sustained EB-2 NIW Case: Chemistry

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
pUJBBLId: COPY 
FILE: Office: VERMONT SERVICE CENTER Date: OCT O 7 2005 
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 
the office that originally decided your case. Any further inquiry must be made to that office. 
)/Robert P. Wiemann, Director 
Administrative Appeals Office 
- <- -- - 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the employment-based immigrant visa petition. 
The matter 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. tj 1 153(b)(2), as an alien of exceptional ability. The petitioner seeks employment as an aerogel chemist 
arlborough, Massachusetts. The petitioner asserts that an exemption from the 
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 ffom the requirement of a job offer would be 
in the national interest of the United States. 
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 subgtantially 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 businesskbe sought by an employer in the United 
States. 
The director determined that the petitioner qualifies for classification as a member of the professions holding 
an advanced degree. While the petitioner has claimed eligibility as an alien of exceptional ability, the 
petitioner offered no specific arguments or evidence in support of that claim, and a finding of exceptional 
ability would be of no further advantage to the beneficiary in this proceeding. 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 Unit& States economically and otherwise. . . ." S. Rep. No. 55, 
lOlst Cong., 1st Sess., 1 1 (1989). 
Page 3 
Supplementary information to the regulations implementing the Immigration Act of 1990 (IMMACT), published 
at 56 Fed. Reg. 60897,60900 (November 29, 199 1 ), states: 
The Service [now Citizenship and Immigration Services (CIS)] 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 fiom, 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 15 (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 inclusipn 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. 
A job offer letter from Aspen Aerogels descr,ibes the petitioner's duties: "This position will initially involve 
synthesis and process development for low-density aerogel beads, powders and composites using sodium 
silicates as a starting material. You will be one of the key people to establish our program in low cost 
aerogels suitable for mass production. Your job will not be limited to this area and there will be many 
opportunities for career growth." 
The petitioner submits several witness letters. Representative states that the petition "is 
an excellent opportunity for our nation to offer an extraordinary scientist an opportunity to contribute to our 
national interest through his research on flexible aerogel materials." Professor -of Brown 
University states: 
[The petitioner] joined my laboratory as a PhD candidate in the Department of Chemistry at 
Brown University in 1996, carrying out research on the preparation and characterization of 
composite aerogel molecules. Aerogels are a class of highly porous, low-density solid 
materials that have a variety of potential applications. [The petitioner] made several original 
breakthroughs in synthesis and characterization of novel composite aerogels. His thesis work 
. . . offers a general method of preparing aerogels that combine several desired properties, 
which include transparency, high surface area, and chemical reactivity. . . . [Tlhese materials 
can be used as components of detectors, sensors, absorbing agents, and optical devices. [The 
Page 4 
petitioner] has also been at the forefront of research on revealing the microstructure of the 
composite aerogel materials. . . . [The petitioner] and his collaborator,at 
Argonne National Laboratories, developed's novel mathematic model that . . . is extremely 
valuable in characterizing the microstructure of acid-catalyzed aerogel materials. Based on 
this model, [the petitioner] was able to reveal for the first time the effects of the polymer on 
the composite aerogel microstructure. These findings are very important for future design 
and development of composite aerogel materials. 
director of product research and development at Aspen Aerogels, states: 
As a key member of Aspen's R&D team, [the petitioner] is one of the top scientists in the 
field of flexible aerogel formulation. His innovative research has brought us an extremely 
important approach to manufacture our revolutionary flexible aerogel products at 
significantly lower costs. . . . 
In [the petitioner's] research, he has developed novel formulations that reduce the raw 
material costs of flexible aerogel to less than one tenth of the previous level. He further 
developed a bench top scale process that is suitable for commercial scale production. [The 
petitioner] is currently the lead scientist in Aspen's scale-up process of the new formulations, 
and has successfully demonstrated the production of prototype products. This innovation 
significantly reduces the production cost of flexible aerogel and brings immediate practical 
impact on the field. 
Potential savings for the US government and Aspen's commercial customers based on this 
innovation will be enormous. This significant achievement is one of the most important 
milestones in flexible aerogel development, and establishes [the petitioner's] status as one of 
the top scientists in the field of flexible aerogel formulation. 
[The petitioner] developed formulations and processes to produce flexible aerogels based on 
water glass; a raw material that costs less than 1/10 of our current-generation raw material. 
This is a major breakthrough in our flexible aerogel product development. [The petitioner] is 
currently leading Aspen's research on pilot-scale production materials based on these new 
formulations and processes. The formulations and processes developed by him are the 
cornerstone of our next-generation product, which will be significantly less expensive than 
our current-generation product. 
