dismissed EB-2 NIW Case: Biochemistry And Molecular Biology

U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
0f)ce of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
PUBLIC COPY 
PETITION: 
 Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any 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. 5 103.5 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. 5 103.5(a)(l)(i). 
. f' 
~ohn~. Grissom 
tr Acting Chief, 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 AAO will 
dismiss the appeal. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. $ 1153(b)(2), as a member of the professions holding an advanced degree. At the 
time she filed the petition, the petitioner was studying for a Ph.D. in biochemistry and molecular 
biology at Johns Hopkins University (JHU), Baltimore, 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. 
On appeal, the petitioner submits a brief from counsel. 
Section 203(b) of the Act states, in pertinent part: 
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of 
Exceptional Ability. -- 
(A) In General. -- Visas shall be made available . . . to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or who 
because of their exceptional ability in the sciences, arts, or business, will substantially 
benefit prospectively the national economy, cultural or educational interests, or welfare 
of the United States, and whose services in the sciences, arts, professions, or business 
are sought by an employer in the United States. 
(B) Waiver of Job Offer. 
(i) . . . the Attorney General may, when the Attorney General deems it to be in 
the national interest, waive the requirements of subparagraph (A) that an alien's 
services in the sciences, arts, professions, or business be sought by an employer 
in the United States. 
The 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 (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 (USCIS)] 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. 215 (Comrnr. 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 fbture, 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, 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 filed the petition on July 26, 2007. In letters accompanying the initial filing, several 
witnesses described the petitioner's work. 
 stated: 
Up to 50% of adult American males over the age of 50 suffer from lower urinary tract 
symptoms due to benign prostatic hyperplasia (BPH). . . . 
[The petitioner] is currently focusin on the mechanistic research of prostatic 
hyperplasia, in the laboratory of -1 a world leader in the research 
field of prostatic disease. I am [the petitioner's] co-mentor. [The petitioner's] work . . . 
has enhanced our understanding of the molecular events underlying the etiology of 
prostatic hyperplasia and will help us to rationally design . . . new prevention and anti- 
BPH strategies. . . . 
[The petitioner] has made central contributions to the success of the extremely important 
projects. She provided the first molecular biology evidence that the development of 
prostatic hyperplasia is the result of accumulated effects of altered hormonal sensitivity 
during aging, linked to cell cycle regulators. . . . 
In . . . another project, she discovered that progenitor cells in the basal epithelia express 
p63, and are capable of self-renewal and progression to trans-amplifying intermediate 
cells. She found that trans-amplifying cells are also capable of limited proliferation, but 
are ultimately destined for terminal differentiation. She proposed a progenitor cell 
model of prostatic epithelial cell compartmentalization. . . . With these approaches, she 
is answering the question that has been left unsolved for several decades: Does prostatic 
hyperplasia result from changed numbers of progenitor cells or altered functionlactivity 
of progenitor cells? 
. . . [The petitioner] is the only member of 
 laboratory who has the expertise 
and experience to perform the scientifically and technically very demanding research in 
which the laboratory is engaged. If 
 lost [the petitioner], it would have a 
major negative impact on current prostate research at Johns Hopkins University and in 
the United States. It would be extremely difficult to find another person with [the 
petitioner's] expertise and abilities. 
With regard to the last paragraph above, the petitioner entered laboratory as a new Ph.D. 
student; it is not clear how much of her current "ex ertise and abilities" she brought with her upon 
arrival, as opposed to how much she learned fro Also, the petitioner's F-l student visa 
is sufficient to keep the petitioner at JHU until she finishes her doctorate; denial of the waiver would not 
force her immediate expulsion from the program. By nature, doctoral studies are inherently temporary; 
her work in laboratory is not open-ended, but rather directed at completing specific 
doctoral projects. opined that the petitioner should remain in laboratory, but 
he did not specify in what capacity. Surely she cannot and will not remain a doctoral student 
indefinitely, but the record contains nothing to show that JHU intends to employ the petitioner 
permanently. Postdoctoral positions, typically the next step after completion of a doctorate, are also 
temporary, short-term training appointments. The assertion that a given laboratory cannot afford to lose 
a particular alien carries very little weight without significant assurance that the laboratory intends to 
employ the alien long-term (and that the alien intends to continue working there rather than seek other 
employment). 
[The petitioner] has identified the higher proliferation potential of the old dorsal and 
lateral lobes of Brown-Norway rat prostate, than the normal control ventral prostate. . . . 
