dismissed EB-2 NIW Case: Physical Chemistry

\&entifylng data delew to 
prevent d-1y unwa- 
:-~~~iinn d ama4 dvaw 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: - Office: VERMONT SERVICE CENTER Date: JUN 8 U 2006 
EAC 00 099 50047 
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. 3 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. 
w 
Ipobert P. Wiemann, Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: 
 The Director, Vermont Service Center, initially approved the employment-based immigrant 
visa petition. Subsequently, the director determined that disqualifying circumstances had arisen. The director 
properly served the petitioner with a notice of intent to revoke, and subsequently revoked the approval of the 
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. 9 1153(b)(2), as a member of the professions holding an advanced degree. The petitioner oriplly 
based his petition on his research in physical chemistry. The petitioner asserted 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 revoked the approval of the petition because the petitioner has begun working in a field unrelated to 
physical chemistry. 
Section 205 of the Act, 8 U.S.C. 5 1155, states: "The Secretary of Homeland Security may, at any time, for 
what he deems to be good and sufficient cause, revoke the approval of any petition approved by him under 
section 204." 
Regarding the revocation on notice of an immigrant petition under section 205 of the Act, the Board of 
Immigration Appeals has stated: 
In Matter of Estime, . . . this Board stated that a notice of intention to revoke a visa petition is 
properly issued for "good and sufficient cause" where the evidence of record at the time the 
notice is issued, if unexplained and unrebutted, would warrant a denial of the visa petition 
based upon the petitioner's failure to meet his burden of proof. The decision to revoke will 
be sustained where the evidence of record at the time the decision is rendered, including any 
evidence or explanation submitted by the petitioner in rebuttal to the notice of intention to 
revoke, would warrant such denial. 
Matter of Ho, 1 9 I&N Dec. 582,590 (BIA 1 988) (citing Matter of Estime, 19 I&N 450 (BIA 1987)). 
By itself, the director's realization that a petition was incorrectly approved is good and sufficient cause for the 
issuance of a notice of intent to revoke an immigrant petition. Matter of Ho. The approval of a visa petition 
vests no rights in the beneficiary of the petition, as approval of a visa petition is but a preliminary step in the 
visa application process. The beneficiary is not, by mere approval of the petition, entitled to an immigrant 
visa. Id. at 582. 
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 
Page 3 
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. 
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, 
I01 st Cong., 1 st Sess., 1 1 (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 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. 215 (Cornrn. 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 hture 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. 
On February 1 1, 2000, the petitioner filed the petition. At the time of filing, the petitioner was studying for a 
Ph.D. in physical chemistry at New York University (NYU). As required, the petitioner submitted Form 
Page 4 
ETA-750B, Statement of Qualifications, with the petition. On this form, under "Occupation in which Alien is 
Seeking Work," the petitioner wrote "Physical Chemistry." In a statement accompanying the initial filing, 
counsel stated: 
[The petitioner is an] outstanding physical chemist who has made important seminal 
contributions to the theory of optical properties of solids, in particular to the understanding of 
the non-linear optical properties of materials. [The petitioner's] research discoveries are 
critical to the deeper understanding and improvement of lasers and laser crystals. [The 
petitioner] has also made other independent research contributions to the understanding of the 
mathematical basis of nonlinear optical response theory. 
Seven witness letters accompanied the initial filing. Several of these letters contained some discussion of 
mathematics and computational modeling. For example, Professor Fanghua Lin of the Courant Institute of 
Mathematical Sciences at NYU stated the petitioner's "research is closely connected with advanced 
mathematics. Modern physical chemistry utilizes mathematical modeling techniques in order to derive 
complex formulae which accurately describe phenomena in the physical world." Prof. Lin stated that the 
petitioner's "formidable command of advanced mathematics has given him the tools to develop models that 
are more accurate than those that have previously been accepted as the standard in the field." 
On August 25, 2000, the director issued a request for evidence, indicating that the initial submission was not 
sufficient to establish the petitioner's eligibility for the waiver. In response, the petitioner submitted several 
additional witness letters and other materials. This second group of letters indicates that the petitioner's 
"methods have had a considerable impact on our understanding of the physics of surfaces." The new letters 
mention the petitioner's mathematical skills not in their own right, but in the context of how those skills allow 
the petitioner to make important scientific contributions. Counsel stated, at that time, that the evidence shows 
the petitioner to be "a brilliant scientist who has made fundamental and seminal contributions to more than 
one distinct areas of chemical physics." 
