remanded EB-2 NIW Case: Analytical Chemistry

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U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. A3042 
Washington, DC 20529 
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PUBLIC COPY 
FILE: Office: TEXAS SERVICE CENTER Date: JUN 2 1 2005 
IN RE: Petitioner: 
~eneficiary: 
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. $ 1 153(b)(2) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
th riginally decided your case. Any further inquiry must be made to that office. 
Robert P. ~iemann, Director 
Administrative Appeals Office 
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 decision of the director will be 
withdrawn and the petition will be remanded for further action and consideration. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act), 
8 U.S.C. tj 1 153(b)(2), as a member of the professions holding an advanced degree. The petitioner seeks 
employment as an analytical chemistry researcher. 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 did not 
address whether the petitioner qualifies for classification as an alien of exceptional ability or as a member of the 
professions holding an advanced degree. Rather, the director determined that a waiver of the job offer 
requirement was not warranted in the national interest because the petitioner did not have a Ph.D., which the 
director concluded was required in the petitioner's field. 
Section 203(b) of the Act states in pertinent part that: 
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of Exceptional 
Ability. -- 
(A) In General. -- Visas shall be made available . . . to qualified immigrants who are members of 
the professions holding advanced degrees or their equivalent or who because of their exceptional 
ability in the sciences, arts, or business, will substantially benefit prospectively the national 
economy, cultural or educational interests, or welfare of the United States, and whose services in 
the sciences, arts, professions, or business are sought by an employer in the United States. 
(B) Waiver of Job Offer. 
(i) . . . the Attorney General may, when the Attorney General deems it to be in 
the national interest, waive the requirement of subparagraph (A) that an alien's 
services in the sciences, arts, professions, or business be sought by an employer 
in the United-States. 
At the time of filing, the petitioner was a doctoral candidate at the University of Texas at Arlington. The 
petitioner holds a Master's degree in analytical chemistry from East China Normal University. The petitioner's 
occupation falls within the,pertinent regulatory definition of a profession. 
In defining the term "advanced degree," the regulation at 8 C.F.R. 5 204.5(k)(2) provides: "If a doctoral degree is 
customarily required by the specialty, the alien must have a United States doctorate or a foreign equivalent 
degree." The director concluded that a doctoral degree is required in the petitioner's field, based on the 
observation that all of the petitioner's references have such degrees. We do not find this analysis helpful. 
According to the Occupational Outlook Handbook, available online at http://stats.bls.aov/oco/home.htm: "A 
bachelor's degree in chemistry or a related discipline usually is the minimum educational requirement for 
entry-level chemist jobs. However, many research jobs require a master's degree, or more often a Ph.D." 
While many positions may require a doctorate, that degree is not the minimum requirement to work in the 
field. There is no indication that a doctoral degree is customarily required by the specialty, as is the case 
with, for instance, dentistry and medicine. Indeed, the director, in the denial notice, conceded that "a person 
who holds a master's degree is not restricted from conducting research in any given field." 
The petitioner thus qualifies as a member of the professions holding an advanced degree. The remaining issue is 
whether the petitioner has established that a waiver of the job offer requirement, and thus a labor certification, is 
in the national interest. 
Neither the statute nor pertinent regulations define the term "national interest." Additionally, Congress did not 
provide a specific definition of "in the national interest." The Committee on the Judiciary merely noted in its 
report to the Senate that the committee had "focused on national interest by increasing the number and proportion 
of visas for immigrants who would benefit the United States economically and otherwise. . . ." S. Rep. No. 55, 
IOlst Cong., 1st Sess., 11 (1989). 
Supplementary information to the regulations implementing the Immigration Act of 1990 (IMMACT), published 
at 56 Fed. Reg. 60897,60900 (November 29, 1991), states: 
The Service believes it appropriate to leave the application of this test as flexible as possible, 
although clearly an alien seeking to meet the [national interest] standard must make a showing 
significantly above that necessary to prove the "prospective national benefit" [required of aliens 
seeking to qualify as "exceptional."] The burden will rest with the alien to establish that 
exemption from, or waiver of, the job offer will be in the national interest. Each case is to be 
judged on its own merits. 
