plasma splintering method for creating NiTi. 
further asserts that the petitioner "formulated the first metal mathematical models to predict 
the stress-strain curve of [NiTi] under compression and the force-displacement curve of the 
composite structure." explains that the petitioner's "high energy absorption composite 
structure achieved energy absorption capacity that was seven times higher than the next best 
conventional devices." This work, however, had yet to be published as of the date of filing. 
In response to the director's request for additional evidence, the petitioner submitted an affidavit 
assigning her interest in the invention "High Energy Absorbent Material" to the University of 
Washington. The affidavit which implies that the petitioner has a patent on the invention postdates 
the filing of the petition. As noted by the director, the petitioner did not submit the patent 
application itself or evidence that it had been filed. The petitioner does not address this concern on 
appeal. As stated above, an alien cannot secure a national interest waiver simply by demonstrating that 
she holds a patent, which the petitioner in this matter has not even demonstrated. Regardless, whether 
the specific innovation serves the national interest must be decided on a case-by-case basis. NYSDOT, 
22 I&N Dec. at 221, n. 7. In a new letter, asserts that Noveltech "has already jumped at the 
opportunity to use [the petitioner's] patented work as the basis for furthering its own research of 
shape memory alloy reinforced aluminum foam composites for ballistic protection in military 
vehicles and equipment." The record does not contain any confirmation of this interest from a high 
level official or anyone else at Noveltech. 
As noted by counsel, the petitioner did submit letters from four independent references. Only two of 
these references claim to have had any prior familiarity with the petitioner's work. Specifically, Dr. 
Program Director for Sensor Technology for Civil and Mechanical Systems at the 
National Science Foundation, attended conferences and workshops with the petitioner. While Dr. 
indicates that he shares an area of interest with the petitioner, he does not suggest that the 
petitioner has influenced his own work. 
 does not support his general assertion that the 
petitioner's work "has had a major impact on this area of research" with 
independent researchers in academia or industry using the petitioner's work. 
Scientific Director of Mailages Calculs Dimensionnement in France, provides a similar letter. 
, a professor emeritus at Stanford University and a member of the National 
Academy of Sciences, does not affirm any prior knowledge of the petitioner's work. Rather, he 
asserts that his assessment is based on a review of the petitioner's "credentials and track record." Dr. 
asserts that the petitioner's materials are relevant to his area of specialty, bone biomechanics, 
and represent the first viable alternative to curre 
 some of the citations of the 
petitioner's work relate to this area. Specifically, 
 and his colleagues published 
their own development of high strength, low stiffness, porous NiTi with super elastic properties for 
bone replacement. In this article they acknowledge the petitioner's production of 13 percent and 25 
percent porosity through spark plasma sintering but concluded that the 25 percent porosity material 
"was found to be very weak." This article does not single out the petitioner's methods as particularly 
noteworthy and the authors ultimately used a gas expansion method rather than spark plasma 
sintering in their own work. 
, a professor at Tohuku University in Japan, asserts that his evaluation is based on 
his "independent review of [the petitioner's] CV and selected works." He provides no examples of 
how the petitioner's work is already being applied in the field. 
As of the date of filing, the petitioner had authored a single published article and had given four 
conference 
 including as one of ten invited presentations. Counsel notes that in the 
above-mentioned 1992 correspondence memorandum, 
 asserts that scholarly articles and 
citations are "solid pieces of evidence." Counsel asserts that if scholarly articles are "solid pieces of 
evidence" for aliens of extraordinary ability, they must also constitute strong evidence for this lesser 
classification. 
In his letter to , Mr. l~ raised concerns about several regulatory criteria relating to aliens 
of extraordinarv a i itv ~ursuant to section 203(b)(l)(A) of the Act and outstanding: researchers 
d A \ /\ ,, " 
pursuant to section 203(b)(l)(B) of the Act. Specifically, 
lP 
advised that "it is almost a job 
at many universities that professors and researc ers publish papers." Separately, Mr. 
stioned whether citations were published material about the cited author. In his response, 
unequivocally states that "a footnoted reference to the alien's work without evaluation . . . 
would be of little or no value." 
 goes on to state that "entries (particularly a goodly number) 
in a field . . . would more than likely be solid pieces of evidence." 
