dismissed EB-2 NIW Case: Materials Science

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, D.C. 20529-2090 
identify  in^ data deleted to 
prevent 2 t esl y t!n;'lar.rmted 
invasion of personal privacy 
U. S. Citizenship 
and Immigration 
Services 
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Office: NEBRASKA SERVICE CENTER Date: MAR 0 4 2oO9 
LIN 06 234 52895 
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 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. 
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). 
Administrative Appeals Office 
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. 5 1153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as an applications development engineer at , a 
semiconductor equipment manufacturer in San Jose, California. The petitioner asserts that an 
exemption fkom 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 a brief from counsel and copies of documents already in the record. 
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, 101 st Cong., 1 st Sess., 1 1 (1 989). 
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] believes it appropriate 
to leave the application of this test as flexible as possible, although clearly an alien 
seelung 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 (Cornmr. 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 fuhue 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, whose benefit to the national interest would 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 submitted copies of several of his articles that appeared in various journals, and evidence 
of his participation in various professional conferences. To indicate the impact of his work, the 
petition& submitted several witness letters. A number of the witnesses are-on the faculty of 1 
University of Texas at Arlington (UTA). where the beneficiarv earned his doctorate. I 
- , z 
described the petitikr's work there: 
the 
[The petitioner] joined my research group in 2000 as a Ph.D. student. . . . He played a 
critical role in a project to grow and characterize the nanostructures on Si(100) 
substrates, which . . . are promising candidate materials for cutting edge opto-electronic 
devices and have attracted extensive research during the last decade. However, the 
interdifksion between the Ge nanostructures and the Si substrate is a critical issue 
standing in the way of its application. The degree to which interdiffusion takes place 
has been the subject of significant controversy with several groups reporting conflicting 
results. [The petitioner] led the effort to characterize the interdiffbsion of Ge and Si in 
these nanostructures. . . . He made several important contributions in the application of 
positron induced Auger spectroscopy to materials' surface characterization. For 
example, he developed a new method to quantify the surface concentration of oxygen 
using the Time-of-flight Positron induce Auger Electron Spectroscopy (TOF-PAES). . . . 
Upon graduation in 2004, [the petitioner] was offered a position as a post-doctoral 
fellow at the Nanofab research centa of the University of Texas at Arlington, where his 
research was focused on the characterization of the selenium passivation layer on the 
Si(100) surface and the development of Ohmic contact devices. . . . Research on 
improved techniques of making ohmic contacts on silicon has long been an attractive 
and challenging area of research because of the huge potential economic impact on the 
semiconductor industry from improved contact techniques. . . . [The petitioner] made 
important contributions to the application of Se passivation techniques in making ohmic 
contacts. . . . In particular, [the petitioner's] analysis provided clear proof that the 
selenium passivation layer on Si(100) surface under atmospheric exposure is orders of 
magnitude more resistant both to oxygen attack and other forms of surface 
contamination as compared to the non-passivated surface. . . . His work will 
significantly improve the efficiency of many silicon based electronic devices such as 
light emission diodes (LED). 
[The petitioner] has made several extremely important contributions to the application of 
positron-induced Auger electron spectroscopy to material surface characterization. He 
developed a new method to characterize the surface concentration of oxygen 
quantitatively using this technique. His discovery is a breakthrough in condensed matter 
because it opens a way to analyze any material surface quantitatively with a much higher 
accuracy since oxygen is almost observed on all kinds of surfaces and it is critical to 
know oxygen surface concentration in many cases. . . . 
Commercialization of his research in semiconductor devices will definitely improve the 
high-tech semiconductor industry in the U.S. 
Senior Applications Development Manager at described 
the petitioner's current work at that company: 
In his current position as an applications development engineer at - [the 
petitioner] is responsible for characterization activities related to reticle inspection 
systems during the prototype engineering, alpha and beta stages of product development. 
His duties also include extensive work with semiconductor process customers to 
develop new applications that help in better detectivity and process control of customer 
reticle manufacturing. . . . [The petitioner] improved the throughput and static precision 
for the critical dimension secondary electron microscopy metrology tools. . . . Another 
important contribution of [the petitioner] is his work on the 193111x1 photo resist material 
which leads to less shrinkage during critical dimension characterization. . . . 
