dismissed EB-2 NIW Case: Metallurgy

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
@ U. S. Citizenship 
PUBLIC COpy 
and Immigration 
(~ND S+ Services 
Mifjing data deleted to 
prevent dearly unwarranted 
iovsrsiob of parsonal privacy 
05 
Office: NEBRASKA SERVICE CENTER 
 Date: MAY 1 1 2007 
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: 
SELF-REPRESENTED 
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. 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 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 a member of the professions holding an advanced degree. The 
petitioner seeks employment as a researcher. 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, the petitioner submits a statement and additional evidence. The petitioner has not overcome 
the director's bases of denial. 
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 Metallurgy from the Indian Institute of Science in Bangalore. 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 "in the national interest." The Committee on the Judiciary 
merely noted in its report to the Senate that the committee had "focused on national interest by 
increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise. . . ." S. Rep. No. 55, 101 st Cong., 1 st Sess., 1 1 (1 989). 
Supplementary information to the regulations implementing the Immigration Act of 1990 (IMMACT), 
published at 56 Fed. Reg. 60897,60900 (November 29, 1991), states: 
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 qualifl 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 hre benefit to the national 
interest. The petitioner's subjective assurance that the alien will, in the future, serve the national 
interest cannot suffice to establish prospective national benefit. The inclusion of the term "prospective" 
is used here to require future contributions by the alien, rather than to facilitate the entry of an alien 
with no demonstrable prior achievements, 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, ceramics, and that 
the proposed benefits of his work, improved coatings for ceramic gas turbines, 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 2 18. 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- 
trained workers are available in the United States is an issue under the jurisdiction of the Department 
of Labor. Id. at 22 1. 
Page 4 
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 22 1, n. 7. 
As stated above, the petitioner obtained his Ph.D. in 2003 from the 
Bangalore. The petitioner's primary collaborator during this time was 
record contains no letters from this collaborator or any faculty member who oversaw the petitioner's 
Ph.D. work explaining the petitioner's role in his research at that institute. After receiving his Ph.D., 
ng at the Universi 
 of Colorado, Boulder, as a research associate under the 
The petitioner remained at that institution as of the 
date of filing, September 28, 2005. On appeal, the petitioner submits a job offer from a Massachusetts 
company. Subsequently, the petitioner submitted a change of address notification indicating that he has 
moved to Pennsylvania. Citizenship and Immigration Services (CIS) electronic reco 
petitioner is now the beneficiary of an approved nonimmigrant visa petition filed by 
in Pennsylvania. 
While the record lacks letters from the petitioner's mentors and collaborators in India, Professor rn 
a group leader at the Institute of Physics of Advanced Materials, Ufa State Aviation 
Technical University in Russia, discusses the petitioner's work in India on the effect of grain growth on 
creep. Specifically, the petitioner "was the first scientist to successfully demonstrate an effective means 
of quantitatively accounting for the effect of dynamic grain growth on creep," making "the crucial 
observation that it is necessary to consider grain growth while analyzing high temperature deformation 
behavior of polycrystalline materials." Thi 
 also demonstrated "the role of particle size and 
shape of the reinforcement phase on the properties of glass matrix composites." This work revealed the 
"important role of ercolation, a statistical phenomenon, in enhancing the composite properties." 
While Dr.d asserts that percolation has application in diverse fields, he provides no 
examples of industry or researchers applying the petitioner's work. Dr. es not claim to 
have been influenced by the petitioner himself. 
~r. asserts that the petitioner's work at the University of Colorado focused on fabricating and 
test~ng novel concepts in Environmental Barrier Coatings (EBCs) for silicon-nitrite. Dr. xains 
that the critical component of modern ceramic gas turbines is the ceramic blade made from silicon- 
nitride and silicon-carbide. EBCs are critical in protecting these blades water from vapor present in the 
turbine. Using knowledge already developed by Dr. laboratory on a new generation of polymer- 
derived ceramics, the petitioner "fabricated model composites of polymer-derived composites 
containing zirconia and hafnia," materials that can withstand the conditions in a turbine. The 
petitioner's work "resulted in an original insight that an optimum porosity coating architecture is best 
suited for the environmental barrier coatings." (Emphasis in original.) While ths work had been 
presented at conferences as of the date of filing, it had yet to be published in a peer-reviewed journal. 
The petitioner also developed a unique hydrothermal testing apparatus that is the first developed on an 
economic laboratory scale. The performance of this apparatus "is comparable to the more expensive 
high-pressure burner rigs currently being used in the industry." Once again, this work had yet to be 
published in a peer-reviewed journal as of the date of filing. 
D discusses the petitioner's participation in projects funded by the Department of Energy 
and conducted in partnership with Los Alamos National Laboratory. In order to receive funding, 
proposed research 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. We must evaluate the influence the 
research had already had as of the date of filing. 
