dismissed EB-2 NIW Case: Mechanical Engineering

(b)(6)
Date: 
IN RE: 
APR 2 2 2015 
Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
Office: TEXAS SERVICE CENTER FILE: 
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: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http:/Jwww.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank:�
� 
�enberg A 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the immigrant visa petition and the 
matter is now before the Administrative Appeals Office (AAO) on appeal. We will dismiss the 
appeal. 
The petitioner seeks classification under 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. According to 
Part 6 of the Form I-140, Immigrant Petition for Alien Worker, the petitioner, who holds a doctorate in 
Mechanical Engineering, seeks employment as a researcher. At the time of filing, the petitioner was a 
postdoctoral researcher at his alma mater, 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 of a job offer would be in the national interest of the United States. 
On appeal, the petitioner submits a brief. Upon review of the entire record, we agree with the director's 
findings. 
I. LAW 
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 record reflects 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. ' 
(b)(6)
NON-PRECEDENT DECISION 
Page 3 
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, lOlst Cong., 1st Sess., 11 (1989). 
A supplementary notice regarding the regulations implementing the Immigration Act of 1990, P.L. 
101-649, 104 Stat. 4978 (Nov. 29, 1990) (IMMACT90), 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. 
In reNew York State Dept of Transportation, 22 I&N Dec. 215, 217-18 (Act. Assoc. Comm'r 1998) 
(NYSDOT), has set forth several factors which must be considered when evaluating a request for a 
national interest waiver. First, a petitioner must establish that he seeks employment in an area of 
substantial intrinsic merit. !d. at 217. Next, a petitioner must establish that the proposed benefit will be 
national in scope. !d. Finally, the petitioner seeking the waiver must establish that he will serve the 
national interest to a substantially greater degree than would an available U.S. worker having the.same 
minimum qualifications. !d. at 217-18. 
As stated by the director in his decision, the petitioner has established that his work as a researcher 
in the field of mechanical engineering is in an area of intrinsic merit and that the proposed benefits 
of his research would be national in scope. It remains, then, to determine whether the petitioner has 
presented "a national benefit so great as to outweigh the national interest inherent in the labor 
certification process," !d. at 218. Assurances of the petitioner's future contributions will not 
establish eligibility for the third prong of the national interest waiver test absent a past record that 
justifies projections of future benefit to the national interest. !d. at 219. 
The overall importance of a petitioner's area of expertise carries weight, but must be examined in the 
context of a review of the petitioner's own qualifications. !d. at 220. At issue is whether this 
petitioner's contributions in the field are of such significance that he merits the special benefit of a 
national interest waiver, a benefit separate and distinct from the visa classification he seeks. A 
petitioner must demonstrate a past history of achievement with some degree of influence on the field 
as a whole. !d. at 219, n. 6. We evaluate the petitioner's original innovations, such as demonstrated 
by a patent, on a case-by-case basis. !d. at 221, n. 7. 
(b)(6)
Page 4 
NON-PRECEDENT DECISION 
II. ANALYSI S 
The date of filing of the instant petition is June 26, 2012. The evidence the petitioner submitted with the 
initial filing included published and presented research and testimonial letters. The director issued a 
notice of intent to deny on March 12, 2014. The director explained his basis for concluding why the 
petitioner's evidence was insufficient and provided examples of the types of evidence which the 
petitioner could submit to "establish a past record of specific prior achievement with some degree of 
influence on ... the field." For example, the director acknowledged that the reference letters are useful 
for explaining the evidence or providing an opinion on a certain subject matter, but concluded that "they 
do not equate or constitute the fact itself." See Matter of V-K-, 24 I&N Dec. 500, n.2 (BIA 2008) 
(noting that expert opinion testimony does not purport to be evidence as to "fact"); see also Matter of 
Caron International, 19 I&N Dec. 791 (Comm'r 1988). The director further explained that the 
petitioner had not submitted sufficient evidence that his prior achievements have resulted in some 
degree of influence in the overall field of mechanical engineering. The director included a number of 
types of "objective" evidence "by which US CI S [U.S. Citizenship and Immigration Services] may 
measure your influence in mechanical engineering." In addition, the director informed the petitioner 
that a petitioner must establish eligibility for an immigration benefit at the time of filing the petition, 
US CI S cannot consider the benefit under a new set of facts. See 8 C.F.R. § 103.2(b)(1), (12); Matter of 
Katigbak, 14 I&N Dec. 45, 49 (Reg'! Comm'r 1971). See also Matter of lzummi, 22 I&N, Dec. 169 
(Assoc. Comm'r 1998). 
In response to the notice, the petitioner submitted additional evidence, including new testimonial letters, 
a list of citations from dated April 4, 2014, additional publications, printouts for the 
and two emails. Some of the evidence had been previously 
submitted and some postdated the date of filing. As stated above, evidence which originates after the 
initial date of filing is relevant only insofar as it relates to the petitioner's eligibility at the time of filing. 
