sustained EB-2 NIW Case: Computer Science

U.S. Department of Homeland Securitj 
20 Mass. Avt: . N.W., Km. A304 2 
Washington, L)C 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: - Office: VERMONT SERVICE CENTER Date: id.2 L 2 zo&j 
EAC 03 0 15 50834 
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: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
ed your case. -kny further inquiry must be made to that office 
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. 5 1153(b)(2), as a member of the professions holding an advanced degree. The petitioner seeks 
employment as a research associate at the University of Virginia (UV). 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 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 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, 
1 Olst Cong., 1 st Sess., 1 1 (1989). 
Supplementary information to the regulations implementing the Immigration Act of 1990 (IMMACT), published 
at 56 Fed. Reg. 60897, 60900 (November 29, 199 l), states: 
The Service [now Citizenship and Immigration Services] belieyes it appropriate to leave the 
application of this test as flexible as possible, although clearly an alien seeking to meet th~e 
[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."] Thse 
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 Trunsportution, 22 I&N Dec. 215 (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 lproposed 
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 1.he 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. 
In addition to copies of his educational credentials and ublished work, the petitioner submits several witness 
letters that contain descriptions of his wor A ssociate professor at UV's Department of 
Computer Science, states: 
The project "Scalable Services for the Global Network," in which [the petitioner] is 
significantly involved, is aimed at an advanced understanding of the process of network 
infrastructure, in particular the extensibility and scalability of networks. The impact of this 
research will be to provide the theoretical underpinnings, basic architecture, and a prototype 
implementation for communication within the global Internet of the 21" century. 
The emergence of new computer applications has fostered a number of attempts to increase 
the functionality of the minimalist lnternet core. However, the adoption of enhancements to 
the Internet has been slow, failed entirely, or been limited to special-purpose privatle 
networks. . . . Computer networks . . . were not designed to be extended to the Internet 
(extensibility). Further, a linkage of local networks with the lnternet often requires that vast 
amounts of information be managed in the core network infrastructure, thus creating 
bottlenecks (scalability). . . . 
[Olur ultimate goal is to develop truly scalable services for each of the three fundamental 
components of the Internet's infrastructure: information communication, replication, and 
storage. . . . [W]e propose to develop: scalable performance-predictable communication; 
scalable multicast for efficient data dissemination; scalable storage for next generation 
information services; and design principles for scalable services. 
Specifically, [the petitioner's] part of the effort is to develop a new network architecture. Iin 
so doing, [the petitioner] has actually created two new terms which will be useful in 
describing his work. The first term is "q-nodes" which stands for quality-of-service nodes. 
. . . [The petitioner] is designing a conceptual construct which encompasses Core Routers and 
Edge Routers. The Edge Routers, whose function will be to increase the quality of network 
lnternet interconnectivity, will be placed in the system at "q-nodes." The process of 
determining where in the network system these q-nodes are to be placed is called 
'-geonodality," another tern1 which [the petitioner] coined. [The petitioner's] anticipated 
successful conclusion of this research will provide optimum solutions to increasing the 
capacity and functionality of the Internet as a tool for nehvorks as well as individuals. 
Since joining my group in March 2000, [the petitioner] has contributed substantially to a 
series of our new findings and discoveries. He is the first researcher to develop a congestion 
control mechanism for networks utilizing . . . binary feedback as the control mechanism 
[which] is far simpler than the current system which uses packet degradation as the control 
mechanism. 
[The petitioner] first established as well what he calls the "fairness principle" to allocate 
limited bandwidth among "greedy" and "generous" applications so that they can run in 
parallel and in tandem. [The petitioner] was also the first to propose a new kind of 
optimizing algorithni to improve distribution of system resources in this newly-developed 
system. Each application dynamically adapts its sending rate as a result of systematic 
feedback to achieve a fair share of resources allocation. 
Professor Geoffrey Charles Fox of Indiana University states: 
In my opinion . . . [the petitioner's] research will very much further our national interest 
because it relates to next-generation multiservice networks, a research area which has 
becomes [sic] extremely important in recent years since it represents both an answer to the 
current bottleneck in internet interconnectivity and the best hope of making the next 
generation of internet uses truly functional. . . . 
