dismissed EB-2 NIW Case: Aids Research

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PI BLIC COPY 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Ofice ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
ai- 
Office: NEBRASKA SERVICE CENTER Date: 
 0 11 I 0 5 2009 
LIN 07 218 52790 
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 1 153(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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. tj 103.5(a)(l)(i). 
k Perry Rhew 
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 AAO will 
dismiss the appeal. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. tj 1153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as an AIDS researcher. 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 has 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 brief from counsel, copies of previously submitted exhibits, and a 
magazine article about HIVIAIDS in the District of Columbia. 
Section 203(b) 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, 101 st Cong., 1 st Sess., 1 1 (1 989). 
Page 3 
Supplementary information to 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 (USCIS)] 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. 
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. 
The regulation at 8 C.F.R. 5 204.5(k)(4)(ii) requires that a petitioner seeking to apply for the 
exemption must submit Form ETA-750B, Statement of Qualifications of Alien (or equivalent 
sections of ETA Form 9089), in duplicate. The record does not contain this required document, and 
therefore the petitioner has not properly applied for the national interest waiver. The director, 
however, did not raise this issue. We will, therefore, review the matter on the merits rather than 
leave it at a finding that the petitioner did not properly apply for the waiver. 
The petitioner filed the petition on July 26,2007. Counsel indicated that the petitioner "currently works 
on preventive health medicine and acts as a consultant on medical issues. She became very interested in 
researching low cost HIVIAIDS treatment and is currently testing her hypothesis in four clinical studies. 
The results of her ongoing research have appeared in several publications." 
Counsel identified exhibits Dl-Dl2 as publications of the petitioner's research, but only two of those 
exhibits show the petitioner's name. The other exhibits are the cover pages of various publications, with 
no evidence that the petitioner's work appeared in those publications. The exhibits that do not show the 
petitioner's name are, for the most part, publications that appear to be informational in nature, rather 
than research reports. 
In a June 21, 2006 letter, of the Institute for International Cooperation 
and Development (IICD), Dowagiac, Michigan, invited the petitioner "to come to IICD Michigan in 
[her] capacity as Chief Medical Officer for Humana People to People's medical headquarter[s] . . . from 
July 2006 to July 2009 to assist Development Instructors being trained at our institute in setting up 
community research programs." 
The petitioner documented her active membership in the American Academy of Anti-Aging Medicine, 
and, identified as a "consultant for a row of boarding schools for special needs youth," stated 
that the beneficiary achieved "prominence" "as the director and medical officer in a boarding school 
(Small School) in Baaring Vig, Denmark" from 1986 to 199 1. The petitioner did not explain how these 
activities relate to her stated goal of pursuing AIDS research. 
Witness letters accompanied the petition. 
 who identified himself as a "journalist in 
scientific research" with a "background [in] clinical physiological psychology," stated: 
Democratic Republic, or East Germany], sometime in the early 1980's. His approach to 
treatment of HIV and AIDS was uni ue and because of that in 1986, I began working 
with him on a[n] HIV project. . . . q held unconventional views on the proper 
treatment of HIV and AIDS. 
. . .deducted [sic] that aspirin would be effective against the replication of 
HIV and its attack on the immune system. Unfortunately 
died months before our book was completed. I finished it and published a book titled 
"AIDS can be conquered." 
Years later, I . . . [learned] about the clinical studies of [the petitioner] who was 
conducting [research] on HIV with aspirin in Zimbabwe. I found it very important and 
unique that someone was working along the lines of our work. . . . 
Although about 30 different papers have been published on aspirin and HIV, only few 
people like [the petitioner] are conducting clinical research in this area. That [the 
petitioner] approached her research studies from an unconventional angle only points to 
her abilities as a researcher. That her studies were successful in prolonging the lives of 
individuals infected with HIVIAIDS only secures her position as an outstanding 
researcher. 
[The petitioner has] served on the Board of Trustees of Humana People to People 
Botswana as one of its 6 members since 2002. The purpose of the organization is to 
help countries in the developing World to create genuine development for the resource 
poor parts of the population. Currently, its major programs consist of the 
implementation [of the] Total Control of the Epidemic program (TCE) and HIVIAIDS 
prevention program introduced in Botswana in 2000, as well as Child Aid and HOPE 
projects. 