Matter of New York State Dept. of Transportation, 22 I&N Dec. 2 1.5 (Comm. 1998), has set forth several factors 
which must be considered when evaluating a request for a national interest waiver. First, it must be shown that 
the alien seeks employment in an area of substantial intrinsic merit. Next, it must be shown that the proposed 
benefit will be national in scope. Finally, the petitioner seeking the waiver must establish that the alien will serve 
the national interest to a substantially greater degree than would an available U.S. worker having the same 
minimum qualifications. 
It must be noted that, while the national interest waiver hinges on prospective national benefit, it clearly must be 
established that the alien's past record justifies projections of future benefit to the national interest. The 
petitioner's subjective assurance that the alien will, in the future, serve the national interest cannot suffice to 
establish prospective national benefit. The inclusion of the term "prospective" is used here to require future 
contributions by the alien, rather than to facilitate the entry of an alien with no demonstrable prior achievements, 
and whose benefit to the national interest would thus be entirely speculative. 
The director did not include any discussion under his headings relating to the intrinsic merit of the petitioner's 
area of work and whether the proposed benefits would be national in scope. Subsequently, however, the 
director appears to acknowledge that the petitioner proposes to benefit health care.' The director ultimately 
denied the petitioner's request for a waiver based on a determination that the petitioner could not benefit the 
national interest to a greater extent than an available U.S. worker with the minimum qualifications for his 
field since the petitioner did not possess a Ph.D. 
As stated above, the petitioner qualifies for the classification sought as an advanced degree professional. 
While an alien must already have an advanced degree at the time of filing to qualify for the advanced degree 
professional classification, the alien's pursuit of another degree beyond his advanced degree does tiot 
preclude eligibility. In Mutter ofNew YorkStute Dept. of Transportation at 219, n. 6, the AAO stated: 
1 This discussion appears in a section of the director's decision dedicated to an unpublished appellate decision issued by 
the AAO in 1992. That decision has never had any force as a binding precedent decision. 
Page 4 
It should be noted that the alien's past record need not be limited to prior work experience. 
The alien, however, clearly must have established, in some capacity, the ability to serve the 
national interest to a substantially greater extent than the majority of his or her colleagues. 
The Service here does not seek a qualified threshold of experience or education, but rather a 
past history of demonstrable achievement with some degree of influence on the field as a 
whole. 
This paragraph indicates that student work can be considered as part of the petitioner's past record and that no 
threshold of education (beyond what is required to work in the profession) is necessary. Thus, while a Ph.D. 
candidate may bear a heavy burden to establish his ability to benefit the national interest to a greater extent 
than those with work experience, the lack of the final Ph.D. diploma at the time of filing is not, by itself, 
grounds for denying the waiver request, especially when the petitioner is able to demonstrate work or 
practical experience prior to or during his Ph.D. studies. 
Therefore, this matter will be remanded for consideration of whether the petitioner's past record, not limited to 
work experience, justifies projections of fUture benefit to the national interest. We note that the evidence consists 
mostly of testimony from professors, mentors, fellow students and collaborators regarding the petitioner's 
achievements. The director should also consider whether the independent citation history of the petitioner's 
published work is significant. 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. As 
discussed above, the petitioner must demonstrate a past history of achievement with some degree of influence 
on the field as a whole. 
As always in these proceedings, the burden of proof rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. 5 1361. 
Therefore, this matter will be remanded. The director may request any additional evidence deemed warranted 
and should allow the petitioner to submit additional evidence in support of its position within a reasonable period 
of time. As always in these proceedings, the burden of proof rests solely with the petitioner. Section 291 of the 
Act, 8 U.S.C. § 1361. 
ORDER: The director's decision is withdrawn. The petition is remanded to the director for further action 
in accordance with the foregoing and entry of a new decision which, if adverse to the petitioner, 
is to be certified to the Administrative Appeals Office for review.