sustained EB-2 NIW Case: Chemical Engineering

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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:
I
LIN 05 17951708
Office: NEBRASKA SERVICE CENTER Date: JUl 23 2001
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)
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.
fiPJ/tl OU(dfJttc1:'Robert P. Wiemann, Chief
'( VAdministrative 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 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 chemical engineering researcher. 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 additional evidence. For the reasons discussed below, we find
that the petitioner has established 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 petitioner holds a Ph.D. in Chemical Engineering from Iowa State University. 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. ofTransp., 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, chemical
engineering, and that the proposed benefits of his work, more efficient crystallization modeling,
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 ofTransp., 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.
Page 4
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.
As stated above, the petitioner obtained his Ph.D. at Iowa State University. Since that time the
petitioner has been working as a research associate for the institution although it appears that he is
performing this research at a BP America, Inc. facility in Illinois. The petitioner worked on a
Department of Energy (DOE) project that included Fluent, Inc., Dow Chemical and Dupont.
According to one reference, the petitioner also collaborated with "Prof. ' from
Princeton University. As of the date of filing, the petitioner had authored four articles, one of which
had been moderately cited by independent research teams. The director concluded that the petitioner
had not demonstrated his influence in the field as he had not been sufficiently cited or specifically
named on any research grant.
On appeal, counsel submits evidence of additional citations. The petitioner must demonstrate
eligibility as of the date of filing. See 8 C.F.R. § 103.2(b)(12); Matter ofKatigbak, 14 I&N Dec. 45,
49 (Reg. Comm. 1971). Evidence that, after the date of filing, other independent researchers have
cited the petitioner's work is not evidence of his influence as of that date. Nevertheless, we
acknowledge that the petitioner had been cited prior to filing the petition and that his work continues
to be referenced in the field.
In addition, counsel asserts that we should not focus on one type of evidence and that influence can
be demonstrated in ways other than citations. Counsel asserts that the petitioner submitted letters
from others in the field who attest to his impact in the field. The petitioner submits letters from his
State University, and and BP, Dr.
and as well as letters from researchers at Dow Chemical,
Dupont and Princeton University. The petitione a former collaborator
and coauthor currently at Politecnico di Torino In addition to these
letters, the petitioner also submitted letters from more independent references.
Citizenship and Immigration Services (CIS) may, in its discretion, use as advisory opimons
statements submitted as expert testimony. See Matter ofCaron 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 ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972)).
In evaluating the reference letters, we note that letters containing mere assertions of industry interest
and positive response in 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 provide an opinion based solely on this review .
• ' the petitioner's Ph.D. advisor_ that he is a pioneer researcher in the areas of
micromixing and crystallization research. asserts that the petitioner focused on developing a
computation and experimental framework for computation fluid dynamics (CFD) simulation of particle
nucleation, growth, aggregation and breakage during crystallization, a complex problem of great
importance to the u.s. chemical and pharmaceutical industries. More specifically, the petitioner
provided "a systematic method to optimize existing technologies and to computationally test new
processes for producing particulate material with specific desired characteristics such as size
distribution and surface area." According to _, this method was adopted by Fluent, Inc. in their
new version of FLUENT, the world's largest commercial CFD software. While this claim would have
been bolstered by confirmation from a high-level official at Fluent, Inc., we note that_
confirms that BP America, Inc. purchased the petitioner's crystallization modeling package, together
with FLUENT software to evaluate and improve the chemical reactor performance for their purified
terephthalic acid (PTA) process. More significantly, while Fluent, Inc. appears to have been a partner
in the petitioner's DOE funded project, , Head of Consulting at Process Systems
Enterprise, Ltd. in London, asserts that his company is also implementing the petitioner's model in their
own process modeling commercial software, gPROMS. The record also contains letters from other
independent researchers, such as Associate Head of the School of
Chemical Engineering at Purdue University, attesting to e petitioner's impact in the field.
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 CFD
modeling 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.