sustained EB-2 NIW Case: Civil Engineering

(b)(6)
DATE: FEB 1 9 2013 
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 
OFFICE: TEXAS SERVICE CENTER 
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. § 115~(b)(2) 
ON BEHALF OF PETITIONER: 
·INSTRUCTIONS: 
Enclosed please find the decision of the Admi!listrative ~ppeals 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, 
• 
Ron Rosenberg 
Acting Chief, Administrative 
Appeals 
Office 
www.uscis.gov 
(b)(6)
Page2 
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 professions holding an ·advanced degree. The 
petitioner is a civil engineer, specializing in transportation safety, currently employed as a postdoctoral 
associate at the , The petitioner asserts that an exemption 
from 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 ofthe United States. 
In this decision, the term ''prior counsel" shall refer to who represented the 
petitioner at the time the petitioner filed the petition. The term "counsel" shall refer to the present 
attorney of record. 
On appeal, the petitioner submits a brief from counsel and additional evidence. 
Section 203(b) ofthe 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 qegrees 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. 
(b)(6)Page3 
Neither the statute nor the pertinent_ regulations define the tenn "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 whq would benefit the United States 
economically and otherwise .... " S. Rep. No. 55, lOlst Cong., 1st Sess., 11 (1989). 
Supplementary information to the 
regulations implementing the Immigration Act of 1990, 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 from, or waiver of: the job offer will be in the national interest. 
Each case, is to be judged on its own merits. 
In reNew York State Dept. of Transportation, 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, the 
petitioner must show that the alien seeks employment in an area of substantiar intrinsic merit. Next, the 
petitioner must show 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. 
While the national interest waiver hinges on prospective national benefit, the petitioner must establish 
that the alien's past record justifies projections of future ben((fit to the national interest. The petitioner's 
subjective assurance that the alien wil~ in the future, serve the national interest ·cannot suffice to 
establish prospective national benefit. The inclusion of the tenn "prospective" is used here to require 
future contnbutions 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 January 30, 2012. In an accompanying statement, 
prior counsel 
stated: 
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[The petitioner] has made research breakthroughs in occupant safety and vehicle 
·crashworthiness, which ... have significantly impacted the entire field .... She is a 
highly respected expert in her field of endeavor, with outstanding international 
reputation. 
[The petitioner's] research breakthroughs have received considerable international 
attention .... [The petitioner's] papers have become hot targets ofmulticitations .... 
Her work has triggered follow-up investigations .... She is currently co-directing the 
[The petitioner's] research findings have aroused considerable. international attention, 
which have been cited by scientists for many times [sic]. The widespread 
implementation of her work by others in the field reflects her significant impact on 
the field, as well as international recognition ofher work. ... 
Many scientists in the field do not merely reference [the petitionee's] work. They 
have discussed, substantively and specificallyon [the petitioner's] work. They are 
expanding, extending [the petitioner's] work. 
The record shows that the petitioner has published her work in ioumals and presented it at 
conferences. and that she holds a oatent for a designed 
The petitioner submitted copies of her published 
articles, and copies of several articles containing citations to her work. 
A number of witness letters accomoanied the initial filing of the petition, including the examples 
discussed below. the petitioner's academic adviser and research co-
adviser during her doctoral studies at , stated: · 
[The petitioner] has demonstrated her unsurpassed research capability by her 
groundbreaking findings about safety and protection of rear seat occupants during her 
PhD studies. She is among the first scientists to clarify the negative effects of high 
stiffuess frontal structure of cars on the safety of rear seat occupants. Prior to her 
study, it was considered a fact among the community that advanced high strength 
steel materials improve safety of vehicle occupants. Her research showed for the first 
time that in fact this understanding was not tr:ue for the population using the rear 
seats .... 
· At she is working as a Postdoctoral Associate on ariother line of her passion, 
crash modeling of Lithium ion batteries. Safety of advanced automotive battery 
packs is a major obstacle on the way of electrification. [The petitioner] has started 
modeling of the batteries to determine their safety liinits, and make a fmite element 
model of the cell, and battery pack capable of predicting possible short circuit in case 
(b)(6)
Page5 
of a crash. With her exceptional talent, she has started producing significant results. in 
the very short time that she has started this research. 
director of , stated: 
·Over the past 'seven month[s], [the petitioner] has made several outstanding 
contributions to my lab. First, she was instrumental in developing an 
This proposal resulted in launching a new program on crash safety 
ofT jthium-ion hatteries .... She is currently co-directing the 
This consortium is bringing over $600,000 support from the car 
industry .... 
[The petitioner] is one ofthe few people pioneering the research in failure prediction 
of Li-ion batteries. She was the frrst researcher to systematically study the 
deformation mechanism in the battery interior under complex loading conditions .... 
What is remarkable is that she .developed a prototype computational model for both 
cylindrical as well as pouch batteries, which has entirely different structural 
arrangement of the jelly roll. Furthermore, the results of numerical simulation of her 
computer models agreed very well with independently performed tests. 
