sustained EB-2 NIW Case: Computational Mechanics

U.S. Department of IIornel~nd Security 
20 Mass. Ave.. N.W., Rm. A3042 
Washington. DC 20529 
U. S. Citizenship 
and Immigration 
FILE: Office: CALIFORNIA SERVICE CENTER Date: 
IN RE: 
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 In-migration 
and Nationality Act. 8 U.S.C. 5 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. 
hobert P. Wiemann, Director 
Administrative Appeals Office 
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DISCUSSION: The employment-based immigrant visa petition was denied by the Director, California Service 
Center, and is now before the Administrative Appeals Office on appeal. The appeal will be sustained and the 
petition will be approved. A 
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 an alien of exceptional ability or a member of the professions holding an 
advanced degree. The petitioner seeks employment as a computational mechanics researcher. 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 rnember 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. 
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 Engineering, specializing in solid mechanics, from Tsinghua University. The 
petitioner's occupation falls with 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 a labor 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 
efit the United States economically and otherwise. . . ." 
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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 qualifL 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. of Transp., 22 I&N Dec. 21 5 (Comrn. 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 seelung 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, engineering, and that the 
proposed benefits of his work, improved ability to simulate damage to aircraft, 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. 
The director concluded that the record did not distinguish the petitioner from others in the field. The bases of 
this conclusion appear to be that the reference letters did not reflect that the petitioner's work had influenced 
other independent researchers in the field and that objective evidence of his influence, such as citation of his 
published work, was lacking. 
On appeal, counsel raises several arguments, not all of which are persuasive. For example, counsel asserts 
that the director should have considered that the petitioner's employer has a policy not to seek labor 
certification for its prospective employees and that funding issues prevent the petitioner's job from 
consideration as "permanent" for immigration purposes, making labor certification impossible. An employer 
cannot obligate Citizenship and Immigration Services (CIS) to waive the labor certification process by 
choosing not to pursue that process. Nothing in the legislative history suggests that the national interest waiver 
was intended simply as a means for employers (or self-petitioning aliens) to avoid the inconvenience o l the labor 
certification process. oreover, the temporary nature of many research positions is not persuasive. 
It is the position of CIS to grant national ' rs on a case by case basis, rather than to establish blanket 
waivers for entire fields of specialization We cannot conclude that the national interest u,aiver was 
intended as a blanket waiver for all res ally, while the inapplicability of the labor certification 
process will be given due consideration in appropriate cases, it cannot be viewed as sufficient cause for a -- 
national interest waiver; the petitioner still must demonstrate that the serve the national 
interest to a substantially greater degree than do others in the same field. 
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Counsel further focuses on the intrinsic merit of the petitioner's work, noting that it is applicable to the 
national defense and asserting that the United States is in "a time of national crisis and war." Eligibility for 
the waiver, however, 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. We do not question that 
providing the safest aircraft is an important national interest, whether or not we have troops deployed in 
dangerous situations. The intrinsic m&it of the work, however, does not warrant approval of every 
competent researcher able to produce results that add to the general pool of knowledge and impirove upon 
existing technology. 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 2 19, n. 6. 
The primary basis of the etitioner's eligbility claim is his development of the AGILE software ack-a e in the 
laboratory &t the University of California, Irvine (UCI). According t ember 
of the National Academy of Engineers, the petitioner was the project manager of this project, which involved 
develo~ing software for damage tolerance analvsis for rotorcraft and the develo~ment of safe-life estimation 
methoiol&.- a professo;emeritus at the University of Washington who has collaborated 
with the petitioner, provides the most detail regarding AGILE. He states: 
[The petitioner] has made a singular contribution in the pioneering and refinement of a 
probabilistic approach to provide quantitative risk measurement at a programmatic 1evr:l; 
developed illustrative examples of inputs, results, and interpretation; and developed a user 
interface enabling non-experts in probabilistic mechanics to perform sensitivity studies without 
the need to contact experts in various engineering fields. Previously, these lengthy studies 
could only be performed by highly educated and formally trained individuals. Specifically, he 
has played a leading role in the development of the AGILE software package (AGILE) to 
perform damage tolerance analysis. This package uses a highly efficient and accurate [method] 
(FEAM). The implementation of this process will empower engineers and their respective 
corporations or government employers to perform such sensitivity studies faster, cheaper artd 
more accurately than ever before. It represents a major advance in the area of damage tolerance 
and prediction of fatigue behavior of stressed aircraft components. 
d has been integrated into 
in continuing design and 
lso asserts that AGILE has 
been adopted by the FAA. a member of the: National 
Academy of Engineers sinc as adopted AGIL.E, affirms - 
the significance of the advances represented by this software. 
