sustained EB-2 NIW Case: Optics And Oceanography

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: Office: VERMONT SERVICE CENTER Date: JAN 0 4 2005 
5 
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. 8 1 153(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. 
' " 
j. 
6kobert P. Wiemann. Director 
Administrative Appeals Office 
'Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Vermont Service 
Center, and 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@)(2) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. 5 1153@)(2), as a member of the professions holding an advanced degree. 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@) 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 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 Physics and Mathematics from Moscow State University. 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 a labor 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 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, 101 st Cong., 1 st Sess., 1 1 (1989). 
Supplementary information to the regulations implementing the Imgration 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 seelung 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 Dep 't. of Transp., 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 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 onprospective 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 concur with the director that the petitioner works in an area of intrinsic merit, optics and oceanography. 
Despite the letters submitted in response to the director's request for additional evidence explaining the 
national and, in fact, global implications of the petitioner's area of research, the director concluded, without 
explanation, that the proposed benefits of the petitioner's work would not be national in scope. We disagree. 
Improved sensor technology for aquatic environments would be national in scope, providing results related to 
climate change and the overall health of our oceans. It remains, then, to determine whether the petitioner will 
benefit the national interest to a greater extent than an availabIe U.S. worker with the same minimum 
qualifications. 
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 gven project is so important that any alien 
qualified to work on this project must also qualify for a nationaI interest waiver. 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. 
The petitioner worked as a research associate and then an assistant scientist fo 
Brookhaven National Laboratory fro June 1998, whereupon he follo 
Rutgers University. According to he petitioner "developed Single-Celled fluorescent 
techniques and realized instrumentation revolutioniz[ing] our understanding of how different populations of 
nkton respond to changing environmental factors, including the impact of human activity." 
asserts that this instrumentation "is now being used in multiple American oceanographic 
programs sponsored by the U.S. government." 
er explains that the petitioner worked on developing optical techniques for identifying 
man-made objects in shallow coastal waters as part of the Coastal Benthic Optical Properties (CoBOP) 
project for the U.S. Office of Naval Research. In that project, the petitioner managed most of the field and 
laboratory experiments and was "a lead designer and constructor of SCUBA-based Fast Repetition Rate 
.? Page 4 
(FRR) fluorometers, developed for the U.S. Navy." that the petitioner recently 
started to work on a large multi-institutional project t ole of iron limitation on ocean biota 
and its relationship to global warming. The Natio U.S. Department of Energy 
are funding the project, known as the Southern Oce Experiment (SOFeX). Finally, Dr. 
Falkowski asserts that the petitioner is listed as a or on a proposal submitted to the 
Strategic Environmental Research and Developm ) SERDP approved the initial 
planning letter and, at the time of filing, a full prop ation. The petitioner submitted a 
copy of the proposal, confirming that he is listed based on his work as a "lead 
designer and constructor of SCUBA-based FRR fl is to be "responsible for the 
biophysical part of the project and development of anced FRR fluorosensors." 
aven National Laboratory currently 
rking at the National dard Space Flight Center, provides 
similar information. In additio e Brookhaven National Laboratory, 
the petitioner collaborated with ogy and algorithm development for 
an Airborne Oceanographic Lidar system now bei essing variability in coastal and open 
ocean phytoplankton biomass and productivity." roject scientist for the Lidar system, 
asserts that he invited the petitioner to give a tal at the Wallops Flight facility and to 
discuss "future collaboration.'~discusses d asserts that the petitioner has "skills 
that directly relate to our research.'' 
# 
Chief Scientist of the CoBOP project, erts that the petitioner is the first author of three 
wed articles reporting CoBOP results a co-author of two more. sserts that 
" - 
this number "is the highest total for any of the g Principal Investigators." Other letters from 
CoBOP colia orators affirm the petitioner's 
b 
vast stretch of is controlled primarily by the availability of the 
f this finding to climate research. 
The petitione also submitted letters from several researchers 
As stated abore, the letters submitted in response to the dire tor's request for additional evidence attest to the 
national impl'cations of the petitioner's area of research an his skills. Those letters have been considered 
above as evid nce of the intrinsic merit and national scope o the petitioner's area of research. 
