sustained EB-2 NIW Case: Materials Science

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
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FILE: Oftice: VERMONT SERVICE CENTER Date: AUG 2 2 2005 
EAC 02 280 53 169 
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. 3 1 153(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 
originally decided your case. Any further inquiry must be made to that oflice. 
'W 
Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the employment-based immigrant visa petition. 
The matter 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), as a member of the professions holding an advanced degree. At the time of filing, the 
petitioner was a postdoctoral fellow at Temple University. The petitioner asserts that an exemptior~ 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 requirements of subparagraph (A) that an alien's services i:n 
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, 
lOlst Cong., 1 st 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 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 
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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. 21 5 (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 thr: 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. 
Several witness letters accompany the petitioner's initial filing. ~rofessorwho supervised 
the petitioner's work at Temple University, states: 
[The petitioner] is one of only a handful of chemist[s] with an expertise in the increasingly 
technical field of material science. . . . [The petitioner's] extensive expertise lies in the multi- 
billion dollar field of semiconductors, optoelectronics, and surface science. . . . His work in 
this field is of the highest caliber, and demonstrates his possession of an extraordinary degree 
of skill in the field of material science. 
[The petitioner] is indeed a pioneer in his field. The breakthroughs, innovations and 
discoveries he has made will continue into the future. . . . 
[The petitioner] is intimately involved with a project supported by the US Department of 
Energy to prevent acid mine drainage (AMD). AMD results . . . [when] metal sulfides, 
uncovered during mining, are exposed to the atmosphere where they decompose to fonn 
sulfuric acid which destroys above and subsurface waterways and the life within. . . . 
[The petitioner] is carrying out research to understand the AMD process resulting from the 
oxidation of the most ubiquitous sulfide, pyrite. His research is continuing to unravel the 
surface chemistry that precedes the AMD process. The goal is to coat the metal sulfide with 
materials that will prevent the elementary reactions that makeup AMD. He has been a 
pioneer in the synthesis of model pyrite materials that will allow us to understand and 
ultimately help solve this major environmental problem. . . . 
Currently, [the petitioner] is working on a project, funded by and 
the US National Science Foundation, dealing with the formation mechanism of - 
dichlorodimethylsilane - a necessary ingredient for the billion dollar silicone industry. The 
mechanism of this process is not clear although an understanding [of] the 
chemistry would allow them to The importance of this research i.3 
huge, as there is widespread use of silicone in various industries. 
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All but one of the other initial witnesses have worked with the petitioner as well, mostly at Rutgers University 
where the petitioner (The remaining witness met the petitioner during a 1908 visit to 
Rutgers.) Professor who supervised the petitioner's doctoral studies, descxibes the 
petitioner's work at Rutgers: 
[The petitioner's] work with me . . . was primarily on FTIR studies of surface oxidation. . . 
[The petitioner] played a key role in the design, construction and operation of a new ultrahigh 
vacuum FTIR system. . . . The instruments that he has designed are among the most versatile 
ones worldwide for vibrational spectroscopy of practical materials. . . . 
[The petitioner] has been quite productive, with a solid and growing record of publication. 
His papers are becoming highly cited by scientists throughout the world. 
The record contains copies of two of the petitioner's published articles. With regard to Prof. - 
claim that the petitioner's "papers are becoming highly cited by scientists throughout the world," the initial 
submission contains only one article citing the petitioner's work. One of the co-authors of the citing, article is 
Prof. who also co-wrote the work cited. Thus, the only citation of the petitioner's work in the 
initial submission is a self-citation by a co-author. While self-citation is common and accepted practice, it can 
hardly be construed as evidence that the petitioner's articles are "highly cited . . . throughout the world." 
[The petitioner] is an outstanding scientist who has displayed both academic brilliance an~d 
great ingenuity. . . . In a short time, [the petitioner] developed novel configurations to probe 
extremely low concentrations at surfaces, modified ultra-high vacuum chambers to be able to - 
probe oxide growth in-situ, and obtained already having a great impact on 
thommunity atnd Most importantly, [the petitioner] 
learned new skills extremely quickly into a world class, independent 
researcher who excels at his present position at Temple university. 
The director denied the petition, stating that the materials submitted with the petition do not show that the 
petitioner "has compiled a record of substantial achievement" that has yielded tangible, objective evidence of 
impact on the field (such as heavy third-party citation of the petitioner's published work). The direclor stated 
that involvement in an important, government-funded project is not, by itself, prima facie evidence of 
eligibility for the waiver. 
On appeal, the petitioner states that his three papers published prior to the filing date "have been cited 20 
times in 15 journal publications. . . . Twelve of these 15 citing papers were from independent research groups. 
In one of the citing papers . . . Dr. Evans referred to my research as 'an important study of oxidation on 
clean Si(100) at low temperature"' (the petitioner's emphasis). 
