dismissed EB-2 NIW Case: Biochemistry

PUBLIC COPY 
 U.S. Department of Homeland Security 
20 Massachusetts Ave., N. W., Rm. 3000 
Washington, D.C. 20529-2090 
identifying data deleted to 
 U. S. Citizenship 
prevent clearly unwarranted and Immigration invasion of personal privacy Services 
SRC 07 800 12477 
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. § 1153(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. § 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). 
Administrative Appeals Office 
DISCUSSION: 
 The Director, Texas 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. 5 1 153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as a postdoctoral researcher at the University of California, Irvine (UCI). 
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 and various exhibits, some previously 
submitted. 
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 offa 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 
Page 3 
increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise. . . ." S. Rep. No. 55, 10 1 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 bbprospective 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. 21 5 (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 petitioner's initial submission included five witness letters. Three of the witnesses knew the 
petitioner fi-om her graduate studies in Houston, Texas. of the University of 
Houston (UH) stated: 
[The petitioner] is one of the best graduate students I have ever had during my career. 
She did her PhD research in my group fiom September 2001 to August 2005, during 
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which she worked on the research projects fimded by NIH. Our research aimed at 
elucidating the mechanism of the light emission catalyzed by Vibrio harveyi luciferase, 
which is a great model for flavin-dependent monooxygenases. . . . [The petitioner] 
performed site-directed mutagenesis of a number of luciferase residues to investigate 
their possible functional roles and to delineate the makeup of luciferase active site. Her 
creative and productive research made significant contributions in the research field of 
luciferase biochemistry. 
In [the petitioner's] dissertation, she discovered that a hydrophobic microenvironrnent is 
crucial to the light emission reaction catalyzed by bacterial luciferase. She used 
enzymatic studies and three dimensional structures to demonstrate that the amino acids 
residues around the proposed active center provide a hydrophobic barrier for the 
reaction. This barrier effect greatly stabilized the intermediates of the light emission 
reaction and hence the strength of the light emitted. 
, an assistant professor at the University of Texas M.D. Anderson Cancer Center in 
Houston, stated: "In the summer of 2005, I interviewed with [the petitioner] and offered her a post- 
doctoral associate position in my group." described the petitioner's work with bacterial 
luciferase genes, and stated that the petitioner "demonstrated excellent technical skills in biochemical 
research such as purification of recombinant protein, in vitro protein kinetic assays, stopped-flow 
spectroscopy, Fast Protein Liquid Chromatography, and High Performance Liquid Chromatography." 
added that the petitioner's subsequent work at UCI "has greatly enhanced our knowledge of 
hereditary breast cancer." 
Although the UH faculty members quoted above have all acknowledged the petitioner's more recent 
breast cancer research, they have not explained the significance of her earlier bacterial luciferase 
research or explained how, if at all, the two areas of research are related other than that they both 
involve genetic research. 
an assistant specialist in the Neurobiology Department at UCI, stated: 
I used to be one of the colleagues of [the petitioner] in the same laboratory working on 
cancer development research. . . . 
Most of [sic] hereditary breast cancers are due to mutations in a gene named BRCAI. 
BRCAl mutation carriers have increased risk for cancer in hormone-responsive tissues 
involving breast and ovary. Only recently, progesterone receptor was found to be 
involved in regulation of Brcal associated breast cancer. Since [the petitioner] joined 
- lab in the University of California, Irvine in 2006, she has been making 
huge progress in breast cancer research. [The petitioner] developed a mouse colony 
carrying conditional knockout p53JBrca1, which mimics the physiological condition in 
human, as well as a reporter gene that can give readout of the progesterone receptor 
activity. [The petitioner's] research aimed at a better understanding of Brcal mediated 
hunorigenes in order to develop better treatment for breast cancer. In addition to that, 
she also studies hormones on the regulation of mammary stem cells (MaSCs). It has 
been suggested that MaSCs are involved in breast turnorigenesis. [The petitioner] found 
that mutation in Brcal leads to three folds [sic] increase in the mammary stem cell 
population. [The petitioner] is extending these studies to human breast epithelial cells 
and human mammary stem cells. Only within one year, [the petitioner] has already 
made some important progresses [sic]. Her study and findings provide novel insights 
into the regulation of mammary stem cell proliferation and the roles of cancer stem cells 
in chemo resistance. 
now of California Stem Cell, Inc., previously worked with the petitioner at 
stated: 
Since [the petitioner] joined lab at UCI, she has made remarkable 
contributions in a [sic] breast cancer field. Individuals with mutations in BRCAl are 
predisposed to breast and ovarian cancers, yet it is unclear how BRCAl suppresses 
carcinogenesis of female hormone-sensitive tissues. . . . [The petitioner] developed a 
mouse model carrying mutant Brcal genes and progesterone receptor activity reporter 
genes. . . . Using this model, [the petitioner] has observed that the progesterone 
receptor's activities are not only up-regulated but also last longer when activated by 
synthetic progestin. . . . 
Another important project [the petitioner] has been working on is about mammary stem 
cells (MaSCs). . . . Using the same mouse models mimicking that of BRCAl carriers, 
[the petitioner] has discovered that it is the mutations of Brcal that lead to enriched 
population of mammary stem cells. . . . [The petitioner's] findings also support the 
cancer stem cell hypothesis[,] i.e., cancer may originate fkom stem cells and will provide 
more hints toward the therapies of cancers. 