Improving the cost effectiveness of flexible aerogel materials is one of the central elements to 
most of our government projects. The technology developed by [the petitioner] is of critical 
importance to these projects. For example, [the petitioner] is currently working as one of the 
two leading investigators in a DOE funded phase I1 project . . . to develop an aerogel-based, 
highly-efficient thermal insulation material for commercial and residential ductwork 
insulation. . . . Based on the aerogel technology developed by [the petitioner], low cost 
flexible aerogel blankets that meet the project requirements have been successfully 
fabricated. . . . 
[The petitioner] has also worked as the project manager of a NASA funded project . . . [that] 
has successfully developed a novel composite flexible aerogel product that has excellent 
mechanical properties. [The petitioner] and his collaborators in this project are nominated for 
two NASA Tech Brief Awards for this significant invention. 
The petitioner has also "submitted three highly rated research proposals" to the Department of Defense and 
NASA with regard to "novel applications of functionalized aerogel materials in chemical/biological 
decontamination." There is no indication that these proposals have yielded any research funds. 
NASA researchers discuss Aspen Aerogels' involvement in various projects, but they make no specific 
mention of the petitioner. Thus, by themselves, the witness letters do not indicate that the petitioner's work 
has attracted significant notice except from his professor and his employer. 
The petitioner also submits copies of various published materials. Some of these appear to be, essentially, 
self-promoting press releases from the petitioner's employer. Other, more significant documents will be 
discussed below in the context of the appeal. 
The director denied the petition, acknowledging the intrinsic merit and national scope of the petitioner's 
work, but finding that the petitioner has not shown that his work has had a substantial impact on his field of 
endeavor. For example, the petitioner has submitted copies of his published work, but he has not shown that 
other researchers have heavily cited this material. The director also stated that an alien does not qualify for 
the waiver simply by working on an important project. 
On appeal, the petitioner argues that the director should have issued a request for evidence prior to the denial, 
as required by 8 C.F.R. 5 103.2(b)(8). There is some merit to this argument, as the cited regulation indicates 
that such a notice is required "where there is no evidence of ineligibility, and . . . the Service finds that the 
evidence submitted . . . does not fully establish eligibility for the requested benefit." 
The petitioner also asserts: "The director. . . overlooked important testimonial evidence and important outside 
documentary evidence that indicates the petitioner's standing in his field." Among this evidence are materials 
from R&D Magazine, indicating that Aspen Systems, Inc., Aspen Aerogels, Inc., and the NASA Kennedy 
Space Center shared an "R&D 100 Award" in 2003 "for the development of Flexible Aerogel 
Superinsulation, Selected by R&D Magazine as One of the 100 Most Technologically Significant New 
Products of the Year." Other materials in the record independently attest to the prestige of the R&D 100 
Award. 
An article in R&D Magazine does not mention the petitioner, but indicates that the research team "has 
overcome" the two limitations that have heretofore prevented commercialization of aerogel insulation 
technology, specifically "high manufacturing costs and extreme brittleness." This indicates significant 
Page 6 
independent recognition of Aspen's reduction of manufacturing costs for flexible aerogels, and officials close 
to the project have stressed that the petitioner was not only involved with this project, but was a key member, 
personally responsible for innovations that made the final outcome possible. Thus, when the disparate pieces 
of evidence are brought together, a picture emerges to show that the petitioner, as an individual, is personally 
responsible for much of what the industry has recognized as a significant breakthrough. This supports the 
petitioner's employers7 claims to the effect that the petitioner is a leading figure in this type of research. A job 
offer letter from Aspen Aerogels describes the petitioner's duties: "This position will initially involve 
synthesis and process development for low-density aerogel beads, powders and composites using sodium 
silicates as a starting material. You will be one of the key people to establish our program in low cost 
aerogels suitable for mass production." 
The petitioner submits several witness letters. of ~rown University states: 
[The petitioner] joined my laboratory as a PhD candidate in the Department of Chemistry at 
Brown University in 1996, carrying out research on the preparation and characterization of 
composite aerogel molecules. Aerogel? are a class of highly porous, low-density solid 
materials that have a variety of potential applications. [The petitioner] made several original 
breakthroughs in synthesis and characterization of novel composite aerogels. His thesis work 
. . . offers a general method of preparigg aerogels that combine several desired properties, 
which include transparency, high surface area, and chemical reactivity. . . . [Tlhese materials 
can be used as components of detectors, sensors, absorbing agents, and optical devices. [The 
petitioner] has also been at the forefront of research on revealing. the microstructure of the " 
composite aerogel materials. . . . [The petitioner] and his collaborator, at 
Argonne National Laboratories, developed a novel mathematic model that . . . is extremely 
valuable in characterizing the microstruciure of acid-catalyzed aerogel materials. Based on 
this model, [the petitioner] was able to reveal for the first time the effects of the polymer on 
the composite aerogel microstructure. These findings are very important for future design 
and development of composite aerogel msterials. 
- director of product research and development at Aspen Aerogels, states: 
As a key member of Aspen's R&D team, [the petitioner] is one of the top scientists in the 
field of flexible aerogel formulation. His innovative research has brought us an extremely 
important approach to manufacture our revolutionary flexible aerogel products at 
significantly lower costs. . . . 