/d. 
The director denied the petition on August 15, 2014. The director found that: 
Although you have conducted research and have gained experience, training, and participated 
in professional activities, you have not submitted evidence as to fact [sic] of your previous 
documented achievements in mechanical engineering showing that you serve the United States 
to a greater degree than would an available U.S. mechanical engineer with a Ph.D. degree in 
mechanical engineering, nor have you presented any evidence as to fact [sic] of your overall 
influence in mechanical engineering that could not be placed on an application for alien labor 
certification. 
The director again provided a number of examples of the types of objective evidence which could 
establish the petitioner's "measurable influence in the overall field of mechanical engineering." The 
director concluded that, absent independent, objective evidence, 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. 
(b)(6)
NON-PRECEDENT DECISION 
Page 5 
On appeal, the petitioner asserts that the director's findings were too vague and that the director 
mistakenly believed the petitioner's field to be "taxation research," rather than mechanical engineering. 
Regarding the petitioner's assertion that the director's decision was too vague, as discussed above, the 
director indicated that the petition lacked objective, documented evidence which establishes the 
petitioner's impact on the field of mechanical engineering. The petitioner also asserts that the director 
"misunderstood the nature of' the petitioner's field and includes what he identifies as direct quotes from 
the director's conclusion which use the term "taxation" on three separate occasions. The director's 
decision, however, only refers to the petitioner's field as mechanical engineering and does not reference 
taxation research. The petitioner's remaining assertion on appeal is that the director did not sufficiently 
address the articles that cite the petitioner's work. We will address those articles below. 
With regard to the petitioner's published research, in the initial filing, the petitioner stated that he had 
authored one book chapter and four journal articles and had two additional book chapters which had 
been accepted for publishing. The petitioner submitted: 
• a copy of the book chapter ' 
" which accepted for publication; 
• an article ' 
" with an email that confirms receipt of 
the article "for consideration for publication in " 
• an unpublished manuscript with an accompanying email invitation to write a book chapter for 
• an abstract for the 
• an abstract from the 
• an unpublished article with an accompanying email indicating that the 
would reconsider the article for publication; and 
• two additional unpublished articles. 
The petitioner does not assert on appeal that his publications and presentations by themselves are 
indicative of his impact in the field. While the petitioner's research has value, any research must be 
original and likely to present some benefit if it is to receive funding and attention from the scientific 
community. In order for a university, publisher, or grantor to accept any research for graduation, 
publication, or funding, the research must offer new and useful information to the pool of knowledge. 
Not every researcher who performs original research that adds to the general pool of knowledge has 
inherently impacted the field as a whole. 
The petitioner has also presented at conferences. Many professional fields regularly hold meetings and 
conferences to present new work, discuss new findings, and to network with other professionals. These 
meetings and conferences are promoted and sponsored by professional associations, educ(!tional 
institutions, employers, and government agencies. Although presentation of the petitioner's :work 
demonstrates that his research findings were shared with others and may be acknowledged as original 
based on their selection for presentation, the petitioner has not provided documentary evide�ce to 
(b)(6)
NON-PRECEDENT DECISION 
Page 6 
establish, for instance, that his work at the time of filing had been frequently cited by independent 
researchers, or that his findings have otherwise influenced the field as a whole. 
Regarding the petitioner's awards for his research presentations, recognition for achievements is an 
element that can contribute toward a finding of exceptional ability. See 8 C.P.R. § 204.5(k)(3)(ii). 
However, by statute, "exceptional ability" is not, by itself sufficient cause for a national interest 
waiver. !d. at 218. Some awards may serve as evidence of the petitioner's impact and influence on his 
field, but the petitioner has not demonstrated that the awards he received are indicative of his influence 
on the field as a whole. The petitioner does not assert on appeal that the director should have afforded 
more weight to the petitioner's awards. Regardless, the petitioner's awards consist of travel grants and 
recognition of his presentations prior to or upon dissemination in the field. As such, these awards do 
not take into account the ultimate impact of the petitioner's presentations. 
As stated above, the petitioner asserts on appeal that the director did not take into account the articles 
that cite the petitioner's work. Initially, the petitioner stated that his findings had garnered moderate 
citation, but did not submit a citation report with the initial filing. The petitioner did, however, submit 
five papers that cite to his work. " and authored two of the 
papers which cite the petitioner's article from the 
The citing authors presented one of their papers at the 
In 
this presentation, the authors cite the petitioner's work as one of four concurrent modeling me,thods 
before presenting their own new multiscale dynamic modeling approach that solves prior challenges. 
The second paper does not contain any information to establish that it was published or presented.' This 
paper cites the petitioner's work as one of seven large models. and 
cite the petitioner's work as one of between six and twelve sources for various propositions. 
and coauthored two articles that cite a conference paper which Mr. co-
authored with the petitioner. Accordingly, these articles are self-citations. Self-citation is a normal, 
expected practice, but does not demonstrate the response of independent researchers. 