On November 27, 2000, the director approved the petition. On March 9, 2001, the petitioner applied for 
adjustment to permanent resident status. On March 26,2002, in fhtherance of the adjustment application, the 
director instructed the petitioner to: "Submit an original letter on company letterhead from your prospective 
employer . . . stating their continued interest in hiring you, duties to be performed, and remuneration." In 
response, the petitioner has submitted a letter from payroll analyst-f Bloomberg LP, 
indicating that Bloomberg hired the petitioner on June 25, 2001, and that the petitioner "currently holds the 
position of Software Developer in our Research & Development department." ndicates that 
the petitioner's duties "are data analysis and calculations, applying his background in mathematics and in 
computer programming." 
On February 5, 2004, the director issued a notice of intent to revoke, stating: "You were approved for a 
National Interest Waiver as a physical chemist, but you are trying to adjust status as a software developer. 
Please submit evidence that you are working as a physical chemist." In response to this notice, counsel states 
"we are submitting evidence that [the petitioner] is still doing groundbreaking research as a physical chemist. 
We are also submitting evidence that his position at Bloomberg's, Inc. [sic] is an occupation of national 
Page 5 
impact that requires his expertise in advanced computational mathematics and modeling, which is a central 
aspect of his expertise as a physical chemist." 
Counsel observes that, because the petitioner received a waiver of the job offer requirement, the approval 
rests not on a specific job, but rather on the petitioner's "special expertise." Counsel contends that the 
petitioner "still possesses and uses his special expertise, both at NYU's Department of Chemistry, and at 
Bloomberg's, Inc." The director did not cite the absence of a specific job offer from a particular employer as 
a basis for the notice of intent to revoke. Rather, the director issued the notice because the job that the 
petitioner holds is not in the field in which he had previously claimed to seek employment. 
profess0 who supervised the petitioner's doctoral studies at NYU, states: 
Since obtaining his Ph.D. degree, [the petitioner] has worked in Bloomberg L.P. However, 
his dedication to science remained strong, and [the petitioner] has continued his research in 
physical and theoretical chemistry, in collaboration with the members of my group. His work 
with me remains at the forefront of the field. . . . 
Since his graduation, [the petitioner] has at all times remained my valued co-worker, and I 
count on him to make further significant contributions to our efforts for the foreseeable 
future. For this purpose, [the petitioner] has accounts on all major computers used by my 
group, as well as his desk and a tenninaVPC in the graduate students' office. We are 
presently collaborating actively, and productively, on several research topics; a couple of 
manuscripts are in preparation, describing primarily his results. 
Prof. BaCiC identifies three published articles that he co-authored with the petitioner, and he asserts that these 
"papers are a clear evidence of [the petitioner's] ongoing state-of-the-art research in computational physical 
does not indicate how much time the petitioner devotes to this ongoing collaboration, 
nor does 
 that the petitioner receives any remuneration whatsoever for this work. Counsel 
refers to 
 "previous employer," further indicating that the petitioner's continued 
efforts at NYU do not amount to employment. 
, human resources representative at Bloomberg, states: 
[The petitioner] is one of the mathematicians and computational scientists employed by this 
company as software developers in our Research and Development department, whose tasks 
involve the fundamental or core development of our economical statistical systems. His 
group develops programs that process the actual information and provide research tools for 
U.S. and global economics statistical data. . . . They also provide Treasury and Money 
Markets information for the U.S. and other countries, and currently provide and are working 
on the analytics for the London Metal Exchange, global energy markets. . . . 
[The petitioner] is developing a new tool to control the storage of market economics and 
index data. These tools will be applied to predicting economical statistical data based on 
Page 6 
history information. The design of such system requires that the programmer have the 
independent research capabilities and problem solving skills, knowledge of algorithm design, 
scientific computing as well as the programming skills. . . . 
Bloomberg hires many Ph.D. and M.S. degree holders in Computer Science, Economics, 
Physics, Mathematics, and Chemistry, as well as other research fields. [The petitioner] is one 
of them. . . . 
[The petitioner] was recruited for the position he holds precisely because of the programming 
and problem-solving skills that he learned and developed in his doctoral research in 
computational physical chemistry. Now, as mentioned in our previous letter to you, [the 
petitioner] applies the same skill set of mathematics, computer programming and problem 
solving capabilities to describe and analyze global financial markets. . . . 
