dismissed EB-2 NIW Case: Micro-Electro-Mechanical Systems

U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
OfBce ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
u.S. citizenship 
identifying data and Immigration 
Office: NEBRASKA SERVICE CENTER 
 Date: NOV 1 7 2009 
SRC 07 239 52124 
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. $ 1 153(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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. $ 103.5(a)(l)(i). 
Chief, Administrative Appeals Office 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will 
dismiss the appeal. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. 8 1153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as a postdoctoral associate at the University of California, Davis (UCD), 
working with micro-electro-mechanical systems (MEMS). The petitioner asserts that an exemption 
from the requirement of a job offer, and thus of a labor certification, is in the national interest of the 
United States. The director found that the petitioner qualifies for classification as a member of the 
professions holding an advanced degree, but that the petitioner has not established that an exemption 
from the requirement of a job offer would be in the national interest of the United States. 
On appeal, the petitioner submits a brief from counsel, as well as copies of old and new articles citing 
his published work. 
Section 203(b) of the Act states, in pertinent part: 
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of 
Exceptional Ability. -- 
(A) In General. -- Visas shall be made available . . . to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or who 
because of their exceptional ability in the sciences, arts, or business, will substantially 
benefit prospectively the national economy, cultural or educational interests, or welfare 
of the United States, and whose services in the sciences, arts, professions, or business 
are sought by an employer in the United States. 
(B) Waiver of Job Offer - 
(i) . . . the Attorney General may, when the Attorney General deems it to be in 
the national interest, waive the requirements of subparagraph (A) that an alien's 
services in the sciences, arts, professions, or business be sought by an employer 
in the United States. 
The director did not dispute that the petitioner qualifies as a member of the professions holding an 
advanced degree. The sole issue in contention is whether the petitioner has established that a waiver of 
the job offer requirement, and thus a labor certification, is in the national interest. 
Neither the statute nor the pertinent regulations define the term "national interest." Additionally, 
Congress did not provide a specific definition of "in the national interest." The Committee on the 
Judiciary merely noted in its report to the Senate that the committee had "focused on national interest by 
Page 3 
increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise. . . ." S. Rep. No. 55, lOlst Cong., 1st Sess., 11 (1989). 
Supplementary information to regulations implementing the Immigration Act of 1990 (IMMACT), 
published at 56 Fed. Reg. 60897,60900 (November 29, 1991), states: 
The Service [now U.S. Citizenship and Immigration Services (USCIS)] 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 Dept. of Transportation, 22 I&N Dec. 215 (Cornmr. 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 on prospective national benefit, it clearly 
must be established that the alien's past record justifies projections of future 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 also note that the regulation at 8 C.F.R. 5 204.5(k)(2) defines "exceptional ability" as "a degree 
of expertise significantly above that ordinarily encountered" in a given area of endeavor. By statute, 
aliens of exceptional ability are generally subject to the job offerllabor certification requirement; 
they are not exempt by virtue of their exceptional ability. Therefore, whether a given alien seeks 
classification as an alien of exceptional ability, or as a member of the professions holding an 
advanced degree, that alien cannot qualify for a waiver just by demonstrating a degree of expertise 
significantly above that ordinarily encountered in his or her field of expertise. 
The petitioner filed the petition on August 1, 2007. The petitioner indicated that he had published four 
scholarly articles, and identified nine citations to his work. We will revisit these citations in the context 
of the appeal. 
The petitioner submitted several witness letters to describe his past and present work. Louisiana State 
University (LSU) Associate ~rofessor described the beneficiary's student work in 
technical detail and stated: 
[The petitioner] did both his MS and doctoral work under my supervision with the close 
- - 
collaboration of my colleague - . . . [The petitioner's] MS 
thesis defense was notable for the depth of his understanding of the technical issues and 
the clarity of his explanations. . . . 
[The petitioner] is a rare talent and an exceptional person. Through his thesis work he 
has made unique contributions to both microfabrication and gas chromatography. 
Director of Microfabrication at LSU7s Center for Advanced 
Microstructures and Devices (CAMD), stated: 
[The petitioner's] area of special interest is related to MEMS sensor development for a 
wide field of applications . . . utilizing the concept of gas chromatography (GC). Within 
his research he had to address many different research topics including MEMS process 
development and optimization, material characterization, system design, simulation and 
assembly, and system performance tests. He excelled in all aspects of this research 
helping to achieve a deeper understanding of the complexity of MEMS sensors for 
analytical applications through simulation and theoretical investigations, and moving our 
research results closer to a sensor product that will allow quasi in-situ monitoring of 
complex environmental situations. . . . 
[The petitioner] is a preeminent scholar in the design and fabrication of advanced GC 
sensor systems. 
of ~elsenkirchen University of Applied Sciences, Germany, stated: 
I have met [the petitioner] many times during various visits at LSU, and some of our 
students have worked with him during their stay at CAMD. [The petitioner] is currently 
working with at CAMD, whom I know from his time at the 
University of Karlsruhe, Germany when he was a student. 
