dismissed EB-2 NIW Case: Physics Research

(b)(6)
DATE: OCT 2 7 2015 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W ., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
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 : 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § 103.5. 
Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www.uscis.gov/i-290b) contains the latest information on fee, filing 
location, and other requirements. Please do not mail any motions directly to the AAO. 
Thank you, 
"tsenberg 
iiief, Administ.-ative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. We withdrew the director's decision and remanded the petition to the director for further 
consideration and action. The director again denied the petition and certified the decision to the 
Administrative Appeals Office (AAO) for review. We affirmed the director's decision to deny the 
petition. The petitioner filed a motion to reopen. We granted the motion and affirmed our prior 
decision. The matter is now before us on motions to reopen and reconsider. We will grant the motion 
to reopen, dismiss the motion to reconsider, and affirm the denial of the petition. 
The petitioner filed the Form I-140, Immigrant Petition for Alien Worker , (Form I-140) on March 6, 
2012, seeking classification under 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. When he 
filed the petition, the petitioner was a research and development engineer at 
Connecticut. U.S. Citizenship and Immigration Services (USCIS) records 
identify the petitioner ' s current employer as Iowa. 1 
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 denied the petition on December 12, 2013, stating 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. We affirmed the certified denial on April 16, 2014, and dismissed the 
petitioner's subsequent 
motion on November 28, 2014. A fuller discussion of the underlying issues 
appears in our earlier decisions. 
On motion, the petitioner submits a brief and additional evidence. 
In reNew York State Dep 't of Transportation, 22 I&N Dec. 215, 217-18 (Act. Assoc. Comrn'r 1998) 
(NYSDOT), set forth several factors which must be considered when evaluating a request for a national 
interest waiver. First, a petitioner must establish that he seeks employment in an area of substantial 
intrinsic merit. /d. at 217. Next, a petitioner must establish that the proposed benefit will be national in 
scope. !d. Finally, the petitioner seeking the waiver must establish that he will serve the national 
interest to a substantially greater degree than would an available U.S. worker having the same minimum 
qualifications. !d. at 217-18 . 
In support of his Form I-140, the petitioner submitted a letter explaining the bases for his eligibility for 
the national interest waiver: 
1 
An approved H1-B nonimmigrant petition, receipt number shows validity dates from 
April16, 2014, to March 2, 2017. The approval ofEBS's earlier H1-B petition, receipt number 
was revoked on March 18, 2014. 
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[The petitioner] seeks employment in the field of physics research, wth emphasis in applied 
research of advanced materials and next generation technologies such as thermoelectrics and 
nanomaterials. This field is one of substantial intrinsic merit .... 
* * * 
[I]t is clear that the benefit of [the petitioner's] continued research in the United States would be 
national in scope .... With the continued dissemination of [the petitioner's] research through 
publications and conference presentations, these benefits will impact all parts of the nation. 
In affirming the certified denial of the petition, we stated that, although the petitioner had established 
that he had previously conducted influential research, this research took place while he was a 
graduate student at Since graduating from in 2009 with a 
Ph.D. in Physics, the petitioner has worked for several different employers, but has not shown that 
he published any new research as part of his subsequent employment. Therefore, his production of 
highly-cited work during his doctoral studies at is not a reliable indication of his 
subsequent, continuing impact on the field of physics research and materials science. 
According to 8 C.F.R. § 103.5(a)(2), a motion to reopen must state the new facts to be provided in the 
reopened proceeding and be supported by affidavits or other documentary evidence. Motions for the 
reopening of immigration proceedings are disfavored for the same reasons as are petitions for rehearing 
and motions for a new trial on the basis of newly discovered evidence. INS v. Doherty, 502 U.S. 314, 
323 (1992)( citing INS v. Abudu, 485 U.S. 94 (1988)). A party seeking to reopen a proceeding bears a 
"heavy burden." !d. at 110. 
On motion, the petitioner submits five Forms I-20, Certificate(s) of Eligibility for Nonimmigrant (F-
1) Student Status, (Form I-20) dated July 19, 2010; October 26, 2010; October 19, 2011; January 13, 
2012; and August 7, 2012. The first four Forms I-20 reflect that after completing his Ph.D. studies at 
in 2009, the petitioner engaged in optional practical training (OPT) with four 
different companies and that his employment 
was authorized by the university. The August 7, 2012, 
Form I-20 reflects a "Change of Status/Cap-Gap Extension" based on EBS's Hl-B petition that was 
filed on behalf the petitioner on April 9, 2012. 
