dismissed EB-2 NIW Case: Biochemistry And Molecular Biology

U.S. De~artment of Homeland Security 
~bgdaEsdeletcdt0 
pnmt*ly unwtunmted 
tm&a of personal pmarJ, 
20 ~asi Ave., N.W., Rm. A3042 
Washington, DC 20529 
IN RE: Petitioner: 
Beneficiary: 
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@)(2) of the Immigration 
and Nationality Act, 8 U.S.C. 3 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 
mobert P. Wiernann, 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 Admimstrative Appeals Ofice (AAO) on appeal. The appeal will be dsmissed. 
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 memberof the professions holding an advanced degree. The petitioner asserts that an 
exemption kom 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 fiom 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 qded immigrants who are members of 
the professions holding advaneed 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) 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 definition of "in the national interest." The Committee on the Juhciary 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, lOlst Cong., 
1st Sess., 11 (1989). 
Supplementary dormation 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 hm, or waiver of, the job 
offer will be in the-national inkrest. Each case is to be judged on its own merits. 
a 
Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Cornm. 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. 
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. 
. fessor, The Burnham Institute, states: 
I have known [the petitioner] since February of 1998 when he joined my laboratory at the La Jolla 
Institute for Allergy and Immunology. . . . me petitioner] moved with me to the Sidney Kirnrnel 
Cancer Center in 1999 and then to The Burnham Institute. He lefi 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 fimction of PTPHl and published in 
the internationally prestigious journal European Journal of Immunology, volume 30, pages 13 18-1 325. 
In conclusion, 1 feel that [the petitioner] has demonstrated an outstanding capability to perform 
independent and important research.. . . 
x 
ofessor, The Burnham Institute, states: 
In [the petitioner's] studies, hs 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 interleulnn-2 gene promoter and drrven by nuclear factor of activated T cells (NFAT) plus activator 
protein-1 (AP-1) . . . . These fmdings 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 applicabon 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- 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 In his recent 
published papers, [the petitioner] found that 
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 PTPH1, 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-I) . . . . By means 
- Page 5 
of gene mutations, [the petitioner] found that both the catalyhc activity and the ERM domain of PTPH1 
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 ovetall 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 
j 
laboratory at U.C. San Diego. me 
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 III . . . . 
One of the hallmarks of tumor cells (cancer) and certain viral infections is the de-regulation of 
transcription by RNA polymerase IJI. Our understanding of the RNA polymerase III 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 TFmB 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 . . . . me 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 I3 . . . . 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 
TFIIIB 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 111 in a step-wise fashion . . . .me 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 III. 
The director requested further evidence that the petitioner had met the guidelines published in Matter of Nao York 
State Department of Tramportation. In response, the petitioner submitted three additional letters of support and 
further evidence of the petitioner's published work 
ofessor. Division of Biology, ~niversify of California, San Diego, states: 
i 
[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 a~tivatio~have 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 withon the 
biochemical analysis of transcriptio-s a member of the National Academy of 
Sciences and he is internationally renown for hs work in the field of transcription. While working with 
[the petitioner] applied a sophisticated method to show that two subunits of TFlIIB, a 
critical factor in the transcription of tRNA, are associated with the specific DNA sequences that are 
unwound by RNA polymerase III. This study demonstrates [the petitioner's] outstanding technical 
shlls. me petitioner] also developed an experimental stmtegyfo control RNA polymerase 11 reaction 
in a stepwise fashion. This was previously impossible to achieve due to an intrinsic ribonuclease 
activlty in RNA polymerase III that causes it to go backwards when stopped, chewing up the RNA in 
the process . . . . The previously unresolved questions on how RNA polymerase 111 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. 
Unpublished results, unsupported by documentation showing that such results have attracted attention 
xyond the walls of the institutions where the petitioner has worked, are not adequate to demonstrate 
:ligibility for the national interest waiver. In regard to the petitioner's published findings, the evidence 
>resented is not adequate to show that his findings had achieved a significant level of recognition throughout 
lis field as of the petition's filing date. A petitioner must establish eligibility at the time of filing. See 
Matter of Katigbak, 14 I&N Dec. 45 (Comm. 1971). We acknowledge that the petitioner has co-written 
Jublished articles with his mentorbut the evidence presented is not adequate to show that 
hese findings have had a significant national impact. 
ofessor, The Burnham Institute, states: 
[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 
(PTKs) and Protein Tyrosine Phosphatases (PTPs), and the mechanism of signaling proteins gene 
transcription. 
In his recent published papers, [the petiboner] found that ezrin-radixin and moesin-homology protein 
tyrosine phosphatases (ERM-PTPases) are located at the cytoplasmic face of the plasma membrane and 
therefore lrkely involved in regulation of the membrane cytoskeleton and signal transduction. By means 
of gene mutation, [the petitioner] found that both catalyhc activity and its ERM domain are necessary to 
efficiently inhibit T cell receptor signaling. The catalytic inactive mutants PTPH1-CS and PTPMegl- 
CS lacked effects on gene transcription of Erk2 MAP kinas and its upstream act~vator, 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 findmgs 
form the basis for the further studes 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, 
diffmnQation, and cancer research. 
[The petitioner] developed a novel technique for controlling RNA synthesis by RNA polymerase III 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 ID releases from the DNA to transcribe another 
gene. It is noticeable that, so far, no laboratory has accomplished this research with RNA polymerase 
IU in the United States. 
