dismissed EB-2 NIW Case: Semiconductor Design

identifYing data deleted to 
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1'UBLIC COpy 
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 
DATE: OFFICE: NEBRASKA SERVICE CENTER FILE: 
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. § IJ53(b)(2) 
ON BEHALF OF PETITIONER: 
SELF -REPRESENTED 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. 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 believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(J)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
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. § I I 53(b)(2), as a member of the professions holding an advanced degree. The 
npj"lb.,",.,. seeks as a design engineer. The petitioner's current employer is _ 
The petitioner asserts that an exemption from the requirement of 
ajob offer, and thus ofa labor certification, is in the national interest of the United States. The director 
found that the petitioner qualifies for classification as a member ofthe 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 his own statement and a witness letter. 
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. 
(B) Waiver ofJob 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. 
The USCIS regulation at 8 C.F.R. § 204.5(k)(4)(ii) requires that a petitioner seeking to apply for the 
exemption must submit Form ET A-750B, Statement of Qualifications of Alien (or corresponding 
sections of ETA Form 9089), in duplicate. The record does not contain this required document, and 
therefore the petitioner has not properly applied for the national interest waiver. The director, 
-Page 3 
however, did not raise this issue. The AAO will, therefore, review the matter on the merits rather 
than leave it at a finding that the petitioner did not properly apply for the waiver. 
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, 101 st 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 U.S. Citizenship and Immigration Services (USCIS)] believes it 
appropriate to leave the application of this test as flexible as possible, although clearly 
an alien seeking to meet the [national interest] standard must make a showing 
significantly above that necessary to prove the "prospective national benefit" 
[required of aliens seeking to qualify as "exceptional."] The burden will rest with the 
alien to establish that exemption from, or waiver of, the job offer will be in the 
national interest. Each case is to be judged on its own merits. 
Matter of New York State Dept. of Transportation (NYSDOT), 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 establish that the alien will serve the national interest to a 
substantially greater degree than would an available United States worker having the same minimum 
qualifications. 
While the national interest waiver hinges on prospective national benefit, the petitioner must establish 
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 intention behind the term "prospective" is to require future 
contributions by the alien, rather than to fucilitate 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 are generally subject to the job offer/labor certification 
requirement; they are not exempt by 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 tield of expertise. 
Page 4 
The petitioner filed the Form 1-140 petition on February 3,2010. In an accompanying statement, the 
petitioner stated: "I am one of the small percentage of researchers who has risen to the top of their 
field i.e. semiconductor design[.] More specifically, I am Expert in accelerating and enhancing 
digital design." Switching to the third person, he stated: 
[The petitioner's] primary area of work is to test, characterize, and debug 
semiconductor design from system level down to individual block and identity low 
level design that is at fault. This also involves validation and testing of the design 
and development of the circuitry of the end product by using computer architecture 
design know ledge. [The petitioner] has a keen interest in the field 0 f "Design for 
Testability." This is a very precise technique to find the circuitry that is at fault. 
Today's semiconductor chip design consists of billions of transistors, and to find a 
failed circuit is not trivial but requires the utmost skill and experience .... [The 
petitioner] has also been as a research scientist in the computer science 
department at His research project is 
to accelerate a biosequence search that is being deployed to biologists. The 
successful answering of his research question would be applicable well beyond 
biosequence search problems and computational science. 
A December 23, 2008 job offer letter from 
indicated that the petitioner's "position will run 
term being extended contingent on available funds." The beneficiary's H-IB nonimmigrant status 
permits him to work for_ until January 20, 2012, well past the project's tentative end date. 
Because the petitioner already holds nonimmigrant status permitting him to work for_ past the 
projected ending date of the inherently temporary project, the petitioner did not require permanent 
immigration benefits to complete that project. Therefore, any claimed need for the petitioner's 
continued involvement in the project is not, by itself, a strong basis for the waiver claim. Denial of 
the waiver would not remove him from the inherently temporary project. 
manager of the 
[The petitioner] worked for _ ... as a technical support engineer in the chipset 
division from March 2007 to January 2009 . 
