dismissed EB-2 NIW Case: Materials Science And Engineering

U.S. Department of Homeland Security 
20 Mass. Ave , N.W., Rm. 3000 
Wash~ngton, DC 20529 
U.S. Citizenship 
and Immigration 
Services . 
Pmuc COPY 
I > 
FILE: - Office: NEBRASKA SERVICE CENTER Date: DEC 
 8 2~ 
LIN 04 227 51067 
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: 
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. 
u 
7 Robert P. Wiemann, Chief 
Administrative Appeals Office 
, 
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 pwsuant to section 203(b)(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. 8 1153(b)(2), as an alien of exceptional ability or a member of the professions 
holding an advanced degree. According to Part 6 of the petition, the petitioner seeks employment as a 
postdoctoral research associate. 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 classification as a member of the professions holding an 
advanced degree, but that the petitioner had not established that an exemption from the requirement of 
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a job offer would be in the national interest of the United States. 
On appeal, counsel submits a brief and additional evidence that relates to events after the date of filing. 
For the reasons discussed below, we concur with the director that the petitioner has not established 
eligibility as of the date of filing. 
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 of Job Offer. 
(i) . . . the Attorney General may, when the Attorney General deems it to 
be in the national interest, waive the requirement 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 Ph.D. in Materials Science and Engineering from Iowa State University. 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. 
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Neither the statute nor 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 otfienvise. . . ." S. Rep. No. 55, lOlst Cong., 1st Sess., 11 (1989). 
Supplementary information to the regulations implementing the Immigration Act of 1990 (IMMACT), 
published at 56 Fed. Reg. 60897,60900 (November 29, 1991), states: 
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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 seelung to qualifjr 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 (Comm. 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 onprospective 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 b'prospective" 
is used here to require future contributions by the alien, rather than to facilitate the entry of an alien 
with no demonstrable prior achievements, and whose benefit to the national interest would thus be 
entirely speculative. 
We concur with the director that the petitioner works in an area of intrinsic merit, development of 
alloys and superalloys, and that the proposed benefits of his work, more effective and longer-lasting 
coatings and more accurate lifetime assessments, 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. 
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 qualifL for a national interest waiver. 
Matter of New York State Dep 't of Transp., 22 I&N Dec. at 21 8. Moreover, it cannot suffice to state 
that the alien possesses useful skills, or a "unique background." Special or unusual knowledge or 
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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 22 1. 
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 he seeks. By seeking an extra benefit, the petitioner assumes an extra burden 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 221, n. 7. 
The petitioner relies on the submission of several letters, including those from independent members of 
the field. The director considered the letters but concluded that while the authors provided general 
accolades, they did not claim to have been influenced by the petitioner's work. The director noted that , 
the general accolades were not supported by citations or first hand accounts from research teams 
applying the petitioner's work. On appeal, counsel implies that the director erred in failing to "defer" to 
the expert opinions represented in the witness letters and requiring that the independent evidence take a 
particular form. Throughout the proceedings, counsel has relied on non-precedent decisions issued by 
this office. Such decisions have no legal authority in hture matters. See 8 C.F.R. 5 103.3(c). 
Citizenship and Immigration Services (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 
(Comm. 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 795-796. 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 (Comm. 1998) (citing Matter of Treasure 
Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
In evaluating the reference letters, we note that letters containing mere assertions of 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, as implied by the director, letters from 
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independent references who were previously aware of the petitioner through his reputation and who 
have applied his 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. 
i 
Moreover, counsel mischaracterizes the director's decision as requiring that the independent 
evidence take a specific form. The director provided at least three examples of the type of 
independent evidence that might have bolstered the petitioner's claims: official recognition, 
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citations, and "first-hand accounts desc;bing how laboratories or research teams altered their 
procedures, goals or focus due to the petitioner." While not a precedent decision, it is worth noting 
that one of the AAO decisions provided. by counsel on appeal is in accord with the director's 
decision in this matter. The 2004 AAO decision provided by counsel states: 
Independent evidence of the important of the petitioner's work can take a variety of 
forms. Letters from top officials of national organizations or agencies, written on 
behalf of those entities, would obviously carry significant weight. It would be 
arbitrary, however to require that independent evidence must take the form of 
endorsements from national bodies or government offices. Depending on a given 
alien's field of endeavor, other evidence can satisfactorily show impact in the field. If 
a 
the alien has written scholarly articles, heavy independent citation (as opposed to self 
citation) of those articles would be objective evidence that other researchers have , 
relied upon the alien's work. For an alien who holds one or more patents, evidence 
of signzficant implementation of the patented innovation should be considered. 
(Emphasis added.) In this matter, the director expressly found that the record contained neither 
citations nor evidence of implementation of the petitioner's innovative work as of the date of filing. 