. . . [The petitioner] has generated excellent expertise in the field of MEMS 
development. I can testifjr from my personal knowledge of the work done by this group 
that his interdisciplinary expertise in integrating MEMS with analytical instrumentation 
is playing a key role in developing fast and small gas sensors. . . . 
[Tlhe results of [the petitioner's] PhD dissertation not only advance the state of the art of 
the subject and [are] academically highly stimulating, but will also play a major role in 
solving complex and difficult problems in microfluidics, MEMS system integration, and 
the development of analytical instrumentation. 
capabilities and his insights have been critical to our project's success to date." He also stated: "if we 
were to lose [the petitioner] from our research team, it would have devastating impact on our ability to 
timely and effectively achieve our goal of developing small, fast GC sensors for DoD [Department of 
Defense] and chemical manufacturing applications." The record shows that the petitioner's 
appointment at LSU expired on June 30, 2007, at which point the petitioner left LSU to begin working 
at UCD. Thus, the petitioner's departure from research team was imminent for reasons 
apparently unrelated to the petitioner's immigration status. 
In a May 3 1,2007 letter, of Sandia National Laboratories stated: 
I have known [the petitioner] for almost three years. We are currently collaborators . . . 
in basic research and development of a Micro Gas Analyzer . . . [for] the rapid and 
accurate detection and identification of hazardous chemicals, including chemical warfare 
agents. . . . 
[The petitioner] has obtained key results in measuring the performance characteristics of 
microfabricated gas chromatography columns. These results will significantly affect the 
choices regarding column geometries to be incorporated into future microscale gas 
chromatography systems. 
The petitioner's collaboration with appears to have ended when the petitioner left LSU a 
month after wrote the above letter. 
, writing on July 22, 2007, some three weeks after the 
beneficiary began working at UCD, stated: 
Once he joined my laboratory, [the petitioner] quickly became a critical member of my 
research team. . . . He is helping to make several of my sponsored programs a success, 
and I was not able to find any other technically qualified Ph.D.-level candidates who 
could fill this role in my group (U.S. citizen or foreign national) during the time that I 
was hiring for these projects: 
(1) clinical diagnostic work on non-invasive chemical sensors for breath analysis . . . ; 
(2) environmental detection of virus pathogens for defense applications . . . ; 
(3) novel techniques and technologies for surreptitious monitoring and identification 
of individuals who have been handling precursors to improvised explosive 
devices. 
The petitioner asserted: "I have served as the judge of the work of others in the field." As evidence of 
this, the petitioner submitted copies of correspondence in which asked for the petitioner's 
help in reviewing two manuscripts submitted for publication in Analytical Chemistry. The petitioner 
did not explain why these requests from a direct supervisor should be seen as a sign of wider 
recognition in his field. We note the petitioner's submission of "Ethical Guidelines to Publication of 
Chemical Research," published in Analytical Chemistry in 2007. Those guidelines state, on page 393, 
that "every scientist has an obligation to do a fair share of reviewing," in which case there is nothing 
remarkable about the petitioner's occasional participation in peer 
 it was = 
not the petitioner, who was invited to review the manuscripts; 
 then passed them 
on to the petitioner.) 
On September 10, 2008, the director issued a request for evidence (RFE). The director instructed the 
petitioner to "establish . . . a past record of specific prior achievement that justifies projections of hture 
benefit to the national interest." The director specifically requested evidence of independent citation of 
the petitioner's work by other researchers. In response, the petitioner described his current research: 
[W]e are targeting inducible volatile organic compound profile in citrus crops as a 
generalized strategy to build an early disease detection system that has a sensitive 
platform for the discovery and detection of these chemical compounds using 
chemometrics and bioinformatics, and the construction of adaptive network models to 
interpret and predict citrus pathogenldefense mechanisms. I am utilizing my expertise in 
chemical analysis specifically micro gas chromatography to build the next generation of 
sensors for on-field detection of plant volatiles in response to viruses and diseases. 
This is the first mention of the petitioner's work with citrus crops. 
 July 22, 2007 letter 
referred to breath analysis, defense-related virus detection and explosive devices, but not citrus 
pathogens. Ths highlights a problem with basing a waiver claim on individual, short-term projects. 
Student work and postdoctoral training are, by nature, temporary, and the etitioner is moving from 
project to project as this training progresses. By the time USCIS received h letter stating 
that the petitioner's departure from LSU would be "devastating," the petitioner had already left LSU, 
and by the time the petitioner responded to the RFE, less than 18 months after the petition's filing date, 
he had already begun a completely new project not mentioned in the initial submission. For this reason, 
we must judge the petitioner's overall impact and influence on his field, rather than attaching paramount 
importance to a single project that, for all we know, may have ended already. 
