sustained EB-2 NIW Case: Physics

U.S. Department of Homeland Security 
20 Mass. Ave., N.W.. Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
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FILE: Office: VERMONT SERVICE CENTER 
PETIF: Immigrvt 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. 9 1 153(b)(2) 
the decision of the Administrative Appeals Office in your case. All documents have been returned to 
that originally decided your case. Any further inquiry must be made to that office. 
Admi istrative Appeals Office 
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DISCUSSION: The Director, Vermont 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 pqtition will be approved. 
We note @at the record contains a Form G-28 Notice of Entry of Appearance as Attorney or Representative from 
attomem of Reed Smith LLP. This form, however, indicates only that ~r. 0 represents the 
alien beneficiary, who is not an affected party in this proceeding. See 8 C.F.R. 5 103.3(a)(l)(iii). We can find no 
comparable Form G-28 signed by an authorized official of the petitioning university. We will consider the 
arguments offered in ~rm brief, because that brief was submitted as part of the petitioner's properly filed 
appeal, but we cannot consider Mr-o be the attorney of record. 
The petitioner seeks to classifjr the beneficiary pursuant to section 203(b)(2) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 5 1153(b)(2), as a member of the professions holding an advanced degree. The petitioner, 
a public university, seeks to employ the beneficiary as an assistant professor. 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 beneficiary 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. 
Sectian 203(b) of the Act states in pertinent part that: 
(21 Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of Exceptional 
Aljility. -- 
(A) In General. -- Visas shall be made available . . . to qualified immigrants who are members of 
1 the professions holding advanced degrees or their equivalent or who because of their exceptional 
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ability in the sciences, arts, or business, wilI substantially benefit prospectively the national 
economy, cultural or educational interests, or welfare of the United States, and whose services in 
I 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 beneficiary qualifies as a member of the professions holding an advanced 
degred. The sole issue in contention is whether the petitioner has established that a waiver of the job offer 
reyirkment, and thus a labor certification, is in the national interest. 
~eith4r the statute nor the pertinent regulations define the term "national interest." Additionally, Congress did 
not prbvide a specific definition of "in the national interest." The Committee on the Judiciary merely noted in its 
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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, 
l0lst ]Gong., 1st Sess., 11 (1989). 
Supplbmentary 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 Citizenship and Immigration Services] 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 from, or waiver of, the job offer will be 
in the national interest. Each case is to be judged on its own merits. 
~attel of New York State Dept. of Transportation, 22 I&N 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 of substantial intrinsic merit. Next, it must be shown that the proposed 
benefft will be national in scope. Finally, the petitioner seeking the waiver must establish that the alien will serve 
interest to a substantially greater degree than would an available U.S. worker having the same 
It mu t be noted that, while the national interest waiver hinges on prospective national benefit, it clearly must be 
establ shed that the alien's past record justifies projections of future benefit to the national interest. The 
petiti 1 ner'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 
contri utions by the alien, rather than to facilitate the entry of an alien with no demonstrable prior achievements, 
and w k ose benefit to the national interest would thus be entirely speculative. 
Taylor, the petitioner's international faculty advisor, states: "The University has tested the labor 
and found [the beneficiary] to be the best qualified applicant for the position." Professor Thomas F. 
chairman of the Department of Physics at the petitioning university, explains why the petitioner 
national interest waiver to be in order: 
A key component of the Labor Certification process has already been satisfied in that a 
Search Committee was convened and a comprehensive, nationwide search undertaken to find 
the best qualified person for the position, and [the beneficiary] was selected from among 
other candidates to fill the position. . . . However, we are requesting an exemption from 
continuing with the Labor Certification application filing . . . as it is in the national interest to 
bypass the process. . . . 
Our request for this benefit is mainly due to significant delays at those two agencies, and it is 
not in the best interest of university students, nor in the best interest of scientific research and 
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consequently, not in the national interest for us to continue with a Labor Certification 
application. . . . 
There is, unfortunately, a chronic shortage of American scientists, and in no scientific 
discipline is it more acute than in physics. . . . None of the top three candidates [for the 
position offered to the beneficiary] was a U.S. citizen. . . . 
In principle we could have chosen to hire a U.S. citizen for the position [the beneficiary] 
presently holds, for there were certainly applicants who were U.S. citizens. However, to have 
done so would not have been in the national interest. . . . After conducting an extensive search 
. . . we were convinced that [the beneficiary] was the best candidates. 
of Labor regulations at 20 C.F.R. 9 656.21a(l)(iii) state that, if the application for 
a job offer as a college or university teacher, the employer does not need to 
States workers are unavailable. Rather, the employer must only submit 
that the employer selected the alien for the job opportunity pursuant to a 
process, through which the alien was found to be more qualified than 
the United States workers who applied for the job. Pursuant to 20 C.F.R. 8 656.21a(l)(iii)(E), 
for labor certifications following the above procedure must be filed within 18 months after a 
made pursuant to a competitive recruitment and selection process. Because the beneficiary was 
than 18 months ago, it is now too late for the petitioner to take advantage of the above 
is not clear whether the emphasis on research (rather than teaching) would have made the 
for these provisions, but this question is now moot. 
