dismissed EB-2 NIW Case: Biochemistry And Molecular Biology

US. Department of Homeland Security 
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!tnvash of ~Rmd IPrbtBCy U.S. Citizenship 
and Immigration 
Office: CALIFORNIA SERVICE CENTER Date: JAN 0 4 2005 2 51754 
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. § 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. 
V 
kobert P. Wiemam, Director 
Administrative Appeals Office 
- Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, California Service , 
Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be msmissed. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 5 1153(b)(2), as a membeiof the professions holding an advanced degree. 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 had 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 that: 
(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 
(i) Subject to clause (ii), 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 holds a Ph.D. in Biochemistry and Molecular Biology from the Chinese Academy of Medical 
Sciences, Peking Union Medical College. The director found 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 regulations define the term "national interest." Additionally, Congress did not provide a 
specific defmitio 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., 
1st Sess., 11 (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 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 fi-om, or waiver of, the job 
offer will be in thennational interest. Each case is to be judged on its own merits. 
b 
Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Comrn. 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 
con-tributions 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. 
Eligibility for the waiver must rest with the alien's own qualifications rather than with the position sought. In 
other words, we generally do not accept the argument that a given project is so important that any alien 
qualified to work on this project must also qualify for a national interest waiver. At issue is whether this 
petitioner's contributions in the field are of such unusual significance that he merits the special benefit of a 
national interest waiver, over and above the visa classification sought. By seeking an extra benefit, the 
petitioner assumes an extra burden of proof. A petitioner must demonstrate a past history of achievement 
with some degree of influence on the field as a whole. Id. at note 6. 
Along with documentation pertaining to his field of research, the petitioner submitted several letters of 
support. 
I have known [the petitioner] since February of 1998 when he joined my laboratory at the La Jolla 
Institute for Allergy and Immunology. . . . [The petitioner] moved with me to the Sidney Kimmel 
Cancer Center in 1999 and then to The Burnham Institute. He left my laboratory in June, 2000, to take 
up a research position at the University of California, San Diego. 
During his years in my laboratory, [the petitioner] worked on several important projects, notably on the 
regulation and role of a protein tyrosine phosphatase called PTPHl, which he discovered to be a crucial 
suppressor of biochemical events associated with cell growth. He found that expression of PTPHl 
inhibited T cell antigen-receptor induced tyrosine phosphorylation of several proteins and thereby 
suppressed the activation of the Erk and Jnk protein kinase cascades. PTPHl also reduced the activation 
of growth-related genes and that its subcellular location at the cytoskeleton - plasma membrane 
interface was required for these effects. [The petitioner] discovered that the targeting of PTPHl was 
mediated by the ERM domain located in the N-terminus of the protein. Finally, he found that the ERM 
domain of PTPHl can interact with tropomyosin, a protein implicated in many different human cancers. 
I am very impressed with [the petitioner's] accomplishments and his abilities as a scientist. He is 
intelligent and fully capable of designing and executing front line research in this very competitive 
field. He is the first and primary author on a paper describing the function of PTPHl and published in 
the internationally prestigious journal European Journal of Immunology, volume 30, pages 13 18-1 325. 
In conclusion, I feel that [the petitioner] has demonstrated an outstanding capability to perform 
independent and important research.. . . 
In [the petitioner's] studies, his discovery, for the first time, revealed that the members of ERM- 
PTPases reduced the T cell antigen receptor-induced activation of reporter genes encompassing parts of 
the interleukin-2 gene promoter and driven by nuclear factor of activated T cells (NFAT) plus activator 
protein-1 (AP-1) . . . . These findings form the basis for the further studies in cell signaling research 
subjects, which address the role and regulation of the ERM-phosphatases in T cell activation. Needless 
to say, the negative regulatory function of these phosphatases may have important implications for the 
control of leukemia cell proliferation. 
I am very impressed with [the petitioner's] abilities and achievements as a scientist. He holds both M.D. 
and Ph.D. degrees and is therefore highly qualified to conduct biomedical research in a clinically 
important field. With his medical background and expertise in molecular and cellular biology, he is 
ideally suited for designing and executing frontline research. 
We note that any objective qualifications that are necessary for the performance of a research position can be 
articulated in an application for alien labor certification. Pursuant to Matter of New York State Dept. of 
Transportation, an alien cannot demonstrate eligibility for the national interest waiver simply by establishing 
a certain level of training or education that could be articulated on an application for a labor certification 
Member and Head, Division of Cell ~iolo~~stitute for Allergy and 
I became acquainted with [the petitioner] when he joined my Division in February 1998 as a 
postdoctoral research fellow in the laboratory of Dr. Tomas Mustelin, who at the time was an Associate 
Member at our Institute. 