In addition, the petitioner submits five Forms IS-150, Request(s) for Data Validation, (Form IS-150) 
showing that he reported his changes of address and employment to The 
petitioner also submits an April 24,2003, Form I-20 that shows he received "Assistantship" funding 
of $13,000 to cover his "initial attendance" in the doctoral program and a May 7, 2009, Form I-20 
that shows "On-campus employment" funding of $19,000. 
The petitioner's Form ETA-750B, Statement of 
Qualifications of Alien, (Form ETA-750B) lists the 
following post- employment: 
Postdoctoral Fellow, , November 2009-July 2010 
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Thermal Research Scientist, September 2010-September 2011 
Engineer, October 2011-December 2011 
Research & Development Engineer, , January 2012-present 
Based on his F-1 nonimmigrant student status as shown by the Forms I-20 and the Forms IS-150, the 
petitioner asserts that "according to immigration laws," he "was a student while 
filing the NIW [national interest waiver] petition." The record reflects, however, that the petitioner 
was working as a research and development engineer for in Connecticut and 
residing in , Connecticut at the time of filing the petition. The petitioner requests that we 
consider him as a student during the period after his graduation to overcome any concerns about the 
impact of his subsequent employment. Whether or not the petitioner was considered as a student is not 
the issue in this matter. Rather, the petitioner has not established that since 2009, when he received his 
Ph.D. from I he continued to produce research that has affected the field as a whole. 
The petitioner further states: 
Since the petitioner was a student, there was no post- period between the 
dates he graduated and filed the petition . Nor should there be the AAO's any [sic] concerns 
about the Petitioner's 
continuing with so-called "unfinished work" during the "slow 
period" of his training, or his cooperating with his supervisor and colleagues, or his 
listing their names as co-authors and as his affiliation while his papers 
were published after he graduated. 
The petitioner, however, has not pursued a course of academic study at since 
2009. While the submitted I-20 and IS-150 forms show that the petitioner maintained lawful F-1 
nonimmigrant status pursuant the regulation at 8 C.P.R. § 214.2(f)(10)(ii) by engaging in authorized 
optional practical training (OPT) following completion of his graduate studies, the forms do not 
show that the petitioner continued to study or work principally at following his 
graduation. Rather, the record shows that the petitioner was employed at , Inc. from 
November 2009-July 2010, _ from September 2010-September 2011, 
from October 2011-December 2011, and from January 2012 through the 
petition's filing date. As discussed above, regardless of his academic status, the petitioner has not 
established that his OPT with the aforementioned employers has disseminated research findings or 
created new technologies that have affected the field as a whole. 
The petitioner's motion to reopen does not include any new facts or other documentary evidence to 
overcome the grounds underlying our previous findings. There is no evidence showing that the 
petitioner's employment after leaving has generated further peer-reviewed 
published work or technological advancements that have influenced the field as a whole. 
A motion to reconsider must state the reasons for reconsideration and be supported by any pertinent 
precedent decisions or legal citation to establish that the decision was based on an incorrect 
application of law or USCIS policy. A motion to reconsider a decision on an application or petition 
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must, when filed, also establish that the decision was incorrect based on the evidence of record at the 
time of the initial decision. 8 C.F.R. § 103.5(a)(3). A motion to reconsider contests the correctness 
of the original decision based on the previous factual record, as opposed to a motion to reopen which 
seeks a new hearing based on new or previously unavailable evidence. See Matter of Cerna, 20 I&N 
Dec. 399, 403 (BIA 1991). 
A motion to reconsider cannot be used to raise a legal argument that could have been raised earlier in 
the proceedings. See Matter of Medrano, 20 I&N Dec. 216, 220 (BIA 1990, 1991). Rather, the 
"additional legal arguments" that may be raised in a motion to reconsider should flow from new law 
or a de novo legal determination reached in its decision that could not have been addressed by the 
party. Matter of 0-S -G-, 24 I&N Dec. 56, 58 (BIA 2006). Further, a motion to reconsider is not a 
process by which a party may submit, in essence, the same brief presented on appeal and seek 
reconsideration by generally alleging error in the prior decision. Id. Instead, the moving party must 
specify the factual and legal issues raised on appeal that were decided in error or overlooked in the 
initial decision or must show how a change in law materially affects the prior decision. /d. at 60. 