The petitione 1 is the author of 47 publications in peer-revie ed journals. Thirty-one other articles cite the 
petitioner's vl0rk.l In her final decision, the director dismis ed the petitioner's citations because "scientists 
i 
who participated, along with the petitioner, in a 
in the record to support the petitioner's ublication and citation history is the attestations 
his references and two articles submitte on appeal. The director issued two requests for 
neither of which requested evidence supporting the petitioner's alleged 
I six-week ocean ex . The expedition monitored the results from fertilizing a patch 
rofessor at the University of California, Santa Barbara, asserts 
le to provide some of the very first info 
of the phytoplankton improved as a result of the iron addition." 
to use a special submer of his own design to make the 
coral bleaching event." f Scientist for SOFeX, asserts 
growth as zation, providing "conclusive 
are legally a+ ethically required to cite any other s['] work." The director does not explain how a 
scientist's oblligation to cite the work on diminishes the evidentiary value of citations. 
Frequent citation, in fact, is valuable other researchers in the field are applying and 
relying upon the petitioner's work. 
The director #ismissed the letters of support without any of their content. Rather, the director 
appears to diqmiss the letters because some references with the petitioner and the remaining 
references hqd not documented that they were experts in the beneficiary's field of 
endeavor." 1 
I I 
Letters from jndependent experts are more persuasive of an alien's influence beyond his collaborators than 
letters from those collaborators. Similarly, letters from hig -level experts are more persuasive than letters 
from novices in the field. That said, letters from collabo ators provide valuable evidence regarding the 
alien's role oh particular projects. Moreover, the director id not explain why letters on official letterhead 
listing a job title and including an attached curriculum vitae re insufficient evidence of the author's level of 
expertise. 
field. I 
i 
has a track record of success with some 
by itself, the requests from three , 
with his influence in the 
on the basis of the 
That being said, 
recognizes the 
ORDER: ' The appeal is sustained and the petition is app oved. 4 
the director did not indicate that bare 
are not obligated to do so, given the 
verify the petitioner's publication and 
his claims. In addition, in 2004 the 
Proceedings of the National Academy 
topics. While we do not infer the 
these articles were published after 
success in his field. 
id~l3tikJ IP*& .:eat& @I) U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
mp*dv@g1~- 
Washington, DC 20529 
U. S. Citizenship 
pUBLRCCfOPY 
and Immigration 
FILE: 7 Office: VERMONT SERVICE CENTER Date: JAN 0 4 2005 
EAC 02 "1 52505 
IN RE: Petitioner: 
Beneficiary 
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. fj 1 153(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. 
w 
%obert P. Wiemann, Director 
Administrative Appeals Office 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Vermont Service 
Center, and 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@)(2) of the immigration and Nationality Act (the 
Act), 8 U.S.C. 5 1153@)(2), as a member of the professions holding an advanced degree. 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@) 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, cuItural 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 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 Physics and Mathematics from Moscow State University. 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 a labor 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 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., 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 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 fiom, 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&N Dec. 2 15 (Comrn. 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 onprospective 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 concur with the director that the petitioner works in an area of intrinsic merit, optics and oceanography. 
Despite the letters submitted in response to the director's request for additional evidence explaining the 
national and, in fact, global implications of the petitioner's area of research, the director concluded, without 
explanation, that the proposed benefits of the petitioner's work would not be national in scope. We disagree. 
Improved sensor technology for aquatic environments would be national in scope, providing results related to 
climate change and the overall health of our oceans. 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. 
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. 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 2 19, n. 6. 
The petitioner worked as a research associate and then an assistant scientist fo 
Brookhaven National Laboratory e 1998, whereupon he follo 
Rutgers University. According petitioner "developed Single-Celled fluorescent 
techniques and realized instrumentation revolutioniz[ing] our understanding of how different populations of 
on respond to changing environmental factors, including the impact of human activity." 
asserts that this instrumentation "is now being used in multiple American oceanographic 
programs sponsored by the U. S. government ." i 
I 
er explains that the petitioner worked on developing optical techniques for identifying 
man-made objects in shallow coastal waters as part of the Coastal Benthic Optical Properties (CoBOP) 
project for the U.S. Office of Naval Research. In that project, the petitioner managed most of the field and 
laboratory experiments and was "a lead designer and constructor of SCUBA-based Fast 'Repetition Rate 
(FRR) fluorometers, developed for the U.S. Navy." ontinues that the petitioner recently 
started to work on a large multi-institutional project to investigate the role of iron limitation on ocean biota 
and its relationship to global warming. The National Science Foundation and the U.S. Department of Energy 
are funding the project, known as the Southern Ocean Iron Fertilization Experiment (SOFeX). Finally, Dr. 
