sustained EB-2 NIW Case: Geophysics

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
SRC 06 181 51165 
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, S U.S.C. 5 1 1 53(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 
pobert P. Wiemann, 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 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 an alien of exceptional ability and as a member of the professions holding an advanced 
degree. At the time he filed the petition, the petitioner was a postdoctoral research fellow at Southern Methodist 
University, Dallas, Texas. 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: 
(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. (An additional finding of exceptional ability would be moot, and the petitioner's claims in this area need 
not be discussed here.) 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, 
10 1 st Cong., 1 st Sess., 1 1 (1989). 
Page 3 
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 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 quali@ 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. 2 1 5 (Commr. 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 also note that the regulation at 8 C.F.R. 5 204.5(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 offer/labor 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. 
In a statement submitted with the initial submission, the petitioner described his work: 
During my Ph.D. studies at Southern Methodist University (SMU) .in Dallas, Texas, I 
researched a wide range of geophysical problems. During this time 1 became a broadly 
trained geophysicist interested primarily in interdisciplinary studies in seismology, infrasound 
and heat flow. 
Seismology 
The most important tool in detecting a potential underground nuclear explosion is 
seismology. The current detection techniques make use of arrays of seismometers. . . . My 
research focused on array processing techniques and ways to improve the detection capability 
of those arrays. In particular, I concentrated on the effect of the local geology on the seismic 
recordings and how to remove the so called "site effects." My research resulted in an 
alternate way of characterizing the site effects, using infiasound waves which couple locally 
into seismic waves. . . . 
. . . As means to control atmospheric nuclear explosions infrasound arrays are currently 
deployed all over the world. As part of this effort SMU is installing two new infrasound 
arrays on Wake and Midway Islands. 1 was responsible for noise analyses for each site[], and 
1 was actively involved in writing the final technical reports. 
Afier the Columbia Space Shuttle disaster on February 1, 2003, I was part of the SMU team 
which analyzed the signals associated with the Columbia explosion. Based on the modeling 
and the shape of the signals, we were able to draw important conclusions . . . as to the cause 
of the crash. . . . 
Heat Flow 
One of my primary research interests is regional heat flow. In the past, I charactaized the 
thermal patterns in Texas and I interpreted the heat flow variations in terms of local and 
regional geology. Several important conclusions resulted from my work. First, a correlation 
between basement structure and heat flow was inferred and the thermal significance of the 
Ouachita thrust was revealed. . . . I discovered an area along the Texas/Louisiana border, 
where due to the high underground temperatures geothermal energy can be extracted. . . . 
Additionally, as part of my dissertation . . . I researched the possibility of occurrences of 
small scale geothermal explosions . . . [at] Yellowstone Lake. . . . 
My Future Research 
A research project called "Infrasound in the zone of silence" . . . [seeks] to further our 
understanding of infrasound propagation in the lower atmosphere . . . and to carry out 
research to characterize explosive sources around the Nevada Seismic Array. . . . 
In the future, 1 will be involved in a two year continuation of the "Calibration at White Sands 
Missile Range" project. . . . I will also be listed as key personnel on a major research proposal 
. . . which is aimed at understanding the thermal influence on regional wave propagation, with 
particular focus on Eurasia. 
Counsel asserted: 
Page 5 
[The petitioner] has demonstrated valuable expert skills in a variety of geophysical areas 
ranging from seismic array analysis, infrasound analysis and heat flow research that could 
lead to the discovery of new renewable energy sources and national defense strategies. . . . 
[The petitioner[ has had over seven years of experience in the field of geophysics. His solid 
background and excellent training have positioned [the petitioner] on a plane so that he may 
continue his superb track-record of scientific contributions. [The petitioner's] proven 
accomplishments illustrate his continued contribution to the U.S. national interest. . . . 
[The petitioner] has impressed a number of experts in his field with his skills, knowledge, 
background and abilities. The experts concur that [the petitioner] is extremely valuable for 
his rare and unique background and skills and that the loss of [the petitioner's] talent would 
severely impact the U.S. national interest in science and geophysics. 
Several witness letters accompanied the initial filing. We shall consider examples of 
majority of the initial witnesses are current or former SMU faculty members. Professor 
described the petitioner's most recent work: 
I am responsible for the geothermal resource base calculation and the work of [the petitioner] 
has been critical in the preparation of this analysis. He has also contributed to the 
deciphering of the small-scale complicated patterns of various geothermal sites, finding the 
most attractive economical location for the site. . . . 
[The petitioner's] unique combination of skills has been critical in his . . . interpretation of 
both heat flow and seismic data existent for the Yellowstone Lake, Yellowstone National 
Park, Wyoming. This is probably the most important work he has carried out to this point in 
his care. 
Outside of SMU, one of the witnesses is '‘the leader of the Geothermal Program at the US. 
Department of Energy's Idaho National Engineering and Environmental Laboratory," who stated: 
We are currently funding part of [the petitioner's] geothermal research and have [done] so for 
several years. I can confirm that [the petitioner] is positively and substantially impacting our 
energy supply crisis. . . . 
During his Ph.D. studies, [the petitioner] played a key role in several significant heat flow 
projects. He analyzed the heat flow in the southwestern United States and discovered a 
potential economically interesting area at the Texas/Louisiana border. The geothermal 
program at Southern Methodist University is currently the only group specializing in heat 
flow related to geothermal resource development and [the petitioner] is one of the leaders in 
this group. 
Other witnesses offer general praise for the petitioner's expertise and contributions, without discussing those 
aspects in detail. 