The petitioner also submitted five articles and a report, although only two of the articles reflect that they were 
published in peer-reviewed journals. As noted by the director, the record contains no evidence that any 
independent researchers have cited this work. Independent citations are often useful evidence for gauging a 
researcher's impact on the field. While frequent citation can certainly bolster a researcher's clairn to have 
influenced the field, the lack of frequent citation is not a bar to eligbiliq where other objective evideince of the 
petitioner's influence exists. Engineers designing new technology may not disseminate their most significant 
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work for intellectual property reasons or because it is limited to a narrow segment of the field. Other evidence, 
such as licensing agreements or affirmations from government agencies or industry officials who have adopted 
the technology must be considered. 
The letters submitted prior to appeal are not as overwhelming as counsel asserts. First, they are all from 
collaborators and the consultant from the FAA who oversaw the FAA's grant to-laboratory. In - 
response to the director's request for additional evidence, counsel relied on a non-Pecedent decisiori from this 
office for the proposition that letters from the alien's immediate circle of colleagues cannot be discounted. As 
correctly noted by the director, that decision is not binding on CIS and, without the full record of proceedings, 
we cannot evaluate all the evidence presented in that case. Regardless, the plain language of the decision does 
not imply that letters from collaborators are always sufficient. Rather, it notes that only four universities in the 
United States graduated more than 10 Ph.D. gearing specialists in the last 40 years, indicating the highly unusual 
scarcity of experts in the field relevant to that petition. The decision also notes the submission of a letter from a 
client of the alien's employer. In engineering cases, letters from clients are more persuasive evidence of the 
adoption of the alien's technology than letters from collaborators. 
In the matter before us. all of the letters submitted prior to appeal were from collaborators except for the letter 
fromwho does not confirm that the'~AA hadsadopted AGILE. Counsel's assertion that one's 
immediate circle of colleagues are in the best position to evaluate one's work does not persuade us that letters 
from more independent sources are not also useful. While letters from colleagues are important in establishing 
the petitioner's role on a specific project, they cannot establish the influence of the work outside the petitioner's 
immediate circle of colleagues. We acknowledge that botgre memtlers of the 
National Academy of Engineering, a sign of their high-level status in the field. We cannot help but note, 
however, that the assertions made by the petitioner's references, such as adoption of the petitioner's software by 
the FAA, Boeing, and others, could be easily confirmed by those entities. 
Such confirmation is provided on appeal. hief Scientist at Galaxy Scientific Corporation, 
asserts: 
Among my most important tasks is working with U.S. rotorcraft industry (Sikorsky Aircraft, 
Bell Helicopter, and Boeing Helicopter) to evaluate the crack growth analysis tool AGILE, 
whose primary developer, from its inception, is [the petitioner], Under FAA and industry 
auspices, the program is being continually refined and applied to various design and service life 
issues involving both military and civil aircraft. Recently, the AGILE code has been 
completely overhauled and new algorithms were implemented, thereby enhancing its accuracy, 
efficiency, and user-friendly qualities. Once more, [the petitioner's] role is central to these 
continuing development efforts. Based on evaluation results to date, the U.S. rotorcraft 
industry has indicated that the AGILE code will probably continue to be among tlie 
primary "fatigue crack growth analysis and damage tolerance" design tools for aircraft 
design. 
(Emphasis in original.) f the U.S. Army Research Office (ARO) provides fi~rther 
confirmation of the significance of the pe&work. s a senor scientist with ARO a 
civilian Senior Executive Service position equivalent to a Brigadier General - :xplains that the 
prior software used to predict the effects of blast and ~roiectile penetration of Army systems (FEM) failed to 
provide realistic and predictable effects.4 
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Based on my several visits to UCE and interactions with [the petitioner] an- 
as well as my consultation with a few leading Scientists and Engineers working in the 
computational directorate of ARL, I identified the Meshless Method Technology developed by 
[the petitioner] and his colleagues at UCE as a possible alternative approach to model fracture 
and fragmentation of structures due to blast loading. 
oncludes that the petitioner's software "has directly and significantly benefited the defense 
and that the meshless method approach "will overcome the major deficits in the existing . ., FEB based software technology." + 
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 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. 
5 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.