With his extensive knowledge in biochemistry and made significant 
contributions to the study on protein tyrosine phosphatases i laboratory. In his recent 
published papers, [the petitioner] found that protein tyrosine 
phosphatases (ERM-PTPases) are localized at the cytoplasmic face of the plasma membrane and, 
therefore, likely involved in regulation of the membrane cytoskeleton and in signal transduction. In 
additional studies, he found that PTPHl, a member of ERM-PTPase family reduced the T cell antigen 
receptor-induced activation of reporter genes encompassing parts of the interleukin-2 gene promoter 
and driven by nuclear factor of activated T cells (NFAT) plus activator protein-1 (AP-1) . . . . By means 
Page 5 
of gene mutations, [the petitioner] found that both the catalytic activity and the ERM domain of PTPHl 
are necessary for efficient inhibition of T cell receptor ,signaling . . . . These findings formed the basis 
for further studies, which address the role and regulation of the REM-protein tyrosine phosphotases 
(ERMPTP) in T cell activation. 
We accept that the petitioner has contributed to the oveiall pool of knowledge in his field, but the record does 
not adequately distinguish the petitioner's work from that of other capable cancer researchers. 
It was my great pleasure . . . to collaborate with [the petitioner] for part of the time that he spent as a 
postdoctoral research associate in laboratory at U.C. San Diego. [The 
petitioner] agreed to undertake two collaborative projects with me. The first project he brought to a 
successful conclusion and in the second project he established the experimental procedure that will be 
used to complete the project. Both projects involve the characterization of RNA polymerase I11 . . . . 
One of the hallmarks of tumor cells (cancer) and certain viral infections is the de-regulation of 
transcription by RNA polymerase 111. Our understanding of the RNA polymerase I11 transcription 
system is of great importance in the fight against cancer and other diseases as well as our basic 
understanding of how human cells work. 
Within the past two years we found that TFLUB has another function: it is also somehow involved in the 
separation of the two DNA strands which is necessary for RNA polymerase III to transcribe one of the 
strands into RNA . . . . [The petitioner's] project was to find out if one or more of the TFIIIB protein 
subunits could be found associated with the DNA at the precise location that becomes unwound in the 
presence of RNA polymerase 111 . . . . He introduced photoreactive, modified DNA bases into the DNA 
at different locations, which upon exposure to ultraviolet light would cross-link any protein that was 
near enough to the DNA. His research results are of high significance, attesting to a direct role of 
TFmB in DNA strand opening and a manuscript for publication is currently being written. 
The second collaboration involved developing a technique for controlling RNA synthesis by RNA 
polymerase I11 in a step-wise fashion . . . .[The petitioner] used his tagged RNA polymerase to develop 
a solid state system for transcription where elongation could be controlled by rapidly changing 
ribonucleotide mixtures that leave out one of the four nucleotides at each controlled step in elongation. 
This is in itself a significant technical achievement, but he also developed a technique that circumvents 
the ribonuclease activity associated with RNA polymerase 111. 
j 
The director requested further evidence that the petitioner had met the guidelines published in Matter of New York 
State Department of Transportation. In response, the petitioner submitted three additional letters of support and 
further evidence of the petitioner's published work. 
ofessor , Division of Biology, University of California, San Diego, states: 
Page 6 
[The petitioner's] research on PTPHl in T-lymphocyte activation has shed light on the possible 
interaction of other, genes involved in cancer development. [The petitioner's] research results on T- 
lymphocyte activati~~liave resulted in four publications and a manuscript in preparation. This record of 
publication demonstrates [the petitioner] to be a gifted investigator capable of a high level of 
productivity. 
In 2000, [the petitioner] transferred his position to UCSD and worked with-on the 
biochemical analysis of transcription s a member of the National Academy of 
Sciences and he is internationally renown for his work in the field of transcription. While worlung with 
-[the petitioner] applied a sophisticated method to show that two subunits of TFIIIB, a 
cntical factor in the transcription of tRNA, are associated with the specific DNA sequences that are 
unwound by RNA polymerase 111. This study demonstrates [the petitioner's] outstanding technical 
shlls. [The petitioner] also developed an experimental strategyJo control RNA polymerase 11 reaction 
in a stepwise fashion. This was previously impossible to achieve due to an intrinsic ribonuclease 
activity in RNA polymerase 111 that causes it to go backwards when stopped, chewing up the RNA in 
the process . . . . The previously unresolved questions on how RNA polymerase I11 can walk through 
barriers and how it terminates transcription at the correct site can now be answered. [The petitioner's] 
contribution to the study of tRNA transcription is therefore highly significant. These results will soon 
be published in the Journal of Biological Chemistry. 
pnpublished results, unsupported by documentation showing that such results have attracted attention 
Pyond the walls of the institutions where the petitioner has worked, are not adequate to demonstrate 
kligibility for the national interest waiver. In regard to the petitioner's published findings, the evidence 
Presented is not adequate to show that his fmdings had achieved a significant level of recognition throughout 
his field as of the petition's filing date. A petitioner must establish eligibility at the time of filing. See 
batter of Katigbak, 14 I&N Dec. 45 (Comm. 1971). We acknowledge that the petitioner has co-written 
Published articles with his mentorbut the evidence presented is not adequate to show that 
ih~se findings have had a significant national impact. 
