dismissed EB-2 NIW Case: Metallurgy

identifying data deleted to 
prevent clearly unwarranted 
invasieD of personal privacy 
PUBLlCCOPY 
IN RE: Petitioner: 
Beneficiary: 
NEBRASKA SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
Date: FEB 2 4 2011 
PETITION: Immigrant Petition for Alien Worker as a Member of the Proressions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) ofthe Immigration 
and Nationality Act, 8 U.S.C. § I I 53(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised 
that any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. 
The specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or 
Motion, with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(I)(i) requires that any motion must be 
filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
-Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner seeks classification 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 physical scientist/plant 
metallurgist. The petitioner asserts that an exemption from the requirement of a job offer, and thus of 
an alien employment certification, is in the national interest of the United States. The director found 
that the petitioner qualifies for classification as a member of the professions holding an advanced 
degree, but that the petitioner had not established that an exemption from the requirement of a job 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, we 
uphold the director's determination that the petitioner has not established his eligibility for the benefit 
sought. 
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 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 Materials Science and Engineering from the University of Alabama at 
Birmingham. 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 
Page 3 
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, IOlst Cong., 1st Sess., II (1989). 
A supplementary notice regarding the regulations implementing the Immigration Act of 1990 
(IMMACT), 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 1 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, 217-18 (Comm'r. 1998) (hereinafter 
"NYSDOT"), has set forth several factors that U.S. Citizenship and Immigration Services (USCIS) 
must consider when evaluating a request for a national interest waiver. First, the petitioner must show 
that the alien seeks employment in an area of substantial intrinsic merit. Id. at 217. Next, the petitioner 
must show that the proposed benefit will be national in scope. Id. 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 on prospective national benefit, the 
petitioner must establish 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. We include the term 
"prospective" 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, metallurgy, and 
that the proposed benefits of his work, improved and more efficient metallurgy, 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 qualify for a national interest waiver. 
NYSDOT, 22 I&N Dec. at 218. 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. ld. at 221. 
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 221, n. 7. 
The petitioner submitted evidence that he is or was a member of the American Foundry Society (AFS), 
Material Advantage (The Student Program for Materials Science and Engineering), the Alabama 
Gamma Chapter of Alpha Sigma Mu and the University of Alabama at Birmingham Chapter of Phi 
Kappa Phi. Alpha Sigma Mu and Phi Kappa Phi appear to be honor societies based on academic rank 
and scholarship. Academic performance, measured by such criteria as grade point average, cannot 
alone satisfY the national interest threshold or assure substantial prospective national benefit. Id. at 
219, n.6. In all cases the petitioner must demonstrate specific prior achievements that establish the 
alien's ability to benefit the national interest. Id. Regarding the petitioner's professional 
memberships, such memberships are one type of evidence that may be submitted to establish 
exceptional ability pursuant to section 203(b)(2) of the Act. 8 C.F.R. § 204.5(k)(3)(ii)(E). Because 
exceptional ability, by itself, does not justifY a waiver of the alien employment certification 
requirement, arguments hinging on professional memberships, while relevant, are not dispositive to the 
matter at hand. Id. at 222. The record contains no evidence that the above professional memberships 
are indicative of an influence in the field of materials science as a whole. 
an email from 
requesting that 
other potential reviewers in the event that the petitioner is unable to complete the review. On appeal, 
the petitioner submits additional requests that the petitioner review submitted manuscripts. Only one of 
filing of the petition and that request is also from 
The petitioner must establish his eligibility as of the date 
§§ 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l. Comm'r. 
1971). Thus, we will not consider the review requests the petitioner received after that date. Regarding 
the remaining requests, we cannot ignore that scientific journals are peer reviewed and rely on many 
scientists to review submitted articles. The petitioner has not established that two requests to review 
manuscripts for the same journal are indicative of his influence on the field as a whole rather than his 
familiarity and experience with the subject matter of the articles. 
The petitioner also submitted an email 
·':- .. 1.-.'. 
I 
It is apparent from this 
email that ad read the petitioner'S articles and determined that the petitioner had the 
necessary knowledge to review a Ph.D. thesis. While notable, this request, by itself, is not evidence of 
the petitioner's influence in the field. not suggest that the Ph.D. student had 
applied the petitioner'S work. 
