dismissed EB-2 NIW Case: Mechanical Engineering

PUBLIC COpy
identifyingdata deletedto
preventclearly unwarranted
invasionof personalprivacy
LIN 06 020 52393
U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
Date: AUG 10 2007
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.
~/~
~ Robert P. .wi~m~nn, Chief
/ -- Administrative Appeals Office
www.uscis.gov
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 technical specialist - electronic
controls. 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 ofajob offer would be in the national interest of the United States.
On appeal, counsel submits a brief and additional evidence. For the reasons discussed below, counsel,
relying on standards never enacted as legal authority, has not overcome the director's denial. It remains
that the petitioner has not submitted any evidence of his influence on the field, such as, but not limited
to, letters from outside his immediate circle of current and former colleagues, evidence of widely or
even moderately cited articles or even patents/patent applications listing the petitioner as an inventor.
The letters submitted provide mostly poorly supported broad assertions. Without such evidence, the
petitioner cannot demonstrate the type of record of success and influence that could support a request
for a waiver of the alien employment certification in the national interest.
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 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 Mechanical Engineering from the Massachusetts Institute of
Technology (MIT). 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.
During this proceeding, counsel has also referenced the petitioner's purported exceptional ability. As
the petitioner qualifies as a member of the professions holding an advanced degree, the issue of whether
he also qualifies for classification as an alien of exceptional ability is moot. We note that the
exceptional ability classification, like the advanced degree professional classification, normally requires
an alien employment certification. Thus, even if the petitioner had demonstrated the degree of
expertise significantly above that ordinarily encountered in the field required for aliens of exceptional
ability, that expertise alone would not warrant a waiver of alien employment certification in the national
interest. Matter ofNew York State Dep 't. of Transp., 22 I&N Dec. 215, 222 (Comm. 1998)[hereinafter
"NYSDOT'] .
The issue before us 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, 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.
NYSDOT, 22 I&N Dec. at 217-218, 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.
Page 4
On appeal, counsel asserts that the director applied the wrong standard and then asserts that the
petitioner meets the standards for a national interest waiver set forth in a proposed rule published at
60 Fed. Reg. 29771, 29777 (proposed 1995). As this rule was never finalized, it has no legal authority.
Rather, in 1998, this office issued the precedent decision cited above relating to national interest
Waivers.
The regulation at 8 C.F.R. § 103.3(c) provides that AAO precedent decisions are binding on all CIS
employees in the administration of the Act; however, unpublished decisions are not similarly
binding. Thus, NYSDOT, 22 I&N Dec. at 215, supercedes any previous decisions by this office,
especially decisions that were never designated as precedents. Moreover, non-precedent decisions
issued after NYSDOT, 22 I&N Dec. at 215, cannot alter the standard set forth in that decision.
While counsel does not discuss NYSDOT, 22 I&N Dec. at 215, on appeal, counsel does acknowledge
this decision in his initial cover letter. Counsel, however, asserts that NYSDOT, 22 I&N Dec. at 215,
"is simply inapplicable to [the petitioner's] request for a national interest waiver and thus should not
impede (or have any bearing on) the adjudication of this petition." Counsel's first basis of rejecting
the standards set forth in that decision is that the decision sets forth criteria that are ultra vires. To
date, however, neither Congress 1 nor any other competent authority has overturned the precedent
decision, and counsel's disagreement with that decision does not invalidate or overturn it. In fact,
one federal court has rejected the argument that the precedent decision violates the Administrative
Procedure Act, stating:
Plaintiff also argues that the adoption of NY[SJDOT as a precedent decision is a
violation of the APA's notice and comment requirement. See 5 U.S.C. § 553(b) & (c).
However, notice and comment proceedings are not required when an agency adopts
an interpretive rule. See 5 U.S.C. § 553(b)(A). NY[SJDOT is clearly interpretive
because it does not create new rights or duties, but rather "provides a reasonable and
predictable interpretation" of the statute. See Mejia-Ruiz v. INS, 51 F.3d 358, 364 (2d
Cir.1995). Thus, Plaintiffs claim of a violation of the APA's notice and comment
requirement fails as well.
Talwar v. INS, No. 00 CIV. 1166 JSM, 2001 WL 767018 (S.D.N.Y. July 9,2001).
Counsel's second basis of rejecting NYSDOT, 22 I&N Dec. at 215, as a proper authority is that "the
evidence herein clearly demonstrates that all three elements required by [NYSDOT] are present here."
Counsel provides no explanation for how the petitioner's alleged ability to meet the standard set forth
in a precedent decision renders that standard inapplicable. We note that NYSDOT, like the case before
I Congress did subsequently amend the Act to facilitate waivers for certain physicians. This amendment
demonstrates Congress' willingness to modify the national interest waiver statute in response to NYSDOT; the
narrow focus of the amendment implies (if only by omission) that Congress, thus far, has seen no need to
modify the statute further in response to the precedent decision.
us, involved an engineer. Thus, the proper standard in this matter is that set forth in NYSDOT, 22I&N
Dec. at 215.