We will evaluate the evidence below. 
The petitioner obtained his Master's degree in Materials Science and Engineering at Wuhan University 
in 1994. He then worked as a scientist and deputy director of the Metal Research Division at the North 
China (Beijing) Electric Power Research Institute through 1998. As stated above, the petitioner 
obtained his Ph.D. in 2003 from Iowa State University and, as of the date of filing, was working as a 
postdoctoral research associate at the Ames Laboratory, operated by Iowa State University on behalf of 
the U.S. Department of Energy.' 
The petitioner submitted what he claims is a Science and Technology Achievement Award. The 
document, dated May 8, 1993, is titled: "Appraisal Certificate of Science and Technology 
Achievement" and provides an expert peer review of a grinding ball. The appraisal recommends 
replacing current grinding balls with the ones discussed in the appraisal, but makes no mention of an 
award placement or grade. The petitioner is listed as one of five principal investigators. The petitioner 
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was a graduate student at the time. Without a letter from the petitioner's academic advisor discussing 
the petitioner's role on this project and additional evidence as to the significance of such an appraisal, 
we cannot evaluate the significance of the petitioner's role with this project and the project's ultimate 
significance. 
I Director of Materials and Engineering Physics and Ames Laboratory, discusses 
: petitioner's achievements before entering the United States, such as attending a 
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conference in 1997, being invited to lead a major rewrite of regulations regarding lifetime assessment 
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 of high-temperature materials in electric power plants and serving as a reviewer for a journal. Dr. 
Senior Scientist at Ames Laboratory, makes similar assertions. Neither Dr. Gleeson 
nor D 
 sserts that he has any first hand knowledge of the petitioner's achievements in China. 
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The regulation at 8 C.F.R. $ 103.2(b)(2) permits a petitioner to rely on affidavits only after showing that 
and secondary evidence is unavailable or does not exist. Affidavits should be from individuals 
with "direct personal knowledge of the event." The regulation at 8 C.F.R. 5 204.5(g)(l) provides that 
evidence of an alien's experience or training shall be in the form of letter(s) from current or former 
employer(s) or trainer(s). We do not read the regulation at 8 C.F.R. 9 204.5(g)(l) to permit current 
employers to verifL past employment with other employers. Rather, the verification must come from 
the employer who has first hand knowledge of the employment. Thus, while we do not question the 
credibility of ~-r ~rthe regulations cited above strongly suggest that affidavits 
from th6se without personal knowledge have little evidenti 
 value. The record lacks confirmation of 
the overseas achievements listed in the letters for D &and or. For example, the 
record lacks letters from the petitioner's former colleagues in China an e itors of the journals the 
petitioner served or a copy of the new re lations crediting the petitioner. Without such corroboration, 
the assertions of ~r.-d D-ave little ?videntiary value. 
~r.also provides a detailed discussion of the petitioner's work at Iowa State University and 
Ames Laboratory. Dr. explains that while previous research had established the significance 
of small' changes in minor elements individually on high temperature cyclic oxidation resistance of 
iron-based chromia-forming alloys, the petitioner discovered the interactive effect. Thus, he showed 
that high temperature oxidationibehavior can be significantly improved through combinations of small 
changes. 
The petitioner also developed a lifetime prediction model to assess high-temperature oxidation 
resistance of complex commercial chromia-forming alloys, whereas previous models addressed only 
simple alloys. Dr. xplains that this model is significant because it allows engineers to set 
service lifetimes that are not too short and without continual monitoring. 
Finally, the petitioner "produced the world's first demonstration of a novel gamma prime plus gamma 
PtHf-modefied NiAl coating." that the petitioner's coating process extends the 
life of jet engine blades five fold! r. asserts that this work resulted in a patent 
application, he does not assert that the military or any airplane manufacturer has expressed interest in 
licensing the patent. 
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Initially, the petitioner submitted several additional letters from other members of his field with whom 
he has not collaborated. ~r. Distinguished Staff Member in the Metals and Ceramics 
Division of the Oak Ridge National Laboratory, knows of the petitioner's work through his interactions 
with  rand the others have met the petitioner at conferences. All of the references base their 
opinion on a review of the petitioner's curriculum vitae and publications. While they provide general 
praise, as noted by the director, none of them affirm applying the petitioner's work in their own 
laboratory. 
In response to the director's request for additional evidence, the petitioner submitted three additional 
letters from independent members of the field. All three have impressive credentials. Their focus, 
however, is the significance of work that had yet to be disseminated in the field as of the date of filing. 
