sustained EB-2 NIW Case: Geodesy

'identifying data deleted to 
prevent clear\> i~lwmantegj 
invasion of personal privacy 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Ofice ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
SRC 09 020 5 1220 
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. 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. 
u 
Perry Rhew 
Chief, Administrative Appeals Office 
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. 5 1153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as a geodesist with Earth Resources Technology, Inc., under contract to 
the National Geodetic Survey (NGS) of the National Oceanic and Atmospheric Administration 
(NOAA). 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. 
On appeal, the petitioner submits a personal statement, a witness letter, and documentation relating to 
his work. 
Section 203(b) of the 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 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 
Page 3 
increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise. . . ." S. Rep. No. 55, 101 st 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 [now U.S. Citizenship and Immigration Services] 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 Dept. of Transportation, 22 I&N Dec. 215 (Cornrnr. 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, whose benefit to the national interest would be entirely speculative. 
We also note that the regulation at 8 C.F.R. 9 204.5(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 offerllabor 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 petition on October 28, 2008. In a statement accompanying the initial 
submission, counsel stated: 
[The petitioner] specializes in Geodetic Science. He concentrates his research [on a] 
vertical reference system, which is used to accurately define the heights of any point on 
Earth. . . . 
As testified by the leaders and peers in his field, [the petitioner's] investigations and 
research in gravimetric system have significant impacts on the field and are crucial 
step[s] towards establishing high resolution geoid. His scientific contributions are 
regarded as ground breaking by the scientific community. . . . Currently, [the 
petitioner's] research at NOAA is focused on improving the resolution and accuracy of 
the gravity data, which directly determines the geoid, by using the Inertial Navigation 
System (INS) and the Global Positioning System (GPS). . . . 
With his rich academic background, high-value research and a tremendous record of 
past achievements, [the petitioner] becomes unique in his field and indispensable in 
various ongoing projects at NOAA. 
The geoid, mentioned by counsel, is a mathematical model approximating global mean sea level. 
The petitioner's initial submission included information about his academic credentials, association 
memberships, and scholarly publications. These materials collectively show that the petitioner is 
well qualified to work in his field, but the specific importance of his individual work is not self- 
evident from the documents. To establish the field's reaction to his work, the petitioner submitted 
copies of two articles that contain independent citations to the petitioner's published work. The 
petitioner also submitted Chinese-language database printouts that may document additional 
citations, but because the petitioner failed to submit certified translations of the documents, the AAO 
cannot determine whether the evidence supports the petitioner's claims. See 8 C.F.R. 5 103.2(b)(3). 
Accordingly, the evidence is not probative and will not be accorded any weight in this proceeding. 
Six witness letters accompanied the filing of the petition. The most detailed letter is from- 
- of the Geosciences Research Division at NGS. stated: 
[The petitioner] is an exceptional scientist engaged in Gravity research that is of great 
importance to the National Spatial Reference System (NSRS), especially the height 
datum. . . . 
[Alccurate orthometric heights, which is precisely what [the petitioner's] gravimetric 
work contributes to, is essential to determine the extent of flooding and storm surge 
inundation. In addition to this critical information, these heights are essential for the 
long term determination of changes in sea level. . . . 
[The petitioner's] researches have been mainly involved with gravimetric geodesy, 
which provides that gravity data of the earth. . . . The accuracy and resolution of gravity 
directly determines the final quality of the geoid, and hence, the orthometric height. 
[The petitioner] has made tremendous progress improving the resolution of these gravity 
data. . . . 
Currently, [the petitioner] is a geodesist . . . working in the GRAV-D (Gravity for the 
Re-definition of the American Vertical Datum) project which will bring more accurate 
orthometric heights throughout the United States. To achieve such an ambitious goal, it 
is important to have accurate and high resolution gravity data, which is the source of the 
geoid modeling. . . . 
[The petitioner's] role in the project involves several very important aspects, including 
obtaining raw gravity observables fiom the INSIGPS system, analyzing and gridding the 
data, generating the Digital Elevation Model (DEM), and investigating new computation 
algorithms. He is developing a state-of-the-art data processing strategy to provide the 
most accurate gravity data with feasibly the highest spatial resolution for the Geoid 
determination. 
then discussed the petitioner's work in technical detail. He credited the petitioner with 
showing "that high resolution is obtainable fiom an INSIGPS gravimetric system" and developing "an 
efficient alternative for gravity field modeling." asserted that, because of the petitioner's 
work, "more high resolution gravity data of the earth will be available, which will significantly improve 
the quality of the current global gravity field as well as the geoid." 
