dismissed EB-2 NIW Case: Nanotechnology

U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals MS 2090 
1.k fll1 b/ 1 UP liteir deleted 
 Washington, DC 20529-2090 
preven~ c ; L,ci iy dnwarranted 
 U. S. Citizenship 
.invasion - of personal privacy 
 and Immigration 
Office: NEBRASKA SERVICE CENTER 
 Date: ApR 1 0 2009 
LIN 07 092 52389 
IN RE: 
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. 9 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. 
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. 8 103.5 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). 
Acting Chief, Administrative Appeals Office 
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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 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. 8 1 153@)(2), as a member of the professions holding an advanced degree. The 
petitioner is a postdoctoral research associate at Washington State University, Spokane. The petitioner 
asserts that an exemption fiom 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 and copies of previously submitted materials. 
Section 203@) 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 
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). 
Page 3 
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. 2 15 (Cornrnr. 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. tj 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. 
Several letters accompanied the petitioner's initial submission. Some of the witnesses are or were on 
the faculty of the University of Connecticut (UConn), Storrs, where the petitioner earned his 
doctorate from 2000 to 2006. The record is silent with regard to his subsequent postdoctoral work at 
Washington State University. Assistant Professor explained the nature of the . 
petitioner's work: 
[The petitioner] has accomplished pioneering research in the development of CNT 
AFM probes. AFM stands for Atomic Force Microscopy. . . . The AFM consists of a 
microscale cantilever with a sharp tip (probe) at its end that is used to scan the 
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specimen surface. . . . The ideal AFM probe should have a high aspect ratio, the 
smallest radius possible, a well-defined and reproducible molecular structure, and be 
mechanically and chemical[ly] robust. Carbon nanotubes (CNTs), one of the most 
remarkable materials synthesized so far, are the only known materials that can satisfl 
all of these critical requirements. . . . 
In [the petitioner's] research effort, CNTs were assembled onto conductive AFM 
probes using the state-of-the-art dielectrophoresis technique. . . . [H]e developed a 
novel, surfactant-assisted dissolution process to further optimize the length and 
stiffness of these CNT nanofibrils. He also demonstrated their stiffness could be 
further enhanced upon subsequent vacuum annealing. As planned, the resulting high 
aspect ratio CNT-AFM probes were tested and found to be mechanically robust, and 
thus may be used as structural nano-needle force sensors. More importantly, [the 
petitioner] demonstrated the possibility of forming radial and longitudinal 
heterojunctions with sequential dielectrophoretic assembly of new functionalized 
CNTs on the sidewalls and ends of previously grown nanofibrils. This paved the way 
for CNT AFM probes to act as electrochemical nanoprobes for use in measuring 
specific reactivities within cells for biological and medical research. 
There is a great demand for single cell monitoring and manipulation, precise drug 
release, and spatially resolved real-time cell function monitoring, due to their 
importance to medical research. . . . CNTs . . . [are] suitable for a variety of bio- 
probing and detection applications. The advantage of this approach is that it will not 
affect cellular physiology and will be able to provide real-time measurements on a 
molecular level, which will likely revolutionize our understanding of a living cell's 
function. [The petitioner's] nanosized CNT-AFM probes, acting as CNT biosensors, 
are used to pierce mammalian cells and establish a minimally invasive electrical 
pathway with the interior, without disturbing normal cell-function. . . . 
The ability to place desired types of CNTs with controlled orientation at desired sites 
presents one major challenge in assembling these remarkable nanostructures into 
functional devices which [the petitioner] overcame. 
UConn Professor - stated that the petitioner's published "work 
immediately captured international attention. . . . Undoubtedly, [the petitioner] can be considered 
one of the top young nanotechnologist[s] in his field.'' 
Former UConn Professor 
 now at the Ohio State University, Columbus, stated: 
[The petitioner's] current research involves the formation of CNT patterns via metal- 
assisted self-assembly. For real application of CNT devices, it is crucial not only to 
align CNTs at the desired sites, but also to control the type of CNTs at that site, 
because different types of CNTs serve different purposes. . . . His knowledge in the 
integration of concepts in electron beam writing, surface chemistry, ultra-high 
vacuum, metal-assisted self-assembly led to the development of SWNTs [single- 
walled CNTs] in forest arrays. . . . 
In addition, [the petitioner] has been performing original research on solid freeform 
fabrication (SFF) of Sic [silicon carbide] and its composites addressing the 
delamination and excess deposits issues between adjacent layers. 
 These high 
performance materials can meet the performance demands of armor protection 
systems and turbine engines for aircraft and nav[a]l vessels. 
