sustained EB-2 NIW Case: Aerospace Engineering And Mechanics

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u.s.Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
FILE:
LIN 06007 51828
Office: NEBRASKA SERVICE CENTER Date:
MAY 3 0 ZI~7
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. § 1153(b)(2)
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.
/G(iUiVt;£veaii'I(L
-, Robert P. Wiemann, Chief
-tv Administrative Appeals Office
www.uscis.gov
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa
petition, which is now before the Administrative Appeals Office on appeal. The appeal will be
sustained and the petition will be approved.
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act
(the Act), 8 U.S.C. § 1153(b)(2), as a member of the professions holding an advanced degree or an
alien of exceptional ability. The petitioner seeks employment in the sciences. 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.
On appeal, counsel submits a brief and an additional letter of support. While not all of counsel's
assertions are persuasive, we are satisfied that the petitioner has established his eligibility for the benefit
sought.
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 issue of whether' the petitioner may be an alien of exceptional ability is moot. The petitioner holds
a Ph.D. in Aerospace Engineering and Mechanics from the University of Minnesota. The petitioner's
occupation falls within the pertinent regulatory definition of a profession. 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 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, 101st 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 Dep't. of Transp., 22 I&N Dec. 215 (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.
We concur with the director that the petitioner works in an area of intrinsic merit, fluid mechanics and
nanotechnology, and that the proposed benefits of his work, improved understanding of viscous
potential flows and nanoparticle filtration, 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.
Matter ofNew York State Dep 't of Transp., 22 I&N Dec. at 218. 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 United States is an issue under the jurisdiction of the Department
of Labor. Id. 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. Id. at 221, n. 7.
The petitioner studied at the University of Minnesota under the direction of a
member of the National Academy of Engineerin~tional Academy of Science. As a
postdoctoral ~rhas continued in_laboratory as well as working in the
laboratory of _ Di_he Particle Technology Laboratory at the University of
Minnesota. The petitioner's work in laboratory, however, had not been published as of the
date of filing. Thus, that work had yet to be disseminated in the field and will not be considered.
See 8 C.F.R. § 103.2(b)(12); Matter ofKatigbak, 14 I&N Dec. 45,49 (Reg. Comm. 1971).
First, not all of the evidence carries the weight claimed by counsel. The petitioner submitted
evidence of his academic fellowship from the University of Minnesota based on the potential of the
petitioner's research pro osal his membership in the American Physical Society and a request to
review an article from , Co-Editor of Mechanics Research Communications.
Significantly, requests that if the petitioner is too busy to complete the review, that he
suggest a "col eague or post-doc at your own institution."
The director noted that memberships and recognition for achievements may be indicative of
exceptional ability but that exceptional ability is not, in and of itself, a basis for waiving the alien
employment certification process. On appeal, counsel asserts that the petitioner's accomplishments
are beyond those set forth in the regulations for exceptional ability and should not have been
dismissed.
Counsel is not persuasive. The statutory standard for exceptional ability is a degree of expertise
significantly above that ordinarily encountered in the field. The petitioner submitted no evidence
that the American Physical Society requires anything other than the payment of dues and
participation in the field for membership. Without such evidence, the petitioner has not
demonstrated that this membership is indicative of an influence in the field, at issue when
considering whether to waive the alien employment certification process.
Regarding the fellowship, it appears to be based on the potential of the petitioner's proposal rather
than in recognition of past influential work. Further, regarding the invitations to review manuscripts,
we cannot ignore that scientific journals are peer reviewed and rely on many scientists to review
submitted articles. Thus, peer review is routine in the field; not every peer reviewer can be presumed
to have influenced the field.
Regardless, as stated above, the issue of exceptional ability is moot. As noted by counsel, the
national interest waiver is available to both advanced degree professionals and aliens of exceptional
ability. The petitioner is an advanced degree professional. Thus, he need not demonstrate that he is
also an alien of exceptional ability according to the evidentiary requirements set forth at 8 C.F.R.
§ 204.5(k)(3)(ii). Even if we concluded that the petitioner was also an alien of exceptional ability,
that classification normally requires an alien employment certification certified by the Department of
Labor. Thus, we agree with the director that meeting one criterion, or even the requisite three criteria
for aliens of exceptional ability does not, by itsel:f, warrant a waiver of the alien employment
certification requirement in the national interest. Id. at 222.
The petitioner also submitted several reference letters discussing his work in the field. Citizenship
and hnmigration Services (CIS) 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. 1988).
However, CIS 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; CIS may evaluate the content of those letters as to whether
they support the alien's eligibility. See id. at 795-796. CIS 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. 1998) (citing Matter of Treasure Craft of
California, 14 I&N Dec. 190 (Reg. Comm. 1972)).