The mission of the National Geodetic Survey is to define, maintain and provide access 
to the National Spatial Reference System (NSRS; the official coordinate system 
defining, among other things, the latitude, longitude, various heights, gravity field, scale 
and orientation used in surveys and on maps). . . . 
The current vertical datum @art of the NSRS dealing with heights) is inaccurate by 
decimeters to meters, which fails to give the American public the ability to map 
floodplains and prepare for flooding events. . . . The GRAV-D project hinges upon a 
little known scientific reality: that the height of a point is dependent upon knowledge of 
the minute changes to the gravity field near the point. The accurate determination of 
both heights and the gravity field at the earth is at the core of a field of study called 
"gravimetric geodesy." There are few scientists trained in this discipline worldwide. . . . 
[The petitioner] developed creative new methods to integrate [INS and GPS] in a land 
vehicle, to obtain accurate gravity data with extremely high spatial resolution (2km). . . . 
[The petitioner] is the first geodesist to reach this high resolution level fiom a mobile 
system. Considering that satellite based gravity missions only have lOOkrn spatial 
resolution at most, [the petitioner's] result will dramatically improve our understanding 
of the small features of the gravity field so necessary for mapping heights accurately. . . . 
[The petitioner's] results with the NRLINGS project will be applied to the GRAV-D 
project in all territories of the United States over the next few years. . . . Considering the 
rarity of scientists capable of working in the field of gravimetric geodesy, [the 
petitioner's] talents are critical to the success of the NGS mission. 
Assertions regarding the scarcity of trained geodesists are not persuasive with regard to the national 
interest waiver. The labor certification process is already in place to address such shortages. Similarly, 
the Department of Labor allows a prospective U.S. employer to specifj the minimum education, 
training, experience, and other special requirements needed to qualify for the position in question. 
Matter of New York State Dept. of Transportation at 21 8. In assessing eligibility for a national interest 
waiver, we give more weight to persuasive and objective evidence that shows the importance of the 
petitioner's individual contributions. 
who supervised the petitioner's doctoral studies at the Ohio State 
University (OSU), praised the petitioner's ability to "obtain[] very high (-2 km) spatial resolution of 
gravity estimates accurate to about 2-3 parts per million, comparable to the best moving-base airborne 
systems in operation." 
principal investigator for the GRAV-D project, stated that the petitioner "is now a 
core member of a team developing GRAV-D," and that "[wlithout his efforts, our progress would be 
severely curtailed." added that he would hire the petitioner directly if the petitioner were a 
United States citizen eligible for federal employment. 
"extremely talented for a recently graduated geodetic scientist" and stated that the etitioner's desi n of 
"an artificial neural network . . . will have a big impact in the field of gravimetry." m 
a senior geodesist in the Geodetic Survey Division of Natural Resources Canada, called the petitioner "a 
highly regarded young geodesist and one of a few highly-qualified professionals in the area of ground- 
vehicle and airborne gravity mapping worldwide. . . . These skills are very difficult to find in other 
geodesists." This assertion goes beyond the claim that there simply are not very many geodesists. 
On April 15, 2009, the director issued a request for evidence (RFE), notifying the petitioner that his 
initial submission did not contain sufficient evidence of the importance and impact of his work to justify 
approval of the waiver application. In response, counsel asserted: "due to the fact that [the petitioner's] 
works werelare sponsored by the National Geospatial-Intelligence Agency (NGA), [the petitioner's] 
work has been limited as to its exposure in other countries. Because NGA is a US military intelligence 
agency, all government-related techniques are kept private within the U.S." The petitioner submitted a 
copy of an electronic mail message from the NGA, instructing the petitioner not to share a particular 
software code because "it's not in the best interests of the US Government to provide this freely to any 
other country." As a result, the petitioner has been able to present his findings, but has not always been 
able to share the methods underlying those findings. 
Six new witness letters accompanied the petitioner's response to the RFE. - 
stated: "One of [the petitioner's] main contributions is that he developed an efficient system to measure 
the gravity signal of the Earth. His system has been extensively used by the National Geospatial- 
Intelligence Agency (NGA). I was deeply impressed by the performance of this system in his papers 
and dissertation." 
