dismissed EB-2 NIW Case: Oceanography

U.S. Department of fIonleland Security 
U.S. Citizenship and lm~nigration Services 
OfJice ofAnin~nrstrot~ve Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
LIN 07 04 1 52659 
PETITION: 
 Imrnigrant 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 Naticnality Act, 8 U.S.C. 5 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. $ 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. 9 103.5(a)(l)(i). 
K&L---. 
>ohn F. Grissom 
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. 5 1153(b)(2), as a member of the professions holding an advanced degree. At the 
time he filed the petition in November 2006, the petitioner was a J-1 nonimmigrant postdoctoral fellow 
at the Smithsonian Environmental Research Center (SERC), Edgewater, Maryland. The record shows 
that, in mid-2007, the petitioner left SERC and began working for the Harte Research Institute for Gulf 
of Mexico Studies (HRI) at Texas A&M University-Corpus Chsti. 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 arguments from counsel. 
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 
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increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise. . . ." S. Rep. No. 55, 101 st Cong., 1 st Sess., 1 1 (1 989). 
Supplementary information to 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] 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, whle the national interest waiver hinges on prospective national benefit,' it clearly 
must be established that the alien's past record justifies projections of fbture 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 offedlabor 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. 
In an introductory statement, counsel stated that the petitioner's "expertise lies in the area of 
oceanography. His research focus has been on developing mathematical models of ecosystems." In a 
personal statement, the petitioner described his educational background and his research: 
My Ph.D. research [at Old Dominion University (ODU), Norfolk, Virginia] is focused 
on developing mathematical models for estimation of primary production and carbon 
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flux in Antarctic coastal waters. . . . The estimates of primary production obtained from 
the models have been incorporated into box models, constructed for various Antarctic 
coastal environments, along with simulated flow fields obtained from a numerical 
circulation model . . . to further investigate carbon flux and fate. Using numerical 
techniques, I was able to derive, for the first time, the empirical cloud-cover algorithm 
for calculation of surface irradiance in Sub-Antarctic and Antarctic coastal 
environments. . . . 
efforts focus on the shallow thbutary embaynents and small tidal creeks of Chesapeake 
Bay and we are developing a shallow-water coastal habitat model for regional scale 
evaluation of management decisions in the Chesapeake Bay region. . . .The main 
objective of this project is to analyze how the geographic variability in physical structure 
and human use among the linked watershed-subestuary systems of Chesapeake Bay 
affects estuarine responses to multiple stressors. 
L stated that the petitioner's "research on the amount of light arriving at 
the ocean surface resulted in development of new algorithms for estimating cloud cover effects on 
incident radiation in the Antarctic environment." 
[The petitioner] was the graduate student of a long time collaborator of mine, Professor 
ic]. . . . I served on [the petitioner's] doctoral thesis, collaborated 
with him on advancing optical modeling of coastal primary production and hosted his 
training in my laboratory during portions of his thesis work. . . . 
[The petitioner] has contributed towards the advancement of coastal oceanography by 
advancing the computational tools and mechanistic/predictive modeling of the impact of 
ocean current circulation at the edge of continental shelves on nearshore system 
dynamics that regulate productivity in the coastal zone. He has employed such models 
to show that episodic forcing by major currents . . . , resulting in intrusions of bottom 
water across the continental shelf, shft ecological dynamics in a major way and result in 
major shifts in the export of organic carbon off the shelves to ocean deep. Such large 
circulation-biological system models have several nested components. [The petitioner] 
provided a new radiation model as a nested component in the system model for the West 
Antarctic Peninsula coastal region. . . . Such comprehensive modeling based upon real 
world scenarios [is] indispensable to identifying environmental forcing mechanisms that 
cannot be realized by expeditionary oceanography alone. Because of our collaborative 
research, we proposed a new paradigm for system dynamics for the continental shelf 
waters of the west Antarctic Peninsula that has shifted the manner of field research and 
coastal modeling of biological activities. 
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[The petitioner] is conducting research on a topic relating to the responses of shallow 
subestuaries of Chesapeake Bay to inputs of freshwater, sediments, and nutrients from 
watersheds differing in their land use. . . . The importance of these systems for their 
habitat value is increasingly being appreciated, and [the petitioner's] work has 
significantly contributed to that improved understanding. 
[The petitioner's] main activity [at SERC] has been constructing a mathematical model 
of the shallow water ecosystem in the Chesapeake Bay. . . . Of all the candidates we 
interviewed, none had qualifications and expertise comparable to [the petitioner's]. . . . 
I . . . was the co-chief scientist of a research expedition to the Ross Sea during October 
through December 2005. . . . [The petitioner] joined my group to assist in making 
shipboard measurements of primary productivity as affected by UV exposure. His 
dedication and proficiency in field operations . . . was a key contribution to our very 
successful research campaign. 
