sustained EB-2 NIW Case: Physics

identifying data deleted to 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
prevent clear1 y u~~~a~anted 
 Office of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
invasion of personal privacy 
 U. S. Citizenship 
and Immigration 
Services 
FILE: -1 Office: NEBRASKA SERVICE CENTER Date: 
LIN 08 248 51633 
 APR 2 2 2009 
IN RE: 
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. 5 1153(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. 
6 
hohn F. Griss q rn 
Acting Chief, Administrative Appeals Office 
DISCUSSION: The Director, Nebraska 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@)(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. !j 1153@)(2), as a member of the professions holding an advanced degree. The 
petitioner is a postdoctoral research associate at Duke University, Durham, North Carolina. 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. 
On appeal, the petitioner submits a personal statement and copies of documents already in the record. 
Section 203@) 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. 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., 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] believes it appropriate to 
leave the application of ths 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 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. 215 (Cornrnr. 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 offerllabor 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. 
To describe the nature and importance of his work in condensed matter ~hysics. the petitioner submitted 
nine witness letters when he' first filed the petition. - o? the University of 
Pittsburgh provided basic information regarding the petitioner's work there: 
[The petitioner] did his Ph.D. thesis in my laboratory on the subject of two-dimensional 
turbulence. . . . 
Two-dimensional turbulence is a branch of fluid mechanics that is relevant for 
understanding atmospheric and oceanic flows. . . . In [the petitioner's] research thesis, 
hydrodynamic vortices were created in the laboratory and their intensification due to 
vortex-vortex interactions were studied by the-state-of-the-art techniques of infrared 
imaging and laser Doppler velocimetry. [The petitioner's] research was unique and his 
findings contributed to our understanding of formation of vortices and flow instabilities. 
I met [the petitioner] in the summer of 2001 when I visited 
 lab 
at the University of Pittsburgh. . . . During my 6 weeks of stay there, [the petitioner] and 
I worked together on the research project of two-dimensional thermal convection. It was 
during that time that I noticed his special understanding and broad knowledge in 
physic[s], especially in the area of fluid turbulence. . . . Although I have not met [the 
petitioner] in the last few years, I noticed fiom reading the literature that his scientific 
career is really taking off. For example, he has published just within the last 18 months 
4 papers in the journal Physical Review Letters, which is indisputably the best physics 
journal in the world. This is a tremendous achievement for a research scientist in the 
field. In many universities in the world a single publication in this journal is sufficient 
to lend someone a full professor position. 
(Emphasis in original.) Several other witnesses have asserted that publication in Physical Review 
Letters is a major achievement in its own right, but did not identify any of the "many 
universities" that purportedly offer full professorships on the basis of publication in Physical Review 
Letters, and the record contains nothing from any hiring authority at any university to support = 
statement (or to show that any university has, in fact, offered the petitioner a full professorship). 
He has created a series of experiments to characterize the nature of convection and flow 
in thin liquid films. . . . He has been an important collaborator in a combined 
experimental and theoretical project on thin film flows that involves myself and = 
of the Technion in Israel. Overall, he has carried out outstanding 
research, both in quality and quantity. 
[The petitioner] has made many very valuable contributions to ow group's research at 
Duke. Working with and. . . [the petitioner] has constructed 
and carried out experiments describing the complex dynamics of liquid mixtures 
subjected to thermal heating. 
 [The petitioner's] laboratory studies were absolutely 
crucial in validating predictions made by theoretical models. 
I have known [the ~etitionerl since Aumst 2005 when I started my sabbatical leave at 
[The petitioner] made significant scientific contributions to the field of two-dimensional 
turbulence where new non-invasive techniques were implemented with a great potential 
for future research. Important results were also obtained by [the petitioner] in the field 
of polymer-turbulence interactions where polymer stretching imparts a drastic effect on 
quenching turbulence. He also obtained new, important and unexpected results 
regarding the exponential tail for the decaying two-dimensional turbulence. These 
results might shed a new light on the physics of final stage of a vortex liquid. 
The remaining four witnesses did not claim to have collaborated with the petitioner. University of 
Chicago Professor -en President-Elect of the American Physical Society and a 
recipient of the American Medal of Science, stated: 
While he was still a graduate student, I met [the petitioner] and talked to hm about his 
research in the laboratory of 
 at the University of Pittsburgh. Since 
then he has become a PhD and moved to Duke and started a new research effort under 
the direction of 
 I have kept up with his work and read his papers. 
The first thing to be said is that [the petitioner's] work is very solid. It is a really 
substantial addition to knowledge in our field, which is the flow behavior of fluids. 
[The petitioner's] work at Pittsburg [sic] focused on the extremely challenging and 
important problem of two-dimensional turbulence. . . . Though somewhat surprising, the 
flow of systems that are effectively two dimensional is relatively common, occurring in 
various thin films and biological membranes. Therefore, [the petitioner's] work on 
understanding turbulence in two dimensional systems will have wide ranging impacts. 
. . . [At] Duke University, . . . he has continued studies in hydrodynamics, but now in 
binary mixture systems. This work is especially timely because of possible impacts on 
oil refining techniques and oceanography studies. Interesting fluid behavior occurs 
when two fluids are mixed in this context, and this behavior can have a positive or 
negative impact on the industrial application or environmental response. 
of Georgia Institute of Technology praised the petitioner's work, 
but provided few details about it apart fiom identifying the petitioner's research specialty as "thermal 
convection in binary mixtures." stated: "The US trains rather few physicists working on 
Page 6 
fluid dynamics and turbulence, so [the petitioner's] presence in our country is likely to fill a niche that 
will enable hm to contribute in an important way to our nation's welfare and security." With regard to 
the unavailability of qualified U.S. workers, the job offer waiver based on national interest is not 
warranted solely for the purpose of ameliorating a local labor shortage, because the labor certification 
process is already in place to address such shortages. Similarly, the Department of Labor allows a 
prospective U.S. employer to specify the minimum education, training, experience, and other special 
requirements needed to qualify for the position in question. Therefore, these qualifications, taken alone, 
do not justify a waiver of the certification process which takes these elements into account. Matter of 
New York State Dept. of Transportation at 21 8. We must focus on the merits of the individual alien, 
rather than a claimed shortage of qualified professionals in the alien's field. 
- of the Ecole Supkrieure de Physique et Chirnie Industrielle de Paris, France, 
stated: 
I have followed the work of [the petitioner] for several years, ever since he joined 
group in the Department of Physics at the University of Pittsburgh, 
where he worked on the project "Turbulence in soap films." The goal of the project was 
to exploit the properties of soap films to generate new knowledge on two-dimensional 
turbulent flows. 
 During his PhD studies, he made outstanding contributions. 
 He 
succeeded in using soap film to investigate for the first time in the world two 
dimensional thermal turbulence. He reported new series of data on velocity distributions 
that challenged theorists. He discovered the coexistence of Boganio and Kolmogorov 
scaling laws and performed for the first time in the world simultaneous measurements of 
thermal and mechanical powers in a turbulent system. . . . 
His work was very significant because he developed new experimental pathways for the 
study of two-dimensional turbulence in complex situations, a phenomenon of particular 
relevance in the evolution of the climate. His work will provide extremely valuable 
guidance for the elaboration of complex numerical codes aiming at modeling the 
climate. 
On February 22, 2008, the director issued a request for evidence, instructing the petitioner to "submit 
any available documentary evidence that, as of the petition priority date, you had a degree of influence 
on your field that distinguishes you from other scientists with comparable academic/professional 
qualifications," such as copies of articles that contain citations to the petitioner's published work. 
In response, the petitioner submitted copies of three articles that contain citations to the petitioner's 
work. The petitioner himself wrote one of these three articles, citing hs own prior work, which leaves 
two independent citing articles. One of these articles was published in April 2008, afier the director 
issued the RFE, although the petitioner's work cited therein was published prior to the filing date. 
