sustained EB-2 NIW Case: Metallurgical Engineering

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u.s. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
LIN 05 16250123
Office: NEBRASKA SERVICE CENTER Date:
fEB 07 2D07
INRE: Petitioner:
Beneficiary:
PETITION: Immigrant Petition for Alien Worker asa 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:
This is the decision of the Administrative AppealsOffice 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 .
- ~~~
?--Robert P. Wiemann, Chief .
Administrative Appeals Office
www.uscis.gov
/
DISCUSSION: The Director, Nebraska 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 section203(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 research associate. 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 the classification sought but that
the petitioner had not established that an exemption from the requirement of a job offer would be in the
national interest ofthe United States.
on appeal, the petitioner submits a statement and additional evidence. For the reasons discussed
below, we find that the petitioner has established his eligibility for the benefit sought.
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 ofJob 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 Metallurgical Engineering from the University of Wisconsin-Madison.
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
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merely noted in its report to the Senat'e 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 Inecessary to prove the "prospective national
benefit" [required of aliens seeking to qualify as "exceptional."] The burden will rest
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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&~ 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 ofsubstantial 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. Thepetitioner'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, materials science,
and that the proposed benefits of his work, more efficient and environmental modeling and
manufacture of various materials, 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. ' ,
On appeal, the petitioner asserts that his current employer does not pursue alien employment
certification for its postdoctoral associates, Nothingin the legislative history suggests that the national
interest waiver was intended simply as a means for employers (or self-petitioning aliens) to avoid the
inconvenience of the alien employment certification process. . Matter of New York State Dep't of
Transp., 22 I&N Dec. at 223. Moreover, it is the position of Citizenship and Immigration Services
(CIS) to grant national interest waivers on a case-by-case basis, rather than to establish blanket waivers
for entire fields of specialization or for entry-level and typically temporary postdoctoral positions at
national laboratories. See id. at 217.
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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 ofthe 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 in:sufficient by itself. Whether the specific
innovation serves the national interest must be decided on a case-by-case basis. !d. at 221, n. 7.
The petitioner obtained his Ph.D. in Metallurgical Engineering in May 2004 from the University of
Wisconsin-Madison. The petitioner then accepted a research associate position at Ames Laboratory,
where he remained as of the date of filing. On appeal, the petitioner asserts that the director
mischaracterized the letters as deriving mostly from' colleagues and the number of published articles.
We agree with the petitioner that the director failed to consider the numerous independent letters
.submitted in this matter. The submission of such letters, in and of itself, is not presumptive evidence
of eligibility, however, the content of those letters must also be examined.
The petitioner submitted two letters from his colleagues at the Ames Laboratory. Dr.
_ a senior scientist at the Ames Laboratory, asserts that the petitioner developed a new
~model toquantita~i:ely predict t~e solidification p~th of alloys of i.n~erest in the ~
~ystems. The petitioner used this model to determme the composItIons to grow smgle
crystals of several alloys, which had not been done before. Dr. _xplains that the petitioner's
model saves time and money in identifying new alloys for industrial applications with less hazardous
chemicals, such as refrigerants and batteries. Dr. , another senior scientist at the
Ames Laboratory, provides similar information. As of the date of filing, this work had yet to be
published and, thus, disseminated to the field. The independent references attest to the potential of this
work, but the record lacks evidence of the influence of this work as of the date of filing. The record,
however, contains more persuasive evidence regarding the petitioner's prior research.
Dr. _ professor at the University of Wisconsin-Madison, discusses the petitioner's
wor~: According to Dr. _ the petitioner created a new thermodynamic model
for the defect structurePdln, a key material· being used as contacts for semiconductors. The
petitioner demonstrated a defect structure for Pdln that had been "suspected for years."
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During his investigation of grain growth in nanoscale Pdln thin films, the petitioner was also able to
predict the microstructure at a certain tern,perature with=fic period of time. These findings,have
implications for extending the life of conductors. Dr. _ asserts that this work "has drawn wide
attention from those in our field working on these issues.
Dr. _further asserts that the petitioner was able to grow rare earth silicide nanowires on silicon.
The petitioner's novel methods of growing rare earth discilicide nanowires have "opened up a new
avenue to fabricate one-dimensional nanoscale features and is a new breakthrough toward their final
applications in quantum scale devices."
Finally, D~ explains that the petitioner "clarified the complex behavior observed in the sputter
deposited _ t~in films experimentally." The results of this work, including a theoretical model to
predict the optimal annealing time and temperature, are "of enormous importance for the production of
sensors in hard disk drives with NiMn films and similar materials by magnetic industries."
The initial letters from independent researchers were not particularly persuasive in that they did not
provide specific examples of the petitioner's influence inthe field. In response to the director's request
for additional evidence as to how the petitioner's work was influencing the field, the petitioner
submitted additional independent reference letters. Many of the new letters provide general assertions
that the petitioner has advanced the field and that his work has important applications without
providing specific examples of researchers adopting or applying the petitioner's results. For example,
Dr. a technical specialist at Visteon, asserts that the petitioner's research "~ides an
essential component to advancing hybrid vehicle research and development." While Dr. ~asserts
that he has worked on hybrid technology for 10 years, he does not provide an example of how he
personally has applied the petitioner's work or indicate that Visteon has expressed an interest in
applying the petitioner's methods.
Dr. _asenior staff engineer at Seagate, however, provides a more persuasive letter. Dr._
asserts that the petitioner's work with _ "provides an essential piece to our research and'
understanding of the giant magnet-resistive (GMR) recording head." Dr. _ further asserts that the
petitioner developed a kinetic model that successfully predicts certain reactions. Dr.•concludes that
this model "is extremely useful for the production of thing films and other materials in [the]
reading head."
Finally, Dr.•discusses hard drive failure and asserts that the petitioner's work "helps us to calculate
the diffusion rate of_ atoms at working conditions and estimate the life expectancy of the
reading head right award, thus saving us significant resources, i.e. money and time in theresearch:'
While not affirming any reliance on the petitioner's work, Dr. _,Research and Development
Director of Advanced Devices Development at Seagate Recording Head Operation, asserts that he
knows of the petitioner through reading his published articles and concludes that the petitioner has
contributed to the field's understanding of_ a key material used in reading heads for hard disk
drives.
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The record would obviously be bolstered by evidence that the petitioner has been widely and frequently
cited. That said, the petitioner's publication record is notable. For example, the petitioner is first
author of an invited paper and also coauthored a rapid communication. Dr. . a professor
at the University of Sao Paulo in Brazil who has cited the petitioner's "excellent" work, states:
An invited paper is the elite of the papers reporting significant new findings and usually
only those authorities in the field are invited to publish papers by .the editors; short. .
communications are brief, preliminary reports of unusual urgency , significance, and
interest to the materials community. .
Ultimately, the petitioner submitted numerous letters of support from iridividuals with whom he has not
collaborated. These letters provide more than general praise of the petitioner's abilities or assertions of
unique abilities. Rather , they cite specific accomplishments and improvements to the field of materials
science. These accomplishments are not merely predicted to be beneficial , but have been recognized by
a major manufacturer. The petitioner's written work has received at least some favorable consideration
in print through minimal citation and, more significantly, selection for an invited paper and a rapid
coinmunication. Thus , the evidence in the aggregate , both that discussed in this .decision and the
remaining evidence of record; is sufficient.
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 materials
science 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.