dismissed EB-2 NIW Case: Transportation Engineering

identifying data deleted to 
prevent clearly unwarr~te<l 
invasion of personal pnvacy 
PUBLIC COpy 
DATE: JUL 1 6 2012 
INRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
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 
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. § I I 53(b)(2) 
ON BEHALF OF PETITIONER: 
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 AAO inappropriately applied the law in reaching its decision, or you have additional 
infonnation that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Fonn I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
PerryRhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Texas 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 under section 203(b )(2) of the Immigration and Nationality Act (the 
Act), 8 U.S.c. § IIS3(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as a he filed the the 
petitioner was a research scientist at 
The petitioner asserts that an exemption 
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 brief from counsel. 
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 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 
Page 3 
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., 1 st Sess., 11 (1989). 
Supplementary information to regulations implementing the Immigration Act of 1990, 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 to qualify as "exceptiona1."] 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. 
In re 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 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 USCIS 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 field of expertise. 
The petitioner filed the Form 1-140 petition on April 26, 2011. In an introductory statement, counsel 
stated: 
Throughout his research career, [the petitioner] has gained acclaim as a researcher in 
the field of transportation engineering, especially in the area of transportation systems 
modeling and simulations. 
Page 4 
... In his position as a Research Scientist [the petitioner] continues to improve our 
national security, by developing systems to track barges traveling on inland 
waterways. He is also developing a new algorithm to identify errors in Intelligent 
Transportation Systems (ITS) sensors .... 
[The petitioner] is a highly acclaimed scientist whose work has had significant impact 
on the field of transportation engineering .... 
[The petitioner] has gained international acclaim, through his research and 
publications .... 
Because of [the petitioner's] specialized knowledge and educational background, 
requiring Oak Ridge National Laboratory to conduct a labor certification would cause 
an undue hardship upon the institution. It would be very unfortunate if ORNL had to 
divert its scientific focus by going through the labor certification process to seek 
someone with minimal qualifications for the research as opposed to someone who is 
considered to be one of the most talented individuals in his field in the world .... 
ORNL always searches for the best and brightest minds in the world. [The 
petitioner's] presence and important work at this national laboratory proves that he is 
a premier researcher in his field. [The petitioner] possesses qualities that would not 
be provided through the labor certification process. 
Counsel mentioned the petitioner's published work, and the petitioner's curriculum vitae lists three 
published articles and a fourth "under review." The petitioner did not, however, submit copies of the 
articles or evidence of their impact. Rather, most of the petitioner's initial exhibits are witness 
letters, and most of the witnesses have demonstrable ties to the petitioner. The AAO will not quote 
from every letter, because some of them contain redundant claims already addressed in other letters. 
,Jected examples to illustrate the nature of the witnesses' claims. 
who was "involved in reviewing [the petitioner's] master's thesis" 
As his Master's thesis, [the petitioner] selected an interesting problem related to 
improving the accuracy in tracking wildlife .... [T]he common and inexpensive 
method involves tagging the animal with a signal transmitter and estimating its 
location from this signal using multiple (more than two) receivers, which is known as 
radio-telemetry triangulation. Although this method is simple and economical ... , 
the origin ofthe signal is extremely difficult to locate with high accuracy. . .. During 
his master's research [ the petitioner] used a simple Brownian motion model, and 
expanded it by incorporating the non-linear dynamics .... His method showed a 
significant improvement from the existing system. 
Page 5 
on the petitioner's doctoral committee at the 
petitioner's doctoral work: 
[The petitioner] developed a fusion architecture that used three different sensor 
measurements and integrate [sic] them to estimate the position and attitude 
(orientation) of a vehicle. The three sensor systems ... were a Global Position 
System (GPS), Inertial Measurement Unit (IMU), and a camera. The objective of the 
project was to develop an alternative methodology to estimate the vehicles [sic] 
position when the GPS system is either giving an erroneous measurement or not 
recording any measurement at all. To accomplish this task he used the images 
obtained from the camera unit to estimate the translation and the rotation of the 
camera ... between two consecutive image capturing locations. These translations 
and rotations were then fused with other sensors using a statistical optimized filter to 
get the vehicle's position and orientation. 