On motion, the petitioner questions our "request for evidence of employment-related achievement" 
and asserts that we erred in our interpretation of what constitutes "new research." The petitioner 
previously submitted an article in entitled 
that was submitted to the journal in December 2010 and published in August 2011. In 
addition, the petitioner previously submitted an article in 
entitled -that was submitted to the journal in December 2009 and published in August 2010. The record also 
includes an April 29, 2014 letter in which Alumni Distinguished Professor of 
Physics, asserted that the aforementioned two papers are "evidence of [the 
petitioner's new research" and that whether they are "related to his graduate work is irrelevant in 
judging whether his research is new." We agree that the petitioner has presented new or novel 
research findings , but he has not shown that such research was undertaken as part of his post-
employment duties. As discussed in our decision dated April 16, 2014, the aforementioned 
articles show the petitioner's institutional affiliation as < Department of Physics 
and Astronomy, and all but one of the listed co-authors were also at The information in the 
articles themselves, therefore, is consistent with the conclusion that the articles report research 
performed by researchers and not results from the petitioner's projects at or 
In a letter dated December 30, 2012, assistant professor at second author of both 
of the papers under discussion, stated that the petitioner's "data analysis and theoretical modeling after 
he completed his degree constitute a crucial part for the successful publication of these two peer­
reviewed journal papers." It is apparent from comment that the petitioner's late contributions 
to the papers represent the completion of research that he had begun before graduating and later 
expanded upon. The petitioner's motion does not address the key ground for denial of the petition, 
specifically the absence of evidence that the petitioner has continued to perform influential research in 
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thermoelectric materials. There is no evidence demonstrating that the petitioner's employment outside 
of has generated further peer-reviewed published work. The response to the certified denial 
and previous motion do not establish that the petitioner's work at closely relates to the earlier work 
that formed the basis for the waiver claim. It shows, rather, that the petitioner has occasionally revisited 
work that remained unfinished at the time he completed his dissertation, while employed at apparently 
unrelated tasks. 
The petitioner asserts that we erred by focusing on his "not-so-successful" OPT work and by rejecting 
the extensive number of citations associated with his graduate work at 
Throughout this proceeding, we have acknowledged that the petitioner ' s work at (and, by 
extension, the follow-up work that he conducted shortly afterwards) has had impact and influence. The 
denial rested on the finding that the petitioner has not shown that his subsequent employment has 
continued to have a similar impact. As we stated in our April 2013 remand order: "The purpose of the 
waiver is to secure prospective (future) benefit for the United States. The waiver is not simply a 
reward for past work. Rather, USCIS looks at the impact of the petitioner's past work as a guide to 
what one could reasonably expect from the petitioner in the future. " The petitioner has 
acknowledged that his post- articles derived not from his work for later employers, but from 
follow-up work that he performed while awaiting permission to begin working for those employers. 
The petitioner further states: 
[The petitioner] only needs to prove that there exists work he completed that has significant and 
continued impact on the field as a whole. Then by inference, if the existence of such work has 
been proven, evidence that his other work has a similar impact on the field, although helpful to 
this petition, is an optional burden of proof, which, if not fulfilled, shall not constitute the 
ground of the USCIS's denial in this case. 
Again, NYSDOT requires the petitoner to seek "employment" in an area of substantial intrinsic merit 
and that the proposed benefits of that employment be national in scope. !d. at 217. The petitioner, 
however, has not demonstrated that his post- employment is within a framework that has a 
national impact. 