Counsel acknowledged that the petitioner's documented citation record "seems trivial compared to that 
of most other research scientists working in the other fields," but counsel claimed that the petitioner's 
specialty "is a relatively small circle and the citation number of any researchers in the field is very 
small." The petitioner submitted documentation indicating that "the top experts in the [petitioner's] 
field[] have small citation numbers," averaging less than one citation per paper per year on recently- 
published papers pertaining to the topics of "turbulence" or "convection." 
The petitioner submitted letters from two of the individuals named on the petitioner's list of "top 
ex eAs." -1 of the University of California, Santa Ekbara, who (like- 
- is a member of the National Academy of Sciences, stated: 
Although I do not know [the petitioner] personally, I am familiar with his research since 
he worked in a field closely related to my own. . . . [Tlhere is only a relatively small 
number of researchers working in the specific area of thermal convection. Because of 
this, their papers get cited only by a small number of people, and large numbers of 
citations should not be expected. The relatively small number of citations does not in 
any way imply a low level of importance of the work, and the real contributions to 
scientific knowledge must be measured by other means. 
asserted that the petitioner had accumulated a "remarkable record" of published work. 
[The petitioner's] work . . . is not only of great importance for the study of thermal 
convection in general but opens the way to a new field, turbulent thermal convection in 
two dimensions. As a researcher in the field of turbulence, I have read his work with 
great interest both for the results obtained but also for the techniques used to obtain the 
correct information from the experimental system used. In particular his use of infrared 
imaging . . . will remain a standard for any experimentalist desiring to use such a 
technique. This work is new and . . . is a pion[e]er7s work. I myself have followed up 
on this work in an experiment which is inspired by the results and the system of [the 
petitioner's] work. . . . There are only a few experimentalists and theorists working in 
this field which is the main reason why [the petitioner's] work is not cited frequently. 
This does not mean that the work is of less importance . . . , on the contrary, his work 
will stand as a major breakthrough in this young and very promising field. 
The record shows that 
 work, which according to -drew heavily on the 
petitioner's earlier work, attracted substantial attention among physicists. 
The petitioner also submitted a new letter from 
 who agreed with the above witnesses 
that "the typical numbers of citations that individual papers within [the petitioner's] fields typically 
receive is smaller than some other fields." 
The director denied the petition on August 12, 2008, stating that the petitioner had not established "a 
degree of influence in your field which distinguishes you from others with comparable academic and 
professional qualifications." The director noted the low number of citations of the petitioner's work, 
Page 8 
and found that the witness letters described the petitioner's "work and experience mostly in general 
terms." 
On appeal, the petitioner asserts that the director failed to give due consideration to arguments and 
exhibits submitted previously. The AAO sees merit in the petitioner's assertion. With respect to the 
citation of his work, the petitioner did not merely claim a high citation rate relative to his specialty, he 
provided empirical evidence to show that even the work of highly honored experts writing in that same 
specialty garnered a low overall rate of citation. While a high citation rate can be a strong factor in 
favor of approving a given petition, it has never been the AAO's position that a high citation rate is 
always necessary for approval, or, for that matter, that a high citation rate is a sure guarantee of 
approval. Citation rate is one factor among many, not the only factor or necessarily the most important 
factor. Where, as here, a petitioner has produced empirical evidence that citation is infrequent within a 
given narrow specialty, it would be arbitrary and inflexible to fail to take that evidence into account. 
Concerning the petitioner's witness letters, the witnesses are not simply a cross-section of the 
petitioner's professors and co-workers. The petitioner has produced several letters from witnesses 
who are not only independent of the petitioner, but also highly placed in their field with substantial 
and verifiable records of major achievement. The opinions of such witnesses possess a degree of 
authority, provided the record does not contradict those letters or somehow cast doubt upon them. 
Even the more general letters credit the petitioner not merely with "promise" or "potential," but 
significant past achievements that have influenced the work of others within the specialty. 
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. 8 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.