dismissed EB-2 NIW Case: Physics

U.S. Department of Homeland Security 
20 Mass. Ave . N W., Rm A3042 
.- kpY pa~$~$c bo Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: EAC 03 019 54360 Office: VERMONT SERVICE CENTER Date: JUL 1 9 2W5 
IN RE: Petitioner: 
Beneficiary 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration 
and Nationality Act, 8 U. S.C. 9 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 
riginally decided your case. ^Any further inq;iry must be made to that office. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
EAC 03 019 54360 
Page 2 
DISCUSSION: The Director, Vermont 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 a/n advanced degree. The petitioner seeks 
employment as a research scientist at Qusion Technologies, Inc. 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. 
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. 
The director did not dispute that the petitioner qualifies as a member of the professions holding an advanced 
degree. The sole issue in contention is whether the petitioner has established that a waiver of the job offer 
requirement, and thus a labor certification, is in the national interest. 
Neither the statute nor the pertinent regulations define the term "national interest." Additionally, Congress did 
not provide a specific definition of "in the national interest." The Committee on the Judiciary merely noted in its 
report to the Senate that the committee had "focused on national interest by increasing the number and proportion 
of visas for immigrants who would benefit the United States economically and otherwise. . . ." S. Rep. No. 55, 
lOlst Cong., 1st Sess., 11 (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 (CIS)] 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. 
EAC 03 019 54360 
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Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Comm. 1998), has set forth several factors 
which must be considered when evaluating a request for a national interest waiver. First, it must be shown that 
the alien seeks employment in an area of substantial intrinsic merit. Next, it must be shown that the proposed 
benefit will be national in scope. Finally, the petitioner seeking the waiver must establish that the alien will serve 
the national interest to a substantially greater degree than would an available U.S. worker having the same 
minimum qualifications. 
It must be noted that, while the national interest waiver hinges on prospective national benefit, it clearly must be 
established that the alien's past record justifies projections of future benefit to the national interest. The 
petitioner's subjective assurance that the alien will, in the future, serve the national interest cannot suffice to 
establish prospective national benefit. The inclusion of the term "prospective" is used here to require future 
contributions by the alien, rather than to facilitate the entry of an alien with no demonstrable prior achievements, 
and whose benefit to the national interest would thus be entirely speculative. 
Counsel describes the petitioner's work: 
[The petitioner] is a Research Physicist (PhD in Physics) who is an expert in the discovery of 
systems in critical need today to detect minute concentrations of hazardous environmental 
emissions in real time (that is, when it occurs). This work is a continuation of her research/ 
experience as a Metallurgical Engineering [sic] . . . whose focus of a interest [sic] the past 13 
years is linking manufacturing to the online detection of environmental emissions to 
maximize environmental protection and manufacturing productivity. Now this work has 
become of importance in combating terrorism because of the need to detect minute amounts 
of hazardous chemicals in real time and tied to systems that will automatically neutralize the 
effectiveness of the poisons. Uniquely, she has also made great contributions to NASA's 
program on the exploration of space. . . . 
Her work has a great impact on the economic growth of the United States, improving the 
quality of manufacturing production, meeting the defense needs of the US and improving the 
environment. . . . [Slhe has made recognized break-through discoveries for which she is 
nationally and internationally renowned leading to her attaining a rank in the field that only 
the to few percent reach [sic]. She is a key scientist whose status in the field has been so 
characterized by eminent authorities. Uniquely her impact is upon two diverse fields, 
namely, physics and metallurgical engineering. . . . She is regarded by eminent authorities as 
unique and irreplaceable. 
The petitioner submits letters from several witnesses. All of the witnesses are or were emploved bv 
institutions where the petitioner has worked and studied. hair of the ~esearch anh 
Development Department at Changsha Research Institute of Mining and Metallurgy, supervises the research 
group in which the petitioner worked for six years-states: 
[The petitioner's] research in my laboratory included the comprehensive use of waste water 
from steel rolling mills, treatment of gas and dust from steel-smelting mills, new technology 
and modeling of in-situ extraction of rare earth ores, and development of leaching gold from 
poor ore, etc. 
EAC 03 019 54360 
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I can fully attest to the fact that [the petitioner's] superior research skills and technical know- 
how have enabled us to make a major breakthrough in finalizing the overall system design 
and implementation of in-situ experiments. . . . 
[The petitioner's] research contributions . . . has [s.ic] gained her world renown. She has 
become one of the scientific leaders in the extremely important area of environmental 
monitoring and control. 
Three faculty members from the New Jersey Institute of Technology (NJIT) describe the petitioner's work as 
a doctoral candidate there. Professor Gordon Thomas states: 
[The petitioner's] Ph.D. project involved the study of integrated photonic sensors, and she has 
made significant discoveries in this field. . . . 
The integrated photonic sensors that [the petitioner] has developed will be useful for in-situ 
analysis of dangerous organics in the 'water and air. In comparison, the current off-site 
analysis techniques are unfeasible in some toxic and high electric field environments. [The 
petitioner's] research successfully addressed this critical issue. Unlike the conventional 
collection of environmental sampling, the new devices can operate in either gaseous or 
aqueous environments. This development has successfully overcome a major barrier of off- 
site techniques. 