In [the petitioner's] research, he has developed novel formulations that reduce the raw 
material costs of flexible aerogel to less than one tenth of the previous level. He further 
developed a bench top scale process that is suitable for commercial scale production. [The 
petitioner] is currently the lead scientist in Aspen's scale-up process of the new formulations, 
and has successfully demonstrated the production of prototype products. This innovation 
significantly reduces the production cost of flexible aerogel and brings immediate practical 
impact on the field. 
Potential savings for the US government and Aspen's commercial customers based on this 
innovation will be enormous. This significant achievement is one of the most important 
milestones in flexible aerogel development, and establishes [the petitioner's] status as one of 
the top scientists in the field of flexible aerogel formulation. 
[The petitioner] developed formulations and ,processes to produce flexible aerogels based on 
water glass; a raw material that costs less than 1/10 of our current-generation raw material. 
This is a major breakthrough in our flexible aerogel product development. [The petitioner] is 
currently leading Aspen's research on pilot-scale production materials based on these new 
formulations and processes. The formulations and processes developed by him are the 
cornerstone of our next-generation product, which will be significantly less expensive than 
our current-generation product. 
Improving the cost effectiveness of flexible aerogel materials is one of the central elements to 
most of our government projects. The technology developed by [the petitioner] is of critical 
importance to these projects. For example, [the petitioner] is currently working as one of the 
two leading investigators in a DOE funded phase I1 project . . . to develop an aerogel-based, 
highly-efficient thermal insulation material for commercial and residential ductwork 
insulation. . . . Based on the aerogel technology developed by [the petitioner], low cost 
flexible aerogel blankets that meet the project requirements have been successfully 
fabricated. . . . 
[The petitioner] has also worked as the project manager of a NASA funded project . . . [that] 
has successfully developed a novel composite flexible aerogel product that has excellent 
mechanical properties. [The petitioner] and his collaborators in this project are nominated for 
two NASA Tech Brief Awards for this significant invention. 
The petitioner has also "submitted three highly rated research proposals" to the Department of Defense and 
NASA with regard to "novel applications of functionalized aerogel materials in chemical/biological 
decontamination." There is no indication that these proposals have yielded any research funds, and no 
evidence to support the assertion that the proposals have been "highly rated." 
NASA researchers discuss Aspen Aerogels' involvement in various projects, but they make no specific 
mention of the petitioner. Thus, by themselves, the witness letters do not indicate that the petitioner's work 
has attracted significant notice except from his professor and his employer. 
The petitioner also submits copies of various published materials. Some of these appear to be, essentially, 
self-promoting press releases from the petitioner's employer. Other, more significant documents will be 
discussed below in the context of the appeal. 
The director denied the petition, acknowledging the intrinsic merit and national scope of the petitioner's 
work, but finding that the petitioner has not shown that his work has had a substantial impact on his field of 
endeavor. For example, the petitioner has submitted copies of his published work, but he has not shown that 
other researchers have heavily cited this material. The director also stated that an alien does not qualify for 
the waiver simply by working on an important project. 
On appeal, the petitioner argues that the director should have issued a request for evidence prior to the denial, 
as required by 8 C.F.R. 5 103.2(b)(8). There is some merit to this argument; as the cited regulation indicates 
that such a notice is required "where there is no evidence of ineligibility, and . . . the Service finds that the 
evidence submitted . . . does not fully establish eligibility for the requested benefit." 
The petitioner also asserts: "The director . . . overlooked important testimonial evidence and important outside 
documentary evidence that indicates the petitioner's standing in his field." Among this evidence are materials 
from R&D Magazine, indicating that Aspen Systems, Inc., Aspen Aerogels, Inc., and the NASA Kennedy 
Space Center shared an "R&D 100 Award" in 2003 "for the development of Flexible Aerogel 
Superinsulation, Selected by R&D Magazine as One of the 100 Most Technologically Significant New 
Products of the Year." Other materials in the record independently attest to the prestige of the award. 
An article in R&D Magazine does not mention the petitioner, but indicates that the research team "has 
overcome" the two limitations that have heretofore prevented co~nmercialization of aerogel insulation 
technology, specifically "high manufacturing costs and extreme brittleness." This indicates significant 
independent recognition of Aspen's reduction of manufacturing costs for flexible aerogels, and officials close 
to the project have stressed that the petitioner was not only involved with this project, but was a key member, 
personally responsible for innovations that made the final outcome possible. Thus, when the disparate pieces 
of evidence are brought together, a picture emerges to show that the petitioner, as an individual, is personally 
responsible for much of what the industry has recognized as a significant breakthrough. This supports the 
petitioner's employers' claims to the effect that the petitioner is a leading figure in this type of research. 
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 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. fj 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.