Page 8 
As stated above, Mr. Weinig makes clear that he is discussing his personal inclinations. Moreover, as 
also stated above, correspondence memoranda issued to a single individual do not constitute official 
CIS policy and will not be considered as such in the adjudication of petitions or applications. See 
Memorandum from Thomas Cook, Acting Associate Commissioner, Office of Programs, 
Signzjicance of Letters Drafted by the OfJice ofAdjudications (Dec. 7,2000). 
As noted by the director, the Association of American Universities7 Committee on Postdoctoral 
Education, on page 5 of its Report and Recommendations, March 3 1, 1998, set forth its recommended 
definition of a postdoctoral appointment. Among the factors included in this definition are the 
acknowledgement that "the appointment is viewed as preparatory for a full-time academic and/or 
research career," and that "the appointee has the freedom, and is expected, to publish the results of his 
or her research or scholarship during the period of the appointment." Thus, this national organization 
considers publication of one's work to be "expected," even among researchers who have not yet begun 
"a full-time academic and/or research career." Moreover, the Department of Labor's Occupational 
Outlook Handbook 224 (2006-2007 ed.) provides that university faculty spend a significant amount of 
their time doing research and often publish their findings. In addition, the handbook acknowledges that 
faculty face "the pressure to do research and publish their findings." Id. at 225. This information 
reinforces CIS'S position that publication of scholarly articles is not automatically evidence of an 
alien's track record of success with some degree of evidence on the field as a whole. Rather, we must 
consider the response to the articles or presentations. 
Initially, the petitioner provided no evidence that her article or presentations had been cited. 
 In 
response to the directors' request for additional evidence, the petitioner submitted four articles that cite 
her 2005 article. Two of the citations postdate the filing of the petition. Thus, as of the date of filing, 
the petitioner's article had only been cited twice. The petitioner must demonstrate a track record of 
success with some degree of influence on the field as a whole. NYSDOT, 22 I&N Dec. at 219, n.6. 
We will not separate the two concepts such that a petitioner who has a track record deemed 
promising by a handful of experts may secure a priority date based on the speculation that the work 
will prove influential in the field later the proceeding. See 8 C.F.R. $5 103.2(b)(l), (12); Matter of 
Katigbak, 14 I&N Dec. at 49. We cannot consider "facts that come into being only subsequent to the 
filing of a petition." Matter of Izummi, 22 I&N Dec. at 176 (citing Matter of Bardouille, 18 I&N 
Dec. 114 (BIA 1981). 
Regardless, the citations of the petitioner's work are not persuasive. As stated above, Christian Greiner 
and his colleagues conclude that at least one of the petitioner's materials was weak and ultimately 
use a different method in their own research. In a second article, the petitioner's work is simply cited 
as one example of the "number of investigations [that] have been carried out on the fabrication of 
porous metals and alloys." A third article lists spark plasma splintering as one technique for 
fabricating NiTi but states: "All of these techniques lead to NiTi materials having large amounts of 
secondary phases." The authors ultimately use a solid state sintering process, which does not appear 
to be the petitioner's spark plasma sintering process. We acknowledge, however, that the authors of 
the fourth article citing the petitioner's work ultimately use spark plasma sintering in their own work. 
This single example of spark plasma sintering by an independent research team cannot demonstrate 
the petitioner's influence as a whole. 
We acknowled e that the petitioner received a prestigious scholarship and that her work is listed as a 
reference on 
 current grant application. Scholarships are typically based on academic 
performance, which cannot alone satisfy the national interest threshold or assure substantial 
prospective national benefit. NYSDOT, 22 I&N Dec. at 219, n.6. In all cases the petitioner must 
demonstrate specific prior achievements that establish the alien's ability to benefit the national 
interest. Id. The fact that continues to seek funding based on her prior work, including the 
work coauthored with the petitioner, is not persuasive. We note that the petitioner is not listed as 
significant personnel on the grant application. 
While the petitioner has published useful research and claims to be listed on a patent application, it 
can be argued that the petitioner's field, like most science, is research-driven, and there would be 
little point in publishing research which did not add to the general pool of knowledge in the field. 
Similarly, it is not clear that everyone who has filed a patent application for a useful invention 
inherently qualifies for a national interest waiver of the job offer requirement. Id. at 221, n.7. The 
record lacks evidence that, as of the date of filing, the petitioner's work was influential in the field. 
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 alien employment 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 an alien employment certification certified by the Department of Labor, appropriate 
supporting evidence and fee. 
ORDER: The appeal is dismissed.