Professor Anthony M. Johnson, chair of NJIT's Department of Physics, states: 
[The petitioner's] ground-breaking research laid the foundation for a novel integrated 
photonic sensor that could potentially be used in a closed loop control manner to reduce 
environmentally hazardous emissions associated with manufacturing processes through fast 
response control. . . . 
The sensor has been designed to be compact, portable, rugged, and suitable for real-time 
monitoring of hazardous organics in water or in air. It offers numerous advantages over 
conventional analytical techniques including small physical size, geometric flexibility, low 
cost, instrumental reliability, insensitivity to electromagnetic interference, and low power 
requirements. 
[The petitioner] was the key member of this project. She made the important contributions. 
She designed the experimental process, fabricated the sensor, and characterized the device 
properties for evaluating the effects of different process parameters on the sensor. 
NJIT Professor states that the petitioner's "breakthrough discoveries in materials science 
gained her the petitioner's work on the aforementioned sensor, and adds 
that the pet rking on free standing membrane that will be used by NASA 
in the development of the next generation high-caliber telescope. [The petitioner] uniquely contributed to 
both the integrated optic sensor and membrane. She is regarded in the field as extraordinary." We note that 
the record contains nothing from NASA to clarify or confirm these assertions. 
president and CEO of Qusion Technologies, Inc., describes the petitioner's current work 
with that company: 
EAC 03 019 54360 
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Optical communications is [sic] a key technology to provide secure communications. Digital 
transmission through optical fiber is difficult to intercept, and to interfere with. This allows 
secure coinmunications that help prevent terrorist attacks on financial transactions. In 
addition, military and civilian responses to emergency requirements are secure through 
optical transmission. 
To do this, components are needed utilizing arcane physical principles because the time and 
conditions are beyond those contemplated in the past. . . . In addition to a physics 
background, it is necessary to understand the physical chemistry of materials in order to 
fabricate devices that can be used continuously and reliably. 
[The petitioner] is the unique, irreplaceable person who has these attributes. . . . For her 
doctorate dissertation, she discovered arcane physics principles to develop new components 
that are critical to optical communications. . . . 
Here, at Qusion Technologies, Inc., she has developed manufacturing/fabricatio~l 
technologies for a modulator based on the InPIInGaAs MQW material systems. This 
modulator is based on the principle of quantum confined stark effect (QCSE) and offers high 
speed (40GbIs) at a low drive voltage. 
in a vital field who has attained a status that only the top few 
a member of Qusion Technologies' technical staff, states 
all aspects of processing for the complex integrated InP 
modulator." eems the petitioner "an indispensable asset to both the device and materials 
industry and to the United States as a whole." 
We note that several witnesses have indicated that the petitioner has earned wide renown in her field, but we 
must also note that all of these witnesses have close ties to the petitioner. Their statements are not first-hand 
evidence that the petitioner has earned a reputation beyond the institutions where she has worked and studied. 
If the petitioner has, indeed, achieved "world renown" as claimed, there should exist evidence of this renown 
beyond the assertions of her former professors and her employers. 
The petitioner submits copies of the petitioner's published articles and abstracts of her conference 
presentations. These documents, by themselves, show that the petitioner has made her work available, but 
they are not prima facie evidence of the petitioner's influence on the field or of her claimed renown. The 
petitioner did not submit objective evidence to show the impact of these publications, such as documentation 
showing heavy citation of her published work. 
The director denied the petition, stating that the petitioner had met only the "intrinsic merit" prong of the 
national interest test set forth in Matter of New York State Dept. of Transportation. The director found that 
"the record is devoid of any independent, contemporaneous documentary evidence that would support [the] 
claim" that the petitioner has earned "wide renown." The director observed the lack of evidence that other 
researchers have cited the petitioner's published work. 
On appeal, counsel observes that the director denied the petition without first issuing a request for evidence. 
The director cited 8 C.F.R. 5 103.2(b)(8), which indicates that a petition may be denied without a request for 
evidence if the record contains evidence of ineligibility. The director did not identify any evidence of 
EAC 03 019 54360 
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ineligibility. The petitioner submits a copy of a memorandum from William R. Yates, Associate Director of 
Operations, Requests for Evidence (May 4,2004). This memorandum states: "Under 8 CFR 103.2(b)(8), the 
CIS is only required to issue an RFE . . . when initial evidence is missing. . . . In all other instances, such as 
when the evidence . . . does not fully establish eligibility, issuance of an RFE is discretionam" (emphasis in 
original). In light of this quoted passage, counsel's submission of the memorandum weakens counsel's claim 
that the director was obliged to issue a request for evidence. 
