sustained EB-2 NIW Case: Chemistry

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, D.C. 20529-2090 
-- - 
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U. S. Citizenship 
and Immigration 
m~scPC COPY 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. 5 1 153(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. 
Fohn F. Grissom, Acting Chief 
Administrative Appeals Office 
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 appeal 
will be sustained and the petition will be approved. 
The petitioner seeks classification pursuant to section 203@)(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. $ 1153@)(2), as an alien of exceptional ability and a member of the professions 
holding an advanced degree. The petitioner seeks employment as a research scientist at New York 
University (NYU), where he is currently employed under an H-1B nonirnrnigrant visa. The petitioner 
asserts that an exemption fi-om 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 fiom 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, as well as new letters and exhibits. 
Section 203@) 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. An additional finding of exceptional ability would be of no benefit to the petitioner, 
and therefore we need not discuss the merits of that claim. 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). 
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 (USCIS)] 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. 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. 8 204.5(k)(2) defines "exceptional ability" as "a degree 
of expertise significantly above that ordinarily encountered" in a gven 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. 
Counsel stated that the petitioner "has written more than 20 articles" since 1992, and that the 
petitioner's "works were sited [sic] more than 80 times by the world leading experts in the area of 
molecular dynamics and nonlinear optics." The petitioner submitted printouts fi-om a citation database, 
indicating an aggregate total of 78 citations of the petitioner's articles, including self-citations. The 
exact number of self-citations is not clear fi-om the record, because the printouts include only partial lists 
of the citing articles, but other materials in the record show that a substantial majority of the citations 
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are independent. The petitioner submitted copies of 20 articles that contain independent citations of the 
petitioner's work. Many of these articles cite more than one of the petitioner's prior publications; one 
2007 article fiom the Journal of Physical Chemistry A cited five of the petitioner's articles. 
[The petitioner] is already recognized nationally and internationally as an outstanding 
young scientist in the field of theoretical and computational chemistry. His studies have 
yielded very significant and highly visible results regarding the structures, energetics, 
and dynamics of molecule-doped rare gas clusters, and of molecular hydrogen inside the 
clathrate hydrates and nanostructured carbon materials. . . . 
I was [the petitioner's] adviser during his Ph.D. studies at the NYU Chemistry 
Department, 1997-2001. After getting his doctorate . . . he continued to collaborate with 
my group. [The petitioner] has continuously been one of my most valuable and most 
productive co-authors and, quite amazingly, accomplished in his spare time more in 
terms of research than many full-time associates. Therefore, the moment that a suitable 
appointment became available in my group late last year, I did not hesitate to offer it to 
[the petitioner]. Thus, since December 1, 2007, he has been an Assistant Research 
Scientist in the NYU Chemistry Department. . . . 
In the course of his Ph.D. thesis research, [the petitioner] made significant and original 
contributions to several very difficult problems of considerable current interest. . . . 
At the present time, [the petitioner] is playing the key, leading role in the exciting new 
research conducted by my group, on the fbndamental properties of molecular hydrogen 
inside two classes of novel materials, clathrate hydrates and nanostructured carbon 
materials (hllerenes, nanotubes, and nanohorns). Both show great promise for high- 
capacity hydrogen storage under relatively mild conditions. This topic has . . . 
potentially huge impact on how energy is produced and stored; it represents the key for 
the transition to a hydrogen-based economy. In the series of ground-breaking papers 
published within the past year and a half, [the petitioner] has for the first time treated 
rigorously and elucidated the quantum dynamics of one and more hydrogen molecules 
in the interior of the clathrate hydrates and fullerenes, in particular C60. 
(NAS) and winner of the 1957 Nobel Prize for Physics. Prof. 
 in his brief letter, focused mostly on 
the intrinsic merit of the petitioner's field of research; he deemsthe petitioner "an exc tionally brilliant 
young mind" but offers no details about the petitioner's work. Professo hof the 
University of Washingon, also a member of the NAS, likewise stressed the importance of the 
petitioner's specialty without saying much about the petitioner's specific work within that specialty. 
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information about the petitioner (with whom he has collaborated). He stated: 
I noticed [the petitioner] by his recent first-author publications of molecular dynamics of 
clathrate hydrates in 2006. Those studies are closely related to the hydrogen battery 
economy and energy industry, which are greatly related with the national interest of the 
United States. In his research works, [the petitioner] developed and used the unique 
theoretical methods to predict the ro-vibrational modes of hydrogen molecules in the 
clathrate hydrates. Some predictions in his papers were soon confirmed and widely 
cited by several famous experimental groups around the world afterwards. In July, 
2007, my research group invited [the petitioner] and to give a talk on the 
research results. Since then, we have launched and have been actively cooperating on 
the new project of molecular dynamics in C60. . . . 