In evaluating the reference letters, we note that letters containing mere assertions of an interest or
positive response within the field are less persuasive than letters that provide specific examples of
how the petitioner has influenced the field. In addition, letters from independent references who
were previously aware of the petitioner through his reputation and who have applied his work are far
more persuasive than letters from independent references who were not previously aware of the
petitioner and are merely responding to a solicitation to review the petitioner's curriculum vitae and
work and rovide an opinion based solely on this review.
explains that the petitioner authored articles on lift in shear flows and "pioneered the use
of empirical correlations on data sets generated by numerical simulations." In addition,_1
discusses his own proposal that potential flow does not apply to the flow of inviscid fluids as
commonly thought; rather, "when c~e potential flow it is never necessary and usually not
useful to put the viscosity to zero." _Iasserts that this is a major revision to the foundations
of classical fluid mechanics, the demonstration of which posed a serious challenge to classical
mathematical analysis._ continues: "This is where [the petitioner's] superior analytical
skills really shined. He prepared a series of really brilliant demonstrations of the validity of the main
idea, putting the meat on the bones and making the major concept alive for the first time."
In addition, _tates:
·:.- .
Furthermore, his work even extends to a major revision of traditional boundary layer
theory which takes into account the effects of viscosity on the potential flow outside.
His work is a major advance in the field of dynamics of viscous fluids. This kind of
work is not expected of a graduate student and would be considered as a major
achievement even by a standard of established career scientists. The work resulted in
a series of significant papers. Though I am second author on these papers, the main
analytical ideas come from [the petitioner] himself. Most of these papers are accepted
or have appeared in the best journals; others are under review.
Finally,_ discusses the petitioner's recent work that had yet to be disseminated in the field
as of the date of filing. Thus, we will not consider this work as evidence of eligibility as of that date.
The director noted that the petitioner had not held a co-investigator position prior to the date of
filing. On appeal, counsel notes that the petitioner was qualified for this position as of the date of
filing. We do not find that whether the petitioner was qualified as a principal investigator as of the
date of filing is determinative. While such a position may be unusual for a postdoctoral researcher
and indicative of his potential, the position itself has limited relevance to the issue of the petitioner's
personal influence in the field. The record does not establish that principal investigator status is
indicative of a past influence in the field rather than the normal career progression for those
researchers who have completed their training. Thus, even if we concluded that the petitioner was a
principal investigator as of the date of filing, thlllt' by itself, justify a waiver of the alien
employment certification process. Ultimately, has affirmed the petitioner's roles on
various completed projects based on his first an owledge of those roles. Thus, the more
important issue is the influence of the published articles reporting the results of these projects.
, a professor at the New Jersey Institute of Technology, asserts that he has
known the petitioner since he first began his studies at the University ofMi~ci~
_ has visited the University of Minnesota during collaborations with_. _
asserts that the petitioner "introduced several excellent ideas for analyzing the results of direct
numerical simulations," which allowed him to obtain "power law correlations for the particle
velocity and e~positions; including a formula for the_liftforce similar to that of
aerodynamics." _characterizes this work as "extraordinary. further asserts that
the petitioner showed that the pulling power of polymeric liquids can be greatly enhanced by adding
nano sized particles. By studying floating particles with sharp edges the petitioner showed that the
contact angle at the edge of a disk can be as large as 90 degrees. Finally, _ asserts that the
petitioner studied the potential flow of a second order fluid over sp~owing that the
viscoelastic effects are in competition with the inertia effects. These results are "in good agreement
with several experimental observations in viscoelastic fluids."
Endowed Chair in Engineering at the University of California, Irvine (UC
Irvine) and a member of the National Academy of En_·nri rts that he knows the petitioner
through his articles and his presentations at UC Irvine. affirms the significance of the
petitioner's research focus and asserts that the publication of the petitioner's work in top journals is
evidence that his work has been ''well received." As discussed above, at issue is the influence o~
individual article, not the prestige of the journal in which it appeared. More significantly_
_ asserts that he "referenced~e petitioner's] publications on viscous potential
flows" in two recent grant proposals. _ asserts that his proposed research is just one of
example of the opportunities for new approaches opened by the petitioner's "pioneering
advancements."
, Director of Research at the French National Center for Scientific Research,
asserts that he l~e petitioner's work through reading his 2004 article on potential flow
over a sphere. ~asserts that he used the petitioner's paper "to design and test my
experiments on complex fluids such as foams." __affirms that his res~eement
with the petitioner's theoretical calculations. The record contains an article by _in which
he cites two of the petitioner's first-authored articles. _ spends an entire paragraph
discussing how his work is consistent with the petitioner's 2004 article in the Journ~
Mechanics and a manuscript "in preparation." In addition, at the end of the article, _
thanks the petitioner for "enlightening discussions." The petitioner is the only member of his
research team listed in the acknowledgements.
We will not presume that simply working with a member of the National Academy of Science or the
National Academy of Engineering is evidence of an influence in the field. Nevertheless, the
opinions of members carry significant weight. In this matter, the record contains two highly
persuasive letters from members, including one who is independent of the petitioner and who is
relying on the petitioner's work in his current research proposal. The letter from _, in
combination with his thorough citation of the petitioner's work, is also persuasive.
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 field of research, rather than on the merits of the individual alien.
That being said, the above testimony, and further testimony in the record, establishes that the
community recognizes the significance of this petitioner's research rather than simply the general area
of research. The benefit of retaining this alien's services outweighs the national interest that is inherent
in the alien employment certification process. Therefore, on the basis of the evidence submitted, the
petitioner has 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 sustained that burden. Accordingly, the decision of the director
denying the petition will be withdrawn and the petition will be approved.
ORDER: The appeal is sustained and the petition is approved.