As an applications development engineer, [the petitioner's] work is an essential part of 
the development of the defect inspection tools. 
Two of the initial witnesses claimed not to have worked directly with the petitioner. - 
Senior Member of Techmcal Staff at Texas Instruments, Dallas, Texas, stated: 
Although I don't know Petitioner personally, I am aware of his research through his 
papers and presentations. . . . He has made several important contributions in 
semiconductor material surface characterization and research using TOF-PAES 
technique. . . . Most notably, he developed a novel method to quantitatively characterize 
surface concentration of oxygen at a much higher accuracy using this technique. The 
accurate measurement of this element is critical for semiconductor materials. [The 
petitioner's] method overcomes the defect of the traditional analysis methods which 
calculating [sic] the elemental contents by ignoring the oxygen signal. . . . 
His pioneering work has made it possible for the PAES technique to be widely used in 
many fields, including [the] semiconductor industry. 
Staff Scientist at Oak Ridge National Laboratory, Oak Ridge, Tennessee, stated: 
Although I do not know [the petitioner] personally, I am aware of his research through 
his journal publications and conference presentations. . . . 
[The petitioner) has made significant contributions in the application of PAES to the 
study of GeISi nanometer devices. He developed a new method to analyze oxygen 
surface concentration quantitatively. . . . He was one of the pioneers to apply PAES 
technique to the insulation surfaces, which were previously thought to be forbidden 
areas to PAES. . . . 
[The petitioner's] research on Ge nanostructure growth and diasion is equally 
outstanding. . . . [The petitioner's] research not only provided a detailed profile of the 
difhsion process, but also offered a mathematical model with meaningfbl physical 
understanding. . . . [Hlis discovery of Ge-Si interdiffusion provides important clues for 
my recent research in developing nanostructure-based light emitting diode (LED) 
materials. 
Page 6 
. . . [The petitioner] has accomplished feats that have evaded scientists for years and are 
well beyond the level of such a young researcher. 
On November 16,2007, the director issued a request for evidence, stating: 
Please be advised that merely establishing that you are an alien of exceptional ability or 
one who will substantially benefit prospectively the United States is not sufficient to 
warrant this waiver. . . . 
Regarding your work which had been published or otherwise disseminated as of the 
filing date of your petition, please submit evidence of the total current number of 
published citations of that work by others. 
Please submit copies of three or four published citations of your work which 
demonstrate the reliance that the citing authors placed on your achievements. 
[Several witnesses] commented on your knowledge and expertise in PAES. Please 
submit verification from your current supervisor that you use this technique in your 
current capacity, or explain if that is not the case. 
I recognize [the petitioner] as an indispensable member to my group because of the 
unusual combination of his strong educational training and his research experience in 
surface physics and semiconductor device fabrication - which is a key area of focus for 
my division of the company. Although his expertise with PAES cannot be applied 
directly to our products, his outstanding knowledge of material science, surface physics, 
semiconductor device fabrication, photo lithography and X-ray difiaction are very 
valuable to perform his job. More importantly, his scientific intuition and creativity, 
problem solving skills, capability of handling multiple projects, and proven successll 
research history put him far above the average engineer working in this industry. . . . 
In hs current position as an applications development engineer at [the 
petitioner] is responsible for characterization activities related to reticle inspection 
systems during the prototype engineering, alpha and beta stages of product development. 
His duties also include extensive work with semiconductor process customers to 
develop new applications that enable better detectivity and process control of customer 
reticle manufacturing. . . . 
During this time, [the petitioner] also published a paper in the SPIE proceedings which 
addressed a new method of recipe optimization of wafer fabrication mask inspection for 
Page 7 
180-9011111 reticles to save inspection time and improve productivity. His outstanding 
work resulted in improved performance of our new metrology products, benefiting many 
semiconductor manufacturers. . . . 
As an applications development engineer, [the petitioner's] work is an essential part of 
the development of the defect inspection tools. His work will not only benefit m 
product, which dominates the global market share, but also the U.S. 
semiconductor industry in general. 