. . . He was involved in post silicon debugging of chipset product, in which his role 
was to detect any defects in the semiconductor design and manufacturing units. 
Semiconductor hardware design is a difficult job, but debugging a defect in it is even 
more challenging and a surmountable task. It requires special training, judgment, 
education and skill, to be able to deliver a sophisticated product for mass production 
in a global market. ... 
Page 5 
I can testifY that [the petitioner] is unequivocally capable to work in professional 
capacity and has shown his dedication in work which has invo lved in activates [sic] 
such as wide range of data collecting and analysis. I have found [the petitioner] 
profoundly dynamic, sincere and exemplary in his dedication .... [The petitioner] has 
taken the opportunity to chair meetings with application engineers of different groups, 
and during the process, he has shown his capability to accomplish these critical tasks 
successfully. 
senior technical support engineer and the petitioner's former supervisor at 
chipset division, stated: 
[The petitioner] was involved in several research and experimental project[s] to 
improve power efficiency of the latest chipset products. His responsibility was to 
develop different techniques for stress tests and to observe performance, behavior and 
failure points. He also maintained results and supported the application engineering 
teams o~ worldwide. He was extensively involved in debugging faulty nano 
scale on-chip, on-board designs. His task was to duplicate issues on different in­
house reference boards, and resolve nano scale semiconductor technology based 
Issues. His research and experimental data were included in technical documents of 
••• chip sets that were published worldwide to _ customers. 
He has incredible abilities of gathering experimental data and collecting 
information that helped improve our capability to support customers worldwide .... It 
would be very difficult, if not impossible, to replace the level of training, skills, and 
dedication he has brought to our projects, and in essence brought to the Unite[ d] 
States in efforts to develop advanced techniques in areas of semiconductor 
technology and material science in general. 
president of 
[The petitioner's] responsibilities on this project have ranged from diagnostic 
investigations (helping to debug problems in the original system) to design of new 
elements (aimed at further performance gains) .... An important aspect of his 
contribution is helping in the research task of assessing whether or not properties of 
the biosequence database can be exploited to dynamically alter the architecture of the 
computation engine. The successful answering of this research question would be 
applicable will beyond just biosequence research problems, with utility across the 
whole range of computational science. 
stated: 
Page 6 
This project seeks to construct hardware 
for computationally challenging problems in biological sequence 
de1/el'JPing an accelerated version of the widely used 
[The petitioner] has been a staff member on the project since 
of 2009. He is formally a _employee, an office at 
. . . His duties include debugging, enhancement, and 
documentation of the hardware, which is based on a field-
programmable gate array (FPGA) architecture, as well as conducting computational 
experiments to study the performance of both 
software application. He will also provide tront-Ilme 
we roll out the system to users at the 
in the coming months. 
[The petitioner] is now a valuable member of the group. I have been very 
satisfied with his ability to track down difficult design bugs in the 
implementation and to conduct comprehensive benchmarking of_ in order to 
evaluate the relative sensitivity and speed of our hardware and the standard software . 
. . . Overall, [the petitioner] is an asset to our group and generally to the progress of 
computational biology in the United States, and his technical skills and contributions 
would be difficult to replace. 
The above letters appear to portray the petitioner's work as providing technical support and quality 
control to other workers who actually perform research and product development. Also, the letters 
appear to indicate that the . is an internal university project rather than one 
intended for wider distribution. 
On April 2, 2010, the director issued a request for evidence, instructing the petitioner to establish 
that his intended work will be national in scope. The director also asked for evidence 0 f the 
impact and influence on his field. In response, in a letter dated May II, 2010, • 
stated that "project as a whole has been quite successful," and that 
the petitioner "has made a number of significant contributions." asserted that the 
petitioner's "diagnostic work was the catalyst for [two] soon to be published papers .... Even 
though he was not a co-author on the publications, his achievement included the initial diagnostics. 