The petitioner states that we erred in our November 28, 2014 decision by "twisting the witnesses' 
testimony" contained in the April 29, 2014, letter from the May 9, 2014, letter from 
and the May 6, 2014, letter from an associate professor at 
These individuals assert that USCIS held the petitioner to too high a standard , considering that the 
petitioner had completed his Ph.D. program less than three years before he filed the petition, and 
considering how few Ph.D. graduates are eventually able to secure tenured academic positions. The 
petitioner states: "It is the top 10% ~ 20% Ph.D. graduates in physics compared to whom the witnesses 
think the Petitioner relatively lacks experience." The issue, however, is not whether USCIS held the 
petitioner to the standards of tenured faculty. The issue is whether the petitioner 's employment after 
leaving has positioned him so that his future work will continue to impact the field of physics 
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research and materials science. Regardless, the petitioner seeks an immigrant classification which does 
not distinguish between recent graduates and long-established professors. 
In addition, the petitioner states that individuals seeking a national interest waiver "are only required to 
prove they are significantly above average level." The USCIS regulation at 8 C.P.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 are generally 
subject to the job offer/labor certification requirement; they are not exempt by virtue of their 
exceptional ability. Therefore , whether a given individual seeks classification as an alien of 
exceptional ability, or as a member of the professions holding an advanced degree, that individual 
cannot qualify for a waiver just by demonstrating a degree of expertise significantly above that 
ordinarily encountered in his or her field of expertise. Moreover, assertion that the 
petitioner, at this early stage in his career, lacks access to full-time research facilities similar to those at 
does not support the claim that the petitioner's subsequent employment qualifies him for the 
national interest waiver. 
The petitioner asserts that we ignored the witnesses' statements about his two research papers that were 
published after he graduated from The aforementioned letter from 
dated April 29, 2014, states: 
After [the petitioner] graduated, he co-operated with me and other members of 
my lab by doing data analysis and theoretical modeling. As my lab has a full set of facility 
[sic] for material synthesis and characterization, the preparation and measurements of 
samples were conducted in my lab. Due to his work, we improved the design of experiment, 
sample preparation and characterization, and thus successfully published the second paper in 
discussion. 
In addition, the letter from dated May 9, 2014, states: 
Mter [the petitioner] graduated, the other co-authors at CAML [Complex and Advanced 
Materials Laboratory, actually synthesized and characterized more 
samples based on the theoretic guidance of [the petitioner], leading to samples with the 
highest thermal conductivity. I also attested in my first letter that the same measurement­
analysis cycles of new samples between [the petitioner] and CAML led to [the petitioner's] 
second paper and that [the petitioner] and other co-authors met at the 
_ _ MAin November 2010 to thoroughly discuss the data before 
it was submitted for publication. 
Despite the petitioner's assertion that we ignored the witnesses' statements about the two research 
papers published in August 2010 and August 2011, our April16, 2014 decision specifically stated: 
The claims in the January 2014 brief, and in the newly submitted letters, are consistent with our 
earlier conclusion that the petitioner's published research has all derived from his studies at 
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or from follow-up work conducted shortly thereafter, and that the petitioner's 
subsequent work for a succession of employers has not produced any published research. 
In our decision dated April 16, 2014, we reviewed a letter from 
other documents in the record relating to a manuscript which 
prepared: 
dated December 30, 2013, and 
asserts that he and the petitioner 
adds: "[the petitioner] and I had recently put together a full manuscript on the magnetic 
properties of Mg-doped NaV20 5." There is no evidence that any journal had accepted the 
manuscript for publication. did not claim that this manuscript relied on research that the 
petitioner continues to perform. It is based, rather, "upon many phone and email discussions in 
the past 2 years." The petitioner submits printouts of electronic mail messages dated between 
March 2011 and January 2012. In a January 12, 2012 message, the petitioner stated: "January is 
a little slow here in my company .... So I am now reading the NaV20 5 data again these 
days .... I'm going to put all the data together and make a story out of them. Do you think we 
have enough data to publish a paper now?" The correspondence indicates that, while the 
manuscript itself is new, the information in that manuscript involves data collected previously 
which the petitioner newly analyzed during a "slow" period at 
With regard to the manuscript, our decision dated November 28, 2014, further stated: 
The petitioner asserts that data analysis is part of the research process, and therefore the 
materials discussed above "are definitely evidence of his new research activities." The 
petitioner's own statements indicate that the new manuscript is not the result of his recent 
employment, but an unfinished project from that the petitioner was able to revisit when 
free time became available. 