[The petitioner's] research involves highly complex mathematical schemes to allocate 
resources on the lnternet among all users in a way which is fairest to each of them. In 
addition, he is designing on and off ramps for the Internet which allows the various users to 
take advantage of the internet with the least use of internal fuel (which we call resources). . . . 
[The petitioner's] significant role in his current research project . . . is delnonstrated by his 
sole responsibility for the statistical study of the multiplexing flow. This is a critical aspect of 
the research. . . . [The petitioner] is able to apply a theoretical construct to an operational 
problem, thus developing novel approaches and helpful solutions. 
[The petitioner's] contributions to application layer multicast research have been significant. 
. . . [The petitioner's] research has explained and demonstrated, for the first time, how to 
build a distributed system with optimized servers and routers. These are extremely important 
contributions to this field. 
Professor f the University of Alabama at Birmingham states: 
[The petitioner's] scientific findings relating to network traffic engineering are both original 
and important to our understanding of network interaction. In particular, [the petitioner's] 
creation of his Primary Path First theory is a remarkable research accomplishment and a very 
important contribution to the field of computer science. 
associate probs5or at Rice University. states that the petitioner's "experti,e :illo\+r him 
to contribute substantially to this project in a way that minimally qualified researchers cannot contribute." 
The director instructed the petitioner to submit further evidence to meet the guidelines set forth in Matter qf 
New York State Dept. of Transportation. In response, counsel states "there is now a law suit pending relating 
to the correctness of In re Mutter of New York State Dept. of Transportation." 1'0 date, that precedent 
decision has survived each of several challenges in federal court; there has been no judicial finding to 
invalidate that decision. The filing of a lawsuit does not auton~atically nullify the precedent decision. and the 
petitioner has not shown that any judge has issued even a preliminary injunction to temporarily suspend the 
provisions of Matter of New York State Dept. of Transportation. 
The petitioner submits additional witness lettersassociate professor at Purdue 
University, states that the petitioner's "contributions exceed those of a substantial majority of his colleagues 
at the same employment leveloes not discuss the petitioner's work in any detail except to say 
that the petitioner is "brilliantly" working toward "eliminating the bottlenecks" that slow the transmission of 
data through the Internet. 
~rofessf the University of California, Irvine, states that the petitioner merits a national 
interest waiver because he "makes the internet work better by figuring out how and why discrete packets of 
information slow down during transmittal and how to alleviate this problem." 
The director denied the petition, stating: "The record contains no evidence that the beneficiary played a 
leading part in this research. Further, there is no evidence of how this research was received by the wider 
scientific community." The director added that publication is routinely expected of researchers, and therefore 
the publication of the petitioner's findings is not inherently demonstrative of eligibility for a waiver. The 
director acknowledged the witness letters, but stated that those letters do not show that holding the petitioner 
to the job offerllabor certification requirement would be adverse to the national interest. 
On appeal, the petitioner submits a new letter from Dr. Liebehem, repeating many of that witness' earlier 
claims, and a brief from counsel. Much of counsel's brief consists of quotations from previously submitted 
letters, and discussion of previously submitted exhibits such as the petitioner's published articles. Counsel 
argues that these materials "clearly demonstrated that [the petitioner] has in the past played a vital role in his 
research endeavors far above that of a minimally-qualified research associate." 
In reviewing the evidence, we cannot ignore that the letters come from a broad spectrunl of high-ranking 
witnesses at many different institutions; the petitioner has not relied predominantly on letters frorn the IJV 
faculty or his former professors. From the available evidence and information, it appears that this great 
variety of expert witnesses are aware of the petitioner's work by reputation rather than through personal 
collaboration with the petitioner. The fact that the petitioner's work is so widely known and praised supports 
the claim that this work is particularly important in the field, and that therefore the United States would 
benefit greatly from the petitioner's continued presence and efforts. The director, in denying the petition, 
does not appear to have given sufficient consideration to these materials. 
Counsel, on appeal, again attacks Mutter of New York State Dept. of Transportutiorr, stating that the precedent 
decision "is wrongly decided on a number of grounds." The decision is, at this time, a standing, binding 
precedent, and therefore it cannot reasonably be argued that the director erred by relying upon that decision 
(indeed, counsel acknowledges as much on page 20 of the brief). The approval of the present petition is not, 
in any sense, a repudiation of the precedent decision. 
