sustained EB-2 NIW Case: Physics

U.S. Citizenship 
and Immigration 
Services 
MATTER OF Z-S-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 16,2016 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a research and development engineer in the field of physics. seeks classification as a 
member of the professions holding an advanced degree. See §203(b )(2) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. § 1153(b)(2). The Petitioner also seeks a national interest waiver of 
the job ofier requirement that is normally attached to this EB-2 immigrant classification. See 
§ 203(b)(2)(B)(i) of the Act. 8 U.S.C. § 1153(b)(2)(8)(i). U.S. Citizenship and Immigration Services 
(USCIS) may grant this discretionary waiver of the required job otTer. and thus of a labor certification, 
when it is in the national interest to do so. 
The Director, Texas Service Center. denied the petition. We withdrew the Director's decision and 
remanded the petition for further consideration and action. The Director again denied the petition and 
certified the decision to us for review. We affirmed the denial of the petition on certification and in 
decisions on two subsequent motion filings by the Petitioner. 
The matter is now again before us on a motion to reopen and reconsider. On motion, the Petitioner 
submits additional evidence and argues that the record demonstrates his eligibility for the benefit 
sought. 
Upon de novo review, we will grant the motion to reopen and sustain the appeal. 
I. LAW 
A motion to reopen must state the new facts to be provided and be supported by affidavits or other 
documentary evidence. 8 C.F.R. § 1 03.5(a)(2). A motion to reconsider must state the reasons for 
reconsideration and be supported by any pertinent precedent decisions to establish that the decision 
was based on an incorrect application of law or USCIS policy. 8 C.F.R. § 103.5(a)(3). 
To establish eligibility for a national interest waiver. a petitioner must first demonstrate his or her 
qualification for the underlying visa classification. as either an advanced degree professional or an 
individual of exceptional ability in the sciences arts or business. Because this classification normally 
requires that the individual's services be sought by a U.S. employer. a separate showing is required 
to establish that a waiver of the job offer requirement is in the national interest. See section 
203(b)(2) ofthe Act, 8 U.S.C. section 1153(b)(2). 
Matter of Z-S-
Neither the Act nor the pertinent regulations define the term '·national interest." However. Matter ol 
Nevr York State Department of Transportation, 22 I&N Dec. 215, 217-18 (Act. Assoc. Comm'r 
1998) (NYSDOT). set forth several factors which must be considered when evaluating a request for a 
national interest waiver. First, a petitioner must demonstrate that he or she seeks employment in an 
area of substantial intrinsic merit. !d. at 217. Next, a petitioner must show that the proposed benefit 
will be national in scope. !d. Finally. the petitioner seeking the waiver must establish that he or she 
will serve the national interest to a substantially greater degree than would an available U.S. worker 
having the same minimum qualifications. !d. at 217-18. 
II. ANALYSIS 
In our previous decisions affirming the denial of the Form I-140. Immigrant Petition for Alien 
Worker, we found that the Petitioner demonstrated his eligibility as an advanced degree professional, 
but did not establish that a waiver of the job offer requirement is in the national interest. 
Specifically. we found that he had not satisfied the third prong of the Nf.)DOT national interest 
waiver analysis. We acknowledged the Petitioner had established that his doctoral research in 
materials science had a degree of int1uence on the field as a whole. However, we found that he had 
not shown a sufficient nexus between that int1uential research and his post-graduate work to justify 
projections of future benefit to the national interest. 
On motion. the Petitioner submits additional information and evidence regarding his current and 
proposed research. He provides a letter from his current employer detailing his ongoing research 
into developing new and improved methods of processing silicon wafers for use in integrated circuit 
chips. The letter explains with specificity how his findings have been used by his employer and the 
semi-conductor companies that it serves. Further evidence includes a statement in which the 
Petitioner sets forth his plans for future research in his field, and a letter attesting to the feasibility of 
the Petitioner's plans from his former doctoral advisor. The Petitioner argues that the record 
demonstrates his eligibility for a national interest waiver, and that our previous decisions were 
contrary to agency policy and the plain language of the NYSDOT decision. 
The record as a whole, including the evidence submitted on motion. demonstrates the Petitioner's 
eligibility for the benefit sought. The Petitioner established that he has had a degree of int1uencc on 
the field in which he will continue to conduct research. We find this showing sufficient to satisfy the 
criteria set forth in the third prong of NYSDOT. We will therefore grant the motion to reopen and 
sustain the appeal. Accordingly. the Petitioner's motion to reconsider is moot and need not be 
addressed in this decision. 
III. CONCLUSION 
The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361; A1atter £?l0tiende. 26 I&N Dec. 127. 128 (BIA 2013). The Petitioner in 
this case has established by a preponderance ofthe evidence that he qualities as an advanced degree 
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Matter of Z-S-
professional, and that a waiver of the job offer requirement will be in the national interest of the 
United States. Accordingly, the motion to reopen will be granted and the appeal will be sustained. 
ORDER: The motion to reopen is granted and the appeal is sustained. 
Cite as Matter <~/Z-S-, 10# 17035 (AAO May 16, 2016) 
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