The petitioner "played a pivotal role in characterizing gas-separation membrane performance using 
novel instrumentation and unique testing methodology." Dr. explains that 
Polybenzimidazole (PBI) is a polymer capable of performing in high temperatures. mle PBI is being 
used in polymer-electrolyte fuel cells and to sequester carbon dioxide from fossil fuel burning, 
known" about certain aspects of PBI. Using "unique instrumentation developed by" 
group, the petitioner is "leading the effort to successfully characterize the high- 
of this material." The database developed during ill provide 
useful information to the project's corporate partner, the 
 Dr. asserts that 
have already influenced the field as a whole. 
the petitioner has made significant contributions to this project but does not explain how the results 
lso discusses the petitioner's work on predicting the lifetime of a membrane. Dr. 
explains that limited knowledge about the lifetime of membranes is a barrier to the 
widespread use of membrane-based gas separations. 
 group recently applied a 
superposition methodology that reasonably predicts 
 of membranes at lower 
temperatures. The petitioner "combined experimental and modeling approaches to demonstrate, to the 
- -- 
best of our knowledge, the first-ever successll application of this methodology." 
speculates that this methodology "may" provide a significant performance 
technologies for the U.S. gas-separation industry. 
As with the work discussed by Dr. Dr 
 acknowledges that while the petitioner has 
presented the work he completed in Dr. m a oratory, it had yet to be published in peer- 
reviewed journals. 
As noted by the petitioner on appeal, the record contains several letters from independent sources. The 
petitioner's assertion that the authors in these letters attest to the petitioner's influence on their own 
work, however, is not supported by the letters themselves. 
The letters submitted initially provide general praise of the petitioner's abilities and speculate as to 
fbture applications of the petitioner's work without providing examples of how the petitioner has 
already influenced the field. For example, Dr. -, a senior materials engineer at the 
National Aeronautics and Space Administration (NASA), asserts that the petitioner has expanded "the 
optimum parameters in the coating architecture." that the petitioner's coating 
architecture "by ed to other candidate which is a major contribution to 
the field." a rofessor at the University of Central Florida, provides similar 
information. Dr. Vice President and Chief Engineer for Advanced Technology 
Associates, Inc. in Colorado, asserts that the petitioner's work has other applications beyond turbines, 
"including rocket combustion chambers and nozzles, corrosion resistant ceramic coated rebars for 
construction and ceramic-coated wood panels for low cost long lifetime housing." The fact that the 
petitioner works in an area with multiple applications is not determinative. The record must document 
the impact the petitioner's work has already had. Dr. 
 a principal member of the 
technical staff at Sandia National Laboratory, merely speculates that the petitioner's work "will play a 
critical role in the design of next generation environmental barrier coatings." 
D Director of Fuel Cells and the Northwest National Laboratory, asserts that the 
petitioner identifiedthe optimum microstructural 
 dow" in which to prevent de- 
bonding during high temperature operations. 
 hs work provides "practical 
and realistic guidelines in designing the coatings." Dr. 
 of CVD Technology at the 
Institute of New Materials in Saarbrueken in Germany, also asserts that the petitioner has 
Eted definitive guidelines regarding the pore-size and microstructural parameters in order to 
maximize the coating life." ~r-asserts that these guidelines are use 
results "have led to the development of better coating strategies." Finally, Dr 
petitioner's studies "have led to the development of definitive approaches towards optimizing 
composite properties by tailoring the composite microstructure." The record does not contain any 
evidence that the petitioner has authored "guidelines" officially adopted or recommended by any 
professional society or even within a specific industry or government agency. 
Wle the letters submitted in response to the director's request for additional evidence are more 
specific, they still do not establish the petitioner's influence in the field. 
owner of -d Associates, asserts that he included the r petitioner s wor foUnder in his own and 
review presen a ion a a 
 eparhnent of Energy (DOE) conference limited to U.S. citizens and 
permanent residents. Mr asserts that the presentation was well received and that it would be 
beneficial for the petitioner to be able to present his o 
Director of the an 
asserts that center was 
 due to his immigration status. We are not persuaded 
that the national interest waiver is warranted for every alien qualified to work in a field limited, for 
national security or other reasons, to U.S. citizens and permanent residents. Rather, the petitioner must 
still demonstrate his own influence in the field. 
Mr. also asserts that the petitioner authored eight DOE reports. Mr. asserts that 
the DOE reports "contain state-of-the-art technological developments and milestones of importance in 
the micro-turbine technology program and are, therefore, used as imp0 
 es by experts in 
DOE and its affiliated National Labs, and the industry." 
 asserts that he is 
personally using the petitioner's work to fiather his own work. Mr. 
 explain how he 
petitioner's apparatus. 
is using the petitioner's work. For example, he does not specify that he has licensed or purchased the 
The reports referenced by Mr. listed on the petitioner's curriculum vitae. The petitioner 
also submitted the fiscal year 2005 report. On appeal, the petitioner submits a list of approximately 70 
institutions researching monolithic ceramics and high temperature coatings posted on DOE'S website. 
