dismissed EB-2 NIW Case: Mechanical Engineering

U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
PUBLICCOpy
u.S. Citizenship
and Immigration
Services
FILE: LIN 06 077 53735 Office: NEBRASKA SERVICE CENTER Date: AUG 14 2001
INRE: Petitioner:
Beneficiary:
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.
f-~~-
Administrative Appeals Office
www.uscis.gov
LIN 06 077 53735
Page 2
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa
petition, which is now before the Administrative Appeals Office 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. § 1153(b)(2), as an alien of exceptional ability or a member of the professions
holding an advanced degree. The petitioner seeks employment as a 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 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 submits a brief. For the reasons discussed below, we uphold the director's findings.
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 Ph.D. in Mechanical Engineering from the University of Illinois at Chicago
(DIC). 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
LIN 06 077 53735
Page 3
by increasing the number and proportion of visas for immigrants who would benefit the United States
economically and otherwise.... " S. Rep. No. 55, 101st Cong., 1st Sess., 11 (1989).
A supplementary notice regarding the regulations implementing the Immigration Act of 1990
(IMMACT), published at 56 Fed. Reg. 60897, 60900 (November 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. 215 (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. Id. at 217-18.
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. Id. at 219. The petitioner's subjective assurance that the alien will, in the future, serve the
national interest cannot suffice to establish prospective national benefit. The inclusion of the term
"prospective" is used here to require future contributions by the alien, rather than to facilitate the entry
of an alien with no demonstrable prior achievements, and whose benefit to the national interest would
thus be entirely speculative. Id.
We concur with the director that the petitioner works in an area of intrinsic merit, engineering, and
that the proposed benefits of his work, improved models to predict the behavior of accidental and
deliberate fires and explosions, 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.
Counsel and several of the petitioner's references focus on the importance of the petitioner's work to
homeland security. We have recognized above that the proposed benefits of the petitioner's work
would be national in scope. Eligibility for the waiver, however, must ultimately 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. Id. at 218, 220. Moreover, it cannot suffice to state that
the alien possesses useful skills, or a ''unique background." Special or unusual knowledge or
training does not inherently meet the national interest threshold. The issue of whether similarly-
LIN 06 077 53735
Page 4
trained workers are available in the United States is an issue under the jurisdiction of the Department
of Labor. Id. at 221.
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 heavily on letters from his colleagues and other members of his field. 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. 791, 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. 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 Soffici, 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, letters from independent references who
were previously aware of the petitioner through his reputation and who have applied his work are the
most persuasive.
~bove, the petitioner received his Ph.D. from DIC in 2003 under the direction of_
_ The petitioner then worked as a postdoctoral research associate at UIC through May 2004.
As of the date of filing, the petitioner was working as a research associate at the University of Utah,
where he works for Dr. Philip Smith on a project for the Center for Simulation of Accidental Fires and
Ex I i -SAFE). The U.S. Department of Energy (DOE) funds thepetitioner's current work.
discu er's models designed for spray combustion but applicable to a
variety of problems. explains that stochastic models are the best models for practical
problems and asserts that the petitioner's stochastic models "are considered to be the most advanced of
their kind, and take into account many importan~esses that are crucial for accurate
representation of turbulence effects on particles." _ further asserts that the petitioner's
models "have been carefully tested in a variety of flows using the data from direct numerical
simulations."
LIN 06 077 53735
PageS
a member of the petitioner's Ph.D. thesis defense committee, asserts that the
petitioner, for the first time, provided access to time-correlated data, alleviating the need to make
assumptions of the variations of the parameters during an entire period of activity. In addition, the
petitioner's model was t the capability to predict mass fraction fluctuations in
turbulent flow reactions. , another member of the petitioner's Ph.D. thesis defense
committee and the petitioner's coauthor for several articles, provides similar information, asserting that
the petitioner's model "paved the path for engineers to predict the behavior of explosions and
combustion events to a degree that was not done before."
_ an associate professor at Michigan State University who hascoauth~ith
asserts that he knows of the petitioner through his published papers. _also
asserts that the petitioner's models are unique because they allow simulations over time and "have the
capability of predicting mass fraction fluctuations in turbulent flow reactions."
In response to the director's request for additional evidence, the petitioner submitted morei_
letters. While the references all praise the petitioner's doctoral work, only one of them,
Sazhin of the University of Brighton, appears to have known of the petitioner prior to his joining C­
SAFE. _ asserts that he has "long been awar~titioner's work and notes that he
recentl~etitioner's work in a review article. _asserts that the petitioner's work
"was one leading example cited which solved the general problem of simultaneous transient heat and
mass transfer by coupled numerical solutions of the conservation equations." _ further asserts
that the petitioner 's work was cited "as an example of the most advanced work being done in the field
on this topic."
The actual review article citat., is not indicative of a model that has influenced the field as a
whole. In his review article, cites the petitioner in a section on coupled solutions. _
_ cites the petitioner in erst sentence of the section as one of ten studies that has solved the
general problem of simultaneous transient heat and mass transfer by coupled numerical solutionsof the
conservation equations. concedes in the next sentence, however, that these models are not
directly applicable in multidimensional CFD codes and spends the remainderof the two and a half page
section discussing CFD approaches to modeling droplet heating, evaporation and dynamics.
does not cite the petitioner's work again and it does not appear to be a focusof the section.
asserts generally that the petitioner's work "received great attention when it 111
~ed at a number of important professional and governmental agency meetings." Similarly
~sserts generally that the petitioner enjoys a reputation as an outstanding researcher . All of the
petitioner's references discussing his doctoral work note that he published the results of this work in
distinguishedjoumals and presented it at conferences and meetingsof the Office of Naval Research.