Highlighting the shifting nature of his work, the petitioner submitted a letter from - 
who described a research proposal that "focuses on developing novel sensors for 
screening of precancerous colorectal polyps. . . . [The petitioner] has proposed a novel chemical sensor 
for in vivo localized and real time measurement of biomarkers on the colon." 
In her second letter, 
 stated that the petitioner "has quickly become a critical member 
of my research team, and has already made substantial contributions to our studied." She stated that the 
petitioner "has accelerated the development of novel hybrid organometallic films for semiconductor 
applications," which "has many important benefits over current practices . . . resulting in significant 
savings." 
Synchrotron Radiation (BESSY, from its German acronym), stated: "I have worked to forge a close 
relationship between the microfabrication groups at BESSY and at" LSU's CAMD. - 
credited the petitioner with "outstanding research" with micro gas analyzers. 
chemical sensors developed by [the petitioner] can revolutionize the industry, which will have a 
significant impact on the US industries." 
of New York Medical College, who is also the Chief Executive Officer of 
Menssana Research, Inc., called the petitioner "one of the very few young scientists who are 
successfully merging engineering and clinical sciences." 
The petitioner submitted an updated list of citations of his work. In addition to the citations claimed 
previously, the list identified five new articles, a doctoral thesis, an online database and a University of 
Colorado recommended reading list. One of the five new citations is a self-citation by the petitioner's 
LSU collaborators. 
The director denied the petition on February 5, 2009, stating that the Google Scholar database 
(http://scholar.google.com) showed only one citation each for two of the petitioner's articles. The 
director concluded "the petitioner has offered no evidence showing that his publications record is 
noteworthy or that his work was heavily cited." The director found that the witness letters were not 
sufficient to show the petitioner's eligibility for the waiver. 
On appeal, counsel states: "at the time of filing . . . , Petitioner's work had been cited nine (9) times by 
other Researchers. . . . These are all citations from independent researche[r]s, showing that Petitioner 
has had a discern[i]ble and significant impact beyond his own peers and collaborators" (counsel's 
emphasis). Counsel is correct that the petitioner had documented more than two citations of his work. 
The director erred by ignoring the petitioner's citation evidence and, instead, relying solely on a Google 
Scholar search outside the record of proceeding. (The record does not contain a printout fiom the 
director's search.) 
At the same time, this error by the director is not necessarily an automatic basis for reversing the 
decision. 
 Counsel's description of the evidence is inaccurate. While the petitioner claimed nine 
citations of his work, the record shows that only six of the citations appeared in published articles. Of 
those six published citations, one is a self-citation by the petitioner's collaborator, 
 Apart 
from the published citations, the remaining three claimed citations all appear in master's theses. All the 
authors of the three citing master's theses have also collaborated with the petitioner. The record, 
therefore, contradicts counsel's claim that the nine initial citations "are all citations from independent 
researchers"; nearly half the citations are fiom the petitioner's "own peers and collaborators." More 
significantly, increasing the count from two to five independent citations does not overturn the 
director's decision. The director did not find that the petitioner was three citations short of eligibility. 
Counsel also exaggerates when stating that the petitioner had produced "over 20 publications at the time 
of filing." The petitioner's own resume at the time of filing listed only four published articles. The 
number reaches 20 only if we add the petitioner's 16 conference presentations. The petitioner has not 
established that such a presentation record is unusual in his field, or, for that matter, that quantity is a 
reliable measure of quality. (Some witnesses in this proceeding have submitted resumes 40 or more 
pages in length.) Another exaggeration in the record is when the petitioner attempted to attach special 
significance to his work as a "judge," when his own evidence indicates that peer review of manuscripts 
(the "judging" in question) is an "obligation" of "every scientist." 
Counsel asserts that the petitioner has already established a "distinguished record of accomplishment." 
The record does show that the petitioner's witnesses have been impressed with the petitioner's abilities. 
We repeat, here, that exceptional ability is, by statute, not sufficient grounds for granting the waiver. A 
number of witnesses (for example, mphasized the difficulty of locating qualified workers to 
fill job openings. The labor certification process is already in place to address worker shortages. See 
Matter of New York State Dept. of Transportation at 218. Therefore, the assertion that United States 
workers are unavailable is generally a poor argument for exempting the petitioner from that same labor 
certification process. With respect to the assertion that the petitioner is a vital part of his ongoing 
projects, his postdoctoral training is inherently temporary and he already holds the necessary 
nonirnrnigrant visa status for that training. 
The petitioner has established that he is in the early stages of a promising career and has earned the 
respect of his peers. The available evidence, however, does not demonstrate that the petitioner stands 
out to an extent that would justify the special benefit of an exemption fiom the job offer requirement 
that normally applies to the immigrant classification the petitioner has chosen to seek. 
As is clear fiom 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 labor 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. 5 1361. The petitioner has not sustained that burden. This decision is without prejudice to the 
filing of a new petition by a United States employer accompanied by a labor certification issued by the 
Department of Labor, appropriate supporting evidence and fee. 
ORDER: The appeal is dismissed.