dismissed EB-2 NIW Case: Physics Research

identifyingdatadeletedto
prev~nt clearlyunwarranted
invasionofpersonalprivacy
PUBLICCOpy
u.s.Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
JUL 302007
FILE: LIN 05 13250046 Office: NEBRASKA SERVICE CENTER Date:
INRE: 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. § 1153(b)(2)
ON BEHALF OF PETITIONER:
SELF-REPRESENTED
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 .
.. j !£ULf~( I~)li,d"lit"J :R'of,~rt P. Wiemann, Chief
','-"Administrative Appeals Office
www.uscis.gov
LIN 05 132 50046
Page 2
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa
petition, which is now before the Administrative Appeals Office 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. § 1153(b)(2), as a member of the professions holding an advanced degree. The
petitioner seeks employment as a researcher. The petitioner asserts that an exemption from the
requirement of a job offer, and thus of an alien employment certification, is in the national interest of
the United States. The director found that the petitioner qualifies for the classification sought, but that
the petitioner had not established that an exemption from the requirement of a job offer would be in the
national interest of the United States.
On appeal, the petitioner submits additional evidence. For the reasons discussed below, the petitioner
has not overcome the director's concerns.
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 requirement 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 petitioner holds a Ph.D. in Magnetic Materials and Superconductors from the University of Putra,
Malaysia. The petitioner's occupation falls within the pertinent regulatory definition of a profession.
The petitioner thus qualifies as a member of the professions holding an advanced degree. The
remaining issue is whether the petitioner has established that a waiver of the job offer requirement, and
thus an alien employment certification, is in the national interest.
As noted by the director, in response to the director's request for additional evidence, the petitioner
asserted that he was "not actually requesting a national interest waiver as it is legally termed. But since
LIN 05 132 50046
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I do not have an employer in the United States at the time I put forward the petition, I thought it would
be reasonable to be in there first then getting employed is all about contact establishments." The
director concluded:
A petitioner does not qualify for a waiver of the job offer merely because he or she has
an advanced degree or is an alien of exceptional ability without a U.S. employer. It
remains that, by law, an alien seeking admission as a memberof the professions holding
an advanced degree must generally obtain a labor certification and the burden is on the
petitioner to establish that it is in the national interest to waive that requirement.
On appeal, the petitioner asserts that he has attempted to make contacts with prospective U.S.
employers "so that they could take over as 'petitioner and employment certificate grantors.'"
We concur with the director that the visa classification sought normally requires an Alien Employment
Certification approved by the Department of Labor. An alien cannot self-petition under this
classification in the hope that he will secure an employer as a sponsor in the future. 8 C.F.R.
§ 103.2(b)(12); See also Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg. Comm. 1971); Matter of
Bardouille, 18 I&N Dec. 114 (BIA 1981). The only waiver of the alien employment certification
requirement for the classification sought is the national interest waiver. The petitioner is not a
physician seeking employment in an underserved area as defined at section 203(b)(2)(B)(ii), the only
class of aliens for whom the national interest waiver standard is statutorily defined. Thus, we must
adjudicate the petitioner's request for a waiver of the alien employment certification under the standard
set forth in Matter ofNew York State Dep 'to ofTransp., 22 I&N Dec. at 215.
Neither the statute nor 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, 101st Cong., 1st Sess., 11 (1989).
Supplementary information to the regulations implementing the Immigration Act of 1990 (IMMACT),
published at 56 Fed. Reg. 60897, 60900 (November 29, 1991), states:
The Service believes it appropriate to leave the application of this test as flexible as
possible, although clearly an alien seeking to meet the [national interest] standard must
make a showing significantly above that necessary to prove the "prospective national
benefit" [required of aliens seeking to qualify as "exceptional."] The burden will rest
with the alien to establish that exemption 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 Dep't. of Transp., 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
LIN 05 13250046
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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 onprospective 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.
We concur with the director that the petitioner works in an area of intrinsic merit, physics research.
Regarding the proposed national benefit, in response to the director's request for additional evidence,
the petitioner stated that his area of specialty, superconductivity research, is related to future
technology and expressed his conviction that he would be "a good contributor if given a chance of
joining any superconductivity research group in the U.S. while a citizen. The petitioner concludes:
"To the best of my ability, I'm sure I would match the standards of the available U.S. workers (my
age mates), on the field of superconductivity research and/or teaching physics and mathematics at
college and university level."
The director concluded that the record did not contain sufficient evidence regarding the petitioner's
proposed employment to evaluate whether the proposed benefits of his work would be national in
scope. On appeal, the petitioner submitted evidence that he had been invited to present his work at
the 2006 Materials Research Society but was unable to obtain a visa in time. He asserts that had he
attended, he would have had an opportunity to make contact with prospective U.S. employers. The
petitioner also submitted a review of a recent manuscript concluding that his work would be "an
article of particular interest" and requesting names of researchers to e-mail upon publication to
ensure that the article would be "widely read."
