sustained EB-2 NIW Case: Catalysis / Surface Science

Identifying data deleted to 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, D.C. 20529-2090 
prevent clearly unwarranted 
invasion of personal privacy 
 U. S. Citizenship 
and Immigration 
Services 
1.2 t 
2 
Office: TEXAS SERVICE CENTER Date: MAR 0 5 2009 
SRC 07 800 18458 
IN RE: 
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: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Offlce 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. 
v 
z~ohn F. Grissom, Acting Chief 
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 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. The 
petitioner seeks employment as a research scientist at Pacific Northwest National Laboratory (PNNL), 
Richland, Washington. The petitioner asserts that an exemption fiom the requirement of a job offer, 
and thus of a labor 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, the petitioner submits a brief fiom counsel and copies of exhibits already in the record. 
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 
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). 
Page 3 
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 [now U.S. Citizenship and Immigration Services] 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 
qualifl 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. 215 (Comrnr. 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 also note that the regulation at 8 C.F.R. 5 204.5(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 offerllabor 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. 
petitioner's current area of inquiry, stating: '"Titanium dioxide (TiO,) is a photocatalyst that has 
potential for hydrolysis, i.e., [to] break water into hydrogen and oxygen. Were the hydrogen collected, 
it could be used as a fuel. The hydrogen he1 can reduce US energy dependence on foreign oil." 
more significantly for our purposes here, he is "currently serving as Codirector for Pacific Northwest 
National Laboratory and University of Washington Joint Institute for Nanoscience." - 
stated: 
Fundamental understanding of catalytic properties of matter that occur at the atomic 
level to underlie revolutionary advances will contribute to improvements in catalysis, 
manufacturing, high performance materials and environmental technologies. 
[The petitioner's] achievements have significantly benefited the US national interests in 
this area. . . .Atomiclmolecular level surface science can provide ultimate ways to 
produce higher performance materials by arranging single atoms for designated 
purposes. [The petitioner] has already worked on atomically resolved studies of surface 
catalytic reactions of organic molecules on oxide surfaces using variable temperature 
scanning tunneling microscopy (STM) and synthesis and characterizations of 
oxideloxide nanostructures and their catalytic chemistry. 
[The petitioner's] research has led to remarkable original research discoveries in this 
direction. She has not only made significant original research contributions in the 
surface chemistry of water and alcohols on Ti02 surface, but she has also succeeded in 
studying [the] oxide surface itself. The atomic level observed surface chemistry of 
alcohols and water lead to a better understanding [ofl how these molecules' splitting on 
oxide surfaces emit hydrogen, which is one of [the] most important alternative energies. 
[The petitioner] has succeeded in observing the dynamic of oxygen vacancies on Ti02 
surface for the first time using atomic resolution STM as well. 
of the University of Texas at Austin is the Director of the Institute of Intedacial 
Catalysis (IIC) at PNNL. Prof. stated: 
During her two an half [sic] years in my group, [the petitioner] has conducted 
fundamental investigations on metal-oxide catalysts and has explored the possibility of 
using metal oxide catalysts for a variety of catalytic purposes including partial oxidation 
of hydrocarbons to make valuable liquid fbels and[] potentially to produce hydrogen 
fiom water using sunlight. . . . [The petitioner's] contribution in this field is both 
significant and substantial. . . . 
There is no doubt in my mind that [the petitioner] is one of the world's leading young 
researchers in this field. 
deemed the petitioner's "studies . . . an experimental tour- 
de-force since they required that adsorption fiom background contaminants such as water be avoided 
during the long (often-several hours) observation times. Notably, all prior groups have failed in this 
endeavor, leading to great confusion in the published literature." 
who served as an evaluator of a project that the petitioner conducted at PNNL, stated: 
[The petitioner's] discovery leads to an ultimate understanding of the water splitting 
mechanism on catalytic surfaces and can help researchers find catalysts for the design of 
materials required to produce hydrogen by using sunlight to split water. This technology 
ultimately will reduce U.S. total reliance on coal, gasoline and natural gas. . . . 
[The petitioner] originally developed a novel method for STM tip fabrication. The STM 
can obtain images of conductive surfaces at an atomic scale [ofl 2 x lo-'' m or 0.2 
nanometers, and also can be used to manipulate individual atoms, trigger chemical 
reactions, or reversibly produce ions by removing or adding individual electrons from 
atoms or molecules. STM has an extremely sharp stylus that scans the surface. The 
stylus is so sharp that its tip consists only of one atom. The performance of STM is 
dominated by the status of the STM tip. [The petitioner] developed a sputtering method 
in ultra-high vacuum chamber to improve the STM tip's stability and longevity. This 
discovery can improve the real atomic resolution observation window to get surface 
reactions at the atomic level. . . . 
[The petitioner's] pioneering discovery on dynamics of oxygen vacancies on Ti02 [sic] 
surfaces with atomic resolution high temperature STM provides a benchmark for further 
studies in this field. 
[The petitioner] worked as a postdoctoral researcher in our group fiom December 2002 
until August 2004. . . . 