[The petitioner] was asked to join by [tlhe Board of Trustees, because of her expertise 
on HN and AIDS and her extensive background in understanding the needs of the local 
population. Her ability to suggest innovative projects such as the knowledge-attitude- 
behaviour change concept in the population is well proven and her evaluation of any 
program's impact on the country is right on target. Her experience and knowledge in 
medical, social and psychological HIV and AIDS issues makes [the petitioner] 
invaluable to the Board of Trustees. Her recognition as an expert in the HIV and AIDS 
area assists the Board in meeting its objectives and brings prestige and resources to the 
organization. 
[The] TCE - Total Control of the Epidemic - program is a community based 
mobilization program for taking control of the HIVIAIDS epidemic in Africa and Asia. 
This program started in 2000 in Zimbabwe covering 100.000 people and is today 
covering more than 4 million people in Zimbabwe, Botswana, Namibia, Angola, 
Mozambique and Malawi. 
TCE was developed through the efforts of a five person programs-development-team 
[the petitioner] being one of them between January and April 2000. This program 
presently serves more than 4 million people in Africa and employs a staff of over 1,500 
individuals. . . . 
In April 2000 [the petitioner] was instrumental in establishing a TCE Medical 
Headquarters in Zimbabwe. 
As a medical professional working with HIV and AIDS victims, she soon realized that 
conventional treatment, not being available, was not an option in African countries. 
Searching for an alternative, she conducted research in the effectiveness of 
supplementary substances and successfully developed a range of supportive medicines 
and supplements. These substances have proven to be effective in prolonging the lives 
of those with HIV, who[] otherwise have no access to treatment. 
. . . The initial objective of the study was to determine whether Selenium, Aspirin and 
Multivitamins in different doses and combinations would positively [alffect the human 
immune system in turn prolonging the lives of such HIV victims on an average of 6 
years. 
The Significance of these studies is that conventional treatment can be successfully 
postponed for an average of 6 years, allowing people with no access to conventional 
treatment at all to live much longer. 
On November 13, 2008, the director instructed the petitioner to submit documentary evidence of 
independent citation of the petitioner's published research. The petitioner's response did not include any 
such evidence. (The petitioner submitted printouts showing that her work appears in various scholarly 
databases, but these listings are not citations of her work.) Instead, the petitioner submitted other 
materials in an effort to establish the significance and impact of her work. 
The petitioner claimed that, since 2007, she has been "[alppointed to oversee [the] Danish 
Governmental Development Aid HIV program in Zimbabwe," but the record contains no evidence from 
the Danish Government to support this claim. The petitioner also claimed to have "[dleveloped the 
concept of TCE," which she claimed is "currently the world's largest preventive health program." 
The petitioner's submission included several witness letters. 
 of the 
University of Zimbabwe stated: 
I had the opporhmity of offering irnmunological/virological assessments of some 20 of 
those HIV infected individuals who were under the care of [the petitioner]. I was 
impressed by their physical appearance and mental tenacity. There were all in a very 
stable and good condition. . . . I then learnt that the patients were taking an 
unconventional combination of Selenium, Aspirin and Multivitamins. 
[The petitioner] later requested my participation in the evaluation of the effectiveness 
and mechanisms of action of the seleniurn/aspirin/multivitamin combination in a formal 
clinical trial that she had designed. . . . 
[Tlhe results of our work have been published in peer reviewed journals. 
During the years 2000 - 2007, in collaboration with [the petitioner], we have conducted 
5 research projects aimed at finding affordable, accessible and sustainable means of 
enhancing the quality of life of HIV infected individuals. Some have been published[,] 
two manuscripts are in preparation and the fifth project is still ongoing. 
Our studies, which were really initiated by the introspection of [the petitioner], have 
uniformly shown that aspirin is beneficial to HIV infected patients and can delay the 
need to initiate antiretroviral therapy. . . . I find our studies of utmost significance in the 
fight against HIVIAIDS. Furthermore[,] our studies in Aspirin and HIVIAIDS have 
clarified some important mechanisms in the pathogenesis of AIDS and should be 
understood as a significant contribution to the scientific world. 
The petitioner submitted a copy of the abstract of a paper presented at a 2002 conference, of which the 
petitioner was one of four authors, reporting the results of a study involving 20 HIV-positive subjects 
and urging a larger study. The petitioner did not submit evidence to show how much impact, if any, this 
paper has had in the more than six years since its release. 
