dismissed EB-2 NIW Case: Nanotechnology Research

identifLing data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COPY 
US. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
OSfice ofAdrninistrutive Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
APR 2 8 2010 SRC 08 055 50345 
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 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). 
U 
Perry Rhew 
Chief, Administrative Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas 
Service Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal 
will be dismissed. 
This petition, filed on December 4,2007, seeks to classify the petitioner pursuant to section 203(b)(2) of 
the Immigration and Nationality Act (the Act), 8 U.S.C. fj 1 153(b)(2), as an alien of exceptional ability 
or a member of the professions holding an advanced degree.' 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 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 brief from counsel and additional evidence. For the reasons 
discussed below, we uphold the director's decision. 
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. 
In a November 30, 2007 letter accompanying the petition, counsel asserts that the petitioner is an alien 
of exceptional ability. This issue is moot, however, because the director found that the petitioner 
qualifies as a member of the professions holding an advanced degree. The record reflects that the 
petitioner received his Master of Science degree in Chemistry from Central Michigan University in 
2004. 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. 
' At the time he filed the petition, the petitioner indicated that he was in the United States as an F-1 nonimmigrant 
student. 
The application for the national interest waiver cannot be approved. The regulation at 8 C.F.R. 
5 204.5(k)(4)(ii) states, in pertinent part, "[tlo apply for the [national interest] exemption the 
petitioner must submit Form ETA-750B, Statement of Qualifications of Alien, in duplicate." The 
petitioner failed to submit this document or comparable portions of its successor form, ETA Form 
9089. Accordingly, by regulation, the petitioner cannot be considered for a waiver of the job offer 
requirement. The director, however, does not appear to have informed the petitioner of this critical 
omission. Below, we shall consider the merits of the petitioner's national interest claim. 
Neither the statute nor pertinent regulations define the term "national interest." Additionally, Congress 
did not provide a specific definition of the phrase, "in the national interest." The Committee on the 
Judiciary merely noted in its report to the Senate that the committee had "focused on national interest by 
increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise. . . ." S. Rep. No. 55, 101 st Cong., 1 st Sess., 1 1 (1 989). 
A supplementary notice regarding the regulations implementing the Immigration Act of 1990 
(IMMACT), published at 56 Fed. Reg. 60897,60900 (November 29, 1991), states, in pertinent part: 
The Service believes it appropriate to leave the application of this test as flexible as possible, 
although clearly an alien seeking to meet the [national interest] standard must make a showing 
significantly above that necessary to prove the "prospective national benefit" [required of aliens 
seeking to qualify as "exceptional."] The burden will rest with the alien to establish that 
exemption fiom, 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. 21 5, 21 7-1 8 (Comm'r. 1998) (hereinafter 
"NYSDOT'), 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. Id at 217. Next, it must be shown that the proposed benefit will be national 
in scope. Id Finally, the petitioner seelung 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 2 1 7- 1 8. 
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 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. 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. Id. 
We also note that the regulation at 8 C.F.R. $ 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. 
With regard to the first two factors set forth in NYSDOT, it has not been established that the petitioner 
seeks employment in an area of substantial intrinsic merit or that the benefit he will impart to the United 
States would be national in scope. Part 6, "Basic information about the proposed employment," of the 
Immigrant Petition for Alien Worker, Form 1-140, lists the petitioner's job title as a "Researcher." 
Counsel's November 30,2007 letter accompanying the petition states: 
[The petitioner] has been working under several world-renowned Dendrimer and 
Nanoparticle research professors, and has been instrumental in increasing not only the 
awareness of this groundbreaking nanotechnology research, but also in furthering the 
applicability of the research into practical applications, which will be extremely beneficial to 
the national interest and global economy. 
Counsel asserts that the petitioner "has been working under several world-renowned Dendrimer and 
Nanoparticle research professors," but there is no evidence establishing that the petitioner has held a 
nanotechnology research position since his graduation from Central Michigan University in 2004. 
Moreover, the petitioner's initial submission includes his fully executed Certificate of Eligibility for 
Nonimmigrant Student (F-1) Status - For Academic and Language Students, Form 1-20, indicating 
that he is pursuing business studies at Houston Community ~ollege.~ The Form 1-20 states: 
The student named above has been accepted for a full course of study at this school, majoring 
in Business Administration and Management. The student is expected to report to the school 
no later than 08/27/05 and complete studies not later than 08/27/08. The normal length of 
study is 36 months. 
Further, the petitioner's resume submitted with the instant Form 1-140 petition on December 4, 2007 
does not specify any job experience in a nanotechnology research position after July 2004. 
Accordingly, although nanotechnology research is an area of substantial intrinsic merit, it has not 
been established that the petitioner seeks employment in that area or that the benefit he will impart to 
the United States 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. Id. at 
218. Moreover, it cannot suffice to state that the alien possesses useful skills, or a "unique 
A search for the petitioner in the Student & Exchange Visitor Information System in March 2009 confirmed that his 
student status remained active with Houston Community College. 
