dismissed EB-2 NIW Case: Physics

DATE: 
OCT 2 2 2012 
IN RE: Petitioner: 
Beneficiary: 
OFFICE: NEBRASKA SERVICE CENTER 
u.s. Department of Homeland Security 
u.s. (·itill.'n~hip and Immigration Service .... 
Adlllini:-'lralive Appl.:;ds Olficl' (AAO) 
20 Massachu~ctt:-, A\'e., N.W .. MS 2()lJ() 
Washington, DC 20."i29-20lJO 
u.s. Citizenship 
and Immigration 
Services 
PETITION: Immigrant Petition for Alien Worker as a Memher of the Professions HolLling an AdvanceLl 
Dcgrce or an Alien of Exccplional Ahilily Pursuant to Section 203(h)(2) of thc Immigration 
and Nationality Act, tl U.s.c. * 1153(h)(2) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your casco All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you helieve the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to rcopen in 
accordance with the instructions on Form 1-29013, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can he found at tl C.F.R. § 103.5. 00 not file any motion 
directly with the AAO. Plcase he aware Ihat S C.F.R. § 1m.5(a)( 1)(i) requires any motion to he filed within 
.30 days of the ueci",ion that the motion seL:ks to reconsider or reopen. 
Thank you, 
~ [, \., Jt:.\....L"-.A.. ~~ 
V~rry~J 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will 
dismiss the appeal. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.c. § 1153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as a physicist. The petitioner is currently an assistant scientist at the 
University of Wisconsin-M3dison (UWM). The petitioner asserts thaI an exemption from the 
requirement of a job offer, and thus of a labor certification, is in the national interest of the United 
States. The director found that the petitioner qualifies for classification as a member of the professions 
holding an advanced degree, but that the petitioner has not established that an exemption from the 
requirement of a job offer would be in the national interest of the United States. 
On appeal, the petitioner submits a personal statement and supporting documents. 
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. 
(8) 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. Thc 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 tcrm "national interest." Additionally, 
Congress did not provide a specific definition of "in the national interest." The Conuninee 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, IOlst Congo, 1st Sess., I I (1989). 
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 (USerS)] 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 tD 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. 
Maller of New York State Dept. of TrallSportation, 22 I&N Dec. 215 (Act. Assoc. Comm'r 1998), has 
set forth several factors which must be considered when evaluating a request for a national interest 
waiver. First, the petitioner must show that the alien seeks employment in an area of substantial 
intrinsic merit. Next, the petitioner must show that the proposed benefit will be national in scope. 
Finally, the petitioner seeking the waiver must estahlish 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. 
While the national interest waiver hinges on prospective national benefit, it clearly must be established 
that the alien's past recordjustiiies 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 bene/It. The inclusion of tile tenn "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. 
The AAO also notes 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 arc generally suhject to the job offer/labor certification 
requirement; they arc not exempt hy virtue of their exceptional ability. Therefore, whether a given 
alien seeks classification as an alien of exceptional ability, or as a member of the professions holding 
an advanced degree, that alien cannot qualify for a waiver just by demonstrating a degree of 
expertise significantly above that ordinarily encountered in his or her field of expertise. 
The petitioner filed the Form 1-140 petition on September 12,2011. The initial submission included 
background information about nuclear fusion research. The booklet Fllsion Science: Harnessing tite 
EneT/iY of the Slars provided a description of the issue in terms accessible to laymen, and stated: 
"Once fusion technology is developed we will have an energy source to satisfy the world's needs tor 
millions of years" (p. 4). The technology, at present, remains under development. 
In an accompanying statement, the petitioner described her work: 
I am a major part of a Fusion Grade Plasma Diagnostics Development Research 
Group collaborating/branched out to top-two major Facilities (National Laboratory) 
Page 4 
here in the United States, namely the Dlll-O Facility at General Atomics San Diego, 
CA and the National Spherical Torus Experiment (NSTX) at Princeton Plasma 
Physics Laboratory (PPPL) at Princeton, NJ, , .. 