Typically, we rely on reports about a specific area of research or the opinions of experts explaining
the proposed benefits and how they will be national in scope. The record is not supported by any
expert reference letters. Even if we were to conclude that any research breakthroughs in
superconductivity will produce benefits that are national in scope, the petitioner must still
demonstrate that he will benefit the national interest to a greater extent than an available U.S. worker
with the same minimum qualifications.
Ultimately, eligibility for the waiver must rest with the alien's own qualifications rather than with the
position sought. In other words, we generally do not accept the argument that a given project is so
important that any alien qualified to work on this project must also qualify for a national interest
waiver. Matter of New York State Dep 't of Transp., 22 I&N Dec. at 218. Moreover, it cannot
LIN 05 13250046
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suffice to state that the alien possesses useful skills, or a ''unique background." Special or unusual
knowledge or training does not inherently meet the national interest threshold. The issue of whether
similarly-trained workers are available in the United States is an issue under the jurisdiction of the
Department of Labor. Id. at 221.
As stated by the director, at issue is whether this petitioner's contributions in the field are of such
unusual significance that the petitioner merits the special benefit of a national interest waiver, over
and above the visa classification he seeks. By seeking an extra benefit, the petitioner assumes an
extra burden of proof. A petitioner must demonstrate a past history of achievement with some degree
of influence on the field as a whole. Id. at 219, n. 6. On appeal, the petitioner underlines this
language and marks it with a question mark. We concur with the director. The national interest
waiver of the statutorily required alien employment certification is an extra benefit above and beyond
classification as an advanced degree alien and, thus, requires an extra showing beyond mere
possession of an advanced degree and accomplishments consistent with that degree. In evaluating
the petitioner's achievements, we note that original innovation, such as demonstrated by a patent, is
insufficient by itself. Whether the specific innovation serves the national interest must be decided on
a case-by-case basis. Id. at 221, n. 7.
Initially, the petitioner submitted his curriculum vitae and degree. According to his self-serving
curriculum vitae, the petitioner was working as a postdoctoral fellow at Kyoto University and had
authored 13 papers either published or presented at a conference. The director requested evidence of
the petitioner's impact in the field. In response, the petitioner submitted a letter affirming that he is
now a senior lecturer at the Universiti Teknologi Petronas in Malaysia, seven articles authored by the
petitioner and an article by a coauthor citing their joint work.
The director concluded that it is inherent to the petitioner's occupation to publish his research results
and concluded that the record lacked evidence of the impact of this work, such as evidence that it
was widely cited.
On appeal, the petitioner submits evidence that three of his articles were cited by between two and
four independent research teams each. The petitioner also submits his contract with Kyoto
University and correspondence purportedly demonstrating that he was not allowed to publish while
he worked there and that he was otherwise exploited. The contract does not preclude the petitioner
from publishing his work but appears to be a typical nondisclosure agreement for research results
funded by a private company. Our conclusion that the contract does not preclude publication is
bolstered by the fact that the petitioner has, in fact, published articles reporting on his research at
Kyoto University. Moreover, the petitioner's refusal to agree to the proposed manner of his
compensation, resulting in the university's failure to renew his position, does not demonstrate that he
was exploited. Regardless, it remains that, whatever the circumstances, it is the petitioner's burden
for the classification sought to demonstrate not only that he has published but also that these
publications have proven influential in the field as a whole.
LIN 05 132 50046
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A maximum of four independent citations for an article is not persuasive evidence that the petitioner's
work has been influential in the field as a whole. Moreover, the record lacks letters from independent
researchers in the field who have been influenced by the petitioner's work. In fact, the record even
lacks letters from the petitioner's own colleagues explaining his role in various research projects and
their importance to the field.
Finally, we acknowledge that the petitioner has raised humanitarian issues based on the fact that he is
from the Darfur region of Sudan, although he no longer resides there. While we are not unsympathetic
to such claims, the petitioner has not demonstrated that Congress intended the national interest waiver
as a humanitarian waiver for advanced degree professionals from troubled regions. Specifically, while
Congress has created other humanitarian relief programs, the national interest waiver is not the
appropriate classification for humanitarian considerations.
As is clear from 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 alien employment certification will be in
the national interest of the United States.
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act,
8 U.S.C. § 1361. The petitioner has not sustained that burden.
This denial is without prejudice to the filing of a new petition by a United States employer
accompanied by an alien employment certification certified by the Department of Labor, appropriate
supporting evidence and fee.
ORDER: The appeal is dismissed.