Researchers elsewhere offered praise for the petitioner's work. of the Lawrence 
Livermore National Laboratory, California, stated that the petitioner's "extraordinary research led to 
the successfbl development of CNT-AFM nanoneedle biosensors for revolutionary research in 
medicine. . . . His research in CNT patterns and nanoneedles is invaluable to the development of 
ultra-sensitive CNT-nano-biosensors." 
a post-doctoral researcher at the Swiss Federal Institute of Technology, Lausanne, 
stated that the petitioner's "extraordinary findings were published in Chemistry of Materials, an 
internationally recognized high quality scientific journal. From his publication, I have been aware 
that this achievement and contributions in this area are seminal and original." 
of ~orthwertern University, Evanston, Illinois, is a member of the 
National Academy of Engineering who participated in the Manhattan Project in 1944-1945. 
stated: 
[The petitioner's] advisor, 
 was one of my former graduate 
students at Northwestern University and I am primarily familiar with [the 
petitioner's] accomplishments through - In my-opinion, he has made 
significant advances in the field of carbon nanotube (CNT) patterns and nanoprobes. . 
. . [The petitioner] was able to modify the surface hydrophilicity (i.e., the affinity to 
~e~+ cations), which, to my knowledge, no one has accomplished before. . . . [The 
petitioner's] findings are remarkable since self-assembled CNT forests could be 
purified and separated according to electrical conductivity before deposition, 
eliminating the serious mixing problems in the traditional CVD method, especially 
for electronics devices. 
. . . [The petitioner] is indispensable in producing novel and state-of-the-art 
biochemical sensors based on CNT forests. . . . 
In addition, [the petitioner] also made outstanding contributions to the CNT nano- 
needle biosensors used in single-cell operation in biological and medical research. 
He imovatively assembled CNTs onto atomic force microscopy probes using 
advanced dielectrophoresis with controlled stifhess and spatial functionality. The 
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stiffness is a very important parameter that can keep the nanoneedles straight for 
successful cellular membrane penetration. . . . He is the first to be able to produce 
heterogeneous CNT nano-needles by spatially attaching functionalized CNTs at 
desire[d] places on the predecessors. 
Counsel indicated that the petitioner's "research has been cited by many other researchers," but the 
supporting documentation included only "a representative sample of citing articles.'' The initial 
submission documented some 13 citations. Because not all the citing articles were identified, it is 
not clear how many of these citations are independent rather than self-citations by the petitioner 
and/or his collaborators. 
The only other indications of interest in the petitioner's work took the form of a "[rlequest from a 
researcher in Russia for" a copy of one of the petitioner's articles, and a "[rlequest fi-om a researcher 
in Switzerland [- for [the petitioner's] carbon nanotube nano-sensor probes." The record 
does not show that such requests are anything but routine within academia. 
On March 19, 2008, the director issued a request for evidence (WE), instructing the petitioner to 
"submit updated current documentation of the total current number of citations" of the petitioner's 
published works, along with "copies of three or four articles by others which cited your work and 
which demonstrate the significance which the citing authors placed on your findings." In response, 
the petitioner submitted additional letters and documentation. 
- of the University of Texas at Austin stated: 
[The petitioner] successfully demonstrated the controlled functionalization of [CNT] 
nanoneedles with desired chemical and biological entities, which is especially crucial 
for the investigation of cell electrochemical activity[,] a fundamental mechanism in 
living cells. As a result, [the petitioner's] technique would provide a viable method 
that can interrogate living cells through membrane penetration without affecting their 
physiology. 
I know [the petitioner] only through my reading of his research publications. [The 
petitioner's] research endeavors deeply impress in terms of innovation, quality and in 
the way his [sic] is contributing to the development of cutting edge technologies 
applied in the national security and energy arenas. . . . 
Many [defense] applications, such as the detection of missile [sic] during the boos 
phase, require sensing in at least two parts of the electromagnetic spectrum to achieve 
positive identification. However, current materials are effective only a one [sic] 
specific wavelength, thus multiple sensors (thus cumbersome) are required in the 
monitoring devices. 
To address these shortcomings . . . [the petitioner] was able to show that silver1Teflon 
nanocomposites can be specifically tuned to absorb multiple sections of the 
electromagnetic spectrum simultaneously. In addition, [the petitioner's] 
nanocomposite materials do not require cryogenic cooling detectors, which eliminates 
additional expenses, cumbersome handling, and maintenance. This concept has 
garnered significant interest fiom the Army Research Office (ARO) and Office of 
Naval Research (ONR). 
The record contains no documentation fiom the ARO or the ONR to corroborate the above 
assertions, and no explanation as to how 
 is aware of the named entities' purported 
interest in the petitioner's work. 