I am responsible for the original design, testing and deployment of my unique and 
novel diagnostics to these major facilities. Currently, I am working on a design and 
development of a spectrometer using a holographic grading to measure "fast-ion­
temperature-f1uctuations:' The importance of my current work comes from the fact 
[that] by measuring "fast-ion-temperature-f1uctuations," which hasn't [sic] been 
measured at DIII-D and/or NSTX at all, researchers can be able to address issues like 
heat, particle and momentum losses ... [which] are predicted to be the major reason 
for loss of plasma confinement. However, measuring the changes using the fast-ion­
thermal diagnostics will be the ultimate proof and it will put us one step closer to 
achieving our common goal, i.e. putting the fusion energy on the power grid ... , 
Based on my education, training and experience I am considered [to be a] one-of-a­
kind experimental plasma physicist specializ[ing in] novel plasma diagnostics and 
data analysis techniques. Therefore, my unique abilities (as demonstrated in my past 
experiences and achievements including my peer-reviewed papers, citations, 
presentations and the papers I have reviewed) and my research involvement will serve 
in the national interest, i.e. as in plasma physics research helping to move towards 
tomorrow's fusion power plants. 
The petitioner submitted several witness letters from mentors and collaborators. 
_ who supervised the petitioner's doctoral studies at the University of Iowa, stated: 
Fusion energy research has several components, but the main approach involves large 
magnetic chambers (called tokamaks) in which ionized gas is heated to very high 
temperatures. A crucial question for the eventual use of these chambers for 
commercial purposes is to determine how the heat escapes across the magnetic field. 
Many measurement techniques have been developed (called plasma diagnostics) for 
probing the electric and magnetic fields, and particle densities and currents in these 
magnetic chambers. In my laboratory, [the petitioner] learned how to do laser 
spectroscopy on plasma ions and she also worked with electric probes. She worked 
with me in studying the fluctuations caused by unstable waves - these waves are 
believed to be responsible for how heat energy escapes from the plasma. Since then 
she has become proficient in ... crucially important measurement techniques in the 
fusion energy program. Her work on diagnostics is being used by others as evidenced 
through her recent publications in Review of Scientific Instruments .... 
Her work on plasma transport processes is central to the development of fusion 
energy as an economical energy alternative for the United Statcs. 
Page 5 
and both of the University of 
Maryland, College Park, jointly signed a letter describing the petitioner's postdoctoral work there: 
We collaborated on a project to inject plasmas into a prototype controlled fusion 
device (MCX: "Maryland Centrifugal Experiment") to provide enhanced stability 
against instabilities through plasma rotation during magnetic confinement, The 
importance of such basic plasma physics research to the U,s. leadership in new and 
clean energy via controlled fusion cannot be overstated. 
During this period, [the petitioner] carried out ground-breaking experiments of 
importance to the National interest with a unique high powered plasma gun developed 
specifically to avoid the inherent blow-by instabilities that had plagued previous 
designs via electrode shaping and a specially-tailored armature. She set up an array 
of diagnostics to characterize the plasma jets and the penetration through the 
confining magnetic field and to measure the momentum transfer from the jet to the 
plasma. She applied unique cross-correlation technique to interpret the data, for 
which researchers world-wide have followed her lead and sought her advice when 
utilizing similar diagnostics in their laboratories. 
University of Maryland 
work in Maryland: 
provided further details about the petitioner's 
[The petitioner] made experimental observations of the magnetic turbulence and 
analyzed the data to show very compelling evidence that the velocity shear was 
indeed acting on turbulence as had been surmised. This was the first direct proof of 
supprcssion and constitutes a key stepping-stone in the experimental campaign. Her 
expertise . . . was crucial to obtaining a scientifically rigorous proof of the 
phenomenon. In particular, she showed that the turbulence spectrum is reduced in 
power and cascades to longer wavelengths, both of which are key requirements to 
corroborate the theory of velocity shear suppression. She linked this finding to edge 
turbulent particle and momentum transport mechanisms in MCX. This result will 
remain one of the cornerstones of this experimental device and will be used in 
planning any future extrapolations of this concept, 
[The petitioner's 1 experiments were a milestone in the development of the more 
hybrid approach between inertial confinement and magnetic confinement. ... Her 
results help our research team at H yperV to develop more powerful plasma guns 
injecting higher densities at higher velocities. More importantly, these findings 
contribute to a much larger research community developing the Plasma Jet Magneto 
Inertial Fusion (PJMIF) concept here in the US. 