The petitioner submitted eight journal articles and four articles and one abstract published in conference 
proceedings. The petitioner also submitted the programs for three conferences. In response to the 
director's request for additional evidence, the petitioner submitted evidence regarding the prestige of the 
journals and conferences. Publication in prestigious journals and presentation at prestigious 
conferences demonstrates that these prestigious entities accepted the petitioner'S work as promising and, 
thus, worthy of dissemination. At issue is how the petitioner's work was applied once disseminated. 
society's annual convention and that the contest "features the best work of metallographers 
microstructural analysts from around the world." The materials further state: 
The primary goal of the contest is to advance the science of microstructural analysis by 
providing an opportunity for microstructural analysts to display their work and 
communicate significant scientific information. 
The contest includes eight classes and a "Best in Show." Best in Show includes a $3,000 award and the 
first place winners in the individual classes receive $200. The society awards the prize money in the 
individual classes to the primary investigator (first author listed). While counsel notes that the 
petitioner is the first author for the majority of his publications, the petitioner is not the first author 
listed on this project. Regardless, recognition from professional organizations is one type of evidence 
that a petitioner may submit to demonstrate exceptional ability. 8 C.F.R. § 204.S(k)(3)(ii)(F). Because 
exceptional ability, by itself, does not justifY a waiver of the alien employment certification 
requirement, arguments hinging on recognition from professional organizations, while relevant, are not 
dispositive to the matter at hand. NYSDOT, 22 I&N Dec. at 222. More significant than recognition at 
the time of presentation is how double cemented carbide ultimately impacted the field upon 
dissemination. 
addresses this issue in a letter dated 
Jni'J"r·,itv of 
Alabama at Birmingham on the double cemented carbide ect. further 
confirms that the "was a critical member and with....-· for the 
project. . that _ has a "superior combination~sistance 
(toughness) and high wear resistance as compared with the conventional cemented carbide." _ 
_ asserts that as one of the top 100 innovations in 2009, seven 
years after the recognized the petitioner's work on _The 
petitioner did not . actual R&D Magazine listing. A~t determine the exact 
innovation the magazine recognized. Significantly, while _ asserts that 
Technologies adopted_inserts "for a few years" the company eventually "phased 
"because it was more expensive than the traditional carbides (sinter-HIP) and the traditional carbide 
properties improved to the point of m~ the _ carbide toughness." While 
asserts that the petitioner's work on ~as "very important to Smith Technologies" he does not 
explain why R&D Magazine recognized DCC in 2009 after Smith Technologies was already phasing 
out DCC because of improvements to traditional cheaper carbides. 
The Department of Labor's Occupational Outlook Handbook (OOH) states that materials engineers 
are involved in the development, processing, and testing of the materials used to create a range of 
products and are involved in selecting materials for new applications. See 
http://www.bls.gov/oco/ocos027.htm#nature. accessed February 17, 2011 and incorporated into the 
record of proceeding. Thus, the petitioner has not established that developing a metal with practical 
value for a few years to the company that commissioned the work demonstrates that the petitioner 
would benefit the national interest to a greater degree than other available and qualified U.S. material 
engmeers. 
Finally, the record contains no evidence that any of the petitioner's articles abou_or any other 
subject, have garnered any citations. In response to the director's request for additional evidence and 
again on appeal, counsel asserts that citations are not the only type of evidence that can establish 
influence in the field. Counsel notes that the petitioner submitted letters from independent references. 
Counsel then references unpublished AAO decisions. Counsel concludes that because the AAO 
sustained the appeal in other cases with little or no citation evidence and fewer independent letters than 
the petitioner has submitted in this matter, the petitioner has presented a stronger case than other 
appeals the AAO has sustained. 
First, while 8 C.F.R. § 103.3(c) provides that AAO precedent decisions are binding on all USCIS 
employees in the administration of the Act, unpublished decisions are not similarly binding. Second, 
the truth is to be determined not by the quantity of evidence alone but by its quality. Matter of 
Chawathe, 25 I&N Dec. 369, 376 (AAO 2010) citing Matter of E-M- 20 I&N Dec. 77, 80 (Comm'r. 