On motion, the petitioner asserts that e-mails he exchanged with _ a Ph.D. 
student, from March 2011-July 2011 provide further information regarding his most recent 
"theoretical research" collaboration with and the "new data" they analyzed for 
the project. In addition, the petitioner mentions the letter from dated May 9, 2014, that 
states: 
USCIS questions when the magnetic property data in [the petitioner ' s] manuscript about Mg­
doped NaV20 5 were taken. I would like to clarify that a then-Ph.D. student, 
and I myself measured magnetic susceptibility of [the petitioner 's] samples several times 
from February to July 2011 with VSM (vibrating sample magnetometer). However, the 
magnetic susceptibility data showed some 
inconsistency because we expected to see a 
systematic trend of variation with varying Mg-doping concentration. [The petitioner] and I 
had "phone and email discussions" regarding how to improve our measurements and to 
figure out the origin of the inconsistency. The VSM data and the theoretic analysis are 
included in his manuscript as a very important part to support our assumption about the 
effects of Mg doping. All these happened after he graduated. 
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The petitioner asserts that our decision dated November 28, 2014, ignores the aforementioned evidence. 
Again, there is no evidence showing that any journal had accepted the above manuscript for publication. 
Moreover, assertions do not overcome our finding that the petitioner has not performed 
influential research for his recent employers. The NYSDOT guidelines require the petitioner to establish 
that his employment will benefit the national interest, and the petitioner has not done so in this matter. 
With regard to following the guidelines set forth in NYSDOT, by law, USCIS does not have the 
discretion to ignore binding precedent. See 8 C.P.R.§ 103.3(c). 
The petitioner states that our decisions have a "contradiction with an offer of employment being 
waived in NIW petitions." In addition, the petitioner asserts that his "case hangs by whether 
had offered him a job." The issue in this matter is the continuing impact of the petitioner's 
employment on the field of physics research and material science, and not on the circumstances that 
prevented from filing a petition on his behalf. 
The petitioner mentions a May 8, 2014, letter from a production manager at and 
the supervisor of the petitioner's postdoctoral training at the company. stated: "As an 
expert in thermoelectrics, [the petitioner] designed graded thermoelectric materials that greatly 
increased the maximum cooling temperature and cooling efficiency. . . . Based on [the petitioner's] 
work, has developed infrared detectors with 30% higher sensitivity for high-end customers." 
The petitioner previously submitted his proposal entitled 
but there is no documentary evidence showing its impact on the field. The 
petitioner asserts that the aforementioned proposal relates to his August 2011 article in 
The journal article, however, does not show the petitioner's institutional 
affiliation as While the proposal and the letter from provide information about the 
petitioner's work at they do not establish his eligibility for the national interest waiver for two 
reasons. First, as with , the petitioner had already left before he filed the 
petition, and he has presented no evidence that his work there offered future benefit to the United States. 
Second, letter does not demonstrate how the petitioner's work for has influenced 
the field as a whole. 
The petitioner's motion reconsider is not supported by any pertinent precedent decisions or legal 
citations that demonstrate our latest decision was based on an incorrect application of law or USCIS 
policy. In addition, the motion does not establish that our latest decision was incorrect based on the 
evidence of record at the time of the decision. 
The petitioner's graduate work with thermoelectric materials at produced 
several high-impact articles, and those articles will continue to influence researchers regardless of 
the petitioner's future immigration status. Since that time, however, the record does not show that 
the petitioner has continued to perform new research for his subsequent employers and to publish the 
results from it. In addition, the petitioner has not established that any of his post· 
employment activities have consistently had a level of impact and influence necessary to 
demonstrate eligibility for the national interest waiver. 
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Although the new evidence submitted by the petitioner provided a basis for granting the motion to 
reopen under 8 C.F.R. § 103.5(a)(2), the submitted documentation does not overcome the grounds 
underlying our previous decision. Furthermore, as the petitioner's motion to reconsider is not supported 
by any pertinent precedent decisions or legal citations that demonstrate our latest decision was based on 
an incorrect application of law or users policy, the motion to reconsider is dismissed. 
We will affirm our prior decision for the above stated reasons. In visa petition proceedings, it is the 
petitioner 's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the petitioner has not 
met that burden. 
ORDER: The motion to reconsider is dismissed, the motion to reopen is granted, our decision of 
November 28, 2014, is affirmed, and the petition remains denied.