Prof. ballagher also describes the position and the beneficiary's role at the petitioning university: 
This position is a bridge position funded for the first five years by the Thomas Jefferson 
National Accelerator Facility (TJNAF) and the [petitioning universityl, and thereafter solely 
by [the petitioner]. . . . 
[The beneficiary] is leading a program to design and construct a new spectrometer for use at 
TJNAF. . . . [Tlhe resulting detector will be a crucial element in the research program of a 
national facility for the next decade. 
Hall A group leader at TJNAF and an adjunct professor at the petitioning university, states that 
"training and research skills are unique and exceptional." Dr.- adds that the 
"essential" or "leading" roles in various projects during his six years at TJNAF, first as 
then as a postdoctoral researcher, and most recently as a member of the petitioner's faculty. Dr. de 
by stating that the beneficiary "is one of the top experts in nuclear spin physics. He is 
in the scientific society." 
the beneficiary's doctoral studies at the Massachusetts Institute of 
escribes various projects that the beneficiary has undertaken: 
As a graduate student his first project was to construct the set of precision wire chambers he 
helped to prototype as an undergraduate for Jefferson lab. These wire chamber detectors, 
known as Vertical Drift Chambers (VDC), were designed to detect tracks of high energy 
particles such as electrons and protons within an accuracy of about 100 micro-meters. . . . 
This set of VDC were [sic] constructed at a cost of about half a Million Dollars and were to 
become the most crucial basic detectors in Experimental Hall A, one of the three major 
experimental areas at Jefferson lab. At this very early stage of his career as a young graduate 
student, [the beneficiary] played a leadership role in every aspect of this project. These 
detectors have been in continuous use since 1996, used by every major experiment in 
experimental Hall A, meeting or exceeding design goals for precision and stability. . . . 
In 2001, only two years since he finished his PhD, he was offered a tenure-track faculty 
position at the [petitioning university]. Given the extremely high competition for tenure-track 
faculty positions at well-known universities, it is very rare for a young physicist to be offered 
such a position so quickly. Because of his contributions to the Hall A experimental program, 
and his potential as a future leader in its research program, Jefferson lab also offered him a 
position as a permanent staff scientist, in an attempt to keep him at the lab. However he 
accepted the [petitioner's] offer and has been an Assistant Professor at [the petitioning 
university] since the Fall of 200 1. 
As a faculty member [the beneficiary] has developed a vibrant research program in a very 
short time. He has been leading a program to instrument a new spectrometer for Hall A. . . . 
This new director is expected to increase the detector acceptance available in Hall A by a 
factor of 10. . . . 
[The beneficiary] is also leading a group of physicists that attempts to study the spin 
properties neutron with high precision in an exciting kinematical region known as the 
resonance region. He is the spokesperson of the most recently completed Jefferson Lab 
experiment, E01-012. . . . The results from this experiment are eagerly awaited since they are 
expected to test a property known as the Quark-Hadron duality for the neutron spin 
properties. If this experiment shows that Quark-Hadron duality holds for the neutron spin, it 
will allow access to an exciting kinematical region that has never been accessible in any other 
experiment before, and will open up a new experimental program at Jefferson lab that will 
provide answers to some of the fundamental questions about the structure of the neutron and 
the proton. 
The etitioner submits evidence to show that the beneficiary was one of several co-authors of numerous 
publi hed articles. The petitioner also demonstrates six citations of the beneficiary's articles. Two of the 
citing 1 articles were written or co-written by TJNAF researchers. Finally, the petitioner shows that the 
bene ciary is one of four 2003 grant recipients under the Department of Energy's Outstanding Junior 
Inves 1 igator Program. 
The director denied the petition, stating that the circumstances described by prof.- would appear to 
make the beneficiary a good candidate for labor certification. This assessment does not appear to take into 
account Prof. assertion that qualified (albeit less qualified) U.S. citizens did apply for the position 
offerdd to the beneficiary. 
The director concluded that the petitioner has not shown that the beneficiary's work is national in scope. 
Scientific research at major institutions is inherently national in scope, however, because the results are 
disseminated nationally (and internationally) through publications and conferences and because the findings 
of such research tend to apply universally rather than only locally. We therefore withdraw the director's 
finding that the petitioner's work lacks national scope. 
The director also noted that the minimal citation history and the lack of independent witness letters 
accompanying the petition do not suggest that the beneficiary is "known outside the circle of his personal and 
professional acquaintances," or has had a significant impact on his field of research. 
On appeal, 
8 C.F.R. 5 
~rsserts that the director erred by failing to issue a request for evidence as required by 
103.2(b)(8). The most expedient remedy for this deficiency is to give full consideration, on 
appeal, to any additionaI information that the petitioner would have submitted had the director issued such a 
request. 