We therefore believe that [the petitioner's] immigration petition and national interest waiver 
should remain valid because of the strong nexus between his field of expertise and his current 
work. 
By the above logic, numerous aliens can apply for national interest waivers based not on their shared skills in 
mathematics and computation, but on their contributions to physics, chemistry, and other fields, and then, 
having obtained waivers, all of these individuals can become software developers in the financial industry. 
On June 16,2005, the director revoked the approval of the petition, stating: 
You have not explained sufficiently how your work exploits physical chemistry, uncovers 
fundamental scientific principles of physical chemistry, or contributes [a] significant amount 
of research. Even if you engage in research, it does not appear that such research will relate 
to the fields that will be representative of greatest benefits to the national interest. . . . 
Now that you have been offered permanent employment, it appears that the United States 
employer could apply for a labor certification for you and file a new petition on your behalf. 
The evidence currently available to the Service indicates that a waiver of the labor 
certification requirement is neither in the national interest nor the only available means for 
you to remain employed by Bloomberg. 
Counsel, on appeal, asserts that the grounds for revocation are "arbitrary and unreasonable, and they depart 
from established precedent." Counsel states that the director failed to consider that the petitioner's current 
position at Bloomberg relies on the same "computational expertise central to [the petitioner's] training in 
chemical physics." The waiver, however, did not rest on the petitioner's "training" but rather on the use to 
which he was putting that training. Prior to the approval of the petition, this same attorney repeatedly 
emphasized the impact of the petitioner's work within the fields of physics and chemistry, rather than the 
more general value of the petitioner's expertise in computers and mathematics. Witness letters in the 
petitioner's initial submission contained a fair amount of discussion of the petitioner's mathematical and 
Page 7 
computer skills, but the director found that initial submission to be insufficient. Only after the petitioner 
provided more specific evidence about the value of the petitioner's work as a physical chemist did the 
director find that the petitioner had met his burden of proof. Given this documented history of the 
proceeding, it is clear that the director approved the petition not because of the petitioner's math and 
computer skills, but because the petitioner was said to be making important contributions to the disciplines of 
physics and chemistry. 
Counsel asserts that the director failed to consider 
 earlier statement that there is a "strong 
nexus between his field of expertise and his current work." The "nexus" in question is simply that the 
positions of physical chemist and software development involve overlapping skill sets. It does not follow 
from this overlap that the two positions are the same or similar for national interest purposes. 
Counsel appears to suggest (but does not expressly argue) that the petitioner's new employment meets the 
requirements of section 106 of the American Competitiveness in the Twenty-First Century Act (AC21), 
Public Law 106-3 13. Section 106(c) of AC2 1, establishing section 204Cj) of the Act, states: 
A petition under subsection (a)(l)(D) [since re-designated section 204(a)(l)(F) of the Act] for 
an individual whose application for adjustment of status pursuant to section 245 has been 
filed and remained unadjudicated for 180 days or more shall remain valid with respect to a 
new job if the individual changes jobs or employers if the new job is in the same or a similar 
occupational classification as the job for which the petition was filed. 
Section 204(a)(l)(F) of the Act states: "Any employer desiring and intending to employ within the United 
States an alien entitled to classification under section 203(b)(l)(B), 203(b)(l)(C), 203(b)(2), or 203(b)(3) may 
file a petition with the Attorney General for such classification." (This authority now rests with the Secretary 
of Homeland Security rather than the Attorney General.) 
In this instance, the stated ground for revocation is not the petitioner's change of employers, but, rather, that 
he is no longer employed in the same or similar occupational classification that served as the basis for the 
national interest waiver. 
The labor certification or approval of a Form 1-140 employment-based immigrant petition shall remain valid 
when an alien changes jobs, if (1) a Form 1-485, Application to Adjust Status, on the basis of the 
employment-based immigrant petition has been filed and remained unadjudicated for 180 days or more; and 
(2) the new job is in the same or similar occupational classification as the job for which the certification or 
approval was initially made. Here, the petitioner is no longer employed in the research field (physical 
chemistry) in which he initially proposed that his employment would substantially benefit prospectively the 
national interest of the United States. 