Page () 
[The petitioner 1 is the key scientific person responsible for developing a new state-of­
the-art spectroscopic plasma diagnostic that is designed to measure small-scale 
tluctuations in the temperature of the extremely hot plasmas that are the basic fuel for 
proposed thermonuclear fusion energy reactors. She developed the detailed design of 
this instrument and has led the fabrication of the instrument and its deployment to the 
DlII-D National Fusion Facility for initial experiments. These measurements arc 
crucial to developing our understanding of the thermal conductivity of these plasmas 
and the related potential for maximizing the power output of potential reactors. The 
loss of her involvement in this project would severely harm this program to study 
plasma fluctuations and confinement, and considerably set back our ability to 
improve the understanding of plasma properties for fusion power development. It is 
clearl y in the national interest that this project continues uninterrupted. 
To document her published work, the petitioner submitted copies of the cover pages of 13 articles 
that name her as a co-author, and documentation of numerous conference presentations. The 
petitioner also submitted partial copies of six articles by other research groups, including 
independent citations to the petitioner's work. (A seventh article includes a self-citation by three of 
the petitioner's co-authors.) A printout from Harvard University'S SAOINASA Astrophysics Data 
listed "35 abstracts" co-authored by the petitioner. A printout from Thompson Reuters's 
listed 12 articles by the petitioner, with a total of 23 citations to those articles. A 
partial printout from Google Scholar listed ten articles by the petitioner, cited 27 times. The 
printouts did not identify the citing articles, and therefore it is not clear how many of the 23 citations 
in one list overlap with the 27 in the other list, or how many of the citations are self-citations by the 
petitioner and/or her co-authors. 
The petitioner also documented her work as a peer reviewer for various journals and conferences. A 
list of reviewers for Physics of Plasmas is five pages long and contains 1,117 names, indicating that 
participation in peer review is not a particularly rare privilege. 
On December 13, 2011, the director issued a request for evidence, instructing the pel1l1oner to 
submit additional citations as well as other evidence to establish her intluence in her field. In 
response, the petitioner stated: 
Per your request, I have attached 15 selected citations to my papers form outside my 
main research group .... 
As for additional documentation for prior achievements, I have collected peer letters 
from well established scholars at the National Labs such as the U.S. Naval Research 
Lab (NRL), General Atomics (GA), and Princeton Plasma Physics Lab (PPPL) . ... 
Within the Plasma Physics Community, I consider myself as part of a much smaller 
group, experimentalists with plasma diagnostic design knowledge and creative skill 
Page 7 
set to pursue a particular physics problem that is needed to be resolved for V&V 
(verification and validation) for theory purposes .... To put [it] into ... perspective, 
there are currently 2 tokamaks ... in the United States, and I am working on a 
diagnostic for one of them, namely the DlIl-D, for the last three years. 
(The petitioner's emphasis.) The petitioner submitted evidence of 12 independent citations of her 
work, including duplicate copies of citations documented previously. The petitioner's figure of 15 
citations is inllated because the petitioner submitted one article twice, as well as self-citations by the 
petitioner's co-authors at UWM. 
The petitioner suhmitted four additional witness letters. 
at the NRL praised the petitioner's "knowledge and understanding of 
plasma turhulence transport, along with her wide-ranging e with plasma diagnostics:' 
hut provided few details about the petitioner's work. Instcad, discussed the intrinsic 
merit of fusion research as a possible future source of clean energy. 
at UWM, described "advanced diagnostic measurement 
systems for temperature and asserted that the petitioner "has advanced the 
development of this highly specialized system." 
stated: 
[The petitioner] has collaborated with us at the NSTX [National Spherical Torus 
Experiment] over the last several years .... I am also familiar with her work at the 
Dlll-D experiment at General Atomics in San Diego. She plays a vital role in the 
development and utilization of Beam Emissions Spectroscopy (BES) diagnostics for 
the US Fusion Program, both on NSTX and Dill-D .... 