Page 5 
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. 
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. 
According to his resume, the petitioner worked as a "Graduate Research Assistant" from January 2003 
through July 2004 while pursuing his master's degree at Central Michigan University. The petitioner 
also submitted three letters from the Executive Vice President and Provost at Central Michigan 
University notifying the petitioner of his "appointment as full time graduate research assistant" in the 
Department of Chemistry during semesters from Fall 2002 through Spring 2004. Along with 
documentation demonstrating the intrinsic merit of nanotechnologyrese~rchand the statureof his 
research supervisors 1-1 and, the petitioner submitted two 
articles he coauthored in Electrophoresis and Journal of Chromatography A. The petitioner also 
submitted a copy of his unpublished master's thesis. 
While the petitioner's research at Central Michigan University was 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 master's thesis or research undertaken in 
a university setting, 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. In this case, the record does 
not establish that the petitioner's research findings represented a significant advance in 
nanotechnology. 
The director requested further evidence that the petitioner had met the guidelines published in 
NYSDOT. In response, the petitioner submitted copies of documents already provided and articles 
demonstrating the importance of dendrimer nanotechnology research. None of these articles name 
the petitioner or discuss his specific accomplishments in the field. While information about the 
general importance of the petitioner's field of research may establish the intrinsic merit of his work, this 
documentation is not sufficient to show that an individual worker in his field qualifies for a waiver of 
the job offer requirement. Id. at 2 1 8. 
The director denied the petition stating that the petitioner failed to establish that a waiver of the 
requirement of an approved labor certification would be in the national interest of the United States. 
The director's decision noted that the submitted evidence did not establish any specific impact that 
Page 6 
the petitioner's research articles have had on the field of dendrimer technology. The director's 
decision further stated: 
[Tlhe evidence focuses on dendrimer research and impact on the field instead 
of the specific contributions of the petitioner himself. The fact that the petitioner is merely 
associated with a ground-breaking scientific researcher does not establish that a waiver of an 
approved labor certification is in the national interest. 
On a eal, the etitioner resubmits copies of documents already provided and an unsigned letter 
from listing 21 articles citing to the article that oauthored with the 
petitioner in Electrophoresis in 2003. For researchers, citations offer an objective way of 
measuring the extent to which one researcher's work has influenced the work of others in the field. 
However, rather than submitting evidence of citations from an official source such as an online 
scientific database, the petitioner instead submitted a self-serving list of citing articles compiled in 
an unsigned letter fro-. Going on record without supporting documentary evidence is 
not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of SofJici, 
22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 
190 (Reg. Comm. 1972)). Nevertheless, even if we were to consider the citations listed in 
unsigned letter, we note that six of the citing articles were self-citations by d 
and the petitioner's coauthors. Self-citation is a normal, expected practice. Self- 
citation cannot, however, demonstrate the response of independent researchers. In this instance, the 
unsigned letter from indicates that the petitioner's work has only been moderately cited 
by independent researchers. The citation information submitted by the petitioner is not sufficient to 
demonstrate that his work has significantly influenced his field as a whole or otherwise sets him 
apart from other researchers in his field. 
We note that citations are not the only means by which to show the petitioner's impact on his field. 
Reference letters from independent experts in the field can also play a significant role in this 
respect. For example, letters from independent references who were previously aware of the 
petitioner through his reputation and who have applied his work are far more persuasive than letters 
from his immediate colleagues and coauthors. Here, however, the petitioner has not submitted any 
letters from independent references who provide specific examples of how his work has 
significantly influenced his field or has been applied by others to an extent that justifies a waiver of 
the job offer requirement. 
In this matter, the petitioner has failed to submit sufficient evidence of any type that demonstrates 
his influence in the field as a whole. While the petitioner has contributed to projects undertaken at 
Central Michigan University during the course of his graduate studies, he has not established that his 
past record of achievement is at a level that would justify a waiver of the job offer requirement 
which, by law, normally attaches to the visa classification sought by the petitioner. We note that the 
national interest waiver contemplates that the petitioner's influence be national in scope. NYSDOT, 
22 I&N Dec. at 2 17 n.3. More specifically, the petitioner "must clearly present a significant benefit 
to the field of endeavor." Id. at 218. See also id. at 219 n.6 (the alien must have "a past history of 
demonstrable achievement with some degree of influence on the field as a whole.") 
As is clear from a plain reading of the statute, it was not the intent of Congress that every alien of 
exceptional ability or who holds an advanced degree 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 occupation, 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. 8 1361. The petitioner has not sustained that burden. 
This denial is without prejudice to the filing of a new petition by a United States employer accompanied 
by an alien employment certification certified by the Department of Labor, appropriate supporting 
evidence and fee. 
ORDER: The appeal is dismissed.