1989). Thus, at issue is not how many independent letters the petitioner has submitted but rather 
what those references say and whether the record supports those assertions. Moreover, as counsel 
asserts that the petitioner's impact is apparent in industry, independent letters from industry 
professionals confirming the petitioner's impact on independent companies would carry more weight 
than letters from independent academic institutions. Significantly, USCIS need not accept primarily 
conclusory assertions.! The record contains two letters from industry professionals, only one of 
which is from an independent reference. We will consider all the letters below. 
and 
recruited the petitioner to 
rp<:porrh roll cast aluminum in a Department of Energy funded project. Most, if not all 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 in~s the national 
interest to an extent that justifies a waiver of the job offer requirement. _explains that 
the petitioner "designed' the heat treatment effects on twin roll cast 
aluminum alloys." According research "provides practical solutions 
to the aluminum sheet manufacturing industry." that the petitioner gained an 
1 1756, Inc. v. The Attorney General afthe United States, 745 F. Supp. 9,15 (D.C. Dist. 1990). 
Page 7 
international reputation based on this work and that his contributions "were critical for both our 
scientific and industrial communities to be able to maintain a competitive edge in aluminum 
metallurgy." 
As an example of the industry using the petitioner's work, that _ is 
"employed machining, construction, .. " The only 
company as using_ however, is collaborated 
on the project. that has had "remarkable success" using 
in oil As discussed above, however acknowledges using 
but explains . has phased out _ because traditional materials, 
are cheaper, are now improved. The record contains no evidence of any other company using 
to support that.s currently "employed widely." 
, t the 
• :.0..; " • • • ISOry 
work on_ noting that Smith International used_ 
that the petitioner pursued techniques to make twin 
UjJJJH~'''''Jl'' that typically require more expensive traditional 
Committee, also discusses 
for its tools. In addition, 
roll-cast aluminum 
alloys. states petitioner's work "led to innovative techniques that can 
properties of this low-cost material and make it an option for numerous 
uses." __ concludes that this "possibility can lead to a dramatic reduction in the 
production costs of aluminum alloys and improve manufacturing efficiency in the United States." 
While asserts that the petitioner's work has "sparked much interest throughout the 
country," he does not provide a single example of a company applying or considering applying the 
petitioner's techniques. 
has collaborated with the petitioner, asserts 
M~mg,an(:se solute behavior in aluminum alloys 
via Scanning Transmission Electron Microscopy, a cutting edge tool for material scientists." _ 
~her asserts that the petitioner "creatively carried out experiments to . 
heating rate on microstructural evolution of aluminum alloys during armealing." 
speculates that the aluminum industry "can solve the problem of large grain size in roll cast 
aluminum alloys after recrystallization" based on the petitioner's work. _ does not provide 
an example of a company that is applying or even investigating the petitioner's technique. 
~t his laboratory hosted the petitioner while he conducted his aluminum alloy project. While 
_ praises the petitioner's abilities and concludes that the petitioner's work has practical 
applications, he does not provide examples of the petitioner's impact in the field. 
explains the problems that have 
prevented twin roll casting of aluminum from full scale introduction in industry. While __ 
asserts that the petitioner's research on this problem is a "breakthrough" and notes that the petitioner 
Page 8 
published his research on this problem, ~oes not provide any examples of industry applying 
or investigating the petitioner's resolution. 
that the petitioner's article on pinning potential "has been indispensible" to one of 
students who will be applying his results in industry upon graduation. While the 
petitioner's research clearly has practical applications, it can be argued that any PhD. thesis or 
published article, in order to be accepted or published, must offer new and useful information to the 
pool of knowledge. The fact that one other Ph.D. student at a different institution benefitted from the 
petitioner's research and will eventually work in industry does not demonstrate the petitioner's 
influence in the field as a whole. 
2003. _sserts that the petitioner is "an experimentalist who has mastered a series of 
advance~tal techniques." Special or unusual knowledge or training does not inherently 
meet the national interest threshold. NYSDOT, 22 I&N Dec. at 221. The issue of whether similarly­
trained workers are available in the U.S. is an issue under the jurisdiction of the Department of 
Labor. ld 
descrilbes the petitioner's work with twin roll cast aluminum discussed above. While_ 
that the petitioner published this work he fails to provide examples of industry applying 
or investigating the petitioner's techniques. ~sserts that the petitioner's work on the effect of 
heating rate on recrystallization is a great advance in the field by "providing a way for industry to 
achieve optimum ductility in aluminum alloys and other metallic metals." _ however, once 
again provides no examples of industry applying or investigating the petitioner's techniques. 
