sustained EB-2 NIW Case: Data Mining

U.S. Department of Homeland Security 
20 Mass. Ave . N.W.. Rm A3042 
Wash~ngton, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: WAC 03 21 6 54354 Office: CALIFORNIA SERVICE CENTER Date: 
IN RE: Petitioner: 
Beneficiary: 
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 Irrunigration 
and Nationality Act, 8 U.S.C. 3 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. 
v 
w~obert P. Wiemann, Director 
Administrative Appeals Office 
WAC 03 216 54354 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Califorrda Service 
Center, and 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), a member of the professions holding an advanced degree. 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 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 Information Management Systems from the University of California (UC), 
Berkeley. The petitioner's occupation falls withn 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 
proportion of visas for immigrants who would benefit the United States economically and otherwise. . . ." 
S. Rep. No. 55, lOlst Cong., 1st 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, 1991), states: 
The Service believes it appropriate to leave the application of this test as flexible as possible, 
although clearly an alien seelung to meet the [national interest] standard must make a showin,g 
WAC 03 2 16 54354 
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significantly above that necessary to prove the "prospective national benefit" [required of aliens 
seehng 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 Dep 't. of Transp., 22 I&N Dec. 215 (Cornrn. 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, data mining, and that the 
proposed benefits of his work, improved prediction of consumers' future activity, fraud detection, and 
identification of terrorist activity, 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. 
In evaluating this question, the director stated the following: 
The petitioner has not established that there is any real urgency to his entry into the United 
States in an immigrant status. . . . In fact, the petitioner must show that by not being given 
immediate immigrant status the national interest of the United States would actually be 
harmed. The petitioner has failed to establish that such harm to the national interest would 
occur if his employer took the extra time to obtain a labor certification through the normal 
labor certification process. 
The director then noted the petitioner's nonimmigrant status and concluded that the labor certification 
process could be completed prior to the expiration of that status. 
The language used by the director does not reflect the proper standard set forth in Matter of New lbrk State 
Dep't. of Transp., 22 I&N Dec. at 215. That decision does state that the national interest waiver was not 
intended simply as a means for employers (or self-petitioning aliens) to avoid the inconvenience of the labor 
certification process. Id. at 223. This language, however, merely emphasizes that the inconvenience of the 
process itself is not an argument to waive the requirement. It does not imply that the petitioner must 
demonstrate that there is any "urgency" to his adjustment to lawful permanent resident status. In fact, the 
AAO clearly stated that the inapplicability of the labor certification process is not, in and of itself, *a basis to 
waive that process. Id. at 21 8, n. 5. Thus, had the petitioner demonstrated that the labor certification process 
would have lasted longer than his nonimmigrant status, that information would not have justified the waiver. 
In light of the above, the director erred in making this issue the focus of his decision. 
WAC 03 216 54354 
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The appropriate standard for evaluating waiver requests is set forth earlier in the AAO's precedent: decision. 
In discussing the standard for evaluating whether the alien will benefit the national interest to a greater extent 
than an available U.S. worker with the same minimum qualifications, the AAO indicated that it clearly must 
be established that the alien's past record justifies projections of future benefit to the national interest. Id. at 
219. The footnote to this statement provides that the petitioner must demonstrate a past history of 
demonstrable achievement with some degree of influence on the field as a whole. 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. 
The ~etitioner has submitted 14 witness letters. manv of which are from individuals who are den~onstrablv 
independent of the petitioner. One of those witnesses, s the Study Director and Senior 
Program Officer at the Computer Science and Teleco e National Academies. Despite - 
the submission of this letter, the director requested from a such as the National Science 
Foundation without identifj7ing any deficiencies in the letter from final decision, the director 
concluded that the letters "are more alun to reference letters to his individual potential to 
benefit the country on a national impact level." While the distinction between these two types of litters is not 
immediately clear, any implication that the letters fail to detail how the petitioner might benefit the national 
interest is not supported by the letters themselves. Moreover, as noted by the petitioner on appeal, the director 
failed to address the objective evidence submitted in support of the assertions in the letters, such as the evidence 
that the petitioner's work is frequently downloaded and that independent researchers have cited his work. 
