sustained EB-2 NIW Case: Marine Geology

identifying data deleted to 
)revent clearly unwarranted 
invasion nf personal privacy 
DATE: DEC 21 2011 
INRE: Petitioner: 
Beneficiary: 
u.s. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
OFFICE: TEXAS SERVICE CENTER 
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: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
Thank you, 
PerryRhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
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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) ofthe Immigration and Nationality Act 
(the Act), 8 U.S.C. § 1153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as a marine laboratory specialist at Texas A&M University (T AMU). 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 ofthe 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 brief from counsel. 
Section 203(b) ofthe 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 
increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise .... " S. Rep. No. 55, IOlst Cong., 1st Sess., 11 (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 U.S. Citizenship and Immigration Services (USCIS)] 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 o~ the job offer will be in the national interest. 
Each case is to be judged on its own merits. 
Matter a/New York State Dept. a/Transportation (NYSD01), 22 I&N Dec. 215 (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. 
The AAO also notes that the regulation at 8 C.F.R. § 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. 
The petitioner filed the Form 1-140 petition on March 1, 2010. In an accompanying letter, the 
petitioner described his work with the Integrated Ocean Drilling Program (IODP), in which TAMU 
is a participant: 
IODP is a unique program which conducts scientific investigation of the Earth system 
using multiple drilling platforms and new technologies. It is a cooperative venture 
among about 25 nations .... The mission of IODP is to provide a holistic 
understanding of the Earth by state-of-the-art drilling, sampling, monitoring and 
Page 4 
analyzing of subseafloor environments. It (1) unifies the international scientific 
community to study the Earth as a system and (2) advances future research and 
discovery through the worldwide dissemination of data and samples that (3) promote 
global awareness of geohazards and environmental change .... 
During the course of my career, in addition to my exceptionally in-depth knowledge 
of Earth Science, I have been able to make significant contribution in the design, 
research and development of ... instruments and softwares [sic] [used in IODP]. 
In particular, I've led the development of a complex software that captures geological 
observations and interpretation by a majority of scientists that form the core of each 
expedition. The uniqueness of this software and database structure can be considered 
revolutionary in the field of marine geology in that it allows the dynamic data search 
and synthesis needed for comprehensive studies of earth materials. Although it has 
only been implemented in the last seven expeditions, Earth Scientists have already 
realized the huge potential that this type of database structure can bring to their 
studies. 
(Emphasis in original.) The petitioner submitted background materials about the IODP, which 
establish the intrinsic merit and national scope ofthe petitioner's work. They do not show, however, 
how it is in the national interest for the petitioner to be the one performing the duties of a marine 
laboratory specialist. 
The initial filing included several letters from IODP officials at TAMU and researchers who have 
accompanied the petitioner on expeditions of JOIDES Resolution (JR), the drilling vessel on which 
the petitioner has performed much of his field work. 
T AMU Pro "served for 13 years as the Director for Science Operations for 
the JOIDES Resolution," stated that the ship "is to our understanding of Earth's record of deep time 
(present back to 180 million years ago) what the Hubble telescope is to our understanding of deep 
space." Regarding the petitioner's contributions, Prof. Fox stated: 
When [the petitioner] was hired several years ago the JR was undergoing a major 
overhaul, including the ship's laboratory complex, and [the petitioner] was tasked 
with developing a new analytical application that would make it more efficient, 
flexible and productive for the science party when they described cores recovered 
during an expedition. The JOIDES Resolution returned to sea 8 months ago and the 
application that [the petitioner] had developed has been described as transforming by 
the scientists who have used the application ... .I have spoken with colleagues who 
have participated in these expeditions and they are unanimous in their assessment that 
[the petitioner] was one of the outstanding members of [the] TAMU laboratory team. 
ofIODP Analytical Systems at TAMU, stated: 
PageS 
[The petitioner] has demonstrated exceptional technical capabilities that bridge his 
geological education and background with the research and development undertaken 
by my section. He has had a lead role in developing a new paradigm in geological 
description software that is currently deployed upon our research drillship, the RlV 
JOIDES Resolution. Since joining IODP, he has worked in defming and putting 
together the database structure, content and specifications for several of our essential 
applications for capturing, downloading and formatting data .... His exceptionally 
detailed and comprehensive knowledge [of] the entire workflow has made him the 
resource person for training users and collaborating with other sections and 
departments ... and other IODP implementing organizations ... , as well as our 
customers on board the ship here and on shore. 