1 For example , the petitioner's 2004 article in the Journal 0 Fluids Engineering, submitted into the record,
cites a 1997 article coauthored by and
LIN 06 077 53735
Page 6
General assertions that the petitioner's doctoral work has been recognized in the field or paved the way
for future work are insufficient. None of the references provide examples of work by independent
engineers that is based on or was made possible by the petitioner's models. The record does not
include letters from any independent engineers that have actually applied the petitioner's models in
their own work. Further, the fact that the petitioner presented his work at a meeting of the Office of
Naval Research is not determinative. The record lacks letters from high-level officials, or any official,
at that office discussing how the petitioner's work has been applied by that office.
Finally, we will not presume the significance of the petitioner's work from the reputation of the journal
in which it appeared or the conference where it was presented. Rather, we look for objective evidence
of the community's reaction to such publications and presentations. While the petitioner submitted
three citations of his articles coauthored with I two of those citations are in articles by Dr.
Mashayek. We note that the petitioner submitted these articles in response to the director's request for
articles by independent researchers, not those written by the petitioner or his collaborators. As the
director explicitly requested independent citations from beyond the petitioner's circle of collaborators,
the director concluded, without further elaboration, that the petitioner had submitted evidence of a
single independent citation. We reject counsel's assertion that the director erred in failing to consider
the citations by While self-citation is a normal and expected practice, such citation
cannot establish the petitioner's influence beyond his immediate circle of collaborators. Thus, the
petitioner's citation record of a single citation from an independent source in an article where he is cited
along with nine other articles for the same proposition, is not consistent with work that has influenced
the field as a whole.
According ~the petitioner is responsible at C-SAFE for "developing the advanced sub-grid
scale turbulence models and their verification and validation." More specifically:
He implemented the localized dynamic procedure model, and did the verification. From
his validation work which compares the simulations with experimental measurements
he has found the localized dynamic procedure model to be better suited to these fire
simulations than the dynamic procedure and Smagorinsky models. [The petitioner] also
tailored the one-dimensional turbulence (ODT) model so that it can be implemented
into the parallel code. This innovation has never before been reported in the scientific
literature. He has just finished the implementation and verification, and the validation
process is under investigation.
, Director of C-SAFE, asserts that the petitioner is considered "a leading expert on
t e mat ematica simulation of droplet laden turbulent flows" whose simulations of explosions and
sudden fires "has gained him widespread recognition." however, asserts that this
reputation resulted from the petitioner's "groundbreaking simulation models" developed at VIC. As
discussed above, however, the record contains little evidence that those models are well known and
influential, such as letters from several independent engineers who have relied on the petitioner's
models or frequent citation of the petitioner's articles. Regarding the petitioner's work at C-SAFE, Dr.
LIN 06 077 53735
Page 7
Pershing asserts that the petitioner implemented and verified the localized dynamic procedure model
and "tailored the one-dimensional turbulence (ODT) model, so that it can be implemented into the
parallel code, which is the original [sic]."
In response to the dir additional evidence, the petitioner submitted letters from more
independent sources. , a professor at Iowa State University, asserts that he met the
petitioner at two conferences. He asserts that the petitioner's current research "has generated new
knowledge that greatly help [sic] researchers predict explosion and fire behavior, an area of research
with clear importance to the U.S. national interest in preparing for possible terrorist attacks targeting
U.S. chemical plants." _ however, does not indicate that he or any identified independent
researcher has successfu~e petitioner's models.
a professor at the University of Pittsburgh, asserts that he is familiar with the
petitioner' s researc~lications and that he met the petitioner while visiting the University of
Utah for a seminar~sserts that over the past two years, the petitioner "and his colleagues have
improved both the ca ability and the performance of their fully integrated Uintah simulation code."
Lik asserts that the petitioner's work "is providing vital new knowledge to help
researchers predict the behavior of both explosions and fires" without identifying those researchers or
their projects.
an associate professor at the University of Delaware, asserts that the petitioner's
work on Unitah "is helping create a numerical si~e capable of predicting large-scale
accidental fires and explosions." More specifically, _asserts that the petitioner "recently
produced an excellent one-dimensional turbulence (ODT) model for application in the originally
designed parallel code, an approach previously unreported in the literature."
While the petitioner's research is no doubt of value, it can be argued that any research must be
shown to be original and present some benefit if it is to receive funding and attention from the
scientific community. All funded research is considered promising; but it does not follow that
working with a government grant inherently serves the national interest to an extent that justifies a
waiver of the job offer requirement. Similarly, any research, in order to be accepted for graduation,
publication or funding, must offer new and useful information to the pool of knowledge. It does not
follow, however, that every researcher who performs original research that adds to the general pool
of knowledge inherently serves the national interest to an extent that justifies a waiver of the job
offer requirement.
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
LIN 06 077 53735
Page 8
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. § 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.