Falkowski asserts that the petitioner is listed as a principal investigator on a proposal submitted to the 
Strategic Environmental Research and Development Program (SERDP). SERDP approved the initial 
planning letter and, at the time of filing, a full proposal was under consideration. The petitioner submitted a 
copy of the proposal, confirming that he is listed as a principal investigator based on his work as a "lead 
designer and constructor of SCUBA-based FRR fluorometers." The petitioner is to be "responsible for the 
biophysical part of the project and development of bench scale prototypes of advanced FRR fluorosensors." 
er research professor at the Brookhaven National Laboratory currently 
Agency (NASA) Goddard Space Flight Center, provides 
similar information. In additio asserts that while at the Brookhaven National Laboratory, 
the petitioner collaborated with "critical role in technology and algorithm development for 
an Airborne Oceanographic Lidar system now bei essing variability in coastal and open 
ocean phytoplankton biomass and productivity." roject scientist for the Lidar system, 
asserts that he invited the p at the Wallops Flight facility and to 
discuss "future collaboration. usses the Lidar system and asserts that the petitioner has "skills 
that directly relate to our research." 
I 
Chief Scientist of the CoBOP project, asserts that the petitioner is the first author of three 
wed articles reporting CoBOP results and a co-author of two more. sserts that 
" - 
this number "is the highest total for any of the participating Principal Investigators." Other letters fiom 
CoBOP collaborators affirm the petitioner's abilities in general terms. 
The petitioner also submitted letters from several researchers who participated, along with the petitioner, in a 
six-week ocean ex . The expedition monitored the results from fertilizing a patch 
of ocean with iron. rofessor at the University of California, Santa Barbara, asserts 
that the petitioner7 le to provide some of the very first in 
photosynthetic apparatus of the phytoplankton improved as a result of the iron addition 
that the petitioner "was able to use a special submer 
first accurate prediction of a coral bleaching event." ief Scientist for SOFeX, asserts 
that the project monitored phenomenal growth as ilization, providing "conclusive 
proof that phytoplankton vast stretch of ocean is controlled primarily by the availability of the 
essential element iron." otes the importance of this finding to climate research. 
As stated above, the letters submitted in response to the director's request for additional evidence attest to the 
national implications of the petitioner's area of research and his skills. Those letters have been considered 
above as evidence of the intrinsic merit and national scope of the petitioner's area of research. 
The petitioner is the author of 47 publications in peer-reviewed journals. Thirty-one other articles cite the 
petitioner's work.' In her final decision, the director dismissed the petitioner's citations because "scientists 
1 The only evidence in the record to support the petitioner's publication and citation history is the attestations 
of the petitioner and his references and two articles submitted on appeal. The director issued two requests for 
additional evidence, neither of which requested objective evidence supporting the petitioner's alleged 
are legally and ethically required to cite any other researchers['] work." The director does not explain how a 
scientist's obligation to cite the work on which he relies diminishes the evidentiary value of citations. 
Frequent citation, in fact, is valuable objective evidence that other researchers in the field are applying and 
relying upon the petitioner's work 
The director dismissed the letters of support without any consideration of their content. Rather, the director 
appears to dismiss the letters because some references were associated with the petitioner and the remaining 
references had not documented that they were "considered leading experts in the beneficiary's field of 
endeavor." 
Letters from independent experts are more persuasive of an alien's influence beyond his collaborators than 
letters from those collaborators. Similarly, letters from high-level experts are more persuasive than letters 
from novices in the field. That said, letters from collaborators provide valuable evidence regarding the 
alien's role on particular projects. Moreover, the director did not explain why letters on official letterhead 
listing a job title and including an attached curriculum vitae are insufficient evidence of the author's level of 
expertise. 
Overall, we find the record sufficient to establish that the petitioner has a track record of success with some 
degree of influence on the field as a whole. While not sufficient evidence by itself, the requests from three , 
separate peer reviewed journals soliciting reviews by the petitioner is consistent with his influence in the 
field. 
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 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 tht 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. 
9 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. 
publication and citation history. In the final notice of denial, the director did not indicate that bare 
assertions of publications and citations were insufficient. While we are not obligated to do so, given the 
director's failure to provide notice of this deficiency, we attempted to verify the petitioner's publication and 
citation history via the Internet and were able to confirm many of his claims. In addition, in 2004 the 
petitioner authored articles relating to his coral research published in Proceedings of the National Academy 
of Sciences and Science, two of the leading journals covering all scientific topics. While we do not infer the 
influence of an article from the publication in which it appeared and while these articles were published after 
the date of filing, they demonstrate the petitioner's continued track record of success in his field.