[The petitioner's] research works on molecular dynamics are novel and very important 
for us to understand the interactions between molecules. Therefore, they are very 
helpful and illustrative for the experimentalists such as my group to develop new 
materials in the nano and energy industry. 
[The petitioner] has a sustained record of excellent publications in the field of physical 
chemistry. He has made influential contributions to the study of molecular clusters, as 
well as to the field of opto-physics. I collaborated with him on a number of papers in the 
field of molecular clusters between 2001 and 2005, and am quite familiar with his 
accomplishments. 
[The petitioner's] work has produced important new insights into the behavior of 
molecular clusters, which are species that bridge the gap between gases, liquids and 
solids. He has developed unique theoretical methods to handle the quantum motion of 
molecules inside solvent cages, which has important implications for our understanding 
of how compounds dissolve. These are central issues in physical chemistry and [the 
petitioner's] rigorous methods have had a considerable impact on our understanding of 
them. 
published work, stated: 
I am familiar with [the petitioner's] published theoretical research on nonlinear optics 
and have found it to be outstanding. In 2005 I recommended for publication two of hs 
papers on nonlinear optics for The Journal of Chemical Physics, a leading journal in my 
field, and I have reviewed other papers by [the petitioner] since then. [The petitioner] 
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decisively resolved an important problem between two theoretical methods that were 
widely thought to be equivalent. . . . 
[The petitioner's] contributions to the development of new mathematical models that 
can predict more accurate values of nonlinear optical coefficients have been very 
illuminating and helpfbl to my group's work. 
I have recently taken notice of [the petitioner's] work in nonlinear optics, especially after 
his publication earlier this yeas- of two definitive papers in the Journal of Chemical 
Physics (JCP) on the role of Kleinian symmetry in nonlinear optics. [The petitioner] and 
I have been in touch by email on this topic for more than half a year. From our 
communication and from my reading of his publications, I believe that [the petitioner] is 
a talented chemical physicist who possesses exceptional mathematical skills and sharp 
physical insight. . . . His work challenges long-held theories in our field. By means of 
his exceptional scientific skills, he has marshaled strong evidence in support of his new 
interpretation. In one particular work, [the petitioner] challenges a fimdarnental 
symmetry that has been widely accepted in the nonlinear optics field and has been 
written into textbooks since the 1960s. [The petitioner] has used his skillfbl analysis to 
predict theoretically a breakdown of this symmetry under certain physical conditions. 
This is a novel piece of work that impressed me personally and has given our 
community much to think about. He also presents suggestions on how to test this 
prediction in the laboratory. If experiments confirm this prediction, it is [a] 
breakthrough in the nonlinear optics field and could have very wide importance both 
scientifically and technologically. . . . It is also noteworthy that in his 1999 Journal of 
Physics paper, [the petitioner] pointed out the important nonequivalence of two 
conventional gauge approaches that many in the optics community thought would lead 
to equivalent predictions. My co-worker and I confirmed this conclusion by means of 
an entirely different calculation which we published in J. Modern Optics (2004). 
During the past five years, [the petitioner] has made significant research contributions. 
. . . As these research works address issues of fundamental scientific principles on 
nonlinear optics, they hold promise of significant impact on the scientific community. 
On June 1 1, 2008, the director denied the petition. The director acknowledged the intrinsic merit and 
national scope of the petitioner's research field, but found that "[nlone of the evidence of record 
establishes that the self-petitioner has accomplished anything more significant than other capable 
members of their profession holding similar credentials and conducting similar work." The director 
asserted that the petitioner's "achievements are notable, but as a whole the record does not persuasively 
establish that these accomplishments are of such unique significance that the labor certification 
requirement can be waived." 
Page 7 
On appeal, counsel contends that the petitioner's initial evidence, including the letters and citations 
discussed above, should have sufficed to establish the petitioner's eligibility for the waiver. The 
petitioner submits additional letters, most of them fi-om initial witnesses. Prof. states: "I am 
aware of just a few scientists who have the same qualifications as [the petitioner]. The nation needs 
scientists with [the petitioner's] talents immediately. . . . To ask him to wait for a labor certification 
amounts to the failure to exploit an available resource that is vital to the national interest.'' Prof. - 
argument rests on the false assumption that the petitioner would be unable to work in the United States 
while "wait[ing] for a labor certification." The petitioner is employed in the United States already, as an 
H-1B nonirnmigrant, and efforts to secure immigration benefits through labor certification would not 
invalidate the petitioner's existing H- 1 B status. See 8 C.F.R. 5 2 14.2(h)(16)(i). 
