dismissed EB-2 NIW Case: Biochemistry

prevent 
invmiopl dpemmd privacy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
EAC 06 013 51469 
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. 8 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. 
U 
%be* P. Wiemann, 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 appeal will be dismissed. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. fj 1153(b)(2), as a member of the professions holding an advanced degree. The petitioner 
seeks employment as a postdoctoral research associate at the Institute of Human Virology at the University of 
Maryland. 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. 
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 (1989). 
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 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. $ 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, an alien cannot qualifL for a waiver simply by demonstrating 
a degree of expertise significantly above that ordinarily encountered in his or her field of expertise. 
In an introductory statement, counsel described the petitioner's work: 
[The petitioner] is an outstanding researcher in the field of chemistry and its sub-disciplines 
with extensive experience in bioremediation using microorganisms, bioconjugate chemistry, 
biological analytical chemistry, [and] biological chemistry. . . . 
As part of his research, [the petitioner] has successfully focused his research on 
bioremediation of heavy metal toxicity that is vital for . . . understanding the mechanism 
underlying the heavy metal contamination and the processes to chemically degrade its 
toxicity. . . . 
At the [State] University of New York he has been actively working on the phytoremediation, 
which is the use of plants to clean up the contaminants in a sustainable and environmentally 
friendly manner. . . . [The petitioner's] research in this field has already resulted in many 
significant discoveries. . . . 
Based on his research success, [the petitioner] was recruited to join Professor Wuyuan Lu at 
the Institute of Human Virology at the University of Maryland. He is currently investigating 
the structure and function of human a-defensins. . . . Today, we face further challenges in 
responding to such harmful bacteria, since they are obtaining immunity to existing 
antibiotics. [The petitioner's] research focuses [on] ultimately designing novel antibiotic 
therapeutics for the treatment resistant infections, existing and emerging infectious diseases. 
Counsel goes on to discuss bioremediation of heavy metal contamination and states that the petitioner "is 
proving that she [sic] can make a huge difference in the fields of environmental chemistry and bioremediation 
research. As a result, [the petitioner's] continued research in these fields of intrinsic merit will impact all 
parts of the nation and benefit the United States on a national scope." The record, however, does not reflect 
the petitioner's "continued research" in bioremediation. It appears, rather, that the petitioner participated in 
such research in conjunction with his now-completed work at the State University of New York (SUNY) at 
Syracuse. The petitioner's most recent documented work at the University of Maryland does not relate to 
biorernediation, and the record does not demonstrate the petitioner's intent to return to that specialty. It 
appears, instead, that bioremediation was simply a project assigned to the petitioner as part of his doctoral and 
postdoctoral training at SUNY Syracuse. The petitioner's body of work, as a whole, may serve as a guide to 
the petitioner's level of skill, but if the petitioner no longer works specifically in biorernediation, then his 
continued presence in the United States offers no prospective national benefit in that regard. 
Five witness letters accompanied the petitioner's initial filing. Counsel indicated that one of these five letters 
"is an Independent Advisory Opinion from an international scientist who [has] not worked with [the 
petitioner] and does not know [the petitioner] personally but rather through his publications and presentations 
at scientific conferences." Four of the five letters, including the one singled out by counsel, concern the 
petitioner's past work in biorernediation. 
Two of the initial witnesses are SUNY Syracuse faculty members. 
"acquaintance with [the petitioner] is through frequent, informal discussions," stated that the petitioner's 
for anatoxin-a . . . is a tremendous contribution to public health." 
the petitioner's work at that university, described the petitioner's 
a graduate student . . . that few if any in the world will repeat," and 
indicated that a member of the petitioner's thesis defense committee opined that the petitioner's project 
"would rival any of the current work being done in the United States." 
now a research scientist at the American T e Culture Collection in Manassas, 
Id alongside the petitioner under 
 stated that the petitioner 
"has demonstrated the essential mechanism underlying the natural power of heavy metal toxicity prevention 
by siderophores produced by mycorrhizal fungi. . . . The innovative research design utilized by [the 
petitioner] provides a basis for future researchers seeking to elucidate the role of siderophores in heavy metal 
movement in the environment." 
