dismissed EB-2 NIW Case: Auditory Science

US. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office ofAdministrative Ameais MS 2090 
idc3~*3r'~T 
 "I*" "P'"""'' 
.,a,,~cx. a%..,, w A tl3 
 %sh~n&on, DC 20529-2090 
rici.z;.t :!?;.;'!;I c. : ;$.~I-;..I;~:J. 
 U.S. Citizenship 
i 
 v"". 
n 9: ;;crx!;ei privacy and Immigration 
PrnLIC 
IN RE: 
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. 3 1 153(b)(2) 
ON BEHALF OF PETITIONER: 
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. fj 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. 3 103.5(a)(l)(i). 
F. Grissom 
Acting Chief, Administrative Appeals Office 
Page 2 
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. § 1153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as a research associate at Oregon Health and Science University (OHSU). 
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 with supporting exhibits and two witness letters. 
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. 
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, in duplicate. The record does not 
contain this required document (or the equivalent portion of its successor document, ETA Form 9089), 
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. 
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). 
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] 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 (Commr. 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 petitioner filed the petition on July 30,2007. To describe and evaluate his work in the specialty of 
auditory science, the petitioner submitted nine witness letters. of Boston 
University stated: 
I was [the petitioner's] advisor when he was pursuing his PhD degree here at Boston 
University. . . . 
In 2001, he began working with me in a project involving the design and construction of 
a biomimetic 'smart' sensor which modeled the ability of the human ear to discern 
sound pitch. [The petitioner's] work was an important part of that three-million-dollar 
project, funded by the Defense Advanced Research Projects Agency. The applications 
for this sensor include urban surveillance to detect meaningful sounds, like vehicular 
traffic. It also has application in the biomimetic sonar systems used by micro-robots. 
[The petitioner's] work in supporting the design and carrying out extensive behavioral 
testing was critical to the project. . . . 
[The petitioner's] continued presence in this very specialized field of hearing research, 
where his activities are both productive and critically important, is vital for reasons 
relating to health and ageing. 
I was first introduced to [the petitioner] in 2001 when he started working for - 
in a project funded by my office. The project consisted of building a sensor 
system to mimic the mammalian auditory processing for sound localization. . . . [The 
petitioner] also worked on constructing a mechanical device to mimic the signal 
processing functionality of the mammalian cochlea. . . . [The petitioner] has made great 
progress since he started to work on the project and has not only solved the technical 
problems in measuring the responses of the device, but also composed a mathematical 
model for understanding its behavior, and then creatively proposed an effective method 
to improve its performance. 
[The petitioner] is employed as a research associatelengineer in the Cochlear Physiology 
Laboratory in the Oregon Hearing Research Center, and I am his advisor. The projects 
[the petitioner] works on deal with the development of an optical coherence tomography 
system designed to study the physiology of the cochlea, so that we can better understand 
the cellular function of the hearing organ. His work is crucial to the understand[ing] of 
the physiology of outer hair cells, including how and why these cells are the most 
vulnerable inner-ear cellular elements to all forms of damage (sound, age and toxic 
drugs). The work is essential to understand the causes of hearing loss that will benefit 
the development of new therapies to treat and prevent the hearing disorder. . . . 
Page 5 
Before [the petitioner] joined the Center, he had already contributed significantly to the 
field of cochlear mechanics. He was one of the leading authors in constructing an 
artificial device to mimic cochlear acoustic signal processing function. . . . [Bluilding an 
artificial device to mimic this delicate hearing organ is a great challenge and has been a 
long term goal in both the biological and engineering fields. . . . 
More recently, [the petitioner] has extended his research into designing and applying 
optical coherence tomography (OCT), a novel optical technique, to image and measure 
the vibration of the cells of the organ of Corti, which is the structure responsible for 
detecting sound. 
[The petitioner] has been working closely with me for two years. . . . 
Our project focuses on development of optical coherence interferometry, a novel optical 
technique to study the mammalian hearing organ. . . . [The petitioner] has played a 
leading role in the development of an algorithm to acheve reliable vibration 
measurement within a noisy environment. This had been a major obstacle in our system 
development, and his elegant design has enabled us to achieve a reliable and stable 
measurement of the inner ear. . . . 