[The petitioner's] research provided a breakthrough explanation to the pathogenesis of 
prostatic hyperplasia, with the primary contributing factors of increasing age and 
changing hormonal milieu. . . . 
[The petitioner] stands at the top of her research field. She is a well-known leading 
young scientist in China. . . . 
[The petitioner] is critically important to the success of our research projects. It is quite 
rare to find an individual with the same capacities. . . . 
[The petitioner] is virtually indispensable to the success of our research projects. We 
would lose a promising young scientist in the field and our research project would be 
adversely affected if [the petitioner] were unable to continue to participate in our 
research program. 
did not specify the capacity in which he intended the petitioner to continue working in his 
laboratory after she completes her Ph.D. studies. 
also stated that the petitioner's "research findings have been submitted to Molecular 
Endocrinology, the leading journalin the field of endocrinology." The article submitted to Molecular 
Endocrinology bears the title "Prostatic epithelial cell hyperplasia in the aging Brown Norway rat is 
marked by age-dependent and lobe-specific increases in cell proliferation." The record is devoid of 
evidence to show that Molecular Endocrinology actually accepted and published the petitioner's work. 
Using a variety of sophisticated molecular and cell biology techniques, [the petitioner] 
made important discoveries about the does-dependent effects of testosterone 
administration on cell proliferation in the lateral, dorsal and ventral lobes of prostate in 
young and aged Brown Norway rats following tissue regression due to androgen 
withdrawal by castration. . . . [The petitioner] is the first scientist to demonstrate that 
age-dependent changes in the sensitivity of prostate lobes to androgens . . . might 
promote the abnormal cell proliferation that leads to prostatic hyperplasia. 
[The petitioner] is a highly gifted physician scientist with unique experimental skills and 
extraordinary research abilities. Her accomplishments are truly outstanding and have 
earned her an international reputation for excellence in the field of biomedical research. 
of Georgetown University Medical Center, who has 
collaborated with the petitioner, professed to be "confident that the technologies [the petitioner] has 
implemented will shed light on new treatments for prostatic hyperplasia." 
As [the petitioner's] research has had a great impact on understanding the mechanisms 
underlying this widespread and costly disease, I truly believe that [the petitioner's] 
research and expertise will bring new insights to the prevention and treatment of 
prostatic hyperplasia. 
. . . I have not worked with [the petitioner] personally but . . . I have had several 
professional interactions with her including discussions of her research and analysis of 
her data. . . . 
[The petitioner's] findings are very important to the development of new therapies, 
because they reveal the molecular mechanisms that underlie the etiology of prostatic 
hyperplasia. 
Medical Team Leader at the U.S. Food and Drug Administration, stated: 
I have never met [the petitioner] personally and my recommendation is based solely on 
my evaluation of her academic and research record. 
In reading her papers, especially the one under review by the prestigious journal 
Molecular Endocrinology, I am struck by the depth of knowledge and wide range of 
expertise of this young biomedical scientist. Her discovery that specific prostate lobes 
respond[] paradoxically to decreased testosterone levels is of great importance because 
it, for the first time, offers an explanation for the increase in prostate size despite 
decreased levels of testosterone in aged males. . . . 
[The petitioner's] groundbreaking findings are delineating all the mechanisms and 
molecular factors that regulate the hormonal control of abnormal cell proliferation and 
prostatic hyperplasia. 
Associate Professor at Thomas Jefferson University, stated that the 
petitioner's "discoveries . . . will also have a profound influence on industry. Her findings provide new 
prospects for disease therapy." 
- Director of Research at the Institut Curie at the Centre National de la 
Recherche Scientifique, Paris, France, did not focus on the petitioner's work with BPH. Instead, 
stated: 
There are prevalent health and developmental problems and overall disability among 
children who have had meningitis in infancy. Escherichia coli K1 is the most common 
Gram-negative organism causing neonatal meningitis. . . . [The petitioner's] research has 
had a great impact on the fight against neonatal meningitis. 
[The petitioner] has made significant contributions to the research on signal transduction 
by Src family protein tyrosine kinases in the pathogenesis of neonatal meningitis and its 
application in detecting, preventing and controlling this infectious disease caused by 
pathogenic bacteria. This is a very important progress and set her on the top as a 
physician scientist in the biomedical field. . . . [The petitioner] used an in vitro model of 
blood brain barrier, which is composed of human brain microvascular endothelial cells 
(HBMEC) alone. This model is currently used by many laboratories around the world 
to study the pathogenesis of meningitis caused by various microbes. 
did not specify whether the petitioner created this in vitro model, or simply selected the best 
existing model for her urposes. 
 also stated that the petitioner has done other work with E. 
coli genes. 
 did not specify how the petitioner's earlier work with E coli at China Medical 
University relates closely to her later work at JHU with the prostate glands of Norway rats. 