The petitioner also submitted a letter from 
 Research Scientist at the Massachusetts 
Institute of Technology, who formerly worked alongside the petitioner at UTA and who has continued 
to collaborate with him. Dr. praised the petitioner's "exceptional technical abilities . . . and 
proven capacity for innovation," and stated that the petitioner's "ability to apply all of these state-of-the- 
art fabrication and characterization methods is quite unusual for a young scientist, and it provides him 
with a major advantage over the majority of his peers.'' 
With respect to citation of his work, the petitioner submitted a printout fiom a citation database 
indicating that one of his articles has been cited twice. The petitioner also listed eight citations of 
another of his articles. The list includes a United States patent, documents fiom UTA's database of 
theses and dissertations, and articles by the petitioner's collaborators citing their own past work, leaving 
at most three journal articles readily identifiable as independent of the petitioner. 
The director denied the petition on April 7, 2008, stating that the petitioner's "record of citations gives 
little support to the assertion of independent expert that the petitioner's 'substantial 
contributions to surface physics and semiconductor physics have set him apart fiom other researchers in 
these fields."' The director also expressed skepticism about the claim that the petitioner had found 
solutions "that have evaded scientists for years.'' Furthermore, the director noted that the petitioner's 
initial witnesses focused heavily on the petitioner's "knowledge and expertise in PAES," but that the 
petitioner no longer uses PAES in his current position and therefore "the petitioner is no longer using 
the specific technological expertise which his affiants indicated distinguished him from his peers." 
On appeal, counsel asserts that the witnesses of record were "not asserting that the petitioner's specific 
technological expertise regarding PAES alone distinguishes him from his peers. Rather, these 
recommenders are referring to the petitioner's general expertise in the field of materials science and 
surface physics as what distinguishes him from his peers." We note assertions regarding 
the petitioner's "ability to apply all of these state-of-the-art fabrication and characterization methods." 
The petitioner's mastery of complex or specialized technology invented or developed by others is not a 
strong basis for a waiver. 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 U.S. is an 
issue under the jurisdiction of the Department of Labor. Matter of New York State Dept. of 
Transportation at 22 1. 
Counsel argues that the petitioner has submitted independent attestations of his influence on his field. 
The director did not dismiss or overlook those attestations. Rather, the director observed that the record 
does not appear to contain significant objective evidence that would lend strong support to the claims 
set forth in the witness letters. If it is alleged that the petitioner is responsible for a major and long- 
sought-after breakthrough in his field, then it is reasonable to expect credible objective evidence that 
this breakthrough has attracted significant notice in the field. The petitioner cannot overcome the lack 
of such evidence simply by asserting, through counsel, that "it is not for the service center to judge how 
one should compare an alien beneficiary's contributions . . . against others." It is very much for the 
service center to judge whether or not a given alien qualifies for the benefit sought via a given petition. 
Counsel states: "It is very inconsistent for the [director] to use lack of citations as a reason for denial 
when the petitioner hlfilled the Service's request by providing 4 new citations which demonstrated the 
petitioner's influence on the field." The AAO fails to see the inconsistency. When the director 
requested documentation of the petitioner's citation record, including selected examples, there was no 
stated or implied promise that the submission of that evidence would ensure approval of the petition. 
Rather, the director requested citation evidence in order to gauge the extent of the petitioner's impact on 
his field. The evidence provided showed a modest number of citations, only a fi-action of which 
appeared in independent published articles. There is nothing "inconsistent" about first requesting 
evidence, and then evaluating that evidence. 
The record indicates that the petitioner's productive graduate and postdoctoral work has situated him 
well for a position in the semiconductor industry, but there is little evidence that the petitioner's ongoing 
work serves the national interest to an extent that would justify a waiver of the job offer requirement 
that, by law, normally attaches to the immigrant classification the petitioner has chosen to seek. The 
AAO duly notes the assertion that the petitioner has improved the products offered to his employer's 
clients, but this is arguably the basic purpose of his work rather than a sign that he stands above his 
peers in a nationally significant way. 
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 fi-om 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. 8 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.