The impact [of] our research is in the study of the cochlear mechanics [on] the cellular 
level, which is essential to understand how the hearing organ processes the sound. This 
work is of central importance to the field of hearing. . . . The recent optical technique of 
[the petitioner] has been a key item on the wish list of [the] cochlear mechanics 
community for years, according to - 
- stated that the petitioner's "efforts have been instrumental in the 
success of [a1 pro-ject" that "addresses the previously undocumented epidemic of noise induced hearing 
- -- - 
loss in children and adolescents." added that the petitioner "is also an essential contributor 
to another project . . . investigating a novel technique to remobilize a para1 zed vocal cord for voice 
restoration." 
 Describing the nature of the petitioner's contributions, 
 stated that the 
petitioner contributed ''by helping identifying instruments, building customized circuitries, and setting 
up [an] instrument system in the operating room for the animal experiments." 
Most of the remaining witnesses have collaborated either withor 
of Columbia University, who has published 
visited the petitioner's laboratory in 2006, stated that the petitioner's "novel optical technique to 
investigate the micro-mechanics of the mammalian inner ear . . . is a revolutionary technique." 
Page 6 
While I have never directly supervised [the petitioner], I am well aware of his doctoral 
dissertation at Boston University and his Post-doctoral research at the Oregon Health 
and Sciences University. . . . 
In cochlear mechanics, there is an international scientific debate regarding the nature of 
wave propagation in the cochlea. [The petitioner] is providing both theoretical and 
experimental leadership in solving this scientific debate through his work on the 
backward traveling wave in the cochlea. . . . 
In addition, he is spearheading the development of an Optical Coherence Tomography 
(OCT) laser sensor for tissue displacement measurements. The development of this 
technique will revolutionize the manner in which physiological experiments are 
performed, accelerating the discovery of the fundamental workings of mammalian 
hearing. . . . 
[The petitioner] has performed and continues to perform nationally recognized research 
that is of the highest quality. 
of the University of Amsterdam, who has collaborated with 
 since 
1993, stated: 
[The petitioner] has been working on . . . the study of backward energy propagation 
mechanism inside the cochlea. This work . . . provides new inside [sic] to a basic 
phenomenon and a fundamental puzzle in cochlear mechanics. A good knowledge of 
the backward propagation mechanism is important not only for understanding cochlear 
physiology but also for optimally utilizing 'otoacoustic emissions,' signals emitted by 
the ear which are extremely useful for the noninvasive diagnosis of hearing disorders 
and for hearing screening of the new-born. 
The only witness with no documented collaboration with the petitioner's advisors is - 
of Stanford University, who stated: 
I got to know [the petitioner] in 2003 from his work in designing and constructing an 
artificial smart sensor to mimic the mammalian cochlear functionalities. I know his 
work very well because I was also working [on] a similar project, building the artificial 
device with a different approach. . . . 
I did not meet [the petitioner] until July, 2005, when we both attended a conference on 
cochlear mechanics and presented our designs. I was amazed by the beautiful results he 
got from his device and the excellent idea to address the technical problems we both 
faced. 
The petitioner submitted copies of his published work and abstracts of conference presentations, but no 
objective evidence of the impact of this work. 
On September 30, 2008, the director issued a request for evidence, instructing the petitioner to submit 
"[clopies of published articles by other researchers citing or otherwise recognizing the petitioner's 
research and/or publications," or printouts from an identified citation database. The director stated: 
"The petitioner must demonstrate that his work has impacted or influenced the field of endeavor as a 
whole." 
In response, the petitioner submitted printouts from htt~://scholar.aoogle.com (Google Scholar), 
showing four citations of one of the ~etitioner's articles. and two citations of a second article. 
" 
Re arding the article cited four times, two of the citations are in articles b initial witness- 
hand his student; a third citation appeared in doctoral thesis. With 
respect to the second article, one of the two citations is a self-citation in a later article by the petitioner. 
The petitioner also submitted copies of previously submitted exhibits and other materials outside the 
scope of the director's request. 