An exhibit list in the record includes the petitioner's "International Peer-Reviewed Journal 
Publications." All of the petitioner's published articles appeared in 2002 or earlier, based on her work 
in China. The list names four more recent articles, but all of them are described as "in preparation" or 
"under review." The record, therefore, shows that, at the time of filing, the petitioner had not yet 
published any findings relating to her recent work relating to BPH. To describe unpublished 
manuscripts as "international peer-reviewed journal publications" is, to say the least, inaccurate. 
Subsequent submissions confirm the publication of only one of these four articles. We must balance 
witnesses' claims about the importance or significance of the petitioner's work against the lack of 
evidence that the petitioner's manuscripts survived peer review. 
On January 15, 2008, the director issued a request for evidence, instructing the petitioner to submit 
evidence (including independent citations) of the petitioner's influence on her field. The director also 
requested copies of the petitioner's published work. The petitioner submitted copies of unpublished 
manuscripts (which, by definition, are not published work), and a copy of one published article that 
appeared in Endocrinology in 2008. The article, "Cell Proliferation and Expression of Cell Cycle 
Regulatory Proteins that Control the G11S Transition Are Age Dependent and Lobe Specific in the 
Brown Norway Rat Model of Prostatic Hyperplasia," appears to be a revised version of the article 
previously submitted to Molecular Endocrinology under a different title. The petitioner did not address 
the change of journals, despite having previously placed considerable emphasis on the prestige of 
Molecular Endocrinology. The petitioner submitted no evidence that other researchers have cited the 
petitioner's work in their own writings. 
The petitioner also submitted four additional witness letters. , in his second letter, observed 
that the petitioner's "first paper from my lab was published in Endocrinology . . . which ranks #1 among 
the highly respected journals in the field of endocrinology." Earlier, when the petitioner intended ti 
publish the article in Molecular Endocrinology, claimed that 'LMolecular Endocrinology 
Page 8 
[is] the leading journal in the field of endocrinology." did not explain how one journal can 
be "the leading journal" while a different journal "ranks #I" in the same specialty. He also did not 
- - 
explain the circumstances by which a paper submitted for publication in one journal came to be 
published in a different journal. ffered no information about the fate of the petitioner's 
other three articles, which six months earlier had already been sufficiently complete for the petitioner to 
submit in manuscript form. The available evidence does not readily indicate that publishers in the 
petitioner's field share the witnesses' opinions regarding the importance of the petitioner's work. 
A lener signed by JHU indicated that the petitioner's "important findings on 
progenitor cell niches of prostate have had a great impact on understanding the complex, interactive 
structures that integrate local and systemic signals for the positive and negative regulation of the 
progenitor cell activities in a spatially and temporally defined manner." The letter referred to - 
as "the chairperson of the National Academy of Science [sic] and a Noble [sic] prize winning scientist." 
The misspelling of "Nobel" is of concern, as is the letter's repeated misidentification of the National 
Academy of Sciences (NAS) as the "National Academy of Science." Also, the NAS is led by a 
president, not a "chai erson " and has never held the NAS presidency. Elsewhere, the letter 
correctly referred to m as chair of the NAS Committee on Human Rights, which is 
considerably different than "the chairperson of the National Academy of Science." It appears. from 
these errors; that the letter was written'for 
 rather than by him, and that 
errors when he signed the letter. While the AAO does not dispute the authenticity o 
signature, the errors necessarily diminish the credibility and weight of the letter. 
in Endocrinology "explains the paradox which has been left unsolved and challenged the scientific and 
- 
medical community for many years." The record contains no objective evidence that the scientific 
community considered the subject of the petitioner's work to be a major unsolved paradox before the 
petitioner began requesting witness letters. 