While we recognize that intellectual property rights considerations may legitimately delay publication 
of findings, the petitioner and his colleagues had not even filed a patent application for this work as of 
the date of filing. Moreover, an alien cannot secure a national interest waiver simply by demonstrating 
that he holds a patent. Whether the specific innovation serves the national interest must be decided on 
a case-by-case basis. Matter of New York State Dep 't. of Transp., 22 I&N Dec. at 221, n. 7. 
The petitioner submitted the patent application and what appear to be multiple versions of a press 
release from Ames Laboratory. These items 'vostdate the filing; of the ~etition. While the vetitioner is 
listed on the patent applicati& the press reldase names only Dr. and Dr. 
 ~ot only 
does the release not name the petitioner, it makes no mention of any other researchers or a research 
team. The release specifies, "the two researchers found that platinum additions significantly improved 
the oxidation of nickel-rich bulk alloys having the same type of structure as the turbine alloy." 
(Emphasis added.) The release further provides: "ne two researchers have recently demonstrated that 
their new coatings can offer significant benefits over current state-of-the-art bond coatings used in 
advanced TBC systems." (Emphasis added.) Moreover, in the release, Dr.redits ~r.m 
with the "intuition to sprinkle either zirconium or hafnium," the factor that reduced oxidation rates to 
the lowest reported. The addition of zirconium or hafnium appears unrelated to the petitioner's coating 
process, the factor Drentifies in his letter as resulting in a longer service lifetime. . 
The petitioner also submitted e-mail requests for reprints or. data and e-mail discussions of tests of the 
coatings on which the petitioner worked. The requests for reprints and data predate the filing of the 
petition. Such requests, however, reflect only a preliminary interest in the work. Citatibns are far more 
persuasive as they demonstrate actual reliance on the petitioner's work. Moreover, science involves the 
constant contribution of new information to the general pool of knowledge. The petitioner has not 
demonstrated that a handfbl of inquiries into his work are noteworthy. Similarly, while the petitioner 
submitted information indicating that his August 2004 article, apparently published after the date of 
filing as it was not included initially, has generated an impressive number of downloads, the record 
lacks evidence that this interest resulted in actual application of his work. All but one of the industry e- 
mail discussions regardin testing of the coating postdate the filing of the petition. The 2004 e-mail 
notice from Materials Engineer at 
 Corporation, makes no mention of the 
results of its testing. The record does not include a reference letter fiom Mr.or anyone else at 
Rolls-Royce explaining the significance of the tested coating. 
The director noted that the Ames Laboratory press release makes no mention of the petitioner. The 
director further concluded that evidence of achievements after the date of filing could not be 
considered. The director relied on Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg. Comm. 197 1) and 
Matter of Izummi, 22 I&N Dec. 169, 175 (Comm. 1998). On appeal, counsel references a new letter 
from Dr. sserting that while the petitioner is not mentioned in any of the publicity, he 
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played a significant role in the research. Counsel further asserts that the petitioner is not amending 
his claim to eligibility; rather, he is submitting evidence that corroborates the testimony submitted 
initially. In this context, the petitioner also submits evidence that R&D Magazine recognized the 
"Novel Hi h-Temperature Coatings with Pt-Modified Ni and Ni3A1 Alloy Compositions," credited 
to Dr and D with one of at least 1 1 awards issued in the materials category. 
In his most recent letter, Drserts that while citations constitute a tangential reference to 
the cited work, reference letters are focused specifically on the petitioner's work. Thus, Dr. 
implies the letters submitted should be considered more persuasive than citations. 
 We 
First, the letters submitted do not provide evidence that the petitioner's work is having a noticeable 
impact as none of the authors affirm relying on the petitioner's work in their own laboratories. 
Rather, they are simply forming an opinion on the work based on their review of the petitioner's 
curriculum vitae and articles. Frequent and wide citation is evidence that the work is being applied 
and built upon. Being singled out in a review article that has undergone peer-review is also evidence 
that the community as a whole finds the work noteworthy. 
Dr. 
 further asserts that while the petitioner was not mentioned in the publicity, his work was 
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vital to the project because he designed the method of coating. The publicity materials and the R&D 
award, however, do not suggest that the new coating is significant because of its new method -of 
being applied as opposed'to its composition. 
Finally, the assertion that the evidence submitted in response to the request for additional evidence 
and on appeal simply corroborates claims made initially is not persuasive. The petitioner must 
demonstrate a track record of success with some degree of influence on the field as a whole. We will 
not separate this concept 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. 103.2(b)(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). 
While citations published after the date of filing may serve as evidence of the continued relevance of 
an alien's work that had already been well cited as of the filing date, post filing industry testing of an 
innovation for which the petitioner's had not even applied for a patent as of the date filing cannot be 
considered evidence that the alien was already influential as of that date. 
While the petitioner has published useful research and is 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. The record lacks evidence that, as of the 
date of filing, the petitioner's work was influential in the field. 
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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 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.