dismissed EB-2 NIW Case: Biochemistry

U.S. Department of Homeland Security 
Identifying data deleted to 
U.S. Citizenship and Immigration Se~ces 
Ofice of Administrative Appeals MS 2090 
pr€\wd c ka; 1 y un~mted 
 Washington, DC 20529-2090 
invasion of personal privacy 
 U. S. Citizenship 
and Immigration 
--LIC COPY 
Office: NEBRASKA SERVICE CENTER 
 Date: APR 2 2 2009 
LIN 07 090 53217 
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. 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 &her 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. 9 103.5 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. § 103.5(a)(l)(i). 
LL4-p 
pohn F. Grissom 
Acting 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. 
In this decision, the term "prior counsel7' shall refer to - who represented the petitioner at the 
time the petitioner filed the petition. The term "counsel" shall refer to the present attorney of record. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. $ 11 53(b)(2), as an alien of exceptional ability in the sciences. The petitioner is a 
research associate at the University of California, Berkeley (UCB). 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 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. 
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 petitioner claims eligibility for classification as an alien of exceptional ability in the sciences. The 
record readily establishes that the petitioner, whose occupation requires at least a bachelor's degree and 
who holds a master's degree, qualifies as a member of the professions holding an advanced degree. A 
determination regarding the petitioner's claim of exceptional ability would be moot; it would occupy 
significant space in this decision, without affecting the ultimate outcome thereof 
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, 1 Olst 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. 2 15 (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's initial submission of February 5, 2007 included numerous witness letters. - 
of the Shanghai Institute of Biochemistry, where the petitioner studied fiom 1992 to 1995, 
described the petitioner's work there: 
Page 4 
[The petitioner's] strong backgrounds in chemistry and the biological sciences enabled 
her to make interesting discoveries of major importance in the area of molecular 
chaperone-assisted protein refolding. . . . 
Next, she succeeded in achieving industrial level purification of therapeutic proteins for 
biomedical purposes, namely, GM-CSF. Statistically, GM-CSF, together with other 
growth factors, account for perhaps 70% of the protein drug research activity in the 
biotechnology industry, and over 50% of the biotechnology-based pharmaceutical 
products on the market. 
Falsely folded proteins are the root causes of various deadly diseases, including 
Alzheimer's and Huntington's. One of the key steps toward developing effective 
[treatment] strategies . . . is to collect ample information for deciphering the mechanisms 
underlying protein folding and misfolding. [The petitioner's] expertise and rich 
experience in protein folding and therapeutic recombinant protein production have 
played an important role in advancing our knowledge in this regard. 
Most of the remaining witnesses are professors or former visiting professors at UCB. Professor 
Michael Botchan explained the nature of the petitioner's work there: 
Many transposable elements can be inserted into any DNA sequence, often resulting in 
undesirable mutations. . . . 
[The petitioner's] work focuses on understanding Drosophila [hit fly] P element 
transposase. . . . [Tlhe P element family exhibits extremely high rates of transposition in 
vivo and is subject to a number of interesting regulatory events. A thorough 
investigation into the mechanisms and regulation of P element transposition could 
substantially advance our understanding of DNA rearrangements, subsequent DNA 
repair reactions, and the role transposable elements play in shaping the genome in 
eukaryotic cells. . . . 
To date, [the petitioner] has succeeded in imaging the transposon DNA-transposase 
complex using AFM [Atomic Force ~icrosco~~]' greatly helping scientists understand 
how protein and DNA molecules recognize each other. . . . 
Transpososome (a nucleoprotein complex) is a crucial checkpoint in transposition and a 
prerequisite for initiating DNA cleavage and the subsequent chemical steps in 
transposition. [The petitioner] has captured the intermediate forms of transpososome 
where P transposase locate, bind, and synapse donor DNA ends [at] an extraordinary 
rate, thus, providing a defined architecture within which these stepwise reactions can 
1 
 Brackets in original. 
take place. This remarkable finding may not have been possible were it not for [the 
petitioner's] perseverance and outstanding ability in employing single molecule 
manipulations. Her work has significantly contributed to our understanding of 
transposition. . . . 