Professor at the University of Massachusetts and Editor-in-Chief of 
Endocrinology, asserted that two more articles by the petitioner "are under review by Endocrinology." 
asserted that the petitioner's "scientific achievements have . . . significantly influenced 
my own research." The record does not show that 
 has cited any of the petitioner's 
articles in his own work, nor did state any intention of doing so. 
 stated 
that the petitioner's findings "are not only extraordinary scientific achievements, they will also provide 
pharmacologists, endocrinologists, and urologists with the molecular targets for the design of effective 
medicines to control this disease." This last statement is fairly typical of a pattern in the record, in 
which witnesses assert that the petitioner's work has the potential to influence the future work of other 
researchers. The record does not show the extent, if any, to which this hypothetical potential has been 
realized. Witnesses assert that researchers and drug developers might use the petitioner's work; but the 
record fails to show that researchers and drug developers actually have used it to any significant extent. 
We will not approve the petition based entirely or largely on unrealized future potential, on the chance 
that the petitioner's work may eventually prove to be more influential than it has-been to date. 
Page 9 
The director denied the petition on November 15,2008, stating that the available materials "suggest that 
the petitioner's work has gone largely unnoticed by the greater field and hasn't demonstrated a 
nationally significant impact." On appeal, counsel states that the petitioner "has a record of prior 
achievement that significantly serves the national interest in public health and advanced medical 
research, as is evident from the following recitation of facts." The first "fact" is the conclusory and 
subjective assertion that the petitioner "is an outstanding scientist with an unsurpassed record of 
training, experience, scholarship and research in the fields of molecular cell biology, aging, 
endocrinology and urology." It is not readily clear how the petitioner's still-unfinished education is 
"unsurpassed in the field. 
Counsel stated: 
[Wlhen she filed her Petition, Appellant was already the first author of multiple 
international publications about the disease prostate hyperplasia that had already been 
published or were soon to be published in the highly-rated journals Endocrinology, 
Molecular Endocrinology, The Prostate, and the European-based FEBS [Federation of 
European Biochemical Scientists] Letters. 
The record does not identify any prostate-related article by the petitioner "that had already been 
published" as of the filing date. The list of articles submitted with the initial submission did not 
mention anything submitted to The Prostate, published or unpublished. The article submitted to 
FEBS Letters was not "about the disease prostate hyperplasia," and the record does not show that 
this article was ever published, or even accepted for publication. Therefore, the claim that this 
article is "soon to be published" is entirely without support. 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). Add to this that many of counsel's claims are factually suspect or outright incorrect, and it is 
clear that we can give little credence to counsel's "recitation of facts." 
Counsel is correct that the record contains a number of letters attributed to independent witnesses, but 
neither USCIS in general nor the AAO specifically has ever stated that independent witness letters 
guarantee the approval of a waiver petition. We must consider all the factors, including the sources and 
content of the letters as well as how well the rest of the record corroborates the assertions in the letters. 
We acknowledge counsel's observation that the record contains a letter from a Nobel laureate, but we 
cannot ignore that this letter misspelled "Nobel" and falsely identified its attributed author' as "the 
chairperson of the National Academy of Science." We cannot conclude that 
 carefully 
reviewed the letter for accuracy prior to signing it, because these errors would not have escaped his 
focused attention. 
Doubt cast on any aspect of the petitioner's proof may lead to a reevaluation of the reliability and 
sufficiency of the remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N 
Dec. 582,591 (BIA 1988). 
Page 10 
While the petitioner has submitted independent witness letters that praise the petitioner's work as 
innovative and important, and we do not question the sincerity of the witnesses, the objective evidence 
of record simply does not support the witnesses' claims or show that the opinions of those witnesses 
represent any sort of consensus in the petitioner's specialty. 
The record shows that, when she filed the petition, the petitioner was a Ph.D. student whose doctoral 
work had not yet yielded any published work. Assertions that four articles were shortly forthcoming 
have borne minimal fmit. The available evidence suggests that, at the time of filing, the petitioner had 
had only limited opportunities to influence her field at all. Materials submitted since that time have not 
included any objective documentation to show that the petitioner's work has had any more influence or 
impact than that of countless others in the same specialty. Our most generous assessment of the 
situation would be that the petition was filed prematurely. 
As is clear from a plain reading of the statute, it was not the intent of Congress that every person 
qualified to engage in a profession in the United States should be exempt from the requirement of a job 
offer based on national interest. Likewise, it does not appear to have been the intent of Congress to 
grant national interest waivers on the basis of the overall importance of a given profession, rather than 
on the merits of the individual alien. On the basis of the evidence submitted, the petitioner has not 
established that a waiver of the requirement of an approved labor certification will be in the national 
interest of the United States. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. tj 1361. The petitioner has not sustained that burden. 
Thls decision 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.