~r-contends "the goal of immigration policy should be to ensure that research positions at [TJNAF] 
are filled by the most qualified candidates, not candidates who meet only the minimum qualifications for 
performing particle physics research." Nothing in the statute, regulations, or legislative history justifies the 
assertion that certain employers are, by virtue of their reputations, presumptively exempt from the job offer 
and labor certification requirements that Congress saw fit to incorporate into immigration law. We note that 
Congress created a blanket exemption for certain physicians at section 203(b)(2)(B)(ii) of the Act. This 
demohstrates that such blanket waivers are not implied by the more general lapguage of the statute - 
otherwise, the clause relating to physicians would be redundant. It also shows that Congress is capable of 
singling out groups for blanket waivers, but to date Congress has not done so for scientific researchers at 
prestigious laboratories. 
~urthkrmore, we note that the beneficiary is not employed by TJNAF; he is em loyed by a university that 
participates in a joint research consortium at that laboratory. Thus, Mr. seems to imply that the 
exem$tion should apply to a broad number of universities that send researchers to TJNAF and, presumably, to 
other laboratories and research facilities of similar caliber. Whether or not immigration policy "should" 
reflect such provisions is a matter of subjective opinion. In terms of objective fact, the law contains no such 
sweeqing provision. The waiver must rest on the merits of the individual alien, rather than on the assertion 
that the employer, or a collaborating facility, occupies some rarefied stratum above the reach of labor 
certification. 
The pbtitioner asserts on appeal that the beneficiary's "articles have been cited approximately 1000 times." A 
printobt from a citation database shows that 27 of the beneficiary's articles have been cited a total of 727 
times, indicating that the "approximately 1000" figure is somewhat exaggerated. Four of the articles have 
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each been cited over 40 times; two of those articles have been cited over 100 times each. This very 
impressive number of citations is tempered somewhat by the fact that the beneficiary was among dozens of 
co-authors on many of these papers, and by the petitioner's failure to establish how many of these citations 
were self-citations by the petitioner or his numerous collaborators. Still, this volume of citations is highly 
significant. The director can hardly be faulted for failing to consider this information, considering that the 
petitibner documented only six citations in the initial filing; nevertheless, the director ought to have issued a 
request for evidence in order to give the petitioner an opportunity to provide this evidence prior to the denial. 
The petitioner submits several new witness letters on appeal. While the new witnesses are from several 
different countries, all of them have performed research at TJNAF. ~rofesso of Tel Aviv 
University contends that several of the beneficiary's career milestones, such as his Outstanding Junior 
Investigator grant and his faculty appointment at the petitioning university after only two years of 
postdbctoral work, are, themselves, evidence of the beneficiary's standing in the field. Prof. Piasetzky 
stresses the beneficiary's leadership role in the construction of vital detection equipment at TJNAF. These 
factons have not escaped our notice. 
Dr.f the University of Glasgow states that the beneficiary "has distinguished himself as a 
'leading light' of the TJNAF Hall-A collaboration, which consists of about [one] hundred nuclear physicists 
. . . [who] are themselves considered world leaders in the field." Dr.. director of research at the 
~articlle Physics Laboratory at UniversitC Blaise Pascal, states that the beneficiary's "work was pivotal for 
arriving at most of the very exciting results co-published by him and his Hall-A colleagues." 
associate director for physics at TJNAF, credits the beneficiary with "important 
much attention from physicists throughout the world." Dr. states 
that the beneficiary "is one of the leading researchers in the Jefferson lab experimental Hall A collaboration," 
and "is also leading a new experimental initiative to understand the physical origins of an effect that modifies 
the pipperties of the proton when it is embedded in a nucleus. This problem has puzzled particle and nuclear 
physicists alike for more than two decades now." 
Whild it is true that the witnesses of record have worked with the petitioner at TJNAF, we cannot ignore the 
nature of that facility. Unlike respected universities, which number in the thousands, there exist only a 
limiteh number of major particle accelerator laboratories. As a result, such facilities necessarily attract 
reseadchers from around the world and become important crucibles of international collaboration. On the one 
hand, working at a particle accelerator laboratory is not prima facie grounds for a waiver. The fact that 
reseakhers from other countries are familiar with the beneficiary's work is not surprising, because given the 
internhtional nature of TJNAF7s research collaborations, interaction with international researchers is virtually 
inevitAble. 
On the other hand, the record demonstrates that many of the researchers at TJNAF are acknowledged leaders 
in the discipline of particle physics. In such a setting, many of these elite researchers will be difficult to 
impress. Those researchers who do distinguish themselves even among their august collaborators are likely to 
have t+ substantial impact in the international research community. The witnesses of record do not write only 
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of the beneficiary's "promise" or "potential," nor do they refer vaguely to "contributions" without 
elaboration. 
The extremely high citation rate of some of the published articles demonstrates the impact of the work 
undertaken by the Hall A collaboration. Key participants in the Hall A collaboration credibly state that the 
beneficiary is a leader within that collaboration. The beneficiary not only participates in this major research 
effort, but successfully stands out within the group. This indicates that the beneficiary will continue to make 
especially valuable contributions during his remaining years at TJNAF, as well as at the petitioner's own 
Physics Department. 
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, or the reputation of the prospective employer, rather than on the merits of 
the individual alien. That being said, the evidence in the record establishes the significance of this beneficiary's 
work rather than simply the general area of research. The benefit of retaining this alien's services outweighs the 
natiorial 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.