Onshore, [the petitioner] works in the shore laboratory developing similar instruments 
and processes for use by scientists who visit the Gulf Coast Repository and by the 
College of Geosciences at Texas A&M University. [The petitioner's] specialization 
in sedimentology and stratigraphy has also allowed him to assist the engineering 
group in optimizing the sediment used in the simulated borehole test system to test 
improvements to our coring and downhole measurement tools. In addition, he has 
displayed exceptional skills in SolidWorks software and has therefore been 
instrumental in the 3-dimensional design, testing, actual machining of some 
components and assembly of six core loggers that are all unique to our shipboard and 
shore-based laboratories .... 
[The petitioner] is irreplaceable for the continuation of our current projects and his 
loss would be a strong detriment to US science support for the program. 
in several fields of geology 
TAMU, stated that the petitioner's "broad knowledge 
to be an exceptional resource person in developing this 
other data capture and query software that we have core description system, mICroscopy and 
developed here at IODP. 
an expedition project manager for the IODP, stated that the petitioner's "primary job 
duty is to pr~rational support for a multitude of science systems aboard the JOIDES 
Resolution." ~ called the petitioner "one of our most resourceful team members with a 
broad set of skills that would be extremely difficult to replace." 
of Technical and Analytical Services for IODP at TAMU, stated: "[the 
to our implementation of an innovative conceptual model for data 
collection and interpretation has made him our local expert." 
The remaining 
JOIDES Resolution. 
but all have sailed with the petitioner on 
ofIndiana University of Pennsylvania stated: 
Page 6 
The work on Expedition 321 would not have been possible without [the petitioner's] 
exceptional abilities .... He was the main "go-to" guy for training other scientists 
about how to use different laboratory equipment and software. And whenever 
equipment was in need of repair or tuning, he ably came to the rescue .... 
[I]t's clear that these sediment cores will form the basis for our understanding of 
equatorial climate change for years to come .... None of this would be possible 
without accurate initial data collection on these cores that was accomplished because 
of the specialized skills 0 f scientists like [the petitioner]. 
Professo~fNotre Dame University, Indiana, stated: 
I have worked with [the petitioner] on board the drilling vessel JOIDES Resolution 
when I was the chair of the Readiness Assessment Team of Scientists who sailed 
earlier this year to test out the new science systems that had been installed on this 
now start-of-the-art [sic] ocean-drilling vessel. During this voyage, I was allowed a 
lot of time to observe and interact with [the petitioner] as he was the lead trainer for 
the new science systems that had been installed over the previous 2 years .... 
[D]uring a scientific expedition ... [a]ll data gathered must be entered into the ships 
[sic] database and then recovered and integrated to allow the final site and expedition 
reports can [sic] be written up and published. [The petitioner's] expertise is in the 
various programs that interact with the main database, core description, and data 
integration. 
My observations leave me in no doubt that the US scientific ocean-drilling program 
would be seriously compromised without [the petitioner's] expertise. His knowledge 
of the ships [sic] science systems and, maybe more importantly, his teaching skill ... 
are second to none. It is my opinion that his presence is essential to the smooth 
operation of this vital US scientific endeavor . 
•••••••••• Ia·t the University of California, Davis, stated: "The 
work on 320/321 would not have been possible without [the petitioner's] unique and 
exceptional ability and knowledge about the science, instrumentation, and data management. 
at Christian Albrechts University, Kiel, Germany, stated that the 
petitioner's ''wide background in most of the fields of geology, coupled with his knowledge in 
instrumentation and database, has given him a unique combination oftools for research that many of 
his peers do not have." 
the Faculty of Education at Ibaraki University, Japan, sailed with the petitioner 
on a six-week expedition. _ stated that the petitioner "has been involved in establishing an 
integrated laboratory system for the drilling vessel JOIDES Resolution .... His deep background in 
Page 7 
geology and wide knowledge on how to run the different instruments and software ... made work 
very easy during the expedition." 
On June 1 0, 2010, the director issued a request for evidence, instructing the petitioner to submit 
additional documentation to meet the guidelines set forth in NYSDOT. 1 In response, counsel noted 
earlier assertion: "IODP policy does not allow us to sponsor foreign nationals for 
permanent residence." Counsel states: "the national interest will be harmed if [the petitioner's] 
employer is prevented by the US immigration laws from employing him in his current position." 
"US immigration laws," however, did not compel the petitioner's employer from adopting a policy 
against applying for a labor certification. 