Although the petitioner submitted a list of citations from _ in response to the director's 
notice of intent to deny, it was dated April 4, 2014 and includes articles and citations that occurred after 
the date of filing. While the petitioner focuses on the total number of citations in the aggregate, citation 
numbers for individual articles are more probative of that article's influence. Further, the list does not 
indicate which citations are self-citations. The petitioner has not established that the limited number of 
independent cites per article for his published works is indicative of an influence on the field as a whole. 
Moreover, as discussed above, the citing articles are not indicative of independent researchers relying 
on the petitioner's work rather than referencing it with several other articles as background material. 
The petitioner submitted a printout for the 
one of 16 people under the heading of "Project Lead." 
on appeal. According to a letter from Dr. 
petitioner's "work has been embedded in 
project which lists the petitioner as 
The petitioner does not reference this evidence 
of the the 
the open source software of 
(b)(6)
NON-PRECEDENT DECISION 
Page 7 
' Dr. Chief Software Architect at the 
and an administrator 
for _ asserts that while working on the petitioner "developed a highly parallelizable divide-
and-conquer algorithm for use in for constant temperature simulation of biopolymers." While 
Dr. explains that this work has the "potential to have a huge impact" and can be used by 
clinical or academic researchers for a better understanding and analysis of disease mechanisms and drug 
delivery," he does not provide examples of how the petitioner's algorithms are already influencirtg the 
field. ; 
The petitioner also submitted a printout which indicates that he "volunteer[ed] to be a [r]eviewer for" 
the 
- - - � 
. On appeal, the petitioner does not assert that the director failed 
to take this evidence into account. The petitioner has not demonstrated that reviewing four technical 
papers for the conference is indicative of the petitioner's influence on the field of engineering. 
Regarding the testimonial letters the petitioner submitted, many of them were from the petitioner's 
colleagues. On appeal, the petitioner does not specifically contest the director's findings that the letters 
by themselves are insufficient. The letters speak very highly of the petitioner and indicate that he is a 
talented researcher with a promising future. Professor from the 
confirms that the petitioner's paper at the 
- ' - -
was selected as the best paper, but there is no evidence demonstrating that the petitioner's 
findings once disseminated have influenced the field. Dr. a senior research scientist at 
the 
_ 
states that the petitioner is "an extraordinary productive young scientist 
working on cutting-edge research topics." Dr. . , a distinguished professor at the 
finds that the petitioner "has been actively participating in academic 
research efforts " and that "[t]he application of his developed algorithms ... enables the study of 
significantly more complex problems with higher fidelity and accuracy." users need not a,ccept 
primarily conclusory assertions.J756, Inc. v. The Attorney General of the United States, 745 F. Supp. 9, 
15 (D.C. Dist. 1990). 
We grant national interest waivers on a case-by-case basis; there is no blanket waiver for a field of 
specialization or the sciences in general. Id. at 217. While we recognize the importance of scientific 
research, including the petitioner's research, not every scientist who performs original research that 
adds to the general pool of knowledge in the field inherently serves the national interest to an extent that 
is sufficient to waive the job offer requirement. Again, the petitioner must establish that his work has 
had some degree of influence on the field as a whole. NYSDOT, 22 I&N Dec. at 219, n. 6. The record 
establishes that the petitioner is working on projects that have potential, but does not contain sufficient 
documentary evidence to establish the impact of the petitioner's work on the field. 
The petitioner did not specifically identify any erroneous conclusion of law or statement of fact in 
the director's decision beyond failing to address the citing articles, which we have addressed above. 
The petitioner did not provide any additional evidence to overcome the director's findings. 
(b)(6)
NON-PRECEDENT DECISION 
Page 8 
Accordingly, 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. 
III. CONCLUSION 
A plain reading of the statute indicates that it was not the intent of Congress that every advanced degree 
professional or alien of exceptional ability should be exempt from the requirement of a job offer based 
on national interest. The petitioner has not shown that his past record of achievement is at a Jevel 
sufficient to waive the job offer requirement which, by law, normally attaches to the visa 
classification sought by the petitioner. While the petitioner need not demonstrate notoriety on the 
scale of national acclaim, the national interest waiver contemplates that his influence be national in 
scope. Id. at 217, n.3. More specifically, the petitioner "must clearly present a significant ben�fit to 
the field of endeavor. " ld. at 218. See also id. at 219, n.6 (the alien must have "a past hist�ry of 
demonstrable achievement with some degree of influence on the field as a whole"). On the basis of 
the evidence submitted, the petitioner has not established that a waiver of the requirement pf an 
approved labor certification will be in the national interest of the United States. 
The appeal will be dismissed for the above stated reasons, with each considered as an independent 
and alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to 
establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; 
Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed.