dismissed EB-2 NIW Case: Transportation Engineering

· identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLlCCOPY 
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 
Office: NEBRASKA SERVICE CENTER Date: FEB 0 2 2DII 
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: 
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 I-290B, Notice of Appeal or 
Motion, with a fee of$630. Please be aware that 8 C.F.R. § 103.5(a)(I)(i) requires that any motion must 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, Nebraska Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner seeks classification pursuant to section 203(b )(2) ofthe Immigration and Nationality Act 
(the Act), 8 U.S.c. § l1S3(b)(2), as an alien of exceptional ability or a member of the professions 
holding an advanced degree. The petitioner seeks employment as a transportation engineer. 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 classification as a member of the professions holding an advanced degree, 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, counsel submits a brief. For the reasons discussed below, we uphold the director's 
detennination that the petitioner has not established his eligibility for the benefit sought. 
Section 203(b) ofthe Act states in pertinent part that: 
(2) Aliens who are members of the professions holding advanced degrees or aliens of 
exceptional ability. --
(A) In general. -- Visas shall be made available ... to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or who 
because of their exceptional ability in the sciences, arts, or business, will substantially 
benefit prospectively the national economy, cultural or educational interests, or welfare 
of the United States, and whose services in the sciences, arts, professions, or business 
are sought by an employer in the United States. 
(B) Waiver of job offer. 
(i) ... the Attorney General may, when the Attorney General deems it to 
be in the national interest, waive the requirements of subparagraph (A) 
that an alien's services in the sciences, arts, professions, or business be 
sought by an employer in the United States. 
The petitioner holds a PhD. degree in Structural The 
petitioner's occupation falls within the pertinent regulatory Ut;JLlllJ.LlU'll 
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. 
Page 3 
Neither the statute nor pertinent regulations define the term "national interest." Additionally, Congress 
did not provide a specific definition of the phrase, "in the national interest." The Connnittee on the 
Judiciary merely noted in its report to the Senate that the connnittee had "focused on national interest 
by increasing the number and proportion of visas for innnigrants who would benefit the United States 
economically and otherwise .... " S. Rep. No. 55, IOlst Cong., 1st Sess., II (1989). 
A supplementary notice regarding the regulations implementing the Immigration Act of 1990 
(IMMACT), published at 56 Fed. Reg. 60897, 60900 (Nov. 29,1991), states, in pertinent part: 
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. ofTransp., 22 I&N Dec. 215, 217-18 (Comm'r. 1998) (hereinafter 
"NYSDOT"), 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. Id. at 217. Next, the petitioner must show that the proposed benefit will be 
national in scope. Id. 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. Id. at 217-18. 
It must be noted that, 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 tile national 
interest. Id. at 219. 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. Id. 
We concur with the director that the petitioner works in an area of intrinsic merit, bridge 
engineering, and that the proposed benefits of his work, earthquake resistant bridges, would be 
national in scope. It remains, then, to determine whether the petitioner will benefit the national 
interest to a greater extent than an available U.S. worker with the same minimum qualifications. 
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. 
NYSDOT, 22 I&N Dec. at 218. Moreover, it cannot suffice to state that the alien possesses useful 
skilis, or a "unique background." Special or unusual knowledge or training does not inherently meet 
Page 4 
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. !d. at 221. 
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. 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. !d. at 221, n. 7. 
The petitioner earned his PhD. in 1997. He has submitted evidence of over ten years of experience as 
an engineer or engineering professor as of the date of filing, October 27, 2008. With regard to 
experience, the regulations indicate that ten years of progressive experience is one possiblle criterion 
that may be used to establish exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(F). Because <:xceptional 
ability, by itself, does not justifY a waiver of the alien employment certification requirement, arguments 
hinging on the petitioner's experience, while relevant, are not dispositive to the matter at hand. Id. at 
222. 
The petitioner is licensed as a professional engineer in civil engineering by the California Board for 
Professional Engineers and Land Surveyors. Once again, a license is one type of evidence that may be 
submitted as evidence of exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(C). As stalled above, 
exceptional ability is a classification that normally requires an approved alien employment certification. 
Section 203(b)(2) of the Act; NYSDOT, 22 I&N Dec. at 218. Thus, the petitioner's license is not 
dispositive of whether the alien employment certification process should be waived in the national 
interest. NYSDOT, 22 I&N Dec. at 222. 
The petitioner submitted evidence of nine articles and seven conference presentations. The petitioner 
was also a guest speaker "of Special Conference of Local Chapters of Architectural Institute of Korea" 
according to an uncertified translation. Foreign language documents must be accompanied by a full 
certified translation. 8 C.F.R. § 103.2(b)(3). Thus, we cannot consider this foreign language document. 
While the petitioner's articles and presentations demonstrate that the petitioner has disseminated his 
work, they are not, by themselves, evidence of the ultimate influence of that work. In response to the 
director's request for additional evidence, the submitted a foreign language certificate that, 
according to the translation, certifies that the petitioner's 1996 
presentation as the best presentation. Once again, the translation is not certified and, thus, does not 
comply with the regulation at 8 C.F.R. § 103.2(b)(3). Regardless, while the institute may have 
recognized the petitioner's work as promising when he presented it, at issue is the ultimat<: impact of 
that work after dissemination in the field. 
The citations submitted reveal that one author cited the petitioner's 2004 presentation in two separate 
articles. In addition, the petitioner's 1994, 1997 and 1998 articles have each garnered a single citation. 
Page 5 
The petitioner's supervisor 
2003 article that he coauthored with the petitioner. 
articles themselves have garnered what counsel characterizes as "indirect citations." 
Self-citations cannot demonstrate the petitioner's wider influence in the field. The number of 
independent citations is minimal. The record does not establish that the articles citing _ 
_ articles cite his articles for that originate with the petitioner's work:~ 
the independent research reported. Counsel has not explained why the authors of 
these "indirect" citations did not directly cite the petitioner's work if that work is indeed relevant to the 
authors' work. Thus, "indirect" citations are simply too far removed from the petitioner's own work to 
have evidentiary value. Significantly, however, one of the "indirect" citations has itself garnered 77 
citations. Thus, the petitioner's field is not a field that generates few citations. 
The petitioner submitted a certificate from the University of Michigan in "recognition" of the 
petitioner's postdoctoral training at that institution. Rather than recognizing the significance of the 
petitioner's research there, the university issued the certificate to "certifY' that the petitioner 
successfully completed his postdoctoral training. 
The petitioner submitted a foreign language certificate. The entire uncertified translation states: 
"Recognition for Member of Committee for Approval of Special Buildings from Kumi City in Korea 
on February 2001 (in Korean)." This translation is not a full certified translation as required under 
8 C.F.R. § 103.2(b)(3). Thus, the document has no evidentiary value. The record contains no letters 
from anyone in Korea with first hand knowledge of the petitioner's committee membership explaining 
the significance ofthe membership and what duties the position involved. 
a",el1ls that he referred to the petitioner's work on several occasions. The only 
citations by are those that cite an article he coauthored with the petitioner. These 
do not demonstrate the petitioner's influence beyond his immediate circle of collaborators. _ 
••••• explains that at the University of Michigan, the petitioner was involved in two~ 
projects: the development of highly damage-tolerant earthquake-resistant structural walls and the use of 
steel double channel built-up members in ductile segments of Special Truss Moment Frames (STMFs). 
asserts that the petitioner's contributions to these projects were essential to their 
success and predicts that this work "will lead to an increasing use of STMFs in regions of high 
seismicity." At issue, however, is whether the petitioner has already demonstrated a track record of 
success with some degree of influence on the field as a whole. 
. Purdue Uni~s a postdoctoral research associate under the supervision of 
in 2003. _ asserts that the petitioner was the researcher on a 
JV.\)VV National Academy of Sciences (NAS) funded study. According to the 
petitioner's primary responsibility for this study involved an experimental program U"'lllIllg 
bond of mild reinforcement in high strength concrete and strand surface characterization tests. 
further explains that the petitioner also analyzed the data and produced a report and two 
Page 6 
teclmical papers for ~mo'wl,edf~es, however, that 
the journal had yet to publish this work as of the date of filing. the orgallization of 
the petitioner's work and opines that it is "going to make a im~,act on US practice" as 
American Association State Highway Transportation Officials (AASHTO) are "in the process" of 
adopting his results. 
-...- another asserts that _ the petitioner was 
"involved in research directed at improving the perfonnance of concrete shear walls subjected to 
earthquake forces through the use of a novel teclmique that includes the use of high perfomlance fiber 
reinforced concrete." ~ asserts that the petitioner made "significant contributions" to this 
work but does not explain how those contributions are influencing the field. _continues that 
the petitioner's findings "have appeared in top ranked peer-reviewed journals." First, the record does 
not establish that the petitioner has published any of the work he perfonned while at Purdue University. 
Moreover, as stated above, dissemination alone does not demonstrate the ultimate impact of the 
published work once available in the field. 
_ also asserts that the petitioner developed "new design methods for the connection of steel 
and concrete composite structures" as part of an initiative between the United States and Japan. The 
record, however, contains no first-hand accounts of the petitioner's role in this initiative or its ultimate 
impact in the field. 
(Caltrans), opines that the petitioner "will continue to make 
invaluable .. to the bridge engineering community in Caltrans and of the United States." Mr. 
_ does not address the petitioner's accomplishments at Caltrans. Rather, _limits his 
discussion to the petitioner's previous work. Specifically, that in 2005 he: read three 
of the petitioner's articles that presented valuable results. speculates that these findings 
"would help us des~aljoint connections between the steel girders and concrete bent caps in 
bridge structures." _does not suggest has or is currently pursuing designs based 
on the petitioner's 2005 research. In addition, that . . s research at Purdue 
Jnillerf,itv resulted in modifications" 
for bond reinforcement to lll!;,ll~l co:mplre~;si"e strenl21:h 
proposal. 
discusses the importance of 
the petitioner's area above, 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. Moreover, it cannot 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 U.S. is an issue under the jurisdiction of the Department of Labor. 
NYSDOT, 22 I&N Dec. at 221. 
-Page 7 
an assistant professor at asserts that he became 
aware petitioner through a 2006 paper. asserts is also familiar with 
another of the petitioner's articles and that it "paved the way for additional research that _J will 
be conducting with one of[hisJ graduate students." While the petitioner's research is clearly applicable 
in the field, this one example of projected application of the petitioner's work locally in California is 
not evidence of the petitioner's influence in the field as a whole. 
In response to the director's request for evidence as to the status of the petitioner's proposal to 
_ the petitioner submitted an email from engineer with the Washington 
State Department of Transportation. In response to question as to the status of the 
implementation of the . to Bond and Development length of Strand and mild 
reinforcement into responded there are two code change 
recommendations, splice of reinforcement and the other on transfer and 
development length of pre-stressing strands and that these r "could" be 2010 ballot 
items "if all questions and concerns are addressed." further noted that the 
recommendation on the transfer and development length of pre-stressing strands "has raised some 
questions and comments on the bond condition, effects of shorter transfer length on design and removal 
of stress in prestressing strands from the equations." It is not clear from this email that the 
recommendations are primarily based on the petitioner's work and, even if they are, that they will be 
adopted as presented. The petitioner must establish eligibility as of the date of filing. See 8 C.F.R. §§ 
103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'!. Comm'r. 1971). As of that date, the 
petitioner's recommendations had not been adopted and, in fact, there is no evidence that they were 
subsequently adopted in a form similar to what the petitioner proposed. 
The Board of Immigration Appeals (the Board) has held that testimony should not be dlisregarded 
simply because it is "self-serving." See, e.g., Matter of S-A-, 22 I&N Dec. 1328, 1332 (BIA 2000) 
(citing cases). The Board 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 of Y-B-, 21 I&N Dec. 1136 (BIA 1998). 
The opinions of experts in the field are not without weight and have been considered 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 we have done 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, 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 SojJici, 22 I&N Dec. 158, 
Page 8 
165 (Comm'r. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'!. 
Comm'r. 1972)). 
The letters considered above primarily contain bare assertions of expertise without providing specific 
examples of how those innovations have already influenced the field. Merely repeating the legal 
standards does not satisfy the petitioner's burden of proof.! The petitioner also failed to submit 
sufficient corroborating evidence in existence prior to the preparation of the petition, which could 
have bolstered the weight of the reference letters. 
While the petitioner's research is no doubt of value, it can be argued that any research must be 
shown to be original and present some benefit if it is to receive funding and attention from the 
scientific community. Any research, in order to be accepted for publication or funding, must offer 
new and useful information to the pool of knowledge. It does not follow that every researcher who 
performs original research that adds to the general pool of knowledge inherently serves the national 
interest to an extent that justifies a waiver of the job offer requirement. 
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. 
1 Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (ED.N.Y. 1989), afj'd, 905 F. 2d 41 (2d. Cir. 1990); 
Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). Similarly, USCIS need not accept 
primarily conclusory assertions. 1756, Inc. v. The Attorney General of the United States, 745 F. Supp. 9,15 
(D.C. Dist. 1990).