Winkelmann of the University of Tuebingen, Germany, is the independent witness to 
whom counsel referred. 
P 
tated: 
Page 5 
I have personally never met [the petitioner], but 1 know him through his work in the field of 
biochemistry research of siderophores. . . . 
[Mlycorrhizal fungi, fungi symbiotically associated with plants, have a remarkable ability to 
[protect] plants from heavy metal toxicity and make their associated plants stronger and more 
tolerant to heavy metals. Mycorrhizal fungi increase siderophore production under heavy 
metal stress. Siderophores are small molecules . . . [that] can either remove or immobilize 
heavy metals and decrease the exposure of plants to heavy metals. . . . 
The major contribution that [the petitioner] has made to the heavy metal removal problem is 
his groundbreaking discovery in determining the interactions between heavy metals and a 
common mycorrhizal siderophore ferricrocin. . . . His findings portend a major breakthrough 
for understanding the interactions between siderophores and metals as well as siderophore- 
mediated metal transport, and essential for the application of siderophore-producing 
mycorrhizal fungi in bioremediation of heavy metals. . . . His continuing research will 
provide the novel and "green" approaches towards the treatment of heavy metal 
contaminations. . . . 
[The petitioner] is continuing his work on siderophore-mediated heavy metal removal using a 
strong set of techniques and his considerable knowledge of the field. . . . I am confident that 
[the petitioner's] future contribution to the research [field] of environmental-friendly heavy 
[metal] contaminations will be significantly greater than most of his peers in the field. 
referred repeatedly to the petitioner's 
 in bioremediation, but the 
petitioner's work in bioremediation ceased the month that that 
 wrote the letter (June 2005). 
The remaining witness, 
 Associate Professor at the University of Maryland, oversees the 
petitioner's current research. 
 described that work: 
[The petitioner] is currently investigating the structure and function of human a-defensins. 
Defensins are antimicrobial proteins of innate immunity against microbial infections. They 
kill a broad range of microbes including bacteria, fungi and certain enveloped viruses. [The 
petitioner's] research is to elucidate the structural determinants and sequence rules governing 
the variety of biological functions of these proteins, and ultimately, in designing novel 
antibiotic therapeutics for the treatment of antibiotic resistant infections, existing and 
emerging infectious diseases. . . . [Dlefensins do not induce antibiotic resistance as they act 
non-specifically on the bacterial cytoplasmic membrane. Therefore, defensins are ideal 
candidates for the development of novel antibiotic therapeutics. The obstacle of the project is 
that no[t] enough protein materials can be obtained from natural source[s]. . . . [The 
petitioner] used [a] newly developed method to chemically synthesize defensins in large 
quantity and high purity. 
The petitioner is a co-author of several published articles. As an objective gauge of the impact of those 
articles, the rate of independent citation is of more value than the quantity of articles that the petitioner has 
produced. The petitioner's initial submission established the existence of the etitioner's articles relating to 
bioremediation, but contained no evidence of independent reaction apart from letter. As 
of the petition's filing date, the petitioner had begun working with defensins so recently that he apparently 
had not yet produced any published work in that area. 
On September 12, 2006, the director issued a request for evidence, requesting additional statements from 
independent experts and "documentary evidence of [the] impact of [the petitioner's] achievements," including 
evidence of citation of the petitioner's published work. In response, the petitioner submitted five new letters. 
Four of the five witnesses have collaborated with the petitioner or work for the same employer; these 
witnesses focus largely on work that the petitioner undertook after the petition's filing date. The beneficiary 
of an immigrant visa petition must be eligible at the time of filing; a petition cannot be approved at a future 
date based on a new set of facts. See Matter of Katigbak, 14 I&N Dec. 45,49 (Regl. Commr. 1971). 