The petitioner's reports are consistent with the type of typical progress reports often required by a 
funding agency. The record is not persuasive that these reports represent reports reviewed by DOE and 
selected for publication or distribution as official guidance in the field. 
Dr. 
 sserts that the petitioner's work has "triggered excitement in the research community to 
study the role of reinforcement morphology on percolation; especially the effect of size ratio." Dr. 
fiu-ther asserts that cheaper ceramics and composites are now being investi ated "mainly due 
to" the petitioner's development of percolation guided processing methods. Dr. however, does 
not indicate that he personal1 is pursuing this area of research or identify another researcher who is 
doing so. Finally, Dr. asserts that the petitioner's work "has led to interesting developments in 
the fundamental application of PDCs." 
 Dr. 
 does not explain what those interesting 
developments are or who performed them. 
Profess , of the University of Trieste, Italy, asserts that other researchers are already 
considering the petitioner's threshold velocity factor in designing better coating microstructures and 
utilizing his apparatus for hydrothermal testing. 
 Professor 
 does not identify these other 
researchers and does not claim to be one of them. The record lacks evidence that the petitioner is listed 
as an inventor on a patent for this apparatus or evidence that the innovation has been widely licensed or 
licensed at all. 
chief ~xecutive Officer and Chairman of - Inc. 
(RCSI) in Colorado, asserts that RCSI has conducted its own research on ceramic coatings for wood, 
which it has patented, and that the petitioner's results on these types of coatings "have been extremely 
helpful in maturin 
 our collaborations with the wood industry." 
 This statement is extremely 
ambiguous. Ms. 
 implies that RCSI developed its own ceramic coating for wood and 
does not indicate that the petitioner is listed as an inventor on RCSI's patent. She does not clearly 
the petitioner's work has impacted the work at RCSI. Similarly, while Ms. 
asserts that the petitioner's studies on "self-healing" materials and coatings have 
"helpful" to RCSI, she does not explain the petitioner's impact. 
been 
Page 8 
Finally, several references assert that the petitioner's influence in the field is apparent from the 
conferences where he has presented his work, the journals that carry his articles and the formal 
recognition he has received in the field. We will not presume the influence of a given presentation or 
article from the conference where it was presented or the publication in which it appeared. Rather, the 
petitioner must establish the influence of the individual presentation or publication. 
In response to the director's request for additional evidence, prior counsel cites a July 30, 1992 
correspondence memorandum fiom Acting Assistant Commissioner, to the then 
Director of the Nebraska Service Center, 
I.1 
Mrsued his correspondence 
memorandum in response to an inquiry from Mr. 
 d makes clear that he is discussing his 
personal inclinations. 
 Moreover, in contrast to official policy memoranda issued to the field, 
correspondence memoranda issued to a single individual do not constitute official CIS policy and will 
not be considered as such in the adjudication of petitions or applications. 
 Although the 
correspondence may be useful as an aid in interpreting the law, such letters are not binding on any 
CIS officer as they merely indicate the writer's analysis of an issue. See Memorandum from Thomas 
Cook, Acting Associate Commissioner, Office of Programs, SigniJicance of Letters Drafted by the 
Ofjce of Adjudications (December 7,2000). 
Moreover, in citing ~r. 
 counsel removes a crucial phrase from Mr. 
correspondence memorandum. Mr. 
 states that "entries (particularly a goodly number) 
index which cite the 
 in the field . . . would more than likely be 
solid pieces of evidence." Prior counsel omits the highly relevant phrase: b'particularly a goodly 
number." As stated by the director, the record lacks evidence that the petitioner has been heavily cited. 
Rather, the petitioner submitted only three independent citations. 
On appeal, the petitioner asserts that his field is not conducive to tracking citations. The petitioner 
himself, however, submitted rankings of journals in his field, which includes the total number of 
citations and citation half-lives for each journal. Thus, it would a ear that there is a means for 
tracking citations in these journals. We acknowledge that Mr. 
m 
sserts that DOE reports are 
not traditionally cited. Assuming that this assertion is true, it is 
 e petitioner's burden to demonstrate 
the significance of these reports and their influence in the field. The record lacks letters fiom high-level 
DOE officials explaining the significance of these reports. For example, reports required of every 
project funded by DOE do not set the petitioner apart from other researchers funded by DOE. The 
record lacks evidence that DOE only selects some of the research proposals and progress reports of the 
projects it funds for inclusion on its website. 
Regarding the petitioner's recognition in the field, we acknowledge that the petitioner received student 
recognition and formal recognition for his poster presentation. On appeal, the petitioner asserts that the 
director failed to given sufficient weight to this recognition. Formal recognition for significant 
contributions is one of the regulatory criteria for aliens of exceptional ability, a classification that 
normally requires an alien employment certification. We cannot conclude that meeting one criterion, or 
even the requisite three criteria for that classification warrants a waiver of that requirement. Matter of 
New York State Dep 't of Transp., 22 I&N Dec. at 222. 
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. Any Ph.D. thesis or postdoctoral 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 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 
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. $ 1 361. 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.