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. NYSDOT, 22 I&N Dec. 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. ld.
The director did not contest that the petitioner works in an area of intrinsic merit, engineering. The
director then concluded that the proposed benefits of his work, the development of clean, efficient
and versatile diesel engines, would not be national in scope. As the benefits of the technology on
which the petitioner is working would not be limited regionally, we withdraw the director's finding
on this issue.
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. On appeal, counsel
asserts that the director erred by focusing on the petitioner's record of professional achievements
rather than the significance of the projects on which the petitioner works. Eligibility for the waiver,
however, 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 218, 220. Moreover, it cannot suffice to state that the alien possesses useful skills, or a
"unique background." ld. 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. ld.
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. ld. 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. ld. at 221, n. 7.
The petitioner relies on several reference letters. The director dismissed these letters based on
similar language contained in more than one letter and the failure of references who appeared to be
independent to explain how they knew of the petitioner's work. On appeal, the petitioner submits a
new letter from one reference affirming his authorship of his prior letter and asserting that some of
the language derived from the petitioner's article.
Page 6
All of the reference letters are signed and the director cites no reason to doubt the authenticity of the
signatures. Thus, the references have all affirmed the information in the letters. That said, the use of
boilerplate language suggests that the language is not that of the author. While the use of boilerplate
language does not necessarily reduce the credibility of the signatures, it can, on a case-by-case basis,
diminish the evidentiary value of the letters.
Ultimately, Citizenship and Immigration Services (CIS) may, in its discretion, use as advisory
opinions statements submitted as expert testimony. See Matter ofCaron 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 Sofjici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing
Matter of Treasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972)).
In evaluating the reference letters, we note that letters containing mere assertions that the alien is
talented or has garnered "international attention" or "mass recognition" 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 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.
While the director concluded that some of the petitioner's references were independent and questioned
their knowledge of internal reports, a review of the curriculum vitae of these references reveals that all
of the references supporting the petition are the petitioner's former colleagues or former fellow
students. Thus, the petition is not supported by a single independent expert in the field. While letters
from the petitioner's immediate circle of colleagues are important and establish his role on various
projects, such letters cannot, by themselves, establish the petitioner's influence on the field as a whole
beyond those colleagues. Within this context, we will evaluate the letters and the remaining evidence.
The petitioner obtained his Ph.D. from MIT in 1999. The petitioner submits his unpublished thesis and
the record is absent evidence that he published his Ph.D. research or presented the results of this
research at a scientific conference. He then went to work for Cummins, Inc. where he was employed as
of the date of filing. At Cummins, the petitioner authored internal reports and presented his work at the
2005 Society for Automotive Engineers (SAE) WorId Congress, which was reproduced in their
proceedings.
Page 7
I Director of Decision and Security Technologies at BBN Technologies in
Cambridge, Massachusetts and formerly a Ph.D. student and postdoctoral fellow at MIT, asserts that
the petitioner worked on the development of non-invasive vibration-based diagnoslll!flll
reciprocating machinery at MIT, which "garnered him international attention." While
asserts that this work can be used by engi ers for misfire diagnostics an or researc
towards meeting new emissions standards, does not explain how this work had already
influenced the field.
Similarly , an associate professor at the Universite de Sherbrooke in Quebec and the
petitioner's former fellow student at MIT, asserts that the petitioner gained "international attention" for
his wor_ines at MIT. This work formed the basis of the petitioner's Ph.D. dissertation.
Neither nor I explains how the petitioner's unpublished Ph.D. research
garnered any attention beyond MIT, let alone internationally as claimed.
The fact that the petitioner's work was funded by the Naval Civil E L bora~d
the National Aeronautics and Space Agency (NASA), as noted by and_ is
not determinative. Most research, in order to receive funding, must present some benefit to the
general pool of scientific knowledge. It does not follow that every researcher working with a
government grant inherently serves the national interest to an extent that justifies a waiver of the job
offer requirement.
la technical advisor for Cummins, asserts that the petitioner "is responsible for real­
time control of diesel engines and associated emission controls after-treatment technologies for
reducing carbon monoxide, hydrocarbons, oxides of nitrogen and particulate matter, four of the most
significant pollutants." Specifically, the petitioner has "si~eveloped models capable of
controlling actual systems in engine test cells and vehicles." _provides no examples of how
these models have influenced the field of mechanical engineenng or even how they improve upon
previous models aimed at reducing pollutants.