Acknowledging that his initial submission focused heavily on letters from supervisors and collaborators, the 
petitioner submits new letters from inde st of the letters discuss the work that the 
petitioner had undertaken at Rutgers. Dr assistant professor at Stanford University, 
states: 
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I have not worked with [the petitioner] directly, but because I work in a similar field I became 
familiar with [the petitioner's] research and because he has published his research in several 
prestigious journals. . . . His research on the mechanism and kinetics of the oxidation of 
hydrogen covered silicon surface is of great importance and has significantly impacted the 
semiconductor field and how the this [sic] industry is working to solve their most difficult 
technical challenges. . . . 
Due to the ever-shrinking size of the individual transistors on computer chips, the thickness 
of the gate oxide is approaching its physical limits. [The petitioner's] research elucidated the 
kinetics of the initial oxidation process on hydrogen covered silicon surface, which is key to 
understanding the formation of the ultra-thin gate oxide films. The integrity and electronic 
properties of this ultra-thin gate oxide are directly affected by the initial oxidation process. 
Without the fundamental understanding of this process as provided by [the petitioner'!;] 
research, the next generation of silicon based semiconductor technology will be extremely 
challenging. Silicon oxidation is one of the most important scientific and technical 
challenges in the semiconductor industry. [The petitioner] studied this issue using his unique 
expertise in surface science and has had significant impact in this key field (silicon 
oxidation), and also on the broader areas of semiconductor research. 
I would consider [the petitioner] as one of the top scientists in the field of surface science and 
semiconductor research. 
Professor chair of the Department of Chemistry and Chemical Biology at Harvard 
University, states that one of the petitioner's published articles "provided the first fundamental 
understanding" of "the kinetics of the oxidation of hydrogen covered silicon surface." Professor 
of the Federal University of rande do Sul and the University of Caxias do Sul, both in 
states: 
Although I have not worked directly with [the petitioner], I started to pay attention to hi!; 
work in 2001 after I saw him speak about his research. He shortly thereafter published some 
very interesting and important papers, which 1 continue to discuss with my colleagues ancl 
students. One of his research projects that particularly interested me was focused on thr: 
kinetics of the oxidation of hydrogen covered silicon surfaces. This is an intrinsically 
imperative problem in semiconductor research, and one that I have been involved with for 
some years. [The petitioner's] results have given us important new insight in this critical 
problem and his papers have attracted significant interest from the international community in 
this technologically important field. . . . 
[The petitioner's] study was the "cornerstone" in understanding this key problem in gate 
oxide, which further impact[s] greatly in the semiconductor research area. I think he has 
proven his pioneering role in the international semiconductor research community. 
The final letter concerns the petitioner's subsequent work at Temple University. Joseph Wang, a specialist at 
the California Energy Commission, states: 
I don't know [the petitioner] personally but I am aware of his scientific research in the field 
of acid mine drainage. . . . 
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[The petitioner] is currently conducting research in the oxidation of ubiquitous sulfide pyrite. 
The evaluation of the binding of Two-Tail lipid to the pyrite surface shows promising results. 
He has been unique in the synthesis of model pyrite materials that will help us understand and 
ultimately solve this environmental problem. 
Portions of Mr. letter resemble, almost word-for-word, parts of Prof. Strongin's earlier letter. In 
general, this letter is less persuasive than the other letters submitted on appeal. On appeal, the petitioner 
provides a mailing address that is several hundred miles away from where Temple University is located, and 
therefore it appears that the petitioner is no longer working at Temple. The record does not indicate where the 
petitioner began working after leaving Temple. 
The petitioner's greatest influence (thus far) appears to be in the area of semiconductors, rather than his 
subsequent work with AMD. That being said, both of these seemingly disparate areas of endeavor relate to 
materials science, with particular emphasis on surfaces. Also, the petitioner's work with semiconductors was 
earlier and therefore has had more time for its influence to become apparent. 
The petitioner's initial submission was rather weakly presented (as the petitioner acknowledges on appeal). 
The director construed this as evidence of ineligibility, rather than insufficient evidence of eligibility, and 
denied the petition without first issuing a request for evidence. We find that the director erred in this regard; 
the petitioner's initial filing contained nothing that would, on its face, plainly disqualify the petitioner. When 
the record does not contain evidence of ineligibility, but the evidence is not sufficient to warrant approval, 
8 C.F.R. 5 103.2(b)(8) requires the issuance of a request for evidence in order to allow the petitioner the 
opportunity to supplement the record. Because the director never afforded the petitioner that opportunity 
prior to the denial, the appeal represents the petitioner's first chance to submit new materials that more clearly 
set forth the merits of his claim. These materials include a rapidly increasing citation rate of the petitioner's 
published work, and letters from independent witnesses attesting to the importance of his 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, upon 
careful review, the materials in the record establish 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. tj 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.