Counsel stated that the petitioner's articles had "been internationally cited 14 times" by "27 authors 
from 12 institutions" (counsel's emphasis), indicating a very small increase in the number of 
citations compared to the initial submission. 
Counsel's assertions, while technically correct, are exaggerated with regard to their significance. Of 
the fourteen articles identified as citing the petitioner's work, the petitioner submitted copies of 
eleven. (The petitioner is the first author of the remaining three articles.) Examination of these 
eleven articles diminishes the significance of what is already a fairly small collection of articles. 
Three of the articles are by' research group, citing the earlier work of that 
same group. The petitioner himself is a co-author of one of these three articles. 
Of the eight remaining articles, three of them are self-citing articles by the petitioner's former 
collaborators at the Beijing University of Aeronautics and Astronautics. We note that, while the 
record contains a copy of the 2001 Acta Metallurgica Sinica article that identifies the petitioner as 
one of the authors, for some reason the bibliographical references in the citing articles do not credit 
the petitioner as an author of that paper. 
Three of the remaining five papers are in the Chinese language with no certified English translation 
as required by 8 C.F.R. 8 103.2(b)(3). A cover page bearing a partial, unattested translation cannot 
suffice in this regard. One of these papers lists its sources in English, and shows one of the 
petitioner's articles among its sources. The others list their sources only in Chinese. 
After the above discussion, there remain three articles that show independent citation of the 
petitioner's work, only two of which meet USCIS evidentiary requirements. Two of the three 
articles were by research groups in the petitioner's native China, and the third is by a research group 
in the United States where the petitioner now works. The petitioner has highlighted the sections of 
the articles that mention the petitioner's work, but these passages are simply descriptive. There is no 
indication that the citing authors considered the petitioner's work to be any more unique or 
significant than the dozens of other articles similarly cited. 
Page 8 
Taking all the above factors into consideration, we do not find the minimal independent citation of 
the petitioner's work to be especially persuasive in the petitioner's favor. 
Counsel asserted that the petitioner's "work has been reported by the leading nanotechnology 
news publisher (Nanowerk LLC), featured in Research & Development Magazine (R&D 
Magazine) and cited on the internet by 2 websites" (counsel's emphasis). 
The record shows that the Nanowerk and R&D Magazine articles are one and the same. The article 
indicates that the scanning surface potential microscope has been "markedly improve[dIv through 
the use of CNTs. The article quotes researcher, identified as a former "postdoc in 
- Group," bit does not mention the petitioner. 
Regarding the other two online articles, counsel stated that one of the petitioner's articles "was 
collected by the Castle Island Co. into its Worldwide Guide to Rapid Prototyping." The record does 
not address Castle Island's criteria for inclusion in general, or the reasons for the inclusion of the 
petitioner's article in particular. It appears that the Worldwide Guide includes the petitioner's article 
simply because the article relates to the subject of rapid prototyping. 
Counsel also asserted that one of the petitioner's articles "was featured in its Nano highlights by the 
Nano Science and Technology World . . . http://usa.nanost.net.'' The petitioner's article is one of 
several articles listed under "Nano Highlights from ACS Publications (20080329)." The eight-digit 
number is a reference to the date, as shown by the legend "Web Release Date: Sat. 29 Mar 2008." 
All of the referenced articles are dated March 28, 2008, the day before the "Web Release Date." 
Sidebars show similar "Highlights" entries for several days in late March 2008 and almost daily 
between April 3 and April 12,2008, with only April 4 missing. The record contains no information 
about the nanost.net web site (which is partly in English, partly in Chinese) or the criteria by which it 
selects its almost-daily "Nano Highlights." 
The petitioner submitted copies of independent reviewers' comments, compiled during peer review 
of the petitioner's articles. One set of comments was highly complimentary, calling an article "a 
noteworthy advance on growing nanotubes." Other comments, while positive, were less emphatic. 
Counsel observed that one commenter stated that the paper addressed "a very hot topic," but this is a 
comment on the overall subject matter, rather than the petitioner's work in particular. The same 
reviewer called the paper "a nice extension of their previous efforts." Another reviewer, 
commenting on the same paper, deemed it "a useful paper" that "should be suitable for publication." 
Reviewers commenting on another paper called it "interesting" and "well written." These 
attestations fail to persuade the AAO that the petitioner's work stands out in his field. 
The director denied the petition on July 29,2008. In the denial decision, the director acknowledged 
the witness letters and other evidence submitted, but found that the petitioner's objective evidence 
did not match witnesses' claims. The director stated: 
[Elxcluding self-citations or citations by teams of researchers which included a co- 
author of his article, the evidence indicates only ten citations of the petitioner's 
articles or conference proceedings which had been disseminated as of that date. Of 
those ten, only one was of work which the petitioner presented since 2001. . . . 