Several of the witness letters focused on describing and discussing the petitioner's doctoral project 
that combined camera images with sensor data to track a moving vehicle. The witnesses indicated 
that the petitioner's successful completion of this project required rare talent. ~ 
to make such statements is associate professor at ~ 
who . knowledge of the petitioner's work "through his 
research publications in leading transportation journals." _ stated: 
[T]he design process involves highly skilled knowledge [in] multiple domains that 
can be broadly categorized as mechanical, mathematical, and computational 
techniques .... [F]using data with different characteristics, i.e., with different data 
rates and different error profiles, obtained from multiple sensory systems takes 
prominence. Possessing these prominent factors sets apart the experts who can 
contribute in autonomous vehicle research from the other engineers. As for my 
knowledge, there [are] only [a] few researchers in the world that can undertake such a 
difficult problem, and [the petitioner] is one of them. 
Referring to the petitioner's doctoral project, involving the use of three different sensors correlated 
to images from a calibrated camera,_ stated: "This algorithm is very effective and much 
needed in the autonomous vehicle domain, thus our group have [sic] referred [the petitioner's] work 
multiple times." 
system, and stated: 
a research scientist at the 
stated: "I got to know [the peti tioner] through the work he conducted 
then described the petitioner's three-sensor vehicle tracking 
As an associate editor of a journal that receives a lot of multi-disciplinary research 
work from around the world, I understand the difficulty in finding scientists with 
Page 6 
expertise in multiple domains. Thus, to maintain the high standard of the journal we 
search for experts in their fields that possess multi-disciplinary domain knowledge. I 
recognized this rare capability in [the petitioner] and invited him to be a part of the 
review committee of the Journal ofinformation Fusion. 
The majority of the witnesses, including those quoted above, indicated that the petitioner had 
developed computer models and algorithms to improve accuracy in locating tagged wildlife and 
moving vehicles and river barges. The petitioner's initial submission, however, contained no 
documentary evidence showing the implementation of the petitioner's work in practical, real-life 
situations. 
USF Professor praised the petitioner's doctoral work only in general terms, 
stating that "he mathematical and computer skills, basic ingredients that lead 
[sic] to high caliber technical achievements in the Intelligent Transportation Systems (ITS) area" 
and "had no hesitation in unraveling relevant advanced mathematical concepts ... and utilizing them 
to accomplish all of his doctoral research objectives." did, however, describe two of 
the petitioner's "outstanding professional achievements" at ORNL: 
The first of these involves the development of a barge tracking algorithm for geo­
locating the position of river barges carrying . . . hazardous materials in large 
quantities .... [The petitioner] had developed an innovative approach to model the 
barge movement on an inland waterway, within a short time frame, using 
fundamental concepts of probability and statistical theory, and transportation system 
modeling. The second major accomplishment has been in the development of a rail 
screening simulation model that emulates operational functions at a freight rail 
border-crossing and screening processes that take place. 
The petitioner's collaborators provided more information about the nnlielcts 
deputy group leader of the 
described 
shipments at a port of entry (POE): 
In order to make the screening process effective while [keeping] the transportation 
network efficient, one needs to understand the underlying operational environment at 
the respective POE. The analysis must include not only all the site specific 
components that could be unique to a particular site, but also the behavioral 
components established in the screening process and the transportation mode. Once 
the underlying system is identified at the POE, it needs to be represented as a 
simulation model so the authorities can execute different 'what-if scenarios .... 
asked us to develop a high fidelity simulation model for 
international railway crossing into the U.S .... [and] a generalized model that 
can seamlessly be used in any rail POE. This complicates the problem because each 
Page 7 
POE is equipped with different screening equipment with different characteristics, 
different resources, different weather and geographical conditions, and different 
operational principles. 
When we were given this task, [the petitioner] was working as a post-doctoral 
researcher with our group. He was tasked with developing a simulation model to 
simulate the screening functionality at a rail POE .... In a short time period, [the 
petitioner] was able to design and develop the simulation model, including tight 
integration into a graphical user interface. The simulation model emulates 
operational functions at a freight rail border-crossing and the screening processes that 
take place. In addition, the simulation model he developed can be easily generalized 
to incorporate new screening technology type [sic], thus showing potential to support 
multiple research areas. The simulation model was well praised by our sponsors. We 
are currently discussing the possibility of expanding the model to include the ability 
to emulate different screening architectures, and [the petitioner] will have a 
significant role in this expansion. 
In recognition of his expertise, we offered [the petitioner] a full-time research 
scientist position following his post-doctoral fellowship. He has an exceptional and 
unique set of skills in designing and developing Transportation-related simulation 
models. 
collaborated with the 
petitioner on a project 
to understand and to improve the situational awareness of a barge on an inland 
waterway carrying Certain Dangerous Cargo (CDC) .... The objective of the study 
was to fill a major gap that existed in tracking and geo-locating the position of a CDC 
barge. During that time, tracking and geo-locating a CDC barge was entirely based 
on the reports provided by the tow captain to [the] U.S. Coast Guard [at irregular 
intervals] .... This generates concerns over the location of the CDC barge and the 
uncertainty involved in knowing its position, especially passing through a highly 
populated area .... 
[I]t is paramount to know their current location at all times. However, due to various 
limitations ... in the tracking technologies merely deploying tracking devices on­
board would not solve the problem. To supplement the tracking devices, there should 
also be an algorithmic development that uses reliable mathematical and statistical 
modeling techniques to track and predict the location of a CDC barge .... [W]e 
started to develop a model in the project. This was a non-trivial task, since for 
reliable representation of the actual system the intricate relationships and 
dependencies of multiple complex systems involved in the process had to be 
accuratel y captured. 
Page 8 
This complex task was given to [the petitioner], who at that time was working as [a] 
research scientist at ORNL. ... [The petitioner] came up with a novel approach to 
model the barge movement on an inland waterway within [an unexpectedly] short 
time frame ... using fundamental concepts of probability and statistical theory, and 
transportation system modeling. In addition, it captures the local variation of the 
river characteristics, delays due to locks and dams, and tow characteristics to estimate 
the traveling speed of the barge providing an accurate estimate. Due to these two 
factors, the algorithm performs very well even when the measurement interval is 
high .... 
~<;LJ:,,,,,,,:!2 this novel idea . . . is under review [at] the __ 
we have made multiple presentations 
In addition, a private company, 
[which] tracks different types of vessels, has shown interest in utilizing the algorithm 
that [the petitioner] developed, to be used with their system. This is a very good 
indication of how [the petitioner's] work has impacted not only this [regional] project 
but also the entire United States vessel tracking industry. 
The petitioner's initial submission included no documentary evidence to show how widely, if at all, 
his models are in use in screening international rail shipments and tracking inland barges carrying 
dangerous cargo. 
The director issued a request for evidence on September 8,2011, instructing the petitioner to submit 
evidence to establish "a past record of specific prior achievement with some degree of influence on 
the field as a whole." In response, counsel contended that the director demanded "a standard of 
evidence that is much higher than that required for the National Interest Waiver" by NYSDOT: 
The Service incorrectly requires in the RFE that the petitioner show "the beneficiary's 
ability to serve the national interest to a substantially greater extent than the majority 
of others in the field." This is a much higher standard than that set out in In re 
NYDOT. . . . The correct application would be to compare the beneficiary to 
minimally qualified U.S. workers. 
To support the above claim, counsel quotes a passage from NYSDOT: "the petitioner ... 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." Id. at 218. The quoted passage, 
however, does not indicate that every alien with more than the minimum qualifications will serve the 
national interest to a substantially greater extent than a minimally qualified United States worker. 
The NYSDOT precedent decision neither states nor implies that, to quality for the waiver, an alien 
must simply show greater abilities than "minimally qualified U.S. workers." Rather, it states: "The 
alien ... must have established, in some capacity, the ability to serve the national interest to a 
Page 9 
substantially greater extent than the majority of his or her colleagues." [d. at 219 n.6. NYSDOT 
further acknowledges that, by statute, even exceptional ability does not automatically warrant a 
waiver. !d. at 218-219. The job offer/labor certification requirement does not apply only to 
minimally qualified alien workers. 
In terms of documentary evidence, the petitioner submitted a 
Assert the as the author of 
This document confirms the existence of the algorithm, but 
proves little else. 
The petitioner submitted copies of his published articles, as well as printouts from Google Scholar 
(http://scholar.google.com), identifying six of the petitioner's articles and showing a total of 14 
citations - four cited articles, with eight, three, two and one citation(s) respectively. The petitioner 
submitted no comparative evidence to show that this citation rate, averaging 2.33 citations per 
article, demonstrates significant influence in the field. The petitioner did not identify the citing 
articles, although the petitioner's own articles include three self-citations. Self-citation is a common 
and accepted practice, but it cannot show wider impact or influence of one's work. 
The director denied the petition The director acknowledged the intrinsic merit 
and national scope of the petitioner's research work, and quoted from witness letters describing the 
petitioner's "four significant research projects." The director then stated: "none of the authors have 
indicated that the petitioner's methodologies have been adopted or implemented by 
any other federal or state agencies, or any other entities," and that "the 
no demonstrating that other scientists have made use of his research." 
The director also found that the petitioner's "citation history is not evidence of the diffusion of the 
petitioner's ideas throughout his field of endeavor." 
On appeal, counsel states: "the Director has made mistakes of fact, resulting in the failure to take 
into account all the evidence submitted, as well as the mistake of law of not giving proper weight to 
all evidence submitted as required by the standards" in NYSDOT. 
One of the claimed "mistakes of fact" is the director's statement that the petitioner submitted "eight 
letters" in support of the petition. Counsel stated that the petitioner "provided nine letters from 
experts .... Therefore, the Director did not take into account one of the support letters." Review of 
the record suggests that the ninth letter is from senior managing editor of the journal 
--
Unlike other witness letters that described the petitioner's specific research accomplishments, _ 
_ letter focused on the process by which the publisher of _ selects peer reviewers. 
Because_said nothing about the petitioner's work in the field, it appears that the director did 
not count her letter as a witne~treating it instead as background information relating to the 
petitioner's peer review work. _ stated: 
Page 10 
We only select highly qualified researchers to offer their peer-review opinions. The 
criteria for our selection includes [sic] a) has a doctoral degree or is in the senior stage 
of doctoral program; b) has a national and/or international reputation in the field; c) 
has significant contributions in the field evidenced by peer-reviewed journal and/or 
conference publications. 
[The petitioner] meets these requirements and has been invited to serve as a reviewer 
for our journal. 
Criteria b) and c) are somewhat vague and sub~In the absence of evidence to clarify these 
points, the petitioner's status as a reviewer for_is not presumptive evidence of a "national 
and/or international reputation" or "significant contributions in the field." 
In the denial notice, the director stated: 
All but one of these letters were written by individuals who supervise the petitioner's 
current research, supervised the petitioner's graduate research, or worked with the 
petitioner during his graduate studies. The single independent reference provides no 
new information but simply reiterates the nature of the petitioner's [graduate] 
research proj ects. 
Counsel, on appeal, disputes the above assertions as "not correct." First, counsel rhetorically asks: 
"Of course [the petitioner] provided letters from his supervisors and collaborators; who else would 
be better able to discuss the details of [the petitioner's] work and how it has been used in the field?" 
The director did not dispute that such individuals are in the best position to specify the nature of the 
petitioner's contributions to particular projects. In terms of how the petitioner's work "has been 
used in the field," however, a broader range of witnesses can help to support a claim that the 
petitioner's work goes beyond the institutions where that work took place. 
Counsel states: "three of the nine TPf'Prc,n 
relationship with [the petlt1cmer J 
The record does not . a "TP"''''Tr.1",,' 
about the petitioner except to say performed peer review for 
collaborated with the petitioner, but has worked with him on a journal editorial board. This leaves 
_ as the only witness who offered substantive commentary on the petitioner's work but who 
has not had interactions with the petitioner. 
Counsel asserts: "A fourth letter is from 
but rather collaborated with ORNL as 
coiiaboralted with the petitioner at ORNL, rather than during the 
counsel fails to explain how this should have affected the outcome 
of the decision. The general point, that most of the petitioner's witnesses were also either his 
supervisors or his collaborators, still stands. 
Page 11 
The Board of Immigration Appeals (BIA) has held that testimony should not be disregarded simply 
because it is "self-serving." See, e.g., Matter of S-A-, 22 I&N Dec. 1328, 1332 (BIA 2000) (citing 
cases). The BIA also held, however: "We not only encourage, but require the introduction of 
corroborative testimonial and documentary evidence, where available." Id. If testimonial evidence 
lacks specificity, detail, or credibility, there is a greater need for the petitioner to submit 
corroborative evidence. Matter ofY-B-, 21 I&N Dec. 1136 (BIA 1998). 
The opinions of experts in the field are not without weight and have received consideration 
above. USCIS may, in its discretion, use as advisory opinions statements submitted as expert 
testimony. See Matter of Caron International, 19 I&N Dec. 791, 795 (Comm'r 1988). However, 
USCIS is ultimately responsible for making the final determination regarding an alien's eligibility 
for the benefit sought. Id. The submission of letters from experts supporting the petition is not 
presumptive evidence of eligibility; USCIS may, as above, evaluate the content of those letters as to 
whether they support the alien's eligibility. See id. at 795; see also Matter of V-K-, 24 I&N Dec. 