an associate professor at Purdue University who was at ___ 
petitioner performed his research there, asserts that his ~ 
petitioner's work "comes solely from reading several of his publications." discusses the 
petitioner's work on twin roll cast aluminum alloys and concludes that based on the petitioner'S 
research, "the stereological means method has become the routine and most popularly used method." 
users need not accept primarily conclusory assertions.2 _ provides no examples of specific 
companies using the stereological means method after reviewing the petitioner's work. 
associate professor at Portland State University, exp~at he met the 
trailnirlg course after the petitioner filed the instant petition. _sserts that the 
petitioner's work in gating and risering of ferrous castings "is a platform for much ongoing work on 
simulation of hot tear, hot stress crack in Nickel based alloys" like that of_ own research. _ 
!
concludes that the petitioner's contributions "not only enrich our basic knowledge of metallurgy, 
ut also greatly improve our country's competitiveness in manufacturing technology." _ does 
not explicitly state that he ~ing the petitioner'S work or provide examples of other researchers 
that are doing so. Even if _s applying the petitioner's work, ~oes not affirm knowing of 
2 1756, Inc., 745 F. Supp. at 15. 
the petitioner or his work prior to the date of filing in this matter. The petitioner must establish his 
influence in the field as of that date. See 8 C.F.R. §§ 103.2(b)(I), (12); Matter ofKatigbak, 14I&N 
Dec. at 49. 
J""U"'" the petitioner's studies addressed above 
practical applications, and has added to the general pool of 
knowledge in the field. . "Unlike in the academia, adoption of one's work 
through actual use by the industry is the best evidence of the influence of his work." While we do not 
question this assertion, only attests to the practical implications of the petitioner's work 
and provides no examples of industry's use of the petitioner's work. Regarding his own interest in the 
petitioner's work, ~tates only that he "would be eager to discuss [the petitioner's] 
innovative findings~her detail should the opportunity arise." 
The Board of Immigration Appeals (the Board) has held that testimony should not be disregarded 
simply because it is "self-serving." See, e.g., Matter ofS-A-, 22 I&N Dec. 1328, 1332 (BIA 2000) 
(citing cases). The Board also held, however: "We not only encourage, but require the introduction 
of corroborative testimonial and documentary evidence, where available." Id. If testimonial 
evidence lacks specificity, detail, or credibility, there is a greater need for the petitioner to submit 
corroborative evidence. Matter of Y-B-, 21 I&N Dec. 1136 (BIA 1998). 
The opinions of experts in the field are not without weight and have been considered above. USCIS 
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'r. 1988). However, USCIS 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; USCIS may, as we have done above, evaluate the content of those letters as to whether 
they support the alien's eligibility. See id. at 795; see also 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"). 
USCIS 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'r. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'!. 
Comm'r. 1972». 
The letters considered above primarily contain bare assertions of ability without providing specific 
examples of how the petitioner'S practical innovations have influenced the field. Merely repeating 
the legal standards does not satisfY the petitioner's burden of prooe The independent letters do not 
suggest application of the petitioner's work at a level consistent with an influence on the field as a 
whole. The petitioner also failed to submit sufficient corroborating evidence in existence prior to the 
preparation of the petition, which could have bolstered the weight of the reference letters. 
J Fedin Bros. Co .. Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 1990); 
Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). Similarly, as discussed above, uscrs 
need not accept primarily conc1usory assertions. 1756, Inc., 745 F. Supp. at IS. 
Page 10 
Ultimately, the petitioner has demonstrated that his work at the time of publication or presentation, is 
viewed as having potential. Specifically, distinguished journals and conferences have accepted the 
petitioner's work and even formally recognized work in which he participated (but not as first author). 
The petitioner has not demonstrated, however, that his work has ultimately proven influential. The 
only company to have applied the petitioner's work collaborated in that work and utilized it for only a 
few years. In addition, a single Ph.D. student found the petitioner's work useful. While that student 
may go work in industry, it is mere speculation as to how the petitioner's influence will continue to 
support this student's work. In the aggregate, this evidence does not establish the petitioner's influence 
in the field. 
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. 
ORDER: The appeal is dismissed.