The evidence indicates that [as of late 20061 the petitioner had published only one 
article since 2001. . . . The petitioner's findings had not been presented in any 
conference proceedings since 2001. He had presented his work at a number of 
meetings, but that is slim basis upon which to find that he had made groundbreaking 
contributions and achievements which made an impact. 
On appeal, counsel takes issue with the director's assertions, but review of the record shows many of 
counsel's objections to be baseless. For example, counsel states: 
[The director stated] "the evidence indicates only ten citations of the petitioner's 
articles or conference proceedings . . . only one was of work which the petitioner 
presented since 2001" when in fact, Petitioned Appellant submitted evidence of at 
least 14 citations. 
(Counsel's emphasis.) The director clearly stated that the 'Yen citations" figure was "excluding self- 
citations" by the petitioner and his collaborators. Even then, as we have shown, the 'Yen citations" 
figure is, itself, inflated, as the director had undercounted the self-citations in the record. Elsewhere 
in the appeal, counsel refers to "over 14 non-self citations," an untenable assertion based on the 
available evidence. Counsel has also repeatedly stretched the definition of a "citation" to encompass 
not only bibliographic references in scholarly articles, but inclusion in electronic databases and the 
like - indeed, seemingly every publicly available reference to the petitioner's work or mention of its 
existence. 
Counsel adds that, in response to the RFE, the petitioner "submitted proof of more than 14 citations 
(not 'three or four'). . . . USCIS dismisses such evidence as 'meager' and as 'only ten citations' 
when it has requested for [sic] 'three or four' in its WE." Here again, counsel has misread the RFE. 
The director had instructed the petitioner to "submit updated current documentation of the total 
current number of citations" in order to show how many citations existed; the director also, 
separately, requested "copies of three or four articles" as examples of how the citing authors 
discussed the petitioner's work. The director did not state or imply that the petitioner would 
automatically establish eligibility simply by submitting "copies of three or four [citing] articles." 
Counsel contends that "only few of those citations are from [the petitioner's] work done in 2001." 
Of the eleven citing articles in the record, seven cite the petitioner's work kern 2001 or earlier. 
Three of the remaining four articles contain self-citations by the petitioner or his collaborators. In 
terms of sheer numbers, there are indeed "few" citations of the petitioner's 2001 work, but they 
represent a substantial fraction of the documented citations of the petitioner's work. 
Page 10 
The unsupported assertions of counsel do not constitute evidence. See Matter of Obaigbena, 19 I&N 
Dec. 533, 534 n.2 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1, 3 n.2 (BIA 1983); Matter of 
Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). From the above discussion, it is evident that, in 
this instance, the assertions of counsel are also not a reliable guide to either the contents of the record or 
the director's findings. The appellate brief contains exaggerations and rnisreadings bordering on 
distortion of the record. 
Counsel claims that the director contradicted himself in the denial notice, when the director stated 
"[tlhe petitioner's findings had not been presented in any conference proceedings since 2001," but 
then immediately stated that the petitioner "had presented his work at a number of meetings." There 
is no contradiction. 
 "Conference proceedings" are not the same as "conferences." 
 Rather, 
"conference proceedings," as the director used the term, are the published records of conferences. 
Thus, the director simply stated that, while the petitioner had participated in conferences in recent 
years, his work appeared in no printed conference proceedings afier 2001. The date used by the 
director may not be correct, as the record appears to indicate that the petitioner's abstracts may have 
been published in 2002 and 2003 - the photocopied exhibits are not always clearly discernible as 
having been published - but subsequent abstracts exist in the record only in manuscript form. 
We agree with counsel that the petitioner has submitted independent witness letters that praise the 
petitioner's work as innovative and important, and we do not question the sincerity of the witnesses, but 
the objective evidence of record simply does not support the witnesses' claims or show that the opinions 
of those witnesses represent any sort of consensus in the petitioner's specialty. 
When we consider the record in its entirety, we find that the petitioner has conducted original work 
in a meritorious area of inquiry. We also find, however, that counsel's claims regarding the 
importance of the petitioner's work, and others' response to that work, do not accurately reflect 
reality. The petitioner's application for a national interest waiver some four months after he 
completed his doctorate appears to be premature at best. The record does not even show that the 
petitioner's work with CNTs continued after he lefi UConn for Washington State University. (This is 
not a definitive finding that the petitioner stopped working with CNTs. Rather, it is an observation that 
the record is silent on this point.) 
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 fiom 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. § 136 1. 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 a labor certification issued by the Department of labor, appropriate supporting evidence and fee. 
ORDER: The appeal is dismissed.