In a letter dated June 22, 2005, repeats the assertion that the petitioner "has continued to conduct 
first-rate research in physical and theoretical chemistry. adds: "I fail to see how it can possibly be 
in it's the best interest [sic] to force him to leave now." This latter passage reflects the mistaken presumption 
that the petitioner's only way to remain in the United States is through the petition approved in 2000. A job 
Page 8 
offer from Bloomberg could presumably form the basis of a labor certification. In the alternative, if the 
petitioner or Bloomberg believes that the petitioner's present work merits a waiver in its own right, the proper 
course of action would be to file a new petition based on that work. 
In a personal statement, the petitioner requests oral argument and asserts: "To my understanding, 1 didn't 
deviate from my original NIW category all those years," because he has continued to publish articles in 
physical chemistry. The regulations provide that the requesting party must explain in writing why oral 
argument is necessary. Furthermore, Citizenship and Immigration Services has the sole authority to grant or 
deny a request for oral argument and will grant argument only in cases involving unique factors or issues of 
law that cannot be adequately addressed in writing. See 8 C.F.R. $ 103.3(b). In this instance, the petitioner 
identified no unique factors or issues of law to be resolved, and set forth no specific reasons why oral 
argument should be held except the assertion that "there were some misunderstandings and 
miscommunications that should be cleared in person." Moreover, the written record of proceedings fully 
represents the facts and issues in ths matter. Consequently, the request for oral argument is denied. 
In a supplement to the appeal, counsel effectively abandons the strategy of arguing that the petitioner's work 
at Bloomberg is related to physical chemistry; counsel never mentions the petitioner's job at Bloomberg in the 
latest submission. Counsel states "the only issue on appeal is whether the petitioner continues to be active in 
his field. The petition was revoked because it was alleged that the petitioner was no longer continuing to do 
work in the same field in which he was originally approved for national interest waiver." 
The petitioner submits several letters from researchers who assert that the petitioner continues to be an active 
researcher in the field of physical chemistry. They assert that the petitioner's research in physical chemistry 
benefits the national interest. The AAO does not dispute this assertion; the director did, after all, originally 
approve the petition on that very basis. The authors of the latest round of letters have impeccable scientific 
credentials; one is a Nobel Laureate, and another is a winner of the National Medal of Science. Not 
coincidentally, these witnesses are all employed at academic research institutions rather than in the financial 
services industry. Their continued research is inextricably bound up with their careers; they cannot cease one 
without ceasing the other. In contrast, the petitioner could stop conducting research in physical chemistry 
tomorrow with no direct effect on his employment at Bloomberg. If, on the other hand, the petitioner 
continues to collaborate with Prof. BaCiC but stops performing computer work relating to finance, it seems 
safe to say that Bloomberg would not long continue to pay his salary. Counsel thus attempts to portray the 
petitioner as being "active in the field" in a manner that is completely divorced from his employment. 
The petitioner seeks an immigrant classification that the statute, at section 203(b) of the Act, specifically 
terms "employment-based." The waiver is not universally available to all aliens; it is restricted to certain 
categories that, in turn, are defined by occupation. The waiver is, therefore, inseparably linked to 
employment. Unpaid research that the petitioner conducts in his spare time is not, by any reasonable 
definition, "employment." The AAO will not speculate on what the director would have done if, after 
receiving the notice of intent to revoke, the petitioner had secured employment as a physical chemist. As it is, 
the petitioner has been either unwilling or unable to secure employment in the field of physical chemistry, 
despite having made what several witnesses have described as a series of important contributions to that field. 
The petitioner has never been employed in the field of physical chemistry except in positions ancillary to 
Page 9 
graduate study. The record is, therefore, devoid of evidence to suggest that the petitioner seeks employment 
as a physical chemist, or that NYU or any other entity intends to employ him in that capacity. Third-party 
assurances that the petitioner will continue performing research as what essentially amounts to a hobby 
cannot suffice as a basis for permanent immigration benefits. The petitioner received a national interest 
waiver based on a fairly narrow set of circumstances. When he applied for the waiver, the petitioner gave no 
indication that he intended to work in finance, while volunteering with his former professor at NYU. 
We find that, because the national interest waiver pertains to an employment-based classification, the factors 
underlying the waiver claim must pertain directly to the alien's employment. Because the petitioner's 
national interest waiver claim was predicated on the scientific benefits from his employment as a physical 
chemist, we find that the director acted correctly in revoking the approval of the petition once it became clear 
that the petitioner had ceased to be employed in the field of physical chemistry. 
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.