sustained EB-2 NIW Case: Theoretical Chemistry

identifying data deleted to 
prevent clearly unwarr~nted 
invasion of personal pnvacy 
PUBUC COPy 
DATE: APR 22 2011 Office: 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homchmd Security 
US CiLi/.enship and Immigration Sen'ice~ 
Administrative Arpeals Office (AAO) 
20 Mass(lchusctts A\c .. N.\'\.! .. MS 2090 
Washington. DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
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. § IIS3(b)(2) 
ON BEliALI' OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please tind the decision of the Administrative Appeals Ollice in your case. All of the documents 
related to this matter have been returned to the ollice that originally decided your case. Please be advised 
that any further inquiry that you might have concerning your case must be made to that office. 
Thank you, 
~d)\..u.L~O"--
~ Perry Rhew 
/ Chief. Administrative Appeals Ollice 
www.uscis.gov 
Page 2 
DISCUSSION: The Director,_Service Center, denied the employment-based immigrant visa 
petition, which 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(b)(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. § I I 53(b)(2), as an alien of exceptional ability or a member of the professions 
holding an advanced degree. The petitioner seeks employment as a postdoctoral associate. The 
petitioner asserts that an exemption ii'om the requiremcnt of a job offer, and thus of an alien 
employment 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 counsel asserts that the director raised improper concerns in the request lor additional 
evidence, such as the level of the petitioner's wages. Counsel raised this objection in response to that 
notice and the director did not raise these specific concerns again in the tinal decision. Thus, those 
concerns are no longer at issue. Counsel further asserts that the director failed to properly consider the 
lettcrs from distinguished members of the petitioner's field, including members of the National 
Academy of Sciences, and the petitioner's extensive citation record. For thc reasons discussed below, 
the petitioner has established her eligibility for the benefit sought. 
Section 203(b) 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, a.t1s, 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. 
(8) Waiver of Job Ot1er. 
(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 received a Ph.D. in Chemistry from the in August 2000. 
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 
--Page 3 
issue is whether the petitioner has established that a waiver of the job ofTer requirement, and thus an 
alien employment 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 benelit the United States 
economically and otherwise",," S. Rep. No. 55, 101st Cong., 1st Sess., II (1989). 
A supplementary notice regarding the regulations implementing the Immigration Act of 1990 
(IMMACT). published at 56 Fed. Reg. 60897, 60900 (Nov. 29, 1991). states, in pertinent part: 
The Service believes it appropriate to leave the application of this test as t1exible as 
possible, although clearly an alien seeking to meet the l national interest 1 standard must 
make a showing significantly above that necessary to prove the "prospective national 
benefit" r required of aliens seeking to qualifY as "exceptional."] The burden will rest 
with the alien to establish that exemption Irom, or waiver of, the job offer will be in the 
national interest Each case is to be judged on its own merits. 
Maller of New York Slale Dep'l. of Tramp, 22 I&N Dec. 215, 217-18 (Comm'r. 1998) (hereinatier 
"NYSDOT"). has sct forth several factors that U.S. Citizenship and Immigration Services (USCIS) 
must consider when evaluating a request for a national interest waiver. First, the petitioner must show 
that the alien seeks employment in an area of substantial intrinsic merit Id. at 217. Next, the petitioner 
must show that the proposed benefit will be national in scope. Id. 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. Jd. at 217-18. 
It must be noted that, while the national interest waiver hinges on prospective national benefit, the 
petitioner must establish that the alien's past record justifies projections offuture benefit to the national 
interest Jd. at 219. The petitioner's sUbjective assurance that the alien will, in the future, serve the 
national interest cannot sutlice to establish prospective national benefit The term "prospective" 
requires future contributions and does not facilitate the entry of an alien with no demonstrable prior 
achievements. and whose benefit to the national interest would thus be entirely speculative. ld. 
The AAO concurs with the director that the petitioner works in an area of intrinsic merit, theoretical 
chemistry, and that the proposed benelits of her work, improvements to materials science and drug 
development. would be national in scope. It remains, then, to determine whether the petitioner will 
benefit the national interest to a greater extent than an available lJ .S. worker with the same minimum 
qualilications. 
Eligibility for the waiver must rest with the alien's own qualifications rather than with the position 
sought. In other words, 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 is not persuasive. NYSDOT. 
22 I&N Dec. at 218. Moreover, it cannot suffice to state that the alien possesses useful skills. or a 
"unique background." Special or unusual knowledge or training does not inherently meet the 
national interest threshold. The issue of whether similarly-trained workers are available in the 
United States is an issue under the jurisdiction of the Department of Labor. Id. at 221. 
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 she 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. In evaluating the petitioner's achievements, the AAO notes that 
original innovation, such as demonstrated by a patent, is insufficient by itself. Whether the specific 
innovation serves the national interest must be decided on a casc-by-case basis. Id. at 221, n. 7. 
As of the date of filing the petitioner had authored more than 20 published articles and a book chapter. 
She has consistently published throughout her doctoral studies and subsequently while working for 
University an~ University. While publication demonstrates that the petitioner had 
work in the field, at issue is the influential nature of that work once disseminated. 