[The petitioner] successfully finished protein-DNA complexes containing both TFmB and RNA 
polymerase 111 that he isolated from DNA complexes and then [the petitioner] found two subunits of 
TE91B are associated with the DNA sequence that become unwound in the presence of RNA 
polymerase III. [The petitioner's] research results are of high significance, discovering a direct role of 
TFmB in DNA strand opening during gene transitiption and a recent paper has been accepted by the 
Journal of Biological Chemistly. 
We do not find that publication of one's work is presumptive evidence of eligibility for the national interest 
haiver. Publication, by itself, is not a strong indication of impact in one's field, because the act of publishing 
hn article does not compel others to read it or absorb its influence. Yet publication can nevertheless provide a 
hery persuasive and credible avenue for establishing outside reaction to the petitioner's work If a given 
bcle in a prestigious journal (such as the Proceedings of the National Academy of Sciences of the U.S.A.) 
yttracts the attention of other researchers, those researchers will cite the source article in their own published 
kork, in much the same way that the petitioner himself has cited sources in his own articles. Numerous 
Independent 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 
larger 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. 
e petitioner's appellate submission includes citation indices for three published articles that he co-authored 
.th Excluding duplicate listings and self-citations by the petitioner and his co-authors, we note 
t the only article fmt-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, demohstrate 
e response of independent researchers. In regard to the remaining two articles, as of November 20, 2003 
ore than fourteen months after this petition was filed), the article entitled "Subcellular localization of I 
tracellular protein tryrosine phosphatases in T cells" had fifteen independent cites and the article entitled , 
next wave: Protein tyrosine phosphatases enter T cell antigen receptor signaling" had nine independent 
.- 
cites. The limited number of citations to the petitionet'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 modern 
scientific research and therefore co-authorshp should not diminish the petitioner's contribution to a given 
research project. That said, the fact that all thee 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 thls case, it is apparent that the petitioner has repeatedly joined ongoing research projects 
conceived by others (such -tiha than being the primary motivator or originator of his own 
ro'ects. 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 .I petitioner's national interest waiver claim either. The limited citation histofy of the petitioner's work is not 
adeqkteh show that his publications have been especially important or particularly influential throughout 
the cancer research field. 
In fact, a significant portion o 
letter contains the exact same wording 
fifth paragraphs o that both of these individuals 
independently formulated the exact same wording. 
hile 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. Th~s fact indicates that while the petitioner's 
work is valued by those with close pr,hfessional ties, others outside his immediate circle are largely unaware 
of his research and do not attribute the1 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 thdt 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. 
Pe director denied the petition, stating that the petitioner failed to establish that a waiver of the requirement 
hf an approved labor certification wodld be in the national interest of the United States. The director noted 
I 
@at "[tlhe bulk of the evidence consists mostly of statements from . . . current or former~employers of the 
[petitioner]." 
@I appeal, counsel states: 'The petjtioner is absolutely working for the national interest of the United 
States." We concyr. The intrinsic merit and national scope of cancer research are immediately apparent, 
qegardless of the fact that all of the petitioner's witnesses are fiom research institutions located in Southern 
kalifornia. It has not been shown, hGwever, that this particular researcher, to a greater extent than others t 
'erforming similar research, qualifies for a special exemption from the job offertlabor certification 7. r,quu-ement which, by law, normally apches to the visa classification that he has chosen to seek. 
4 We note that our analysis of the three bitation indices presented on appeal included several citations that same into 
&sterne subsequent to the petition's filing +te. See Matter of Katigbak. 
Counsel further states: "The petitione?~ 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 selfcitations 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 
$.tan& out fiom his peers. 
Counsel also argues that ''the referenck letters have persuasively established in both descriptive and evaluative 
Fays that the [petitioner's] research is of inherently greater value than that of other research ... currently 
hdenvay at other institutions." As ioted earlier, the petitioner's witnesses consist entirely of individuals 
from research institutions in Southern California where the petitioner was employed. These individuals 
became aware of the petitioner's work because of their close association with hm; their statements \do not 
bhow, fmt-hand, that the petitioner's work is attracting attention on its own merits, as we might expect with 
iesearch findings that are unusually s may have contributed to research 
projects undertaken in the laboratories his ability to significantly impact the 
field beyond these projects has not bden adequately demonstrated. The petitioner's work has added to the 
overall body of knowledge in his field: but the evidence presented is not adequate to persuasively distinguish 
the petitioner fiom others in the canceriresearch field. 
For the reasons set forth above, the betitioner has not established that his past accomplishments set him 
ignificantly above his peers such that 9 national interest waiver would be warranted. While the petitioner has 
1 lainly earned the respect and adm$-ation of his witnesses, it appears premature to conclude that the work has had and will cobtinue to have a nationally significant impact. In sum, the available 
not establish that the pqtitioner's past record of achievement is at a level that would justify a 
aiver of the job offer requirement w$ich, by law, nonnally attaches to the visa classification sought by the 
1 
+s is clear from a plain reading of the Istatute, it was not the intent of Congress that every person qualified to 
&ngage in a profession in the United Sbtes should be exempt fiom the requirement of a job offer based on the 
4ational interest. Likewise, it does ndt appear to have been the intent of Congress to grant national interest 
,Avers on the basis of the overall im*'pnce of a given project or area of research, rather than on the merits 
c$f the individual alien. On the basis oP the evidence submitted, the petitioner has not established that a waiver 
4f the requirement of an approved law certification will be in the national interest of the United States. 
I 
The burden of proof in these proceedipgs rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
$ 1361. The petitioner has not sustain+ that burden. 
i 
PRDER: The appeal is dismissed. 
I