~er asserts that the petitioner has authored "numerous in-house technical reports" at
Cummins. _ asserts that the petitioner's publication record and contributions "have garnered
him an inte~eputation within the field of mechanical engineering."_ does not explain
how the petitioner's publication record, consisting of internal reports and one conference presentation,
has resulted in the petitioner's international recognition. For example, _Idoes not assert, and the
record does not document that researchers worldwide have cited the pe~presentation, published
in conference proceedings. Moreover, as stated above, the record does not contain a single letter from a
member of the petitioner's field who is not a current or former colleague or fellow student of the
petitioner.
Director of Transportation Programs at Pacific Northwest National Laboratory
an a ormer emp oyee of Cummins for 16 years, asserts that the petitioner was "absolutely critical" to
a cross-functional team that delivered optimized system solutions and supported the migration of these
systems to the product development teams. asserts that the petitioner's contributions to
the field are evident from the numerous interna reports he has been asked to draft for ~I
Authoring successive internal reports may be indicative of the petitioner's satisfactory perfo~
his employer, but we are not persuaded that they necessarily are presumptive evidence of a contribution
to the field as a whole.
further asserts that the petitioner served as a peer-reviewer "for an international acclaimed
journal within the field of mechanical engineering." He does not identify the journal. ~sserts
that the petitioner was invited to serve as a peer reviewer for Diesel Exhaust Emission Control
Modeling. More specifically, _ Controls Lead at Feetguard Emissions Solutions, a
subsidiary of Cummins asserts~:r~~~~~~tioner reviewed manuscripts for the Diesel Exhaust
Emission Control Modeling session of the 2005 SAE World Congress. The record, however, lacks
primary evidence of these duties such as the actual requests or confirmation from a journal or SAE
International itself. Regardless, the petitioner has not established that participation in the peer review
process, a process that requires the commitment of a large number of science professionals to review all
of the manuscripts submitted to every peer-reviewed journal and conference, is indicative of the
petitioner's influence in the field.
a technical lead at General Motors and former employee at Cummins where he
coauthored a report with the petitioner, provides more detail. Specifically, the petitioner developed
different control algorithms capable of monitoring the Lean NOx Trap aftertreatment systems and
determining when to regenerate the catalyst, allowing this project to progress and demonstrating the
feasibility of meeting government standards for light duty vehicles after 2007.
rovides additional specifics as follows:
[The petitioner] has successfully enhanced controller design, based on engine test cell
results and customer inputs. He has designed, developed and implemented diagnostic
and prognostic strategies for individual components as well as for the total system,
including On-Board Diagnostics. [The petitioner] has contributed to many after­
treatment technologies including urea-SCR for reducing oxides of nitrogen emissions,
and Diesel Particulate Filter for reducing particulate matter emissions.
The letters provided in response to the director's request for additional evidence provide more technical
detail but fail to explain how the petitioner's work has already influenced the field. As with the initial
letters, the new letters are all from colleagues or former colleagues: Cummins employees, former
Cummins employees and an employee of a Cummins subsidiary. Despite the director's request for any
patents or patent applications that list the petitioner as an inventor, the response did not include such
documentation.
etitioner submits a June 26, 2003 letter fro~to the SRC Secretary at
does not provide his title and the letter is not on any company letterhead.
Thus, his position and employer are unknown. states that he received a disclosure from
the petitioner and provides all of the technical information for the innovation. The letter then concludes
that the disclosure is part of the Potomac Program and "is prime path for 2007 emissions control.
Disclosure outside Cummins will likely begin to occur 4 th quarter 2003." The record, however, does
not contain any patents or patent applications listing the petitioner as an inventor.
Finally, the petitioner submits an article posted on the Diesel Technology Forum website. The undated
article reports that representatives from several diesel engine manufacturers displayed their cleaner
engines for the u.s. Environmental Protection Agency. Cummins was one of the manufacturers. The
article does not single out the Cummins engine as more remarkable than the other cleaner diesel
engines and does not mention the petitioner by name.
It is inherent to the field of engineering to improve existing technology. The record, however,
contains little in the way of specific evidence to show what major improvements the petitioner has
wrought in his field of endeavor. For example, the record contains no letters from anyone not
currently or previously associated with institutions where the petitioner studied or works. The record
contains no evidence that the petitioner has authored a remarkable number of articles, let alone
widely cited articles. The record contains no patents or patent applications listing the petitioner as an
inventor. The petitioner has authored internal reports and contributed to his employer's research
and development program. Engineering, however, like most science, is research-driven, and there
would be little point in pursuing research and development that did not add to the general pool of
knowledge in the field or improve the efficiency of existing technology. Even if the petitioner had
submitted patents or patent applications listing him as an inventor, it is not clear that everyone who
holds a patent for a useful invention inherently qualifies for a national interest waiver of the job offer
requirement. NYSDOT, 22 I&N Dec. at 221, n.7.
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. § 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.