In criticizing Matter of New York State Dept. of Transportation, counsel states: 
MA 5 21 2(a)(S)(A)(ii) limits the applicability of INA 9 2 12(a)(S)(A), the statutory provision 
incorporating the labor certification, to second preference aliens of exceptional ability and not 
"aliens who are members of the profession [sic] holding advanced degrees." These two 
categories of alien appear in the disjunctive in MA tj 213(b)(2), and thus are different 
categories. INA 9 203(b)(2)(B) relates to the waiver of the job offer which [the petitioner] 
clearly has since he is employed. 
Counsel's logic here is not entirely clear. Counsel appears to argue that "the statutory provision incorporating 
the labor certification" applies only to aliens of exceptional ability, and not to advanced degree profc:ssionals. 
Actually, section 212(a)(S)(A)(ii) of the Act merely specifies that, in certain instances, a United States 
employer seeking a labor certification may decline to hire a qualified U.S. worker, provided that the alien is 
more qualified for the position. This provision does not come into play in the present proceeding. The 
reference to "exceptional ability" at section 212(a)(S)(A)(ii)(II) of the Act is, admittedly, confusing, because 
this phrase appears in a completely different context at section 203(b)(2) of the Act. Nothing in section 
212(a)(5)(A) of the Act, or its subsections, indicates that the job offer requirement or labor certification 
process are any different for advanced degree professionals than for aliens of exceptional ability, as those 
tenns are contemplated in section 203(b)(2) of the Act. 
The Act contains no section 213(b)(2). It appears that counsel meant to cite section 203(b)(2) of the Act. It is 
true that "alien of exceptional ability" and "member of the professions holding an advanced degree" are 
technically distinct classifications, but they are both mentioned in the same paragraph of the Act ;md draw 
from a common pool of visa numbers. Indeed. the legislative history proves that the national interest waiver 
was, originally, available only to aliens of exceptional ability, and not to advanced degree proft:ssionals. 
Section 302(b)(2)(D) of the Miscellaneous and Technical Immigration and Naturalization Amendments of 
1991, Pub. L. 102-232, made the waiver available to advanced degree professionals. Thus, Congress 
originally did not make the waiver available to advanced degree professionals at all, and when Congress did 
amend the statute to make the waiver available, Congress did so simply by inserting the word "professions" 
into an existing sentence in section 203(b)(2)(B)(i); this sentence draws no distinction between the two 
classifications covered by section 203(b)(2) of the Act. There is nothing in the statute to suggest that the 
threshold for the national interest waiver is lower, or otherwise different, for professionals than for aliens of 
exceptional ability.' From the construction of the statute, it is clear that aliens of exceptional ability, who 
offer a substantial prospective benefit to the United States due to their exceptional ability, are nevertheless 
generally subject to the job offer (and thus labor certification) requirement. The statute, iherefore, 
conclusively proves that substantial prospective benefit to the United States, by itself, is not prima facie 
grounds for a waiver, whether the alien is classified as having exceptional ability, or as a member of the 
professions holding an advanced degree. 
Counsel seems also to suggest that the "job offer requirement" and "labor certification requirement" are two 
entirely different things. Section 203(b)(2)(A) never mentions labor certification. Instead, it requires that the 
alien's "services . . . are sought by an employer in the United States." Section 2 12(a)(5)(A)(i) of the Act ties 
the job offer requirement to labor certification. 8 C.F.R. 5 204,5(k)(4)(i) indicates that aliens of exceptional 
ability und advanced degree professionals are subject to the j'ob offer requirement, which includes labor 
There exists a limited exception for certain physicians, as set forth in section 203(b)(2)(B)(ii) of the Act, but this does 
not apply in this proceeding. 
certification. Because individual labor certification is inherently connected to a specific job offer, there can 
be no labor certification without a job offer. The waiver of the job offer requirement is meaningless unless it 
includes a waiver of labor certification. For immigration purposes, the term "job offer requirement" includes 
more than an actual offer of employment; there is also labor certification, evidence of ability to pay the alien's 
wages pursuant to 8 C.F.R. $204.5(g)(2), and so on. We disagree with counsel's apparent assertion that, because 
the petitioner is employed, he has already met the job offer requirement. 
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 prominent, independent computer science 
researchers recognize 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 1:he 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. 4 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