- a Research Hydrologist with the U.S. Army Corps of Engineers Engineer 
Research and Development Center, Vicksburg, Mississippi, stated: "I have known [the petitioner] over 
ten years. . . . [The petitioner's] works exemplify the versatility of his expertise covering from 
comprehensive three dimensional hydrodynamic modeling to physiology of marine organisms and other 
water quality parameters in aquatic environment." Dr. did not discuss the petitioner's findings in 
any detail. 
The petitioner submitted copies of hs published articles, and documentation of his conference 
presentations, but no documentary evidence of the impact of this work. An exhibit list included with 
the initial filing identified two documents as "Published Material About the alien and his work." One of 
these documents is a page from the trade publication Eos. A section headed "Geophysicists" is 
subdivided into three subsections: "In Memoriam" named four recently deceased individuals, "Recent 
Ph.D.sW reported that the petitioner had received his doctoral degree, and "Honors" identified two 
individuals who recently received awards. In context, it is clear that the petitioner was named here not 
because his work was especially significant, important or influential, but because he had recently 
received a doctoral degree. 
The other document is not, itself, published material. Rather, it is a copy of an electronic mail message 
from May 2005, informing the petitioner that "a reference to your publication was added to the 
Bibliography on Cold Regions Science and Technology, a bibliographic database covering the scientific 
literature of the cold regions since 1951." The message gave no indication that the petitioner's 
publication was included for any reason other than its subject matter. Therefore, there is no evidence 
that the inclusion of the petitioner's (unidentified) publication in this database is a sign of special merit 
or influence in the field. 
On February 11, 2008, the director instructed the petitioner to submit evidence of the petitioner's 
influence on his field, including copies of articles containing citations to the petitioner's work. In 
response, the petitioner submitted three exhibits under the heading "Published Material About the 
alien," as follows: 
A list of six articles, published between 1997 and 2003, that contain citations of a 1995 
article by the petitioner; 
A second copy of the previously submitted electronic mail message regarding the 
Bibliography on Cold Regions Science and Technology; and 
An entry from the Coastal & Estuarine Science News Archive, reporting on a 2007 study by 
the petitioner and co-authors relating to submerged aquatic vegetation in Chesapeake Bay. 
The news archive is maintained by CERF, the Coastal and Estuarine Research Foundation, 
and the petitioner's study appeared in Estuaries and Coasts, a CERF publication. The 
archive story, therefore, is not evidence that the petitioner's article had attracted attention 
outside of the entity that published it. 
The petitioner's response included more witness letters. Most of this group of witnesses had studied, 
worked or collaborated with the petitioner, and most of the letters contain little new information about 
at the petitioner had conducted prior to the petition's filing date. Professor - 
e petitioner's current supervisor at HRI, stated: 
[The petitioner] was hired to help me implement models of marine ecological 
interactions between organisms and the environment. . . . I am absolutely impressed by 
the very high quality and quantity of his work. He has helped organize data, build 
mathematical equations describing ecological relationships, and run simulations of 
environmental change as it relates to fiesh water flowing to coastal and estuarine 
environments. The significance of this work is that it can be used to determine the 
quantity of flows needed for environmental protection and sustainability. 
praised the petitioner's previous work in very general terms but offered few details. 
Also at HRI,-; praised the petitioner's "many innovative and valuable 
contributions to ecological monitoring," while HRI Director described the topics 
affected by the petitioner's research, "such as the production of plankton in southern ocean 
environments," while saying little about the petitioner's contributions in those areas. 
The petitioner's work at HRI shows that he continues to perform the same type of work that he 
previously performed at SERC, but his achievements at HRI cannot establish eligibility in this 
proceeding because he did not work at HRI until after the petition's filing date. The beneficiary of 
an immigrant visa petition must be eligible at the time of filing; subsequent developments cannot 
retroactively establish eligibility. See Matter of Katigbak, 14 I&N Dec. 45, 49 (Regl. Commr. 
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1971). Even then, the letters that discuss the petitioner's work at HRI tend to describe the overall 
projects rather than the petitioner's special contributions to those projects. 
Only three of these witnesses claim no specific connection to the petitioner. Professor - 
of the University of Connecticut praised the petitioner's "broad international field experience" and 
stated "I expect [the petitioner] to be an effective and productive researcher," but did not discuss the 
impact of the petitioner's past work. He indicated only that the petitioner is well-positioned for a career 
as a researcher. 
, President of the Korea Maritime Institute, stated that the petitioner "developed a 
method that integrates climate change scenarios . . . with marine ecosystem dynamics model. His 
technique allows-for predictability of coastal ecosystem responses and implications of future climate 
change." 