[The petitioner's] research focuses on the mechanism of cancer generation and the signal regulation 
pathways of the cell growth by studying on the balance of activity between Protein Tyrosine kinases 
1 (PTKs) and Protein Tyrosine Phosphatases (PTPs), and the mechanism of signaling proteins gene 
transcription. 
In his recent published papers, [the petitioner] found that ezrin-radixin and moesin-homology protein 
tyrosine phosphatases (ERM-PTPases) are located at the cytoplasmic face of the plasma membrane and 
therefore likely involved in regulation of the membrane cytoskeleton and signal transduction. By means 
of gene mutation, [the petitioner] found that both catalytic activity and its ERM domain are necessary to 
efficiently inhibit T cell receptor signaling. The catalytic inactive mutants PTPHI-CS and PTPMegl- 
CS lacked effects on gene transcription of Erk2 MAP kinas and its upstream activator, Mek. The effect 
of PTPH1 was reduced by deletion of its N-terminal ERM domain. 
[The petitioner] found, for the first time, that the important negative regulatory role of the cytoskeletal 
phosphotyrosine phosphatase PTPHl and PTPMEGl during T lymphocytes signaling. These findings 
form the basis for the further studies which address the role and regulation of the REM-protein tyrosine 
phosphatases (ERM-PTP) in T cell activation which is the central issue in cell growth, division, 
differentjation, and cancer research. 
[The petitioner] developed a novel technique for controlling RNA synthesis by RNA polymerase I11 in 
a step-wise fashion. It allows scientists for the first time to understand how RNA polymerase 111 
traverses through DNA-binding proteins during transcription, how RNA polymerase terminates 
transcription at the correct site, how RNA polymerase III releases fiom the DNA to transcribe another 
gene. It is noticeable that, so far, no laboratory has accomplished this research with RNA polymerase 
111 in the United States. 
[The petitioner] successfully finished protein-DNA complexes containing both TFIIIB and RNA 
polymerase 111 that he isolated from DNA complexes and then [the petitioner] found two subunits of 
TF- are associated with the DNA sequence that become unwound in the presence of RNA 
polymerase 111. [The petitioner's] research results are of high significance, discovering a direct role of 
TFmB in DNA strand opening during gene transcription and a recent paper has been accepted by the 
Journal of Biological Chemistry. 
e do not find that publication of one's work is presumptive evidence of eligibility for the national interest 
yaiver. Publication, by itself, is not a strong indication of impact in one's field, because the act of publishing 
An article does not compel others to read it or absorb its influence. Yet publication can nevertheless provide a 
bery persuasive and credible avenue for establishing outside reaction to the petitioner's work. If a given 
hticle in a prestigious journal (such as the Proceedings of the National Academy of Sciences of the U.S.A.) 
ittracts the attention of other researchers, those researchers will cite the source article in their own published 
york, in much the same way that the petitioner himself has cited sources in his own articles. Numerous 
'ndependent citations would provide firm evidence that other researchers have been influenced by the 
i 
etitioner's work. Their citation of the petitioner's work demonstrates their familiarity with it. If, on the other 
and, there are few citations of an alien's work, suggesting that that work has gone largely unnoticed by the 
research community, then it is reasonable to question how widely that alien's work is viewed as being 
It is also reasonable to question how much impact - and national benefit - a researcher's work 
ould have, if that research does not influence the direction of future research. 
he oetitioner's amellate submission includes citation indices for three oublished articles that he co-authored 
~xcludin~ duplicate listings and self-citations by thebetitioner and his co-authors, we note 
hat the only article first-authored by the petitioner, entitled "Cytoskeletal protein tyrosine phosphatase PTPHl 
educes T cell antigen receptor signaling," was independently cited a mere three times. Self-citation is a normal, 
xpected practice among researchers in the scientific community. Self-citation cannot, however, demonstrate 
i e response of independent researchers. In regard to the remaining two articles, as of November 20, 2003 
than fourteen months after this petition was filed), the article entitled "Subcellular localization of 
protein tryrosine phosphatases in T cells" had fifteen independent cites and the article entitled 
Protein tyrosine phosphatases enter T cell antigen receptor signaling" had nine independent 
.? 
cites. The limited number of citations to the petitioner's articles is not adequate to demonstrate that his work 
has had a significant national impact.' 