Regarding the work the petitioner was already performing as of the 
 of the 
National Cancer Institute, who collaborates with the petitioner and 
"not interact with [the petitioner] on a daily basis," stated that the petitioner's "novel findings will greatly 
increase understanding of the fundamental mechanisms of defensin associated innate immunity." 
The most independent witness appears to be a Senior Scientist at AtheroGenetics, Inc., who 
"was impressed by [the petitioner's] great achievements in the area of human defensins as innate defense 
mechanism against notorious infectious diseases."sserted that the petitioner's "current research 
provided [a] foundation for the development of critically needed therapies for infectious diseases. . . . [The 
petitioner's] achievements have brought rare insight for the development of no 
 eat drug-resistant 
bacteria and provided us with a novel template for drug development." ihihiw asserted that the 
petitioner's "discovery provided guidance and [a] novel alternative to my own work for drug development." 
With respect to the director's request for evidence of citation of the petitioner's work, the petitioner submitted 
a copy of a 2005 article from Proteomics that cited a recent article by the petitioner in Biometals. The citation 
(a joint citation, along with a 2002 article by others) described the preparation of peptides in an experiment 
regarding copper absorption by Arabidopsis. This single citation does not establish the breadth or depth of 
the petitioner's impact on his specialty. 
The director denied the petition on April 10, 2007, acknowledging the intrinsic merit and national scope of 
the petitioner's work, but finding that the petitioner has not distinguished himself from other researchers in 
his specialty. The director noted that the petitioner submitted little independent evidence of his impact in the 
field, and also that "the petitioner filed this petition shortly after leaving one research field for another. There 
is no evidence that as of the filing date of this petition that he had yet made any impact of note in his new 
field, and the evidence indicates that the impact which he had made on his previous field was minimal." 
On appeal, counsel does not address the petitioner's recent change of research focus, but provides a list of the 
petitioner's "demonstrated past achievements," with quotations from old and new witness letters. 
A particularly prominent witness on appeal is- head of the Institute of Human Virology 
and discoverer of HIV. states that the petitioner "is now actively collaborating with leading 
HIVIAIDS researchers to unveil the mechanisms of action of defensins in hopes of developing defensins as a 
novel class of antiviral agents for AIDS therapy." This research appears to be an example of work that the 
petitioner began after the filing date; the petitioner's substantial 
 ission contained no mention of 
any work involving HIVIAIDS. The AAO does not challenge 
 reputation or expertise, but his 
letter and other materials submitted on appeal support rather than refute the director's finding that the 
petitioner's work with defensins appears barely to have begun at the time the petitioner chose to file his 
petition. Pursuant to Matter of Katigbak, a researcher at the very outset of a career in biomedical research 
cannot base a claim of eligibility on research he had not yet performed as of the filing date, on the expectation 
that he would accumulate a significant track record before adjudication of the petition is complete. 
While the petitioner's past and present work involves overlapping skill sets, the record establishes no clear 
nexus between the petitioner's former work with soil remediation and his subsequent study of defensins. As 
-k acknowledges in a new letter on appeal, the petitioner "has been . . . transformed to a 
biomedical researcher" following "a change in his research direction." 
We concur with the director that the petitioner has not established that his past work in bioremediation will 
prospectively benefit the United States. Furthermore, the petitioner has not shown that his past work has had 
a substantial impact throughout the field of bioremediation, or supports a conclusion that we could reasonably 
expect substantial future impact in biomedical research. This is not to say that such future impact is not 
possible, only that the petitioner has not met his burden of proof in this regard as of the petition's September 
2005 filing date. As of the filing date, the petitioner's published work had accumulated minimal citations, 
and subsequent submissions do not reveal any change in this trend. The petitioner has obtained a small 
quantity of independent witness letters, but when viewed in the larger context of the record, these statements 
do not suffice to demonstrate that the petitioner's ongoing work has been notably influential within his field. 
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. 3 1361. 
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.