Zimbabwe, stated that the petitioner established the clinic in 2006. She further stated: 
[The petitioner] identified 4 indigenous herbs which had anti-inflammatory effects like 
aspirin, anti-oxidant effects like the micronutrients plus additional anti-malarial, anti- 
fungal and anti-Worm effects. [The petitioner] grew these herbs [on a] large scale and 
manufactured a tea which provided the same benefits to HIV positive patients as aspirin 
and micro nutrient[] tablets. This concept won a first prize in the regional World Bank 
competition for innovative approach[es] to HIV management. 
Later on [the petitioner] developed the herbal tea into a tablet. 
It was in connection with the Anti-Aging Conferences that I got to know [the petitioner]. 
[The petitioner] was like me deeply engaged in the fact that it seems we would be able 
to prevent most aging diseases by simple means nam[e]ly correcting imbalances andlor 
eliminate inflammation. By doing so we would prevent cancers, heart[ ]diseases, 
dementia and rheumatic diseases and more. 
I learned that [the petitioner] herself had been working with managing HIV disease in 
Africa by eliminating or minimizing inflammation in HIV positive individuals by means 
of ingestion of aspirin together with micro nutrients. . . . 
Using aspirin at the early stages [of HIV infection] seems to add several years to the 
lives of HN positive individuals, to increase quality of life and also to reduce costs of 
medicine for the individuals as well as at a national level. 
The petitioner submitted copies of documents relating to Total Community Mobilization (a public 
information campaign in Botswana). Because her name does not appear on these materials, the 
documents do not show the nature or extent of the petitioner's involvement. 
The petitioner's name does appear in a German-language publication, Info des Forderverein Neue Wege 
in der HIV-Therapie, but the petitioner did not submit the complete, certified translation required by 
8 C.F.R. 5 103.2(b)(3). The petitioner submitted only an uncertified capsule translation, stating that the 
intent of the article was to report "that there could be an affordable and immediate therapy to alleviate" 
the HIV epidemic in Afiica and to urge donations "for the purpose of supporting a clinical trial with a 
larger number of people." The record does not indicate that a larger trial has taken place. 
The director denied the petition on February 21, 2009. The director stated that the petitioner "has a 
modest publication record," with no evidence of citation of her published work. The director 
acknowledged the petitioner's witness letters, but found that these letters did not establish widespread 
adoption of the petitioner's methods. The director reasoned that if the petitioner's work had made 
significant inroads in the fight against HIVIAIDS in Afiica, then there ought to exist substantial 
independent evidence of the petitioner's impact. 
On appeal, counsel discusses the intrinsic merit and national scope of AIDS research, and asserts that 
the United States would benefit significantly fiom the low-cost, aspirin-based regimen described in the 
record. The director, in denying the petition, did not dispute the intrinsic merit or national scope of 
AIDS research. At the same time, the overall importance of AIDS research does not require the 
approval of every waiver application relating to AIDS research. A petitioner cannot establish 
qualification for a national interest waiver based solely on the importance of the alien's occupation. It is 
the position of the Service to grant national interest waivers on a case by case basis, rather than to 
establish blanket waivers for entire fields of specialization. Matter of New York State Dept. of 
Transportation at 2 1 7. 
Counsel claims: "Contrary to the conclusion of the USCIS, petitioner's publications have been cited and 
the research recognized in the Google Scholar." The petitioner resubmits copies of printouts intended to 
support this claim. The printouts, however, do not show citation of the petitioner's articles. They show 
that the articles themselves are listed on the Google Scholar database at htt~:l/scholar.~oogle.com, but 
they do not establish that any other researchers have used the petitioner's work and identified it in the 
bibliographies of their own articles. Counsel has not shown that Google Scholar weighs the merits of 
scholarly publications to decide whether or not to include them in the database. 
One Google Scholar printout in the record for the search terms "Aspirin+HIV+management" shows 
citations for other works. For instance, under the listing for the book Pandemic: Facing AIDS, appears 
the notation "Cited by 1 ," which links to a separate page that identifies the citing publication. 