She is well known for her work in these areas, both within the US and internationall y, 
and she has published her work in high-impact peer-reviewed journals such as Review 
of Scientific She was recentl invited to give a talk on her work at the 
influential to be held in May 2012. 
I serve on the lDV' conference and [the 
petitioner's] nomination was strongly supported by the committee because of the 
innovative and unique nature of her work and the high impact that it has on fusion 
research . 
. . . It is ... unrealistic to expect to be able to replace her with a US citizen. At a 
minimum, a new person would require many years of on-the-job experience to 
achieve [the petitioner's] level of expertise and to be able to contribute to plasma 
diagnostic development at her level. This would be a major setback to research in 
this crucial area and would therefore be detrimental to progress in developing fusion 
as an energy source. 
Page S 
stated: 
The measurements that the Wisconsin group makes provide the best information we 
have at present on the behavior of turbulent density, temperature and velocity 
fluctuations in the plasma, Understanding and controlling these fluctuations is 
important in reducing the energy loss from the plasma and, hence, reaching our goal 
of a practical, new energy source. [The petitioner's) work with the Wisconsin group 
provided us with a new, unique way to obtain the temperature and velocity 
fluctuations from the basic measurements. No other fusion research device in the 
world has this capability at present. This determination is allowing us to make new 
experimental measurements of quantities that, until then, had only been speculated 
about by theorists. Because of these new measurements, we are now able to verify 
the theory and make a signi [icant advance towards our ultimate goal. 
The director denied the petition on March 12, 2012. The director acknowledged the intrinsic merit 
and national benefit of nuclear fusion research, but found that the petitioner had not set herself apart 
from others in her field. The director stated: 'The petitioner's findings do not appear to have yet had 
a measurable influence in the larger field. While witnesses discuss the potential application of these 
findings. there is no indication that these applications have yct been realized." The director 
acknowledged the petitioner's published work, but t()und that it "has been cited a very small number 
of times." In an introductory paragraph. the director stated that "the petitioner will be employed as 
an assistant scientist in internal medicine." 
On appeal, the petitioner states that the decision contains "a serious error" because her "field of 
research is engineering plasma physics which has nothing to do with 'internal medicine.'" The 
petitioner concludes. from this erroneous reference to "internal medicine," that her petition did not 
receive sufficient review. 
It is beyond dispute that the petitioner's field is not internal medicine, and that the director's 
reference to that field is clearly in error. The same decision, however, identifies witnesses who had 
provided letters. Discussions of those letters include references to "plasma turbulence and transport" 
and other clearly identitiable aspects of the petitioner's true work. Given the overwhelming 
evidencc that the director reviewed the correct record of proceeding and reviewed the evidence it 
contains. the single reference to "internal medicine" amounts to harmless error that did not atTect the 
outcome of the director's decision. 
The petitioner states: "I have never collaborated with and 
_ and their witness letters should be considered as my influence in the larger field, because 
they know and recognizc my achievemcnts" (the petitioner's emphasis). The lettcrs from those 
witnesses suggest stronger ties with the petitioner. in his letter, had stated that the 
petitioner "is a colleague of mine, working at the DllI-D National Fusion Research Facility in San 
Diego .... I met [the shortly after she started working with the group from [the] 
University of Wisconsin" stated: "1 have known [the petitioner) for approximately 
eight years, since she was a graduate student at the University of Iowa." Nevertheless, the petitioner 
Page l) 
is correct that the record includes no evidence of direct collaboration between the petitioner and the 
above-named witnesses. 
The petitioner disputes the director's conclusion that "there is no indication that" "the potential 
applications of [the petitioner's] findings ... have yet been realized." The petitioner contends that 
the director selectively quoted the witness letters omitting passages that referred to existing 
applications of her work. The petitioner cites letter to show that the DIII-D project has, 
in fact. put her work to practical usc. implementing a diagnostic procedure that "no other research 
device in the world" is using. The petitioner's point is well taken. but it remains that there is no 
evidence of implementation of the pctitioner's work beyond the projects on whieh she herself has 
collaborated. 