I am familiar with [the petitioner] through the recognition of his work, and I have not 
actually worked personally with him during my career. I am well-versed with the 
research he conducted while he was working at the Old Dominion University. His 
research topic includes the role of ecosystems and clouds in the carbon cycle and 
sequestration of carbon in the Southern Ocean. [The petitioner's] findings are extremely 
important for the global carbon cycle since carbon budget cannot be estimated and 
future scenarios can not be adequately constrained without understanding the role of the 
Southern Ocean which is an indicator ocean due to its unique response to climate 
variability and change. . . . [The petitioner] developed a technique which has allowed us 
to estimate light penetration in the Chesapeake Bay, which is very important in the 
dynamical downscaling of global climate and for constructing future scenarios for the 
health of the Bay. . . . 
[The petitioner's] research was very important to my own work, as I lead the 
Chesapeake Bay Prediction project here at the University of Maryland. His research in 
regards to this is widely referred to in our field. . . . He is a top level member of [the] 
oceanic and ecosystem research community. 
The record does not offer the level of support that one might expect if the petitioner were as influential 
as some witnesses claim. The descriptions of evidentiary exhibits are frequently exaggerated. We have 
already discussed what is said to be "Published Material About the alien." Another example of this 
hyperbole is the section of the record headed "Requests for [the petitioner] to Publish or Present his 
Research Work," with the subtitle "Emails and other correspondences asking for [the petitioner] to 
compose scholarly publications or present his findings." One of these "requests" is nothng more than a 
commercial message indicating that the journal Antarctic Science "is increasing from 4 to 6 issues a 
year." The message contains a link labeled "Submit your latest research online." The petitioner 
received the message because he is "someone who has previously published research in Antarctic 
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Science" (emphasis in original). Another message relates to standard National Science Foundation 
reporting requirements. Yet another message consists of referees' notes on manuscripts that the 
petitioner had already submitted for publication, indicating that the articles required significant revision 
before they would be suitable for publication. Most of the correspondence in this section of the record 
dates from after the petition's November 2006 filing date; the remaining correspondence is undated. 
The director denied the petition on June 6, 2008. The director acknowledged various evidentiary 
submissions but stated that the petitioner had documented only minimal citation of his published work, 
and that the various witnesses "speak of the beneficiary's work and experience only in general terms" 
and do not establish that the petitioner's work has had much impact outside of institutions where he has 
worked and studied. 
On appeal, counsel argues that "citations are not the only measure of [the petitioner's] impact upon his 
field and are not required to establish 'a degree of influence."' While it is certainly true that citations 
are not the only means by which the petitioner can demonstrate his impact on his field, it is equally true 
that some kind of objective evidence is needed to establish that impact. 
Counsel stated that the director's "decision acknowledges the value of both [the petitioner's] 
Memberships and Awards." It is more accurate to state that the director acknowledged the petitioner's 
submission of evidence of memberships and awards. The director did not state that this evidence 
indicated eligibility for the waiver. At best, this evidence would count toward a finding of exceptional 
ability under 8 C.F.R. $5 204.5(k)(3)(ii)(E) and (F). By the plain wording of the statute, exceptional 
ability in the sciences is not presumptive grounds for the waiver; aliens of exceptional ability in the 
sciences are generally subject to the job offer requirement. 
Counsel refers to various exhibits submitted previously, and states: "It is clear that [the petitioner's] 
work is considered novel, important, and original in his field, and that it has made a tremendous 
impact in that field.'' This conclusion is not "clear" as counsel contends. 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). Furthermore, as discussed above, the record contains demonstrably 
exaggerated descriptions of various materials submitted in support of the petition, which cast a shadow 
over the rest of the record. Doubt cast on any aspect of the petitioner's proof may lead to a 
reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the 
visa petition. Matter of Ho, 19 I&N Dec. 582,591 (BIA 1988). 
Counsel quotes fiom previously submitted witness letters, and states "the above quotations . . . clearly 
give specific details about [the petitioner's] past accom~lishments in his field (counsel's emphasis). 
We agree with counsel insofar as the director was overly broad in asserting that all of the witnesses' 
letters were general and lacking in specific detail. Whle a number of the letters are indeed very 
general, some contain specific discussion of the petitioner's work on various projects. Nevertheless, the 
lack of specificity is not the only factor that kept the letters from qualifying the petitioner for the waiver. 
More significantly for our purposes, the letters did not offer credible, objective evidence that the 
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petitioner's efforts have had more impact or influence within his field than other qualified researchers in 
the same specialty. While some witnesses have claimed that the petitioner has significantly influenced 
his field and earned international recognition, we cannot ignore the gulf between the claims and the 
documentary evidence submitted to support those claims. 
Review of the evidence of record shows that the petitioner is a competent and well-qualified researcher 
in an important field of research. The evidence, however, does not persuasively establish that the 
petitioner's work has distinguished him from others in that field to an extent that would merit the 
additional benefit of a waiver of the job offer requirement that normally attaches to the immigrant 
classification that 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 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. fj 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 a labor certification issued by the Department of Labor, appropriate supporting evidence and fee. 
ORDER: The appeal is dismissed.