The employer's policy cannot be a major factor in the petitioner's favor. The statutory job offer 
provision is a requirement, not an option for an employer to exercise at its sole discretion. The job 
offer requirement would soon become meaningless if employers could unilaterally exempt their 
current or prospective employees from that requirement simply by declaring that the requirement is 
contrary to their policy. An employer's unwillingness to comply with the job offer requirement does 
not establish or imply that it is therefore in the national interest to waive that requirement. 
The petitioner submitted background documentation about the IODP's mission, budget, and other 
factors. The intrinsic merit and national scope of the IODP, as a whole, is not in dispute here. It 
does not follow, however, that every participant in the IODP qualifies for a national interest waiver. 
The petitioner submitted two new witness letters. in his second letter, stated: 
There are three distinct phases of the data collection process. [The petitioner] 
possesses unique skills necessary for each phase. First, the software must be 
developed and constantly revised. . . . Just as important as the data storage is the 
development of instruments that will collect the data deep below the ocean floor .... 
The second phase is on-site data collection and storage. This phase must be carefully 
supervised by an individual with expertise in the software itself, as well as a 
technological understanding of earth science researchers' requirements and the 
instruments used to collect the data .... The databases cannot be developed or 
maintained by a standard IT technician. Rather, they must be developed and 
maintained by an individual who understands the data being collected, has familiarity 
with the data collection instrumentation, and can "tweak" the software as necessary. 
The third phase is the dissemination of collected data, carefully tailored to each 
researcher's needs .... 
I The date on the request for evidence is May 11, 2010, but the director did not mail the notice until June 10, 2011. The 
date of service is the date of actual mailing, not the date printed on the notice. See 8 C.F.R § 103.5a(b). 
[The petitioner] possesses the necessary skills for each of the three phases of data 
processing. He came to IODP with these skills, and has continued to develop them 
throughout his assignments. The necessary skills that [the petitioner] possesses are: 
$ Highly developed understanding of geology, earth and environmental science 
... , including two masters degrees ... ; 
$ Exceptional computer programming and database management skills ... ; 
$ Creative ability ... so that the data collected can be transferred seamlessly to 
the appropriate software; 
$ Outstanding ability to teach others. . . . [The petitioner] has used these well­
developed skills both to mentor other programmers with whom he 
collaborates, and also to teach other earth scientists to input, manipulate and 
study data in the highly complex program he maintains; 
$ Exceptional ability to solve problems creatively when constrained by the 
limited resources available on a ship at sea for many months; 
$ Training in numerous safety programs required for shipboard living; 
$ Innate ability to maintain calm under pressure .... 
His rare combination of skills is an absolute necessity for an incumbent in his 
position .... In addition, each individual on the ship must possess numerous skills, as 
the ship would not have room to have one individual for each uniquely-defmed skill 
set. 
of Oregon State University stated: 
I participated in IODP Expedition 324 and I will lead the upcoming Expedition 330 as 
the US co-chief scientist, which starts December 2010. Earth Scientists on every 
continent are participating in this program, bringing knowledge to use in research that 
is expected to help predict catastrophic events such as earthquakes, volcanoes and 
tsunamis. The research will also help document the causes and effects of climate 
change and global warming, attempting to mitigate the damages from this man-made 
disaster. IODP is, without exception, the most important and well-known geological 
expedition in the world, and has been for over forty years .... 
IODP is very lucky to have recruited [the petitioner] .... Not only does he have the 
skills to communicate technical issues to users, but also the knowledge to guide 
programmers to creatively design the instruments that collect the data to input into the 
software .... 
[The petitioner] has also been very helpful in assisting users ofthe software. 
The director denied the petition on August 30, 2010, stating: ''The petitioner has heavily focused on 
... the significance of his field of employment itself, rather than ... his exceptional 
Page 9 
accomplishments and the impact of his contributions in the field of his expertise." The director 
noted that the petitioner claimed authorship of a number of published articles, but the petitioner did 
not submit the articles themselves. The director concluded that ''the petitioner appears to be a 
competent and qualified Research Specialist," but "has not shown that the waiver ofthe required job 
offer and labor certification would be in the national interest." 
On appeal, counsel observes that the director did not dispute the substantial intrinsic merit or 
national scope of the petitioner's occupation. The AAO agrees with this statement, and will focus 
only on the petitioner's individual merits rather than the overall importance of his occupation. 
Counsel claims: 
the Director imposed novel substantive or evidentiary requirements beyond those set 
forth at 8 C.F.R. § 204.5, ignored significant portions of the evidence that 
conclusively demonstrate [the petitioner's] exceptional ability, misapplied the 
government's own standard for reviewing petitions submitted under INA 
§ 203(b )(2)(B) and misconstrued the labor certification process, by rendering a denial 
that was arbitrary and capricious. 
