remanded EB-2 NIW Case: Physical Science

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
h 
FILE: LIN 05 800 62332 Office: NEBRASKA SERVICE CENTER Date: JAN 1 g 
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. 8 1153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
'd 
C5,~obert P. Wiemann, Chief 
Administrative Appeals Office 
LIN 05 800 62332 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office 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director will be withdrawn and the petition will be remanded for further action and consideration.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. 5 1153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as a physical scientist. 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 the classification sought, 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. The director's decision is effectively based on the petitioner's 
failure to submit evidence relating to some of the regulatory criteria for aliens of exceptional ability. 
On appeal, counsel attempts to address the director's bases of denial through the submission of a brief 
and additional evidence. Much of the evidence submitted relates to events after the petition was filed. 
As will be discussed below, however, the director erred in requiring evidence that the petitioner, an 
advanced degree professional, also meets the regulatory definition of exceptional. Significantly, such 
evidence would not have established eligibility for the waiver sought even if submitted. This error 
prevented the petitioner from filing a meaningful appeal. Thus, we will remand this matter for a 
decision applying the correct standard. 
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. 
The petitioner holds a Ph.D. from the University of Madras. The petitioner's occupation falls within 
the pertinent regulatory definition of a profession. The petitioner thus qualifies as a member of the 
LIN 05 800 62332 
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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. 
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, 101 st Cong., 1 st Sess., 1 1 (1 989). 
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 Dep 't. of Transp., 22 I&N Dec. 21 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 &re 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 acknowledged the test set forth in the above precedent decision and concluded, rationally, 
that the petitioner works in an area of substantial intrinsic merit and that the proposed benefits of the 
petitioner's work would be national in scope. When considering the final element set forth in that 
decision, however, the director concluded that the record was not persuasive because it lacked evidence 
of awards showing a sustained pattern of achievement, high remuneration indicative of exceptional 
ability and professional memberships. These requirements do not appear in Matter ofNew York State 
Dep't of Transp., 22 I&N Dec. at 2 15. Rather, high remuneration and professional memberships are 
LIN 05 800 62332 
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two regulatory criteria for aliens of exceptional ability. 8 C.F.R. $8 204.5(k)(3)(ii)(D), (E). The 
regulation at 8 C.F.R. 8 204.5(k)(3)(ii)(F) requires evidence of recognition for achievements and 
significant contributions by peers, governmental entities or professional or business organizations. 
Some awards could serve to meet this criterion if indicative of a degree of expertise significantly above 
that ordinarily encountered in the field.' See 8 C.F.R. 5 204.5(k)(2)(definition of "exceptional"). 
Thus, the director essentially denied the petition because the petitioner failed to demonstrate that he is 
an alien of exceptional ability. We acknowledge that the supplementary information to the regulations 
implementing the Immigration Act of 1990 (IMMACT), published at 56 Fed. Reg. 60897, 60900 
(November 29, 199 I), 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 seelung 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. 
This language, however, does not require that the alien qualify as an alien of exceptional ability as 
defined at 8 C.F.R. 8 204.5(k)(3)(ii). Rather, the benefit of the alien's entry into the United States 
must exceed the benefit inherent in admitting aliens of exceptional ability. For example, the benefit 
for aliens of exceptional ability not seeking a national interest waiver is not necessarily national in 
scope for each alien. See Matter of New York State Dep't of Transp., 22 I&N Dec. 21 5, 21 7, n.3. 
(Comm. 1998.) 
Most significantly, the petitioner in this matter qualifies as a member of the professions holding an 
advanced degree. After the publication of final regulation at 8 C.F.R. 8 204.50, Congress amended 
section 203(b)(2)(B) of the Act to extend the national interest waiver, originally interpreted by legacy 
Immigration and Naturalization Service (now Citizenship and Immigration Services) as limited to 
aliens of exceptional ability: to advanced degree professionals. Miscellaneous and Technical 
Immigration and Naturalization Amendments of 199 1, Pub. L. 102-232 5 302(a)(2)(D), 105 Stat. 1733, 
(Dec. 12, 1991). Thus, it was reversible error to hold that the petitioner, an advanced degree 
professional, must also demonstrate that he is an alien of exceptional ability to qualify for a waiver of 
the alien employment certification in the national interest. 
1 
 Scholarships and other "awards" in recognition of academic achievements are not persuasive evidence for a 
national interest waiver of the job offer requirement. See Matter of New York State Dep't of Transp., 22 I&N 
Dec. at 219, n.6. 
2 
While we acknowledge that the regulation at 8 C.F.R. 5 204.5(k) has not been amended to include members 
of the professions holding advanced degrees as eligible for the national interest waiver, the statute supercedes 
our regulation. 
LIN 05 800 62332 
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Furthermore, even if the petitioner had submitted the materials considered lacking by the director, they 
would only have established that the petitioner is an alien of exceptional ability, a classification that 
normally requires an alien employment certification. Thus, meeting the requirements for that 
classification would not have addressed the extra benefit sought by the petitioner in this matter, a 
waiver of the alien employment certification requirement. See Matter of New York State Dep't of 
Transp., 22 I&N Dec. at 22 1. 
Therefore, this matter will be remanded for consideration of the evidence submitted relating to the 
petitioner's individual achievements in the field. In evaluating the evidence, the director shall take 
into consideration that 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. 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 2 19, n. 6. 
In considering the evidence submitted previously and on appeal, the director shall take into account that 
the petitioner must establish eligibility as of the date of filing. See 8 C.F.R. 5 103.2(b)(12); Matter of 
Katigbak, 14 I&N Dec. 45,49 (Reg. Comm. 1971). Thus, the director cannot consider any evidence of 
influence in the field after the date of filing. Moreover, the director may wish to take into account 
whether the letters establish the petitioner's influence beyond his immediate circle of colleagues and 
those who have collaborated with his coauthors. The source of the letters, the content of the letters and 
the number of citationsfor each article are relevant considerations. 
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. 
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.