Prof. Soos asserts that the petitioner's "field is less active now than a decade ago" because "available 
researchers see greater potential in [other] areas," leaving fewer researchers to study the specific 
issues in which the petitioner specializes. This argument rests not on the particular merits of the 
petitioner's work, but on the general proposition that researchers are needed in the petitioner's field. 
This argument attests to the intrinsic merit of the petitioner's specialty, but does not demonstrate that 
the petitioner, in particular, qualifies for special benefits unavailable to others in that same specialty. 
While the AAO does not dispute the importance of the petitioner's specialty, it is the position of 
USCIS to grant national interest waivers on a case by case basis, rather than to establish blanket 
waivers for entire fields of specialization. Matter of New York State Dept. of Transportation at 2 17. 
The letters discussed above are not particularly persuasive, for reasons already discussed. Eligibility for 
the waiver must ultimately rest not only on the importance of the petitioner's field, but on the 
importance of the petitioner's work within that field. The latter factor is addressed in a new letter from 
Prof. BaCiC, who states: 
[The petitioner's] impressive research productivity and creativity, and the high visibility 
and impact of the papers that he has published, testify that his abilities are indeed very 
rare and substantially greater than those of the vast majority of hs peers in this country 
or abroad. . . . 
A series of his ground-breaking papers has illuminated the fundamental properties of 
molecular hydrogen inside two types of novel materials, clathrate hydrates and 
nanostructured carbon materials . . . , both of which show great promise for high- 
capacity hydrogen storage. Safe and economical hydrogen storage is the key for the 
transition to a hydrogen-based economy. 
The only new witness on appeal is 
 of ~rown University, who has 
recently collaborated with the p Prof. states: 
[The petitioner's] most recent work on encapsulated molecules is especially relevant to 
the design and evaluation of materials of possible value for hydrogen storage and 
release, or sequestration of pollutants such as CO and C02. His ability to manage the 
Page 8 
daunting challenge of many-body quantum calculations on dynamically complex 
systems has been developed over the past several years and, in my opinion, positions 
him as one of a very small group leading practitioners of the art and science of 
extracting and evaluating useful information from model potential energy surfaces. 
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. 8 1361. The petitioner has met that burden. Accordingly, the decision of the director denying 
the petition will be withdrawn and the petition will be approved. 
While the AAO has waived the job offer requirement in this proceeding, we emphasize that the waiver 
of the job offer requirement is only a waiver of specific technical requirements such as labor 
certification, and the requirement that the petitioner identifjr a specific position with a specific 
employer. It remains the case that the petitioner has sought an employment-based immigrant 
classification based on his work in a particular field of scientific research. Therefore, the approval of 
the waiver implies the expectation that the petitioner will continue to engage in similar research. The 
waiver of the requirement of a specific job offer does not relieve the petitioner from this expectation 
that he will continue to be employed as a scientific researcher in his stated area of expertise. 
The AAO includes this caveat because the ~etitioner's initial submission included a covv of an Aucrust 
the Immigration and Naturalization Service. The letter answered an inquiry concerning an alien 
whose employer had ceased operations after the alien had received a national interest waiver based 
on his work for that company. The petitioner emphasized the following portion of m 
letter: 
When a service center approves a petition based on a national interest waiver, the job 
offer requirement is waived, regardless of whether an employer signed the 1-140 
petition. In determining the validity of an approved petition filed under the national 
interest waiver provision, the primary issue is whether the alien still intends to be 
performing the activity or work which was the basis for the national interest waiver. 
Letters and correspondence issued by the Office of Adjudications are not binding on the AAO. 
Letters written by the Office of Adjudications do not constitute official USCIS policy and will not be 
considered as such in the adjudication of petitions or applications. Although the letter may be useful 
as an aid in interpreting the law, such letters are not binding on any USCIS officer as they merely 
indicate the writer's analysis of an issue. see Memorandum fro- Acting Associate 
Commissioner, Office of Programs, SigniJicance of Letters Drafted by the Ofice of Adjudications 
(December 7,2000). 
Furthermore? even if the letter were binding, the AAO notes that, after the above-quoted passage, 
went on to state that "the petition may remain valid" if "the basis for the national 
interest waiver was the alien's contributions to an industry which can be utilized by another 
employer." This reference to an "employer" is fully consistent with the AAO's position that if an 
alien seeks a classification defined by statute as employment-based, then the alien's continued 
eligibility for that classification is contingent on the alien's continued employment (as that term is 
commonly understood) in the same field through which the alien obtained that classification. If an 
alien has no good faith intention of continuing to be employed in a given field, but obtains a waiver 
through temporary employment in that field, then it would be entirely appropriate for USCIS to 
revisit and reconsider its prior approval of the petition. 
ORDER: 
 The appeal is sustained and the petition is approved.