The petitioner submitted evidence that her articles have garnered hundreds of citations. Moreover, 
several of the petitioner's articles throughout her career have consistently garnered moderate citation 
individually. Finally, the nature of the citations is significant. For example, an article by authors in the 
__ and_ extensively cites the petitioner's work, including reproducing figures 
~ wor~oncludes with an acknowledgement recognizing the petitioner (and 
others) as an individual whose "pioneering work" contributed to knowledge in the field. In addition, 
South African authors cite the petitioner's work as an example of"[e]xciting developments within the 
field" 
a professor at_University and a member of the National Academy of 
the petitioner worked in his department. _coauthored articles with the 
petilloner. _ explains that while at University, the petitioner focused on 
formulating theoretical routes to understand optical properties, transport properties, 
polarization properties and charge injection properties of organics. The petitioner "developed several 
new schemes lor so doing, interfaced them with extant computer codes, did the calculations, interpreted 
the results, and applied them to understand the material prepared in laboratory." 
_asserts that the petitioner also had to evaluate the results of the results from collaborating 
departments nationwide. _ concludes that the petitioner's "alphabet block approach to sclf~ 
assembly" is unique. 
a professor at _ University, discusses the petitioner'S work at that institution. 
First, according to the petitioner developed "methods to discover new molecules and 
materials with optimal optical and medicinal properties." _explains that this work "led to a 
significant collaboration in a second area, medicinal chemistry." Specifically, the petitioner's results 
led to a collaboration with and others at the University of _ Third, the 
petitioner developed "new physical models for charge migration in DNA." _ notes the 
Page 5 
importance of this work to the repair of genetic material. _ notes that the petitioner's results 
formed the basis of a successful application for funding trom a local pharmaceutical company and the 
National Institutes of Health (NIH) to apply the petitioner's methods to drug screening. 
a professor at the University of_asserts that 
"e:(p,md.ed and added capabilities" to that software. 
software is now in use in the United 
confirms that this 
Finally, a professor at the and a member of the 
National Academy of Sciences, supports the petition. does not specifically explain 
how the petitioner's work is already intluencing the field beyond the institutions where she has worked, 
his support and other evidence ofrecord substantiates the petitioner's wider inf1uence. 
The Board of Immigration Appeals (the Board) has held that testimony should not be disregarded 
simply because it is "self-serving." See, e.g., Matter ofS-A-, 22 I&N Dec. 1328, 1332 (BrA 2000) 
(citing cases). Thc Board also held, however: "We not only encourage, but require the introduction 
of corroborative testimonial and documentary evidence, where available," Id If testimonial 
evidence lacks specificity, detail, or credibility, there is a greater need for the petitioner to submit 
corroborative evidence. Maller ofT-B-, 21 I&N Dec. 1136 (BIA 1998). 
The opinions of experts in the field are not without weight and have been considered above. USCIS 
may, in its discretion, use as advisory opinions statements submitted as expert testimony. See Maller 
of Caron International, 19 I&N Dec. 791, 795 (Comm'r. 1988). However, USCIS is ultimately 
responsible for making the final determination regarding an alien's eligibility for the benefit sought. 
Id. The submission of letters from experts supporting the petition is not presumptive evidence of 
eligibility; USCIS may, as the AAO has done above, evaluate the content of those letters as to 
whether they support the alien's eligibility. See id. at 795: see also Mauer of V-K-. 24 I&N Dec. 
500, n.2 (BIA 2008) (noting that expert opinion testimony does not purport to be evidence as to 
"fact"). uscrs may even give less weight to an opinion that is not corroborated, in accord with 
other information or is in any way questionable. Id. at 795; see also Maller of Soffici, 22 I&N Dec. 
158,165 (Comm'r. 1998) (citing Matter of'Treasure Crafi of California, 14 r&N Dec. 190 (Reg'!. 
Comm'r.1972)). 
Merely repeating the legal standards does not satisfy the petitioner's burden of proof. t Some of the 
letters, however, provide specific examples of the petitioner's contributions in the field. The 
petitioner also submitted corroborating evidence in existence prior to the preparation of the petition 
that bolsters the weight of the reference letters. 
I Fedin Bros. Co., LId. v. Sava. 724 F. Supp. 1103, 1108 (ED.N.Y. 1989), afrd, 905 F. 2d 41 (2d. Cir. 1990); 
Avvr Associates, lnc. v. Meissner, 1997 WL 188942 at *5 (SD.N.Y.). Similarly, USCIS need not accept 
primarily conclusory assertions. 1756, Inc. v. The Attorney General of the United States. 745 F. Supp. 9. 15 
(D.C. Dist. 1990). 
Ultimately, the record demonstrates that the petitioner is respected in the field for her contributions and 
has a lengthy record of consistent publication and citation indicative of a track record of success with 
some degree of influence on the field as a whole. Other evidence of record not discussed in this 
decision also supports our determination that the petitioner qualities for the benefit sought. 
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 ofretaining this alien's services outweighs the national interest that is inherent 
in the alien employment certification process. ThereJore, on the basis of the evidence submitted, the 
petitioner has established that a waiver of the requirement of an approved alien employment 
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. § 1361. The petitioner has sustained that burden. Accordingly, the AAO withdraw the 
decision of the director denying the petition and approve the petition. 
ORDER: The appeal is sustained and the petition is approved.