[The petitioner's] work also addressed a crucial mechanism regarding DNA looping 
formation. . . . This discovery is of great significance in that it provides an actual 
example of the detailed dynamic protein-DNA complex looping formation, while 
affording invaluable insight into subsequent cellular events, like double strand DNA 
break repair, which is under extensive study due to its direct connection with cancer 
development and because it is a checkpoint for potential therapy development. 
[The petitioner] has been instrumental in making several major and important 
breakthroughs. First of all . . . [slhe developed a rapid and simple purification method to 
yield biologically active P element transposase. This crucial breakthrough now makes 
possible all of the downstream experiments that we desire to address the mechanisms of 
P element transposase. 
[The petitioner] also is playing a pivotal role in the investigation of an extremely 
important topic, the role of cofactor GTP in the function of P element transposition. . . . 
She made several important and novel observations and a great discovery regarding the 
role of the cofactor GTP in P element transposition using these single molecule 
methods. 
, who has collaborated with the petitioner and 
 credited the 
petitioner with "contributions of considerable importance to the field, especially through her work with 
single molecule visualization." 
stated that the petitioner's work "is important not only for the transposition field, 
but more generally in the field of nucleic acid biochemistry." 
I came to know [the 
 a visiting professor for three months 
. . . in the laboratory 
I am very pleased to see that [the petitioner] now has made several breakthroughs in her 
research on DNA transposition/recombination and I am convinced that her discoveries 
will have a profound influence on the scientific community that studies nucleic acid and 
protein-nucleic acid interactions. 
In short, [the petitioner's] work has provided a detailed understanding of biochemical 
interactions of transposable P elements. . . . [The petitioner] has overcome several 
difficult technical problems that have puzzled researchers in this field for over a decade. 
The remaining two witnesses have not taught at universities where the petitioner has worked or studied. 
Associate Professor Patrick C. Swanson of Creighton University, Omaha, Nebraska, stated: 
Given their importance in such a wide array of biological phenomena, it is important to 
learn at the molecular level how genetic elements are mobilized and regulated in a 
variety of systems. This is where [the petitioner's] contribution has been felt. 
. . . [The petitioner's] work was a significant influence in our decision to begin pursuing 
similar AFM studies with the RAGllRAG2 protein complex that mediates V@)J 
recombination. 
Dr. Cesare Ascoli, who leads the AFM Group of the National Research Council, Pisa, Italy, called the 
petitioner's work on the Drosophila project "a remarkable achievement." Dr. Ascoli stated: 
[The petitioner] designed and carried out experiments that allow high-resolution images 
to be recorded for qualitative and quantitative data analysis. . . . [The petitioner] adjusted 
the buffer system to obtain optimal conditions for three different imaging scenarios - 
only DNA, only protein, and a combination of DNA-protein. Notably, in doing so, she 
enabled the application of those special conditions to targeted imaging, resulting in 
faster image collection times and greater accuracy in the interpretations of the data 
collected. Based upon that successful single-molecule manipulation, [the petitioner] 
went on to make several important discoveries. She . . . proceeded to elucidate the first 
chemical step of mobile DNA transposition at the single molecular level. This is of 
extreme importance toward understanding enzymatic reactions in general. . . . Finally, 
after all those years of speculation among researchers in the field as to what went on at 
the molecular level, the images provided by [the petitioner] have settled the matter by 
providing visual confirmation. 
The petitioner submitted copies of one article she had published in Genes & Development, a manuscript 
of an article that, according to the petitioner's curriculum vitae, had been submitted for publication in 
the EMBO Journal, and abstracts of three conference presentations. The petitioner did not, however, 
provide documentary evidence of the impact of her published and presented work. Some witnesses 
have noted that the petitioner's work appeared in a high-impact journal, but this does not imply the 
impact of the petitioner's articles; the impact factor is an average, calculated fiom the citation rate of 
individual articles. Without individual citation data, we cannot tell whether the petitioner's article was 
cited at a rate below or above that average. 
On March 19, 2008, the director instructed the petitioner to submit documentary evidence, such as 
citation records, to support the witnesses' claims regarding the petitioner's influence in her field. In 
Page 7 
response, prior counsel noted that one of the petitioner's articles appeared in Genes & Development, a 
journal "[wlith an impact factor of 15.61" (prior counsel's emphasis), and another article appeared in 
the Journal of Biological Chemistry, "the most cited biomedical research journal in the world 
(prior counsel's emphasis). As noted above, the impact factor of a journal does not establish the impact 
of a given article published in that journal. 