Another printout used the words in the title of the petitioner's article as the search terms. The articles 
listed in the search results, however, are not articles that cite the petitioner's work. They are simply 
articles that contain the words used in the search terms. If the search terms are surrounded by quotation 
marks, then the search engine treats the words as a connected phrase, and will only search for the words 
together, in that order. Because the petitioner's search did not use quotation marks, the search engine 
merely found every instance of those words, adjacent or not, regardless of order. The allegedly cited 
article appeared in 2004, years after many of the articles that supposedly cite that article. One "citing" 
article appeared in 1993. 
In disputing the director's finding that there is little evidence that other researchers have relied on the 
petitioner's work, counsel states: "This conclusion . . . is not supported by the record. The source of this 
confusion may be that the petitioner's research is more likely to be found in the 'nutrient' category since 
the basis of the treatment is nutrients." It is not clear what counsel means by "the 'nutrient' category." It 
remains that the burden is on the petitioner to submit evidence of eligibility; the director is under no 
obligation to locate such evidence on the petitioner's behalf. The director specifically instructed the 
petitioner to submit evidence of the impact of her work, and the director based the decision on what the 
petitioner submitted. The director's supposed failure to seek supporting evidence in "the 'nutrient' 
category" does not invalidate the director's decision. 
Counsel asserts that the petitioner has received various honors for her work with HIV management in 
Africa, but the record lacks direct evidence to support many of these claims. Third-party witness letters 
are not direct, documentary evidence to support such claims. 
Counsel asserts that the petitioner's "work with aspirin and T-cells led the way to a low cost treatment 
that delays the progression of HIV in HIV positive individuals providing these afflicted individuals with 
a better life." Here is where independent evidence of the petitioner's impact plays an important role. A 
low-cost treatment that significantly delays the onset of major AIDS symptoms could be expected to 
attract major attention. Counsel claims that the petitioner's work has, indeed, earned that attention. The 
record, however, lacks the caliber of evidence that we could reasonably expect from such a 
development. The absence of citations of her published work leads us to conclude that the wider 
scientific community has not taken a serious interest in her work. The study that is said to have 
established the effectiveness of the aspirin regimen involved only 20 people, and the resulting 
publication acknowledged that a much larger study is needed in order to validate these results. We note 
the assertion that the petitioner's work led to the manufacture of herbal remedy teas and tablets, but the 
record is devoid of impartial, empirical evidence showing the effectiveness of these products. 
The assertion that the petitioner made a significant original contribution by investi atin the use of 
aspirin on HIV-positive patients must overcome assertion tha performed 
similar research in the 1980s. (The assertion that 
 work was "unconventional" raises the 
unanswered question of how seriously "mainstream" researchers have taken that work.) 
Furthermore, social and economic conditions in the United States (not to mention communications, 
educational and public health infrastructure) are significantly different than those in Botswana and 
Zimbabwe, and the record contains nothing from major, recognized health organizations (public or 
private) to indicate that there is significant interest in using the petitioner's methods in the United States, 
or significant expectation that such methods would be effective here. 
Counsel cites an AAO decision from 2008, stating that the AAO approved a petition for a researcher 
"with less contributions to show for" than the present petitioner. The petitioner has not submitted 
evidence from the cited case, and therefore we cannot compare the two records of proceeding 
directly, but according to our appellate decision, the other petitioner had submitted testimony from 
two members of the U.S. National Academy of Sciences, and the researcher's publications had 
amassed over 100 independent citations, demonstrating widespread acceptance, endorsement, and 
use of that researcher's work. In the present proceeding, the petitioner has not submitted evidence of 
similar caliber. The petitioner has made very bold claims regarding the importance of her research 
work, but little evidence to show that the greater scientific community agrees with those claims. 
Anecdotal assertions are not sufficient to meet the petitioner's burden of proof in this regard. 
As is clear fiom a plain reading of the statute, it was not the intent of Congress that every person 
qualified to engage in a profession in the United States should be exempt from the requirement of a job 
offer based on national interest. Likewise, 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 profession, rather than 
on the merits of the individual alien. On the basis of the evidence submitted, the petitioner has not 
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. 5 1361. The petitioner has not sustained that burden. 
This decision is without prejudice to the filing of a new petition by a United States employer 
accompanied by a labor certification issued by the Department of Labor, appropriate supporting 
evidence and fee. 
ORDER: The appeal is dismissed.