Counsel cites Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010), stating that the court did not permit 
"arbitrary and capricious imposition of requirements beyond those set forth" in the regulations (see id. 
at 1121). The Kazarian decision involved a petition for an alien 0 f extraordinary ability under section 
203(b)(1)(A) of the Act. The implementing regulations for that classification include, at 8 c.F.R. 
§ 204.5(h)(3), a list often evidentiary criteria. A petitioner seeking that classification must meet at least 
three of those ten criteria. The court, in Kazarian, held that USCIS adjudicators could not modify those 
requirements. In this proceeding, under different sections of the statute and regulations, there is no 
comparable list of qualifications. The regulation at 8 C.F.R. § 204.5(k)( 4)(ii) provides for the national 
interest waiver, but is entirely silent as to the requirements for it. In the absence of statutory and 
regulatory guidance (with the exception of provisions for certain physicians, not applicable here), the 
only binding law pertaining to the national interest waiver is NYSDOT. 
Counsel does not address NYSDOT except to state: "We do not understand how NYSDOTs message 
applies to [the petitioner's] case," because the petitioner had neither claimed a shortage in his 
occupation nor "suggested that the minimum qualifications and special requirements for the position 
cannot be specified by the employer." NYSDOT, however, is not limited to those issues. A cornerstone 
of that decision is the three-prong test described earlier in this decision, including the following 
proVISIOn: 
The petitioner seeking the waiver must persuasively demonstrate that the national 
interest would be adversely affected if a labor certification were required for the alien. 
The petitioner must demonstrate that it would be contrary to the national interest to 
potentially deprive the prospective employer of the services of the alien by making 
available to U.S. workers the position sought by the alien. The labor certification 
-Page 10 
process exists because protecting the jobs and job opportunities of u.s. workers 
having the same objective minimum qualifications as an alien seeking employment is 
in the national interest. An alien seeking an exemption from this process must 
present a national benefit so great as to outweigh the national interest inherent in the 
labor certification process. 
Stated another way, the petitioner, whether the U.S. employer or the alien, 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 is 
not sufficient for the petitioner simply to enumerate the alien's qualifications, since 
the labor certification process might reveal that an available U.S. worker has the 
qualifications as well. Likewise, it cannot be argued that an alien qualifies for a 
national interest waiver simply by virtue of playing an important role in a given 
project, if such a role could be filled by a competent and available U.S. worker. The 
alien must clearly present a significant benefit to the field of endeavor. 
Id. at 217-18 (footnote omitted). Counsel tacitly acknowledges the above provisions, asserting that 
the petitioner "has ... demonstrated that the national interest would be adversely affected if a labor 
certification were required." 
Counsel stands on firmer footing when discussing the evidence in the record. Counsel states that, in 
discussing the witness letters, the director focused on the parts of the letters dealing with the overall 
importance of the IODP endeavor rather than the petitioner's individual contributions to the effort. 
Counsel is justified in this complaint. 
While many witnesses devoted considerable space to the overall merits of the IODP, the letters also 
provided clear and detailed explanations of the petitioner's role aboard the JR. The petitioner is not, 
himself; primarily a researcher, and therefore one should not expect to see volumes of published 
material in his name. At the same time, he is not merely a laboratory technician, following rote 
instructions to perfonn basic functions so that the researchers are free to perfonn higher-level work. 
Credible witnesses have consistently indicated that the petitioner is largely responsible for creating the 
conditions necessary for IODP researchers aboard the JR to achieve optimal results, and the remainder 
of the record supports their assertions. 
Because the petitioner's primary role is not to produce published research, it is appropriate to look to 
other means to gauge the impact ofhis work The individuals who perfonn research aboard the JR have 
made it clear that the petitioner is not simply a technician who maintains laboratory equipment, ensures 
that the onboard computers function properly, and "crunches" data collected on expeditions. Rather, the 
witnesses have credibly, consistently, and in detail explained how the petitioner's work is an integral 
part of a major, international effort to collect and interpret data with important implications for 
climatology, disaster preparedness, and other highly significant enterprises. 
Page 11 
The benefit of retaining this alien's services outweighs the national interest that is inherent in the labor 
certification process. The petitioner has established that a waiver of the requirement of an approved 
labor certification will be in the national interest ofthe 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 AAO will withdraw the 
director's denial decision and approve the petition. 
ORDER: The appeal is sustained and the petition is approved.