The director denied the petition on December 1, 2008, stating that the minimal citation of the 
petitioner's published work did not indicate that others in the field viewed the petitioner's work as being 
particularly important or influential. The director acknowledged the witness letters, but noted that 
almost all of the witnesses have demonstrable ties to the petitioner or to hs supervisors. 
On appeal, counsel argues: 
First of all, Cochlear Mechanics is a research field that is relatively small compared to 
fields such as breast cancer andlor computer softwarehardware for obvious reasons in 
tenns of researchers involved and journals available. Despite that, the attached materials 
should show that, comparatively, the citation ranking of [the petitioner's] article was 
within at least 33 percentile.1 As the attached chart shows, for the articles published in 
2006, the same year[] as [the petitioner's] above discussed article was published: 
1. 
 523 articles were [found] with the key words; 
2. 
 Among the first 100 articles found: 
a. Medi[an] number of citation for such an article is 1; 
b. 40% of the articles did not get any citation; 
c. 67% of the article[s] have less than four citations; 
d. In other words, only 33% . . . of [the] articles got 4 citations or more; and 
e. [The petitioner's] article had four citations. 
Admittedly . . . among the four citations, three citations had [the] same author, however, 
that did not change the fact that the [citing] articles were not by the [petitioner] only and 
1 
(Sic.) Counsel appears to mean the 67th percentile. 
Page 8 
the articles demonstrated different purposes and showed the most advanced degree of 
the research in the field. 
All of counsel's figures derive from Google Scholar searches. Counsel noted that, also in 2006, 92,700 
articles with the keywords "breast" and "cancer" were published, with a median of 65 citations per 
article. This comparison is not entirely accurate, as the topic of cochlear mechanics is considerably 
narrower and more specialized than the broad subject of breast cancer. The latter subject includes any 
number of subdivisions including genetic causes, environmental causes, diagnostic methods, treatment 
methods, and so on. 
Also, the keyword search did not involve the phrases "cochlear mechanics" and "breast cancer," but 
rather the single words "cochlear" and "mechanics," and "breast" and "cancer," without regard to 
whether the words were grouped together. This may have skewed the results by including unrelated 
articles that happened to include those words in isolation. 
Counsel's "67%" figure does not take into account the complete search results, but rather "the first 100 
papers in the search results." A histogram of these 100 papers shows that, of all the papers showing 
citations, four was the second most common number of citations; the distribution of citations is almost 
bimodal, with nearly as many articles cited four times as were cited once. The histogram shows a 
significant cluster from zero to four citations, tailing off at five or more. According to the histogram 
submitted on appeal, an article cited four times is not the statistical outlier that counsel claims. Rather, 
such an article is within the main cluster on the left-hand side of the histogram. 
Even then, only one of the petitioner's published articles has produced such a citation rate. Most of the 
petitioner's published articles appear to have no citations at all; the petitioner has documented only one 
independent (non-self) citation of one other article. Counsel has not explained why the four citations 
accorded to one non-representative example of the petitioner's work should cany more weight than the 
performance of all the petitioner's other articles put together. 
Two witness letters, both from prior witnesses, accompany the appeal. A new letter from - 
is mostly identical to his earlier letter, with added passages listing the petitioner's articles and indicating 
that the petitioner will have more flexible career options as a permanent resident than as a 
nonirnmigrant . 
praises the petitioner's achievements between 2005 and 2007 and states: "A minimally 
qualified researcher would not perform at [the petitioner's] level." As explained earlier in this decision, 
an alien does not qualify for the waiver simply by virtue of being above average in his or her field. A 
degree of expertise significantly above that ordinarily encountered in a given field is not an automatic 
qualifier for the waiver. That phrase is the regulatory definition of exceptional ability, and aliens of 
exceptional ability are typically subject to the job offerllabor certification requirement. It is for this 
reason that the director favored documentary evidence of the petitioner's impact above the opinions and 
impressions of witnesses chosen by the petitioner. 
Page 9 
From the evidence of record, it is clear that the petitioner's work has impressed his mentors and their 
collaborators, who see significant promise in the petitioner's talents and accomplishments. In terms of 
greater impact and wider influence, however, it appears this promise has yet to bear significant fruit. At 
best, the petition appears to have been filed prematurely. 
As is clear from 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. § 136 1. 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.