Fuel cells are very usehl as power sources in mobile andlor remote locations, . . . [and] 
emit only water and heat as waste, and are thus benign to the environment. Platinum 
(Pt) is being studied due to its importance as a catalyst in he1 cell systems. Pt in an 
HPt(l10) system is known as an excellent model system for a Pt cathode in fuel cells. 
Understanding of this system helps in the technological application of Pt in hydrogen 
fuel cells. Despite numerous studies existing already, [the petitioner] succeeded during 
her research studies in Innsbruck in discovering a novel and unexpected hydrogen 
bonding site on platinum and thus in considerably improving the current understanding 
of the geometry and energetics of the HPt(l10) system. . . . 
In her most recent result on surface dynamics on Ti02, she achieved the first observation 
of the movement of oxygen vacancies on Ti02 surface with true atomic resolution. . . . 
These discoveries allow us to fathom how these molecules decompose to produce 
hydrogen, which is very promising as an important alternative means for producing 
energy. 
Page 6 
basis for a better understanding that will lead to finding more efficient catalysis for sustainable, 
renewable energy. . . . [Bloth the potential and already realized impact of [the petitioner's] work is quite 
significant." 
The petitioner submitted copies of her published work, along with documentation showing 22 
independent citations of that work. The citation record by itself is moderate, consisting of several 
articles each cited between one and six times. 
On December 6, 2007, the director issued a request for evidence, stating that the petitioner had failed to 
distinguish herself sufficiently from others performing similar research in the same specialty. In 
response to the notice, the petitioner submitted copies of 12 papers, some newly published, that contain 
citations of her published work, showing a pattern of increasing international citation of the petitioner's 
work. 
The petitioner also submitted seven new letters, all fiom witnesses outside of PNNL, although some 
witnesses have collaborated with PNNL researchers. of the University of 
Alabama stated: 
I am widely regarded as a world leader in the application of numerical simulation 
methods to chemical problems in a wide range of areas. . . . 
Through my research efforts and collaborations with staff at the Pacific Northwest 
National Laboratory as part of our joint catalysis project, I am very aware of [the 
petitioner's] work on surface science and its applications to catalysis. . . . [The 
petitioner's] work presents the clearest images about how oxygen vacancies move in 
crystal lattices and have significant technological implications. Furthermore, she proved 
that water molecule dissociation on Ti02 surfaces produces two different hydroxyl 
groups. This work overcame a major obstacle that had thwarted the efforts of many 
others in the field. As such, it is a milestone in Scanning Tunneling Microscopy tip 
chemistry and shows the significance of [the petitioner's] contributions. 
[The petitioner] showed that a single hydrogen atom fiom a water molecule hops across 
the titanium oxide surface, while what remains of the water molecule stays fixed, 
suggesting that the electronic structure of this popular catalyst are not entirely as they 
seem [sic]. This discovery is promising for developing technologies that use sunlight to 
split water to generate hydrogen, which is the cheapest, cleanest and most abundant 
energy source ever developed: the main by-products would be oxygen and water. 
I have not worked or collaborated with [the petitioner] directly, but I am familiar with 
her work and reputation; she comes highly recommended fiom my - 
deceased) and my colleague 
 with whom she did post- 
on my stature in the field as a leading expert, it is my professional opinion 
- - 
that [the petition&] has an outstanding reputation in the field if -surfice science and 
catalysis for a young, early-career scientist. This reputation is justly deserved fiom the 
numerous important publications published in highly-ranked international journals in the 
physical chemistry field. 
[The petitioner's] contributions regarding Ti02 systems involving water and alcohols 
adsorption and splitting are extremely exciting developments in our field. . . . Her work 
clearly provides a new scientific basis for preparation of novel catalytic materials. 
leading scientists in the area of metal oxides surface catalytic science," whose "seminal work is 
accelerating my own research." 
the petitioner's "research has significantly impacted the field of surface science, particularly in the area 
of high performance catalysts and new energy." 
of the University of Sherbrooke, Canada, stated that the petitioner's 
"discovery is one of [the] most exciting recent results in the research on oxide catalysts." 
of Heriot-Watt University, Edinburgh, Scotland, stated that the petitioner's 
"method clearly leads to great progress in fundamental study on catalyhc reaction mechanisms." 
The director denied the petition on April 17, 2008. In the decision, the director acknowledged that the 
petitioner "has extensive experience more specifically in the process of catalysis, and how it relates to 
Ti02 catalyst surfaces," but otherwise off'ered little discussion of the evidence submitted. 
On appeal, counsel argues that the director gave insufficient consideration to evidence and statements 
that supported approval of the petition. Upon consideration, the AAO concurs with this assertion. 
Several independent witnesses offered strong, consistent, and detailed statements in support of the 
petition, establishing the importance of the petitioner's work rather than simply asserting that the 
petitioner shows promise in an important area of research. Supporting these statements is documentary 
evidence showing that others are citing the petitioner's work at an accelerating rate. 
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 evidence in the record establishes that the scientific 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 labor certification 
Page 8 
process. Therefore, on the basis of the evidence submitted, the petitioner has established that a waiver 
of the requirement of an approved labor 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. 5 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.