The petitioner's initial submission also included background documentation as well as examples of the 
petitioner's published and presented work. A printout from http://scholar.goo~le.com indicated that one of 
the petitioner's papers has been cited twice, both times being self-citations by the petitioner and/or his 
collaborators. 
In a request for evidence issued November 7,2006, the director acknowledged the intrinsic merit and national 
scope of the petitioner's field of endeavor, but stated that the petitioner had not yet "shown that the labor 
certification process would adversely affect the national interest." The director stated that it cannot suffice 
simply to attribute "unique skills" to the petitioner, and that the petitioner had not established independent 
recognition that would set him apart from other competent researchers in his field. The director requested 
"evidence of the extensive and frequent citation of' the petitioner's published work, to allow an objective 
distinction between the petitioner's work and that of others in the same field. 
In response, the petitioner submitted additional letters, articles, and other materials. The petitioner did not 
claim wide citation of his published work. Instead, the petitioner submitted letters from various witnesses 
(including a journal editor) who indicate that the beneficiary's work in infrasound is not widely cited because 
there are few researchers in the field and their work generally appears in government reports rather than 
scholarly journals, and that the beneficiary's heat flow studies are not widely cited because relatively few 
papers appear in that field and the beneficiary's papers have not existed long enough for many citations to 
appear. 
Principal Analyst, Nuclear Treaties at the United States Department of Defense (his 
letterhead reads "Assistant to the Secretary of Defense"), stated in a January 4, 2007 memorandum that the 
petitioner "is engaged in research and development of direct interest to the Department of Defense (DoD) 
nuclear arms control and nonproliferation programs." 
Professor 
 Director of the Jamie L. Whitten National Center for Physical Acoustics at the 
University of Mississippi, stated that the petitioner's research relating to the Columbia disaster exposed a 
discrepancy in existing formulas for "the standard yield frequency relationship used for many years. . . . This 
is a case where a young mind new to the field successfully challenged ideas (actually an equation) which has 
[sic] been accepted by the gray beards in the community for many years. We really need [the petitioner] in 
our field." 
Regarding the petitioner's work involving heat flow, , Editor of Natural Resources 
Research and a Professor Emeritus at Wichita State University, stated that "citations during a researcher[']s 
first few years may be low" owing to the low number of "publications where geothermal research is 
published." Regarding one of the petitioner's recent heat flow papers stated: 
There are two major accomplishments present in this paper. 
 The first is related to the 
temperature-at-depth maps in three dimensions for the temperature field for the entire U.S. 
Page 7 
. . . 1 believe that the temperature-at-depth maps will be widely cited in the geothermal 
community because the high-temperature areas are the target of the geothermal exploration. 
There is also a second major implication of this paper. 
 The amount of the potential 
geothermal power is larger than previously thought. . . . In addition, recent technological 
advances . . . make electrical power generation from low-temperature (90°C) geothermal 
waters economical. Research and development of this new type of resource, combined with 
technological advances, are critical to the U.S., and [the petitioner's] studies will be the basis 
for a major change in energy policy and energy future for our country. 
I became aware of [the petitioner's] research through his presentations at the American 
Geophysical Union Fall Meeting and through the opportunity to review two of his papers on 
enhanced geothermal resources in the U.S. for the Editor of Natural Resources Research 
(NRR). 
In his most recent submittal to NRR, [the petitioner] evaluated the geothermal potential of 
enhanced geothermal systems of the coterminous U.S. The paper is the first detailed, large- 
scale study that addresses the EGS potential of the entire United States. [The petitioner's] 
approach to computing the amount of energy available required development of a three- 
dimensional model of the subsurface temperature field of the U.S. Such a complex 
calculation of temperatures at various depths had not previously been attempted at a 
continental scale . . . due to the complexities of lateral variations in critical rock properties 
such as thermal conductivity and radioactive heat generation. [The petitioner] not only 
attempted, but also succeeded in computing the temperature with a high degree of accuracy. 
. . . [The petitioner's] paper is unique in that it addresses the applied field of geothermal 
energy and geothermal engineering. The temperature maps that [the petitioner] presented in 
his paper are excellent representations of the geothermal resource potential of the U.S., and 1 
believe this paper will become a cornerstone for new geothermal research and geothermal 
development. 
The director denied the petition on January 30, 2007, quoting from the various letters but concluding that the 
petitioner had "not shown how the beneficiary has influenced the field as a result of his research" or "how the 
labor certification process would adversely affect the national interest." 
On appeal, counsel argues that the director ignored some witness letters and took quotations from others out 
of context. Counsel further contends that the director "solely relied on citations" when rendering the decision, 
without considering other evidence of the petitioner's influence in the field such as government reports. 
Upon consideration, the AAO concurs with counsel's arguments. The petitioner has not established wide 
citation of his work in professional journals, but the petitioner has presented credible explanations from 
knowledgeable experts (including a journal editor) to account for the low citation rate of the petitioner's 
work. The petitioner has presented credible statements from a number of independent witnesses, 
demonstrating that experts outside of the petitioner's own circle of collaborators and mentors consider his 
work to be especially important within the field. The witnesses have attributed to the petitioner significant 
developments, findings and innovations in several different areas of inquiry, with implications ranging from 
national defense to domestic sources of clean energy. The AAO finds that the petitioner's contributions in these 
areas go considerably beyond the routine work products of a researcher in a small field with few researchers. 
Also significant is that many of the independent witnesses were already aware of the petitioner's work; they did 
not learn about it for the first time when they were asked for letters in support of the petition. 
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. 
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.