500, 502 n.2 (BIA 2008) (noting that expert opinion testimony does not purport to be evidence as to 
"fact"). USCIS may even give less weight to an opinion that is not corroborated, in accord with 
other information or is in any way questionable. Id. at 795; see also Matter of Soffici, 22 I&N Dec. 
158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l 
Comm'r 1972)). 
In this instance, witnesses have described the petitioner's projects, and the director has not 
questioned the credibility ofthose descriptions. The issue that the director raised concerns the extent 
to which the petitioner's work is in actual use in the transportation industry. 
agency 
blanket assertion that the 
_auspices. 
application of the petitioner's work, counsel notes that the _ 
ORNL, and that "[tJherefore all work that [the petitioner~ 
projects ... has been adopted by a federal agency, nam=e_ 
The record still does not show to what extent, if at all, the _or any 
using the petitioner's work. There is no support for counsel's 
must be using the petitioner's work because he did that work under 
Concerning work funded by _ counsel stated: "this work is a matter of national security. This 
information is not necessarily shared with individual researchers; even if it were, they may not 
necessarily be at liberty to share this information." 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
U.S.C. § 1361. An applicant or petitioner must establish that he or she is eligible for the requested 
benefit at the time of filing the benefit request and must continue to be eligible through adjudication. 
Each benefit request must be properly completed and filed with all initial evidence required by 
applicable regulations and other USCIS instructions. 8 C.F.R. § 103.2(b)(l). The non-existence or 
other unavailability of required evidence creates a presumption of ineligibility. 8 C.F.R. 
§ 103.2(b)(2)(i). 
Page 12 
Counsel cannot avoid the burden of proof simply by implying that the petitioner's work may already 
be in use, but in secret ways that even the witnesses may not know. The petitioner's witnesses were 
evidently at liberty to disclose the petitioner's involvement in research into scanning rail cars for 
dangerous cargo. It strains credulity to suggest that the petitioner is permitted to disclose the 
existence of this program but not to say whether or not it is actually in use. 
Counsel claims: "It is unreasonable for the Director, who is an employee of 
further elaboration about past and ongoing research conducted on behalf of the is a 
_ component, but this fact does not relieve the of all responsibility to submit any 
evidence relating to work performed on behalf of comprising 22 
including the 
Counsel does not explain why it is reasonable to presume that the Service 
Center director, a regional official of one _ component agency, has detailed knowledge of 
activities undertaken by other _ component agencies, let alone third parties under contract to 
those agencies. 
Counsel contends that the director did not give sufficient weight to the petitioner's published work 
and "presentations to governrnent agencies." The director did not dispute that the petitioner had 
made his work available in this way. Repeatedly on appeal, counsel makes the untenable 
presumption that, if a governrnent agency was aware of the petitioner's work, then it must have acted 
upon it. 
Counsel states: "most importantly [the petitioner] has provided evidence that the 
_ one of the most prestigious and influential national laboratories in country, 
he was the ideal candidate for this position." There exists no blanket waiver for employees of 
national laboratories; the statute does not exempt national laboratories from the job offer 
requirement. The director and the AAO have taken ORNL's prestige into consideration, but 
employment at a national laboratory is not presumptive evidence of eligibility for the waiver. 
Counsel states: "as has been reiterated by the AAO numerous times, while citations are a valuable 
gauge of a researcher[']s impact, they are not the only available tool." This statement is true as far 
as it goes, but it does not make the petitioner the arbiter of the sufficiency of his own evidence. In 
the absence of heavy citation of his published work, the petitioner must credibly establish his 
influence by some other means. The petitioner has not done so. Rather than offer alternative 
evidence of the impact of his work, counsel, on appeal, simply offers excuses for the absence of that 
evidence. 
The AAO agrees with the director's finding that the petitioner has established the dissemination of 
his research findings, but has not shown that public or private enterprises have actually used those 
findings to improve barge tracking, rail cargo security, or other activities relating to the petitioner's 
work. The petitioner has not explained how these suggested improvements significantly serve the 
Page 13 
national interest if they are not actually put to use. Based on the evidence provided, the AAO 
affirms the director's conclusion that the record lacks evidence of the petitioner's impact on his field. 
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.