The petitioner asserts that the director should have given more weight to her invitation to speak at 
the High Temperature Plasma Diagnostics (HTPD) conference in May 2012. The petitioner states: 
"Every two years, the HTPD committee selects only 26 people [out of] hundreds of nominations 
[throughout the J whole plasma physics community." To support this claim, the petitioner submits a 
list of 26 speakers (including the petitioner) invited to speak at the 2012 conference, and a report on 
the 20 I 0 conference. The report refers to "a total of 340 registered participants" and "26 invited 
talks" The evidence does not indicate that every registered participant is "nominated" to give an 
invited talk, or that presenting a talk at the HTPD conference is otherwise more prestigious than 
giving a talk at one of countless other conferences. 
Furthermore, the petitioner said nothing about this invited talk when she filed the petition. In a letter 
submitted with her response to the request for evidence, the petitioner stated that she had -:just 
received an invitation" to speak at the HTPD conference. The date on the letter is February Ill, 
20 II, but the year is incorrect and should read 2012. The reeord indicates that the petitioner 
received this invitation on January 26. 2012. alier the petition's September 12. 2011 tiling date. An 
applicant or petitioner must establish that he or she is eligible for the requested benefit at the time of 
filing the application or petition. Il C.F.R. § 103.2(b)(1). Therefore. subsequent events cannot cause 
a previously ineligible alien to become eligible after the filing date. See Maller ofKati!{hak, 14 I&N 
Dee. 45, 49 (Reg' I Comm'r 1971). 
The petitioner acknowledges that her publications have yielded few citations, but asserts that USClS 
must take into account the nature of her work: 
What 1 do is not the same at all [as that of] a theorist whorl can produce papers and 
get cited [widely] in a short time, because they run simulations on computers without 
needing a laboratory, and they can produce fast resuits, [and] compare their findings 
with each other by citing. I, on the other hand, have to build a laboratory, and 
produce my diagnostic work which sometimes takes years to develop .... My small 
number of citations is due to this fact, but they are very valuable, maybe not in 
quantity, but in quality. 
Page 10 
The petitioner submits no evidence (such as comparative citation figures) to support the above 
assertion. It cannot suffice for the petitioner simply to observe that theoretical physicists work 
differently than experimental physicists. Furthermore, the petitioner has not established that the 
"quality"' of her citations exceeds those earned by others in her specialty. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of 
Treasure Craft afCalifornia. 14 J&N Dec. 190 (Reg' 1 Comm'r 1972». 
The petitioner protests that the director did not mention her peer review work. The petitioner claims: 
Since a peer-reviewer, i.e. judge, is hand picked by the editor of the journal 
specifically based on [the] judge's interest, and prior achievements and most 
importantly [the] judge's influence in the concept of the paper that is being 
considered, I strongly believe that this is a significant achievement, and shows my 
influence in the whole field, not everyone get[sj to be an independent judge of 
someone else's work. 
(The petitioner's emphasis.) Above. the petitioner has made additional claims that the record does 
not support. The petitioner has not shown that her "prior achievements" or "innuence" were factors 
leading to her selection as a peer reviewer. As noted previously, the record shows that the petitioner 
was one of 1,117 referees who reviewed papers for just one journal over the course of a single year 
(2010). This evidence, though fragmentary, does not tend to support the conclusion that an 
invitation to perform peer review is the rare privilege that the petitioner claims. 
The director, in denying the petition, did not conclude that the petitioner's work is without value. 
Certainly, she has played a significant role in various highly complex projects aimed at the goal of 
harnessing the power of nuclear fusion. Nevertheless, there exists no blanket waiver for plasma 
physicists engaged in fusion research, and the petitioner has produced no objective, documentary 
evidence that would persuasively set her apart from others in that admittedly rarefied specialty. 
As is clear from a plain reading of the statute. it was not the intent of Congress that cvery person 
qualified to engage in a profession in the United States should be exempt from the requirement of a job 
offer based on national interest. Likewise. it does not appear to have becn 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, 
~ U.s.c. ~ l3ol. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.