sustained EB-2 NIW Case: Chemistry

identifYing data deleted to 
preve.nt clearly unwarranted 
invasIOn of personal privacy 
PUBLIC Copy 
DATE: NO\' 2 1 2011 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
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: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
Thank you, 
M~~\.uvv. 
&y1>~~ew~ ~ 
Chief, Administrative Appeals Office 
www.uscis.gov 
-Page 2 
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 AAO will 
sustain the appeal and approve the petition. 
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 . holding an advanced degree. The 
petitioner is a postdoctoral research associate at the 
petitioner asserts that an exemption from the requirement of a job offer, and thus of a labor 
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 from counsel. 
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)Waiveroflob 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, 101st Cong., 1st Sess., 11 (1989). 
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 
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 Dept. of Transportation (NYSD01), 22 I&N Dec. 215 (Comm'r 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 ofthe 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. 
The AAO also notes that the regulation at 8 C.F.R. § 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 offer/labor 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. 
The petitioner filed the Form 1-140 petition on December 28,2009. The petitioner's initial submission 
included documentation showing that the petitioner earned a B.S. in chemistry and biology from the 
He then studied biochemistry for a year at_ 
••••••• before transferring to the earning a Ph.D. in 
chemistry. 
The petitioner's initial submission included copies of four published articles that he co-authored, along 
with lists of other articles that have cited the petitioner's articles: 
Page 4 
In total, the petitioner showed 450 citations of his work, averaging 112 citations per article. 
Six witness letters accompanied the petitioner's initial submission, four from 
faculty members and two from other institutions. The earliest-dated letter is from 
" 
associate professor at the The letter, dated March 1,2009, predates 
the other letters in the record by six to eight months. stated: 
In my independent opinion, [the petitioner] is one of the top young scientists in the 
country, and is both nationally and internationally recognized for his extraordinary 
research work in the field of nanoscience and nanotechnology, with special emphasis on 
how surface chemistry affects the optical properties of nanomaterials .... 
[The petitioner] has done pioneering work in various areas of nanomaterials science 
including developing new synthesis of tiny semiconductor particles, understanding how 
light affects the stability of the nanoparticle solution, and developing new ways to 
impart biological functionality to semiconductor nanopartic1es. His work not only 
demonstrates impressive intellectual contributions to the field of nanomaterials research, 
but also includes novel technical and synthetic advancements, which are very valuable 
to other scientists. 
[The petitioner] is an expert in the surface chemical properties of novel nanometer scale 
materials that have new characteristics that can not be obtained from their macroscopic 
counter-parts. He possesses the ability to develop new strategies for materials synthesis 
and to combine these skills with a strong analytical background in order to fully 
characterize and more importantly to fully understand the nature of nanoparticle surface 
chemistry. Since nanometer scale materials have a huge percentage of atoms on the 
surface, relative to a macroscopic object, his work is of prime importance to researchers 
in the field as well as those looking to use nanoparticles in a practical manner. ... 
For someone at his very early career stage, [the petitioner] has also established a strong 
record of research accomplishments and leadership in the area of nanomaterials. He has 
published papers in the top-rated chemical journals in the world. 
signed a letter 
dated November 11, 2009. Much of the text of letter repeats _letter, even 
including the idiosyncratic use of "can not" rather than "cannot," and "counter-parts" instead of 
Page 5 
signed a November 2009 letter that also included some 
of the same 9, 2009 letter from Professor of 
includes passages quoted from letter. It is not clear 
whether these witnesses copies from letter, or, instead, all of the witnesses (including • 
••• relied on a template provided by an unspecified author. 
The letters that do not borrow heavily from _ letter also do not provide many details about 
the petitioner's work. who supervised the petitioner's doctoral 
research, asserted that the petitioner "is one ofthe top young chemists in the country." _ stated 
that the petitioner "performed well" in his group, but offered no details about the nature or importance 
of his work. 
associate professor at the praised the 
petitioner's abilities as a teacher, but acknowledged that the petitioner's "research topics are not in my 
area of expertise." 
On February 2, 2010, the director issued a request for evidence. The director noted that many letters 
described the petitioner's work as "revolutionary," but found that the petitioner had submitted no 
documentary evidence to support that claim. The director acknowledged the petitioner's submission of 
"copies of four articles" published while the petitioner was a student, but did not mention their citation 
history. The director instructed the petitioner to submit evidence to show the national importance of his 
work, and to establish that it is in the national interest for the petitioner to do that work, instead of a 
qualified United States worker. 
In response, the petitioner submitted background information about his research specialty and the 
growing nanotechnology industry. In terms of his own contributions, the petitioner noted that other 
researchers around the country and the world have cited his work. The 'tioner observed 
that three of his articles appeared in the "the most cited 
journal in chemistry" with an impact factor of 8.091 in 2008. Every article claimed by the petitioner 
well exceeds that citation rate. 
The director denied the petition on August 20, 2010, stating that the petitioner "failed to submit any of 
the information the Service requested." The director observed that the importance of the field is not 
sufficient to show eligibility. The director stated that the petitioner's materials "made reference to work 
accomplished mostly throughout the years he was completing his studies." 
On appeal, counsel states that the director's "written decision did not detail how he or she reached [the] 
conclusion" "that Petitioner did not establish that a waiver would be in the national interest." Counsel 
notes that the director identified "various factors to be considered," the director did not discuss how the 
petitioner's evidence measured up to those factors. 
Counsel persuasively asserts that the intrinsic merit and national scope of the petitioner's work are not 
in dispute, and asserts that the petitioner "has proven himself to be a noted author" with several cited 
Page 6 
articles. Counsel also asserts that distinguished scholars have provided letters in support of the petition. 
(For reasons already discussed, the witness letters have limited favorable weight.) 
The AAO finds considerable merit in many of counsel's assertions. The record supports counsel's 
claim that the director listed various factors for consideration, but offered little if any explanation as to 
why the petitioner's evidence is inadequate relative to those factors. 
The AAO takes particular note of the hundreds of documented citations of the petitioner's published 
work. While the petitioner has not produced a large volume of published work, the articles he has 
published have been widely influential, as demonstrated objectively by their very high citation rate. 
The director did not even mention this aspect of the record, much less explain why it should not be 
considered a major factor strongly in favor of approval of the petition. 
Other assertions by counsel are less persuasive (such as a discussion of a predicted worker shortage), 
but the weaknesses ofthese arguments do not detract from the stronger points. 
With respect to the director's observation that the petitioner was a student when he published his cited 
articles, th_ states: "the alien's past record need not be limited to prior work 
experience. ~e does not seek a quantified threshold of experience or education, but 
rather a past history of demonstrable achievement with some degree of influence on the field as a 
whole." Id. at 219 n.6. If the petitioner's published research has been heavily influential in the field, as 
appears to be the case, then it is not particularly important that he was a student at the time he conducted 
and published that research. It has no effect on the content of the publications. 
The record objectively indicates that the petitioner has performed consistently influential research in his 
specialty. The director did not identify any persuasive negative factors. Therefore, the petitioner has 
established by preponderance of evidence that he stands out in his field to a degree that a waiver of the 
job offer requirement would serve the national interest. 
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 
ofthe requirement ofan 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. § 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.