In his second letter,repeated the assertion that "there are literally no students who are US 
citizens pursuing research in physical geodesy." asserted that the beneficiary's nonimmigrant 
status limits his ability to travel internationally to collaborate with Canadian colleagues or present his 
work at overseas conferences. 
- of the University of Karlsruhe, Germany, stated: "I got to know [the 
petitioner] during a one month research stay at NOAA/NGS in AugustJSeptember 2008 where I did 
research Ad in highly precise geoid determination." contended that the petitioner "belongs 
to the few experts in the field of INSIGPS gravimetry worldwide." 
an assistant professor at Cornell University, praised the petitioner's compilation 
of "the various topographic maps of Alaska into a seamless whole" despite differences in resolution and 
other factors. of the University of Alaska stated: "My students, technicians and 
myself had for years been frequently repeating, on smaller scales, the processes that [the petitioner] so 
elegantly accomplished for the entire region. To be able to work with [the petitioner's] DEM is a very 
significant savings in effort and resources for my research group." 
The above two independent letters provide concrete and specific examples of the broader application of 
the petitioner's work, as does the next letter. - of the University of West Bohemia, 
Czech Republic, asserted that the petitioner's "results allow him to enjoy a worldwide recognition as a 
scientist who deserves a[n] honorable distinction." He stated: 
In his recent publication in the Journal of Geodesy, he designed a novel neural network 
to successfully estimate gravity data from a combined GPSLNS. It was for the first time 
worldwide that the neural network had successfully been applied as a gravimetric 
system. Another anonymous reviewer of the article wrote that this method would have a 
revolutionary impact in the field of kinematic gravimetry. Moreover, his method has 
successfully been used by both the NGA and NGS. This is quite impressive, 
considering normally a new idea takes lots of time to be successfully employed in 
reality. 
The director denied the petition on June 18, 2009. The director acknowledged the intrinsic merit and 
national scope of the petitioner's occupation, and quoted from several witness letters, but found "the 
most reliable indicator of your past impact in geodesy is the history of having your work cited by 
colleagues and others in the field." The director found that the petitioner's minimal citation history "is 
absolutely not consistent" with eligibility for the waiver. 
On appeal, the petitioner explains that, because NGA has limited his ability to share specific data, as 
opposed to broad findings, other researchers have less ability to use the petitioner's methods, which in 
turn reduces opportunities to cite his work. 
Page 8 
In a new letter, now acting director of NGS, states: 
Due to [the petitioner's] ongoing critical role in executing the mission of our agency, 
NGS has a vested interest in . . . having this application approved. . . . 
This past year, he has focused on improving the models for Alaska, which have taken on 
increased importance with the melting of the Polar Regions and potential opening of the 
Northwest Passage for commercial shipping. The U.S. Coast Guard and the State of 
Alaska have both expressed great concern [at] the lack of quality models for this region. 
[The petitioner's] work is integrally tied to providing these improved models. . . . 
All of [the petitioner's] research has culminated in the development of the new national 
geoid models for the NSRS due out this month. Upon completion of these models and 
publication to the web for use, documentation in journals of these various research 
efforts will commence. This prioritization of completing the models before publishing 
has been imposed on him by NGS. He should not be fwther penalized for supporting 
our mission. 
Other materials in the record confirm that the petitioner's work has heavily emphasized presentation 
rather than more readily cited publication. Independent witness letters likewise show that the 
petitioner's presented work has deeply influenced the work of others, even without the citable detail of 
journal publications. 
The director was correct in finding that citations are a strong gauge of the impact of an alien's 
published work. Citations are not, however, the only acceptable means of measuring that impact. 
Also, in this particular proceeding, the petitioner has demonstrated that much of his impact has come 
through means other than journal publications. Independent witnesses have provided credible, 
detailed and persuasive explanations of how the petitioner's work has influenced their own efforts, 
and NGS has consistently indicated that the petitioner is not only valued, but a vital participant in its 
ongoing efforts. We do not accept the assertion that a shortage is, itself, a strong factor in the 
petitioner's favor, but our rejection of this assertion does not undermine the other arguments made in 
this proceeding. 
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 evidence in the record establishes that the scientific 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. 
Page 9 
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 AAO will withdraw the 
director's decision and approve the petition. 
ORDER: The appeal is sustained and the petition is approved.