The most expedient remedy for this dispute is to consider, on appeal, evidence that the director would have 
considered in response to a request for evidence. The only new evidence submitted on appeal is a printout 
from the popular search engine http://www.aooale.com. This printout shows that a search for the 
beneficiary's name (in Chinese characters) yielded four results. This document, by itself, does not 
demonstrate "world renown"; rather, it appears to indicate that the petitioner's name is rarely mentioned on 
Chinese-language pages of the World Wide Web. 
Counsel states: "The Adjudicator's denial apparently is based upon an ignorance of the appellant petitioner's 
identity and field of research. The appellant-petitioner is identified in the very first sentence as being in 
metallurgical engineering at Yale University. That is not true, nor has any representation to that effect been 
made." Elsewhere, counsel asserts: "The adjudicator has clearly confused [the petitioner's] application with 
that of someone else." We note that the petitioner holds two degrees in metallurgical engineering, and 
counsel has previously acknowledged that the petitioner's present work "is a continuation of her 
research/experience [in] Metallurgical Engineering." Therefore, to associate the petitioner with metallurgy 
hardly constitutes gross error by the director. The only error in the sentence cited by counsel is the reference 
to Yale University. We do not agree with counsel's contention that the "denial . . . is based upon" this 
mistaken reference to Yale University, or that the decision "is premised on a person other than the petitioner." 
Elsewhere in the decision, the director makes more accurate statements about the petitioner's work and 
background. The decision includes a quotation from a witness letter, and this quotation, in turn, includes the 
petitioner's name. While the reference to Yale University was erroneous, the decision as a whole clearly 
refers quite specifically to this petitioner, and therefore we categorically reject counsel's claim that the 
decision "is premised on a person other than the petitioner." 
We concur with counsel's objection to the director's finding that the petitioner's work lacks national scope. 
Scientific research conducted at a major institution, published in national or international journals, is 
generally not limited to any particular geographic locality. We withdraw this finding by the director, but this 
is not tantamount to a reversal of the director's decision as a whole. 
The director found that "the record is devoid of anv independent. contemuoraneous documentarv evidence 
that would support claim" that the petitioner has earned "wide renown" in her field. On 
appeal, counsel asks "isn't the writing of an expert likedll[PPI independent and contemporaneous 
evidence?'' The answer to counsel's rhetorical question is "no." A letter from Prof. Levy serves as proof of 
opinions regarding the petitioner and her work, buturriculum vitae, impressive as 
it may be, does not mean that he speaks on behalf of the entire field. If the petitioner seeks an immigration 
benefit based on "wide renown" in the field, the burden is on the petitioner to provide objective evidence of 
that renown. A letter from one of her own former professors is not objective, independent evidence of that 
renown. Becaus was on NJIT7s faculty while the petitioner was a student at NJIT, we need not 
fer any renown" to explain- familiarity with the petitioner and her work. Whether 
ly believes the petitioner to be a renowned researcher is beside the point; we are not obliged to 
the petitioner is "renowned" simply because her former professors say that she is. Whatever 
EAC 03 019 54360 
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objective evidence Prof. Levy may have seen that led him to such a conclusion, that evidence is absent from 
the record and is, therefore, unavailable for our consideration. 
Counsel states that, in finding that the petitioner has shown no influence on the field, the director "ignored 
evidence to the contrary." The record contains no evidence of the petitioner's impact on the field. The record 
contains several statements attesting to this impact, but without exception these statements come from the 
petitioner's own professors, mentors, employers, and collaborators. As explained above, the opinions of such 
individuals do not compel a conclusion that researchers at other institutions share those opinions. Counsel's 
complaint that the director's observation "demeans [the petitioner's] support letters" does not invalidate that 
observation. As for the petitioner's published work, the very act of publication does not confer impact or 
influence upon the work published. 
Counsel protests that the director relies on standards not set forth in Matter of New York State Dept. of 
Transportation, and therefore the decision is invalid. Specifically, counsel states: "The Adjudicator's denial 
is based upon her not making 'major advances that have enjoyed widespread implementation in the field." 
We note that the precedent decision does, in fact, call for "a past history of demonstrable achievement with 
some degree of influence on the field as a whole." Matter of New York State Dept. of Transportation at 219, 
n.6. Furthermore, section 204(b) of the Act, 8 U.S.C. # 1154(b), permits approval of a petition only if the 
facts claimed in that petition are determined to be true. The regulations do not restrict the waiver to "world 
renowned" researchers, but in this particular case, the petitioner has claimed to be "world renowned" without 
showing that such a claim is credible. The record offers no evidentiary support for such a claim. The 
available evidence shows that the petitioner is a productive scientist, respected by her collaborators and 
superiors, but the claim that she is "world renowned" appears to be, to say the least, an exaggeration. Such 
exaggerations, in turn, necessarily color the light in which we view the witness letters in the record. The 
burden is not on the director to prove that the petitioner is not "world renowned." Rather, the burden is on the 
petitioner to demonstrate either that she is "world renowned as claimed, or that her materials are otherwise 
credible despite her inability or unwillingness to substantiate this hyperbolic and unsupported claim. 
As is clear fi-om 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 from 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. # 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.