sustained EB-2 NIW Case: Environmental Engineering

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PUBLICCOPX
U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.S.Citizenship
and Immigration
Services
FILE:
EAC 05 055 50080
Office: VERMONT SERVICE CENTER Date: JAN 0 92007
INRE: 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 Immigration
and Nationality Act, 8 U.S.C. § 1153(b)(2)
ON BEHALF OF PETITIONER:
SELF-REPRESENTED
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.
~\'tUI Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
DISCUSSION: The Director, Vermont Service Center, denied the employment-based immigrant visa
petition, which 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. § 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 senior environmental engineer.
The petitioner asserts that an exemption from the requirement of a job offer, and thus of an alien
employment 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.
On appeal, the petitioner submits his own statement. For the reasons discussed below, we find that the
petitioner has demonstrated that a waiver of the alien employment certification is warranted in the
national interest.
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 Environmental Engineering from the University of Virginia. The
petitioner's occupation falls within 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 an alien
employment 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, 101st Cong., 1st Sess., 11 (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 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.
Matter of New York State Dep t. of Transp., 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 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 concur with the director that the petitioner works in an area of intrinsic merit, water quality
modeling, and that the proposed benefits of his work, improved water quality and use, 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.
Eligibility for the waiver 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.
Matter ofNew York State Dep 't of Transp., 22 I&N Dec. at 218. Moreover, it cannot suffice to state
that the alien possesses useful skills, or a "unique background." Special or unusual knowledge or
training does not inherently meet the national interest threshold. The issue of whether similarly-
trained workers are available in the United States is an issue under the jurisdiction of the Department
of Labor. Id. at 221.
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 219, n. 6. In evaluating the petitioner's achievements, we note that original
innovation, such as demonstrated by a patent, is insufficient by itself. Whether the specific
innovation serves the national interest must be decided on a case-by-case basis. Id. at 221, n. 7.
As stated above, the petitioner received his Ph.D. from the University of Virginia in 2002. The
petitioner subsequently accepted a position as a staff environmental engineer at Tetra Tech, Inc., a
major contractor of the U.S. Environmental Protection Agency (EPA). In 2003, Tetra Tech
promoted the petitioner to a senior environmental engineer.
IIIIIIIIIiiifUniversity of Virginia, the petitioner worked as a graduate research assistant for
_ a professor at that institution. _ explains that the petitioner worked on hydrodynamic
and water quality m~f two reservoirs in Maryland for the Maryland Department of
Environment (MDE). _ explains that the petitioner combined technology used by the U.S.
Army Corps of Engineers with technology used by the EPA, thereby overcoming problems
encountered by previous groups in accurately predicting summer super-saturated dissolved oxygen in
reservoirs. lIalso praises the petitioner's independent projects, which resulted in published
articles and his doctoral thesis.
, Chief of the Water Quality Modeling Division at MDE, asserts that the MDE
sponsored a project to develop nutrient Total Maximum Daily Load (TMDL) data for two reservoirs
in Maryland that serve 1.8 million people. _ praises the results of the petitioner's efforts on
this project, asserting that he "significantly advanced the existing water quality modeling technology
through developing a series of innovative modeling approaches." _ continues:
In addition to developing a linked hydrodynamic and water quality simulation system
based on the CE-QUALOW2 and W ASP.EUTRO modeling framework, and a
zooplankton dynamics enhanced eutrophication model, he has pioneered a new
modeling approach that hybridizes the cutting-edge artificial intelligence technologies
with conventional water quality modeling algorithms to improve the efficiency and
accuracy of water quality models. His great efforts not only have contributed in
accurate models for Loch Raven and Prettyboy Reservoirs to support MDE's TMDL
efforts, but have also significantly contributed to the general research field of
mathematical environmental modeling.
, Vice President of Water Resources at Tetra Tech, discusses the petitioner's
first project for that company. Specifically, the petitioner worked on the Pennsylvania Wissahickon
River study, developing a hydrodynamic and water quality model of a river system significantly
impaired due to wastewater effluent and urban development. I notes that "several
previous attempts by other groups had ended in failure," including an unsuccessful three-year study
by a nonprofit organization.
[The petitioner] was able to quickly surmount many of the obstacles that had defeated
all the previous researchers, and used innovative techniques to develop the first
accurate flow analysis of the system. He also developed an innovative approach to
simulate the growth of algae in the stream and evaluate the relationship between the
in-stream algae and nutrient inputs.
, TMDL Program Manager for the EP~on III in Philadelphia provides a similar
assessment of the petitioner's work on this project. ~adds:
[The petitioner's] work was impeccable, producing a modeling system that advanced
the science of water quality analysis. His work resulted in an environmental control
plan that was accepted by both [t]he environmental groups as well as the
municipalities.
also indicates that the petitioner has "provided excellent advice to EPA on other
dema_· analysis issues and concerns." The record contains an e-mail message
from of the University of Nebraska to _ requesting a copy of the
petitioner s mo I te mo el for the Wissahickon River so that the University of Nebraska need not
"reinvent this wheel."
Andrew Parker, Director of Water Resource Modeling at Tetra Tech, discusses California and
Delaware projects on which the petitioner has worked. The petitioner modified the Environmental
Fluid DYnamics Code to simulate multiple algae species and their unique dependencies on nutrients,
sunlight and temperature for Clear Lake in California and incorporated a predictive sediment
diagenesis algorithm into an existing program for more accurate representation of sediment/nutrient
dynamics in the Appoquinimink River in Delaware. Finally, as of the date of filing, the petitioner
was working on the Klamath and Lost Rivers TMDL modeling project for EPA's Regions 9 and 10,
the Oregon Department of Environmental Quality and the North Coast Regional Water Quality
Control Board. This project is highly contentious and has commanded national attention and White
House involvement.
The petitioner also submitted an e-mail message from at the EPA to _
expressing appreciation for the Lost River Modeling report and asserting that the petitioner's models
~en "invaluable in meeting the State's and EPA's needs for this important project." •
_ further characterizes the work as "ground-breaking."
~ President of Watercourse Engineering, Inc., e.hat he serves as an
independent peer reviewer from the Klamath TMDL modeling project. discusses the model
modifications developed by the petitioner and asserts that they "provided significant contributions to
the Klamath and Lost River TMDL's, affording EPA and the states ofcaliforni_gon a set of
efficient and powerful modeling tools for environmental modeling studies." s notes that
"these innovative and practical modifications on the Lost and Klamath Rivers are neither simple nor
typical engineering applications." Significantly, the Army Corps of Engineers has been developing
the W2 model for nearly 10 years and there are few professionals capable of readily modifying this
computer code as the petitioner has done.
The record demonstrates that the petitioner's models have been applied in Maryland, Pennsylvania,
Delaware and two separate projects in California. We are satisfied that the successful use of these
models on projects in several parts of the United States, including on projects that previously defied
solution despite a concerted effort and on a project that has garnered national attention, demonstrates
the influence of the petitioner's work.
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 water
quality modeling 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 alien employment certification process. Therefore, on the basis of the
evidence submitted, the petitioner has established that a waiver of the requirement of an approved alien
employment 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. § 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.