ubmit letters in behalf of the petitioner. 
professor at UC Berkeley, asserts: 
[The petitioner's] work is groundbrealung. There are no parallels to it. He combines the best 
of mathematical modeling, operations research techniques, statistical analysis, knowledge of 
theory and practice of information storage and retrieval systems and user-computer interaction, 
and an ability to implement his ideas in a worlung environment. 
former dean at UC Berkeley and President of the American Society for Information Science and 
more detail about the petitioner's work. He states that the petitioner's "ingenuity 
advanced our understanding of how" to know where to search first, search next and stop searching when using 
multiple networked digtal libraries. The petitioner's techniques achieve "more cost-effective searching by 
using intelligent decision algorithms to determine where to search next, depending on individual marginal cost- 
benefit of extending the search to one more data repository." In a project funded by the Defense ,4dvanced 
Research Projects Agency (DARPA), the petitioner "developed the infrastructure of an intelligent software 
agent-based search support system using optirni tion techni ues and implement that system in the Web 
environment using numerous programming tools." wotes that searches are complicated by the fact 
that "the contents of databases are commonly indexed and categorized differently in different databa.ses." He 
concludes that the petitioner's work "enables users to use their own languages in searching and make expert use 
of metadata vocabularies in unfamiliar databases." 
-enior Management for the Application Development Group at E.piphany Engineering, asserts 
that the petitioner's work for that comvanv "has been the foundation of our data warehousing. vroducts. which 
A - 
are widely implemented in the U.S. business and healthcare indushy." As examplewndicatc:s that the 
WAC 03 216 54354 
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petitioner's product is used by Arnazon.com and Expedia.com to recommend products to customers and CIGNA 
uses the technology to detect patterns of insurance history.' 
senior Staff Consultant at International Business Machines (BM), states: 
For the past two years, I have been working to implement E.piphany's software products. And 
millions of American citizens have benefited from a better, streamlined and customized claim 
process which is built on top of [the petitioner's] research results. . 
Senior Consultant at Peoplesoft, Inc., not only praises the petitioner's work and provides general 
his influence, he specifically states that the petitioner's work "has dramatically influenced the 
development of modem analsics software application: including Peoplesoft's customer re:lationship 
management and financial management products." 
[The petitioner's] work has deep technical insight into the challenges of Internet navigation ;IS 
evidenced by his paper on "Stochastic Modeling of Usage Patterns in a Web-based Information 
System." [The petitioner made a breakthrough in continuous-time stochastic process-based 
analysis of user interaction. By factoring duration time into his model, his approach is able .to 
predict, with a high degree of precision, what the user's next activity is, how soon the user is 
going to do that, and how many previous activities influence the user's decision. 
The director also failed to consider the evidence that the petitioner has been moderately cited, with 10 
independent research teams having cited one of his papers and a smaller number citing other work. Less 
persuasive, but notable, the petitioner also produced evidence that his work is frequently downloaded from UC 
Berkeley's website. 
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 gven 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. 
I The record also contains a letter from~ice President of the Product Development Group at 
E.piphany, but his letter must be discounted. ~~ecificall~~asserts that the petitioner "co-developed 
and patented one of E.piphany's leading products - E.Marketing metadata (PAT# 6,212,524)." Patents are 
publicly available records accessible at www.uspto.gov. A review of these records reveals that this patent was 
filed in 1998, two petitioner's arrival at E.piphany and the petitioner is not listed as an 
inventor. Thus, none of ssertions cany any evidentiary weight. Doubt cast on any aspect of the 
petitioner's proof to a reevaluation of the reliability and sufficiency of the remaining 
evidence offered in support of the visa petition. Matter of Ho, 19 I&N ~ec. 582,591 (BC 1988). While this 
discrepancy could be a basis for rejecting other evidence submitted by the petitioner, we have verified 
of that documentation via the Internet. Thus, while the demonstrablv false statement bJ 
disturbing, it appears to reflect solely on the credibility o 
claim. The petitioner himself, who authored the appear - - 
patented technology. 
WAC 03 2 16 54354 
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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. 
3 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.