The petitioner submitted copies of two articles she published in Biochemistry relating to her luciferase 
studies at UH. She did not establish the impact of these articles, or show that her subsequent breast 
cancer research has produced any published work. 
On January 8,2008, the director issued a request for evidence (RFE) instructing the petitioner to submit 
further materials to show that the petitioner meets the guidelines set forth in Matter of New York State 
Dept. of ~rans~ortation.' The director instructed the petitioner to provide "evidence that clearly shows 
that others in the field are adopting [her] research findings." The director indicated that such evidence 
could include citations by other researchers and "letters of recommendation fiom independent sources." 
I 
 The WE is misdated "January 08,2007," but that date is clearly in error because the petition was filed in May 2007. 
In response, the petitioner submitted copies of four articles that contain citations of the petitioner's 
published work. One of the petitioner's articles was cited three times; another was cited twice. One 
citing article cited both of the petitioner's articles, so that the five citations appeared in four articles. All 
the citations refer to the petitioner's prior work with bioluminescent bacteria. The petitioner did not 
show that four citations demonstrates a particularly significant level of impact in the field, and these 
citations do not show that the petitioner has had any impact whatsoever in the field of cancer research. 
Counsel stated: "Given [the petitioner's] publication and citation record . . . it is clearly established that 
her findings . . . have had a substantial impact and influence on the field." At that time, the petitioner 
had documented two articles of ha own, cited in a total of four articles. Given these low numbers, it is 
not clear what sort of "publication and citation record" would not "clearly establish . . . substantial 
impact and influence." 
The petitioner also submitted three new letters, all &om UCI assistant professors. - 
who has collaborated with the petitioner, stated that the petitioner's "achievements are far above those 
of others with similar training and experience." , who "met [the petitioner] in a stem 
cell biology class in 2006," asserted that the petitioner's "profound work has led her to discover the 
mechanism responsible for the recurrence of breast tumors in breast cancer patients." - 
who "served on the external oversight and advisory committee of [the petitioner's] Post- 
Doctoral Fellowship," stated: "it is important for [the petitioner] to remain in the US to continue her 
research because her continuing study will reveal more significant clues in developing effective 
therapeutic strategies against BRCA-1 associated breast cancers." 
The petitioner's RFE response, like her initial submission, contained no first-hand evidence that her 
work with breast cancer stem cells has had any impact outside of UCI. 
On April 10,2008, the director denied the petition, acknowledging the intrinsic merit and national scope 
of cancer research, but concluding that the petitioner had not established significant impact in that field. 
On appeal, counsel argues that the director gave insufficient weight to descriptions of the petitioner's 
past achievements. Counsel observes that the petitioner '%as the first" to make certain findings. 
Scientific research, however, is generally of little value if it simply repeats prior findings. A degree of 
originality is typically expected if such research is to have any significance (an exception being 
replication of questionable results). If an alien could qualify for the waiver simply by being the first to 
make a given highly specialized finding, then it would seem that the great majority of productive 
researchers would qualify under that standard. Such a policy would be contrary to the intent of 
Congress, which structured the statute in such a way as to make it clear that the job offer requirement is 
the default arrangement for alien members of the professions holding advanced degrees. 
Counsel asserts that the petitioner's two articles, both published in Biochemistry in 2005, "have . . . 
garnered much attention" and "been cited by other scientists" (counsel's emphasis). The petitioner 
has not established that her articles have been especially influential when compared with articles by 
other researchers in the field published around the same time. The unsupported assertions of counsel 
do not constitute evidence. See Matter of Obaigbena, 19 I&N Dec. 533,534 n.2 (BIA 1988); Matter of 
Laureano, 19 I&N Dec. 1, 3 n.2 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 
1980). 
On appeal, the petitioner submitted letters from two of the authors who had cited her publications. (The 
petitioner did not explain why, when the director specifically asked for independent letters, she was able 
only to produce letters from the university where she has been working.) - an 
associate professor at Texas A&M Health Science Center, and -2 an associate 
professor at National Taiwan Ocean University, explain how they applied the petitioner's findings to 
their own research. It is significant that neither of these individuals mentions cancer or cancer research. 
They had cited work that the petitioner performed as a graduate student at UH. While counsel has 
repeatedly implied that the petitioner's work at UH constituted "cancer research," the record offers no 
evident support for such a claim. works in the Department of Microbial and Molecular 
Pathogenesis, and does not claim to work with genetically-caused cancers. Rather, asserts 
that the petitioner's "contributions . . . potentially provide more clues to the treatment of monooxgenase 
[sic] diseases," "such as Parkinson's disease, Huntington's disease, Menkes disease, heart disease and 
liver disease," all diseases never mentioned until the appeal. works in the Department of Food 
Science, and claims to have relied on the petitioner's work with enzymes. 
Essentially, the petitioner has described what she is doing, while counsel insists that the importance 
of the petitioner's efforts should be obvious fiom the evidence presented. The record indicates that 
the petitioner's past work at UH has been minimally cited, and there is no evidence that the 
petitioner continues to perform that particular research. There is still, on appeal, no evidence that the 
petitioner's cancer research - supposedly the linchpin of her waiver claim - has even led to any 
publications, let alone had any discernible impact or influence outside of UCI. (A reference to a 
manuscript "in preparation" in 2007 has not been followed by evidence of publication.) 
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 fiom 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 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.