In short, his work was what led the authors down the correct research path." added 
that the petitioner contributed to a technical report published in May 2010, several months after the 
petition's filing date. An applicant or petitioncr must establish that he or she is eligible for the 
requested benefit at the time of filing the application or petition. 8 C.F.R. § 103.2(b)(l). USCIS 
carmot properly approve the petition at a future date after the petitioner or beneficiary becomes 
Page 7 
eligible under a new set of facts. See Matter of Katigbak, 14 1&N Dec. 45,49 (Reg'l Comm'r 1971). 
Even then, the petitioner did not establish the importance of the new technical report. 
The petitioner submitted evidence that he received two "Students Providing Exemplary Customer 
Service Awards" from the 
The record contains no further information about these 
awards. Therefore, there is no evidence that the awards for customer service at a university's student 
union have any relevance to his occupation. 
The director denied the petition on July 26, 2010, stating that the petitioner had failed to show that 
his intended work is national in scope. The director also concluded that the petitioner did not show 
"why labor certification would be inappropriate in this case." 
On appeal, the petitioner discussed the overall importance of the project. The 
director, however, had not contested or disputed the value of the project as a whole. Rather, the 
petitioner's role in that project is at issue, and the petitioner, on appeal, offers little new information 
in that area except to state: "we consider ways to realize existing algorithms and alternative methods 
with improved efficiency or better suitability for acceleration. We also investigate how do we 
deploy and maintain accelerated implementations for a biological community whose needs are 
diverse and rapidly changing." At best, the petitioner appears to be involved in fine-tuning a system 
already created by others. 
The petitioner notes that _ had previously filed a Form 1-140 petition to classify him as a 
member of the professions holding an advanced degree. That petition, with receipt number_ 
included an approved labor certification. The director approved that petition on 
September 24, 2008, but rather than remain at _ and adjust to permanent resident status through 
the approved petition, the petitioner left _ just a few months later to work in Missouri. (The 
petition remains approved; the petitioner has not yet filed Form 1-485 to adjust status.) The 
petitioner does not explain why he left _, but the approval of the prior petition does not imply 
eligibility for the national interest waiver. It merely demonstrates that his employer was successful 
in obtaining an approved labor certification for him. The petitioner stated that he filed the present 
petition "in order to preserve [his] previous priority date." This explanation establishes the 
petitioner's own interest in the process, but does not demonstrate national interest. 
The petitioner submitted a new August 25, 2010 letter from 
identical to his earlier May II, 2010 letter, except for an added paragraph in which 
attempted to establish the national scope of the petitioner's work: 
The Novo-G Forum is a group of researchers that are investigating the use of 
acceleration technology on a host of computationally important problems. The forum 
is lead [sic] by the NSF Center for High Performance Reconfigurable Computing at 
the Univ. of Florida and contains members [from eight] US institutions .... As part of 
Page 8 
the forum activities, we are porting the application to the Novo-G 
machine, which will provide lessons that impact the work at all ofthese institutions. 
The above assertion addresses the potential national scope of program, but does 
not imply that worker technical support on that project performs work that is 
national in scope. did not . how the petitioner's contributions to the project 
are, themselves, national in scope. had previously observed that the petitioner co-
authored a technical report that is now available over the Internet, but the petitioner did not show 
that this report amounted to a dissemination of findings that others could replicate, rather than 
simply a description of a system in place at one institution. Despite the director's inaccurate 
description of the report as a journal article, the piece did not appear in any scholarly journal. It is, 
rather, a technical report that appears to have been prepared primarily for internal purposes, 
apparently without peer review, and made available on the university's own web site for ease of 
access. 
The petitioner showed that his past and present employers consider him to be a skilled worker who 
makes valuable contributions to the tasks at hand. He did not, however, establish that those 
contributions have influenced his field as a whole or that it would otherwise serve the national interest 
to waive the job ofter/labor certification requirement that normally attaches to the immigrant 
classification that he has chosen to seek. 
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 labor certification will be in the national 
interest ofthe 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. 
ORDER: The appeal is dismissed.