sustained EB-2 NIW Case: Physics

U.S. Department of Ifomeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
FILE: WAC 03 095 5 1671 Office: CALIFORNIA SERVICE CENTER Date: JAN 3 1 2005 
PETITION: Irnmgrant 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 1 153(b)(2) 
ON BEHALF OF PETIRONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
cided your case. Any further inquiry must be made to that office. 
\V Robert P. Wiemann, Director 
\ Administrative Appeals Office 
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DISCUSSION: The employment-based immigrant visa petition was denied by the Director, California 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 Irnmigration and Nationality Act (the 
Act), 8 U.S.C. 9 1153(b)(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 from Fudan University. The petitioner's occupation falls withn 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 
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seelung 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 Tramp., 22 I&N Dec. 215 (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 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 concur with the director that the petitioner works in an area of intrinsic merit, nanotechnology, and that 
the proposed benefits of his work, integration of nanostructured germanium with current silicon technology, 
would allow for novel quantum devices for future computing technologies with national implications. 
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 219, n. 6. 
At the time of filing, the petitioner was a research associate at Arizona State university.- 
professor at Arizona State Universi and inventor of the low electron energy microscope (LEEM), discusses 
the petitioner's work ther &plains that the petitioner is "one of only a handful of researchers in 
the U.S who possesses the skills to operate the LEEM and interpret its re~ults.~elaborates that this 
work has resulted in the publication of six articles by the petitioner. More specifically,~sserts that 
the petitioner demonstrated that high quality single crystal silicon carbide thin film could be grown on silicon 
by pure carbon sources and prepared a super flat silicon terrace on which it is possible to investigate surface 
mass transportation and thin film growth. More recently, the petitioner fabricated gallium nitride dots 
through direct nitridation of liquid nitride droplets with hot ammonia molecules, possibly paving the way for 
mass production of gallium nitride quantum structures at low cost. 
irector of the National Laboratory of Surface Physics in China, asserts that the petitioner's 
work at Anzona State University "is a breakthrourrh for rthel understanding. of surface terrace stabilitv with .. 3 
surface kinetic processing." lontinues ;hat the petitioner's me;hod "provides a unique way to 
fabricate a step-free silicon surface up to 50 micrometers, which is the largest [that has] ever been reported." 
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Prior to acce~tinn the iob at Arizona State Universitv. the ~etitioner was a ~ostdoctoral research fellow and 1" d 
then a research associate at the Institute of Materials ~esiarch at ~ohoku'university in Japan. -.- 
Chair Academic Official of the Interdisciplinary Research Center at the Institute of Materials 
Research, discusses the petitioner's work with C60 and other fullerine molecules at the institute. According 
to another reference letter, fullerine molecules are pure-carbon molecules with important applications. 
, I 
asserts that the petitioner combined high-resolution electron energy loss spectroscopy with the 
atomic-reso ved scanning tunneling microscopy (STM) to study C60 absorption on silicon, thereby resolving 
"a series of problems on the subject." In addition, the petitioner was able to use C~O to prepare silicon 
carbide thin films on silicon wafers at 200 degrees lower than ordinarily used, a significant benefit to the 
industry that has been applied in France, Japan, Germany, Hong Kong and China. The petitioner was also 
the first to display the atomic structure of a 90-atom close-packed gold cluster using a new scanning 
tunneling microscopy technique. Finally, using high-density continuous wave lasers and pulsed lasers, the 
petitioner discovered that high-intensity laser irradiation can stop the rotation of molecules in the bulk 
crystal, and low intensity irradiation can release the frozen m~lecules~~lains that this finding 
may be useful for future molecular computers. 
In response to the director's request for additional evidence, the petitioner submitted two letters from 
independent experts in the field. a principal member of the technical staff at Sandia 
National Laboratories in New Mexico, asserts that the petitioner's work on silicon carbide has had a 
significant im act in the field and is being applied in Germany, Italy, Japan, and the U.S. Air Force Research 
Laboratory.l)a senior member of the engineering staff at Jet Propulsion Laboratory in 
California, asserts that the petitioner's fabrication of gallium nitride dots with a specific crystal structure is a 
considerable advancement in the field that could lead to solid-state lighting devices replacing vacuum tube 
and bulb lighting, possibly decreasing worldwide electricity consumption by 50 percent. 
At the time of filing, the petitioner had authored 28 peer-reviewed journal articles. The petitioner submitted 
a list of 138 articles that cite his work and provided copies of most, if not all, of these articles. In response to 
the director's request for additional evidence the petitioner resubmitted several of the articles that cite his 
work. Despite this overwhelming evidence of citation of the petitioner's work, the director implied the 
petitioner had not been frequently cited, stating: 
Frequent citation by independent researchers, on the other hand, would demonstrate more 
widespread interest, and reliance on the petitioner's work, and that the petitioner's work has 
attracted attention on its own merits, as might be expected with research findings that are 
especially significant, independent evidence that would have existed whether or not this 
petition was field, would be more persuasive than the subjective statements from the 
individuals selected by the petitioner. 
On appeal, the petitioner provides printouts from a citation index demonstrating that his 1996 article on C60 
was cited 27 times and his 1997 article on germanium dots was cited 47 times. Most of these citations are 
independent and continue through the present time. A more recent article by the petitioner has been 
moderately cited. This citation history adequately supports the reference letters claiming that the petitioner 
has influenced the field. 
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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 Mher 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 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. 9 
1361. The petitioner has sustained that burden. Accordingly, the decision of the director denylng the petition 
will be withdrawn and the petition will be approved. 
ORDER: The appeal is sustained and the petition is approved.