* 
Regarding the issue of co-authorship, the AAO has long acknowledged the collaborative nature of modem 
scientific research and therefore co-authorship should not diminish the petitioner's contribution to a given 
research project. That said, the fact that all three of the 'ournal articles for which the petitioner provided citations 
were co-authored with his former me$- person of obvious international renown, cannot be 
entirely overlooked. In this case, it is apparent that the petitioner has repeatedly joined ongoing research projects 
conceived by others (such ate than being the primary motivator or originator of his own 
While an absence of cites to published materials authored by the petitioner independently of Dr. 
oes not diminish the petitioner% role in their joint collaborations, it certainly does not strengthen the 
petitioner's national interest waiver claim either. The limited citation history of the petitioner's work is not 
adequate 'to show that his publications have been especially important or particularly influential throughout 
the cancer research field. 
Biology, ncer Center, also 
submitted a letter of support. 
letter contains the exact same wording 
fifth paragraphs o of these individuals 
independently formulated the exact same wording. 
While all of the preceding witnesses describe the importance of the petitioner's research, we must note that 
they are all from institutions where he has previously worked. This fact indicates that while the petitioner's 
work is valued by those with close professional ties, others outside his immediate circle are largely unaware 
of his research and do not attribute the same importance to his work. It is not sufficient for the petitioner and 
his witnesses to simply describe the work undertaken by the petitioner and then to state that it has had an 
impact. Instead, the petitioner must demonstrate that his individual contribution has had a disproportionately 
greater effect as compared with the efforts of other cancer researchers in the United States. 
The director denied the petition, stating that the petitioner failed to establish that a waiver of the requirement 
of an approved labor certification wodld be in the national interest of the United States. The director noted 
dhat "[tlhe bulk of the evidence consists mostly of statements from . . . current or former employers of the 
[petitioner] ." 
I 
On appeal, counsel states: "The petitioner is absolutely working for the national interest of the United 
States." We concur. The intrinsic merit and national scope of cancer research are immediately apparent, 
qegardless of the fact that all of the petitioner's witnesses are fi-om research institutions located in Southern 
Falifomia. It has not been shown, however, that this particular researcher, to a greater extent than others 
yforming similar research, qualifies for a special exemption from the job offerllabor certification 
liequirement which, by law, normally avaches to the visa classification that he has chosen to seek. 
I 
l' We note that our analysis of the three (citation indices presented on appeal included several citations that came into 
existence subsequent to the petition's filing +te. See Matter ofKatigbak. 
Counsel further states: "The petitioner's article citation indicates the national and international impact of his 
research results." The citation history of the petitioner's work that was submitted on appeal has already been 
addressed. We cannot ignore that a large percentage of the citations presented on appeal were self-citations by the 
petitioner and his collaborators. While heavy independent citation of one's work would certainly demonstrate an 
unusual degree of influence on the field, the petitioner has not shown that his citation rate is so unusual that he 
stands out from his peers. 
Counsel also argues that "the reference letters have persuasively established in both descriptive and evaluative 
ways that the [petitioner's] research is of inherently greater value than that of other research ... currently 
tmdenvay at other institutions." As ioted earlier, the petitioner's witnesses consist entirely of individuals 
from research institutions in Southern California where the petitioner was employed. These individuals 
became aware of the petitioner's work because of their close association with him; their statements \do not 
bhow, first-hand, that the petitioner's work is attracting attention on its own merits, as we might expect with 
research findings that are unusually s may have contributed to research 
firojects undertaken in the laboratories lo his ability to significantly impact the 
field beyond these projects has not bden adequately demonstrated. The petitioner's work has added to the 
gverall body of knowledge in his field, but the evidence presented is not adequate to persuasively distinguish 
the petitioner from others in the cancer research field. 
I 
For the reasons set forth above, the petitioner has not established that his past accomplishments set him 
Significantly above his peers such that p national interest waiver would be warranted. While the petitioner has 
plainly earned the respect and admiration of his witnesses, it appears premature to conclude that the 
t 
etitioner's work has had and will coptinue to have a nationally significant impact. In sum, the available 
vidence does not establish that the petitioner's past record of achievement is at a level that would justify a 
of the job offer requirement w$ich, by law, normally attaches to the visa classification sought by the 
getitioner. 
4s is clear from a plain reading of the statute, it was not the intent of Congress that every person qualified to 
kngage in a profession in the United States should be exempt from the requirement of a job offer based on the 
interest. Likewise, it does not appear to have been the intent of Congress to grant national interest 
of the overall imp$rtance of a given project or area of research, rather than on the merits 
alien. On the basis of the evidence submitted, the petitioner has not established that a waiver 
of an approved labor certification will be in the national interest of the United States. 
The burden of proof in these proceedipgs rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
4 1361. The petitioner has not sustaineb that burden. 
~ 
I 
4)RDER: The appeal is dismissed.