With respect to the petitioner's own articles, the petitioner documented one citation of the 
petitioner's Genes & Development article, and no documentation of any citations of the petitioner's 
Journal of Biological Chemistry article. The sole documented citation was published in May 2008, 
over a year after the petitioner filed the petition. There is no evidence that the petitioner's work had 
been cited at all as of the petition's February 2007 filing date. The beneficiary of an immigrant visa 
petition must be eligible at the time of filing. See Matter of Katigbak, 14 I&N Dec. 45, 49 (Regl. 
Commr. 1971). 
We note that the petitioner's article in the Journal of Biological Chemistry, submitted to that journal 
in May 2007, appears to be the same article previously described as having been submitted to the 
EMBO Journal in 2006. The implication is that the first journal rejected the paper. The record is 
silent as to why this article appeared in a different journal than the one initially named. 
We would not dismiss the importance of a heavily-cited article that appeared in what was usually a low- 
impact journal. By the same token, the high impact factors of Genes & Development and the Journal of 
Biological Chemistry cannot compel us to ignore the negligible citation rate of the petitioner's own 
work. We are not persuaded by prior counsel's contention that the petitioner's work must be especially 
important, or else the aforementioned journals would not have accepted the petitioner's articles. The 
petition must rest on the merits of the individual alien, rather than on the reputation of any person, 
institution, or journal associated with that alien. 
Prior counsel then attempted a numerical demonstration of the significance of the petitioner's work. 
For example, prior counsel provided lists of published articles and observed that, out of 1,248 papers on 
the subject of "P elements," only 139 papers were about "P elements transposase," and of those, the 
petitioner's "publications are the only two papers that employing [sic] Atomic Force Microscopy." It 
does not follow that the petitioner's articles are more significant, important, or influential than the other 
articles mentioned; it is merely an indication of the highly specialized nature of the petitioner's work. 
The petitioner submitted additional witness letters. The letters are generally similar to the first group of 
letters. second letter is generally similar to his previous letter. He stated: "Most researchers 
with an M.S. degree . . . only are able to perform single assignments because of their limited training 
and expertise. Nevertheless, [the petitioner] is capable of performing various . . . experiments," and 
credited the petitioner with making "huge progress in our research" possible. 
The remaining new witnesses asserted that they know of the petitioner's work through her ublications 
through the work of 
 group, or from various professional conferences. P 
Principal Investigator at Massachusetts General Hospital, credited the petitioner with 
"discovering efficient way [sic] to obtain pure and active P-element transposae [sic] which greatly 
improved the ability to perform biochemical experiments. . . . [The petitioner's] studies have 
considerably advanced our understanding of the biochemical mechanisms in the field of P-element 
transposition research." 
Yale University Professor Emeritus Donald M. Crothers stated that the petitioner's "work has provided 
crucial information towards modeling the 3D structure of DNA associated protein complex." 
Professor Alan Frankel of the University of California, San Francisco stated: 
[Dluring the course of preparing the protein samples for AFM imaging, [the petitioner] 
noticed that there was apparently a mixture of protein volumes when she analyzed the 
data obtained by AFM measurements. . . . [The petitioner] believed this phenomenon 
was caused by the treatment of the samples prior to AFM imaging. She further proved 
her hypothesis . . . [and] provided another important piece of information, namely that 
the P-element transposase, in the absence of DNA, is a tetramer. This work resolved the 
apparent variations in the data obtained, clarified this discrepancy and correctly 
identified its cause. 
Professor David Roth of New York University School of Medicine stated that the petitioner "has played 
a leading role in the project on the biochemistry of P-element transposition, and I was impressed with 
their findings on transposable P elements and their implications for specialized genetic rearrangements 
and closely related DNA recombination reactions." 
Dr. Haiming Chen, Director of the Research Laboratory at the Institute for Myeloma and Bone 
Research, called the petitioner "an outstanding researcher who has made important contributions in 
molecular regulation and gene transposition based on the exceptional techniques she developed." 