Regarding the petitioner's work with battery crash safety, executive technical 
leader for safety at stated: "I significantly rely on the 
work and the published research that was conducted by [the petitioner] as a pioneer researcher in this 
newly [sic] field of safety." 
~ ~ praised the petitioner's various 
papers on lithium ion batteries, and stated: ''The quality and importance ·of [the petitioner's work] 
has recently motivated _ ~~~ _ ~-- .: to award a research contract to her 
work." 
On July 2, 2012, the director issued a request for evidence (RFE). The director acknowledged the 
petitioner's initial submission, but found the submitted evidence to be_ insufficient. The director, for 
instance, stated: ''the petitioner did not submit any evidence to show that others [sic] individuals or 
companies have taken an interest in the beneficiary's patent, or to show the impact that the patent 
has had on the field." The director instructed the petitioner to "submit evidence to establish that the 
beneficiary's past record justifies projections of future benefit to the nation" (emphasis in original). 
In response to the RFE, prior counsel maintained that previously submitted evidence demonstrates 
that the petitioner "is an internationally recognized expert and her breakthroughs 
including a US 
patent have impacted the field." The petitioner submitted further witness letters, as well as evidence 
relating to her rompensation, student prizes she received, and further citation of her work. 
(b)(6)
Page6 
The director.denied the petition on October I, 2012. The director acknowledged the intrinsic merit 
of the petitioner's occupation, and found that the benefit from her work is national in scope. The 
director concluded, however, that the petitioner had not established a past history of influential 
achievements that would justify projections of future benefit to the United States. Regarding the 
petitioner's published work, the director stated: ''The petitioner was cited only a small number of 
times by others in the field. The small number of publications and sparse pattern of citation does not 
show that the petitioner has had a past record of success with some degree ofinfluence on the field." 
The director 
quoted from several witness letters but found _them insufficient, stating: ''the authors do 
not provide any examples of whether the petitioner's work is being used by others in the field, or 
how her research has already influenced the field." The director stated, for instance, that 
"does not indicate that any companies have expressed an interest in commercializing the 
petitioner's work" and "does not describe how 
individuals in the field rely on the petitioner's 
research, or consider the petitioner's prototype [computational model for battery crash loads] to be 
influential on the field." 
On appeal, the petitioner provides updated citation figures. Counsel asserts, correctly, that "certain 
scientific fields have widely different rates of publication and citation," and contends: "For [the 
petitioner's] narrow discipline, this is an extensive amount of citation," because "her field of 
research . . . is one of the lowest publishing and lowest citing scientific disciplines due to the 
newness of research in this area" (counsel's emphasis). The petitioner submits a copy of an 
article1 providing a table of citation ratios by field, demonstrating the petitioner's employment in a 
relatively low-citation field. · 
Counse~ on appea~ observes that several citations of the petitioner's work do not merely identify it 
in passing, but comment specifically on its relevance to the citing article. Prior counsel had made a 
similar point earlier. Review of the record confirms that a number of citing articles place particular 
emphasis on tlie petitioner's work, rather than simply citing it in passing to support a specific claim. 
In a new letter, states that his letters "were distorted or taken out of context by the 
officer reviewing [the petitioner's] case." Review ofthe record shows that the director, in describing 
the witness letters, sometimes gave the incorrect impression that the letters were more vague, or less 
well-supported, than they actually were. 
The petitioner's evidence is not without flaws. Several witnesses, for example, praise the 
petitioner's invention, first described at a 2005 conference and patented in 2008, but none of the 
witnesses have gone so far as to say that the invention is actually in production or in use. The 
benefit from a vehicle safety device is entirely hypothetical (and thus nonexistent in the real world) 
until it is actually used in vehicles (and proven to produce the expected benefits). Nevertheless, the 
record does establish a pattern of a wide array of researchers relying on the petitioner's work in a 
1 Podlubny, Igor. "Comparison of scientific impact expressed by the number of citations in different fields of science." 
Scientometrics, VoL 64, No. 1 (2005), 95-99. 
(b)(6)
. ~ . . 
Page7 \. 
variety of important pursuits. Equally important, the petitioner has supported key claims with 
documentary evidence rather thim relying entirely on witness letters to establish claims of fact. See 
Matter of V-K-, 24 I&N Dec. 500, 502 n.2 (BIA 2008) (noting that expert opinion testimony does 
not purport to be evidence as to "fact"). The record shows significant attention from the automobile 
industry and the National Highway Traffic Safety Administration, among other authorities in the 
field. That some of the praise of the petition~r's work is at times exaggerated does not taint or 
diminish the documented facts underlying the claims. 
The evidence in the record establishes that the vehicle safety research 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 of an approved labor certification will be in the national interest ofthe 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 AAO will withdraw the 
director's decision and approve the petition. 
ORDER: The appeal is sustained and the petition is approved.