The director denied the petition on July 25,2008. The director acknowledged "over a dozen experts in 
the petitioner's field have submitted letters to support her petition," but found that the petitioner failed 
to provide "first-hand documentary evidence" to support claims regarding the petitioner's influence and 
the importance of her work. The director noted, for instance, that the petitioner apparently had no 
citation record when she filed her petition. 
On appeal, counsel asserts that the record shows that the petitioner's "past achievements exceed those 
of others with comparable minimum qualifications for her field." Counsel then lists the petitioner's 
achievements. Naming the petitioner's accomplishments, however, does not establish their 
significance. 
Counsel protests that the director "insisted that PetitionerJAppellant must demonstrate proof of heavy 
citations." The director did not "insist" upon evidence of heavy citation. Rather, the director called for 
objective documentary evidence, and noted that citations are one objective means of measuring a 
researcher's impact. 
Page 9 
Counsel contends that the petitioner's "most impressive work had only been published in a journal the 
year of this filing. On that basis it is unreasonable to expect that her work would have been cited 
extensively. It is reasonable to expect that experts in the field would have taken note of her work but 
had not yet published work citing the relevant publication." As we have already noted, the article in 
question was not submitted for publication until several months after the filing date. This is rather 
different than the picture counsel paints, which is that, as of the filing date, others in the field simply had 
not had time to cite the article. As noted previously, the petitioner claimed to have submitted the article 
in question for publication in 2006, but that submission clearly did not result in publication at the time, 
which tends to undermine the assertion that the article is the petitioner's "most impressive work." 
The record indicates that, at the time she filed the petition, the petitioner had produced only one 
published article. That article appeared in Genes & Development in 2005, more than a year before the 
petition's February 2007 filing date. The petitioner submitted the article for publication in March 2005, 
and the article contains citations to three articles published in 2004. The petitioner's own evidence, 
therefore, proves that citations to a published article can appear within a year of the cited article's 
publication. Nevertheless, there is no evidence that anyone cited the petitioner's 2005 article before 
2008. 
Citing statistics submitted previously, counsel states: "in 2005 when PetitionerIAppellant's first article 
was published, there were [sic] only a total of 11 articles published on transposase mechanism research 
and all 11 articles were only cited 32 times total." Counsel asserts that, given this small number, it 
would be unreasonable to expect heavy citation of articles published on that subject. Counsel adds "the 
majority of these articles were published by researchers at the Ph.D. level." It is not entirely clear how 
the observation that most researchers in the petitioner's field hold Ph.D. degrees, while the petitioner 
does not, is to be construed in the petitioner's favor. The petitioner's lack of a doctoral degree is not a 
disqualifying factor, surely, but at the same time it is not an affirmative factor in her favor. 
With regard to the small number of transposase mechanism articles, we note that the petitioner's own 
2005 article cites 33 source articles, which is three times the claimed total number of articles "on 
transposase mechanism research" in existence at the time. Clearly, the petitioner was not limited to 
articles "on transposase mechanism research" when consulting sources for her own work. By appearing 
to assert that the petitioner's own work is only of interest to researchers within a very narrow 
subspecialty, counsel seems to concede that the impact of the petitioner's work is limited to a small and 
tightly focused group of scientists. Counsel's arguments appear to be at cross purposes, as counsel 
simultaneously argues that the petitioner's work is of widespread importance but directly relevant to the 
work of only a few researchers. 
After accusing the director of being "quite inflexible" with regard to citations, counsel appears to 
call for an inflexible standard by which the submission of independent witness letters must be 
construed as sure and certain evidence of eligibility. The director did not dismiss or overlook the 
witness letters. Rather, the director observed that the record does not appear to contain significant 
objective evidence that would lend strong support to the claims set forth in the witness letters. If it is 
alleged that the petitioner is responsible for significant breakthroughs in her field, then it is 
Page 10 
reasonable to expect credible objective evidence that this work has attracted significant notice in the 
field. As it is, the record contains negligible evidence of the petitioner's impact as of the February 
2007 filing date. (Independent witness letters written after the filing date praise the petitioner's 
"publications," plural, whereas the petitioner had only one publication at the time of filing.) At best, 
it appears that the petitioner filed the petition 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. § 1 36 1. The petitioner has not sustained that burden. 
This denial 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.