dismissed EB-2 NIW Case: Bioinformatics And Artificial Intelligence

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
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Office: NEBRASKA SERVICE CENTER Date: 0 3 2005 
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(b)(2) of the Immigration 
and Nationality Act, 8 U.S.C. $ 1 153(b)(2) 
ON BEHALF OF PETITIONER: 
WSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
riginally decided your case. -ky further inquiry must be made to that office. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Nebraska Service 
Center, and is now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
According to the petition, the petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 8 1153(b)(2), as an alien of exceptional ability or a member of the 
professions holding an advanced degree. Also according to the petition, the petitioner seeks employment as a 
postdoctoral research fellow. As indicated on the petition, 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. 
On appeal, counsel submits two briefs, one disputing the conclusions of the director and another asserting that 
the petitioner intended to seek a higher classification pursuant to section 203(b)(l)(A) of the Act, relating to 
aliens of extraordinary ability, and that the record demonstrates her eligibility for that classification. 
The petitioner's initial cover letter does indicate that the petitioner intended to seek the more exclusive 
classification pursuant to section 203(b)(l)(A) of the Act. On appeal, the petitioner submits two letters 
purportedly submitted to the director after the petitioner received the notice of action indicating her petition was 
being considered under the lesser classification under section 203(b)(2) of the Act. The letters both request 
classification under section 203(b)(l)(A) of the Act. Neither letter appears in the record other than the copies 
submitted on appeal. 
On September 8,2003, the director requested evidence relating to section 203(b)(2) of the Act. In response, the 
petitioner addressed the requirements of that classification and the director ultimately concluded that the 
petitioner had not demonstrated eligibility for the lesser classification. Given the indication on the petition that 
the petitioner was seeking the lesser classification and her response to the director's request for additional 
evidence addressing the requirements for that classification, we find that the director did not err in adjudicating 
the petition pursuant to section 203(b)(2) of the Act. We will not make a finding of first impression regarding 
eligibility under section 203(b)(l)(A) of the Act, but note that it is a more exclusive classification, requiring 
national or international acclaim, than the one sought and discussed below. 
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) . . . the Attorney General may, when the Attorney General deems it to be in 
the national interest, waive the requirement of subparagraph (A) that an alien's 
services in the sciences, arts, professions, or business be sought by an 
employer in the United States. 
It appears from the response to the director's request for additional evidence that the petitioner seeks 
classification as an alien of exceptional ability. This issue is moot, however, because the record establishes that 
the petitioner holds a Ph.D. in computer aided design from Hong Kong Polytechnic University. The petitioner's 
occupation falls within the pertinent regulatory definition of a profession. The petitioner thus qualifies as a 
member of the professions holding an advanced degree. The remaining issue 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 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, 10 1st Cong., 1 st Sess., 1 1 (1989). 
Supplementary information to the 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 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 Dep 't. of Transp., 22 I&N Dec. 2 1 5 (Comm. 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 fiture 
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 concur with the director that the petitioner works in an area of intrinsic merit, bioinformatics and 
artificial intelligence, and that the proposed benefits of her work, improved ability to analyze and identify 
various proteins through a bioinformatics approach and improved understanding of proteome development, 
would be national in scope. It remains, then, to determine whether the petitioner will benefit the national 
interest to a greater extent than an available U.S. worker with the same minimum qualifications. 
The petitioner submits evidence of her professional memberships and recognition from universities and the 
Chinese government. First, the petitioner's memberships are "studentltraining" memberships or are with 
large, non-exclusive associations. These memberships do not appear based on the petitioner's record of 
success in the field. Second, the petitioner's university recognition appears to be honors and scholarships 
based on academic achievements. Academic performance, measured by such criteria as grade point average, 
cannot alone satisfy the national interest threshold or assure substantial prospective national benefit. In all 
cases the petitioner must demonstrate specific prior achievements that establish the alien's ability to benefit 
the national interest. Matter of New York State Dep 't. of Transp., 22 I&N Dec. at 219, n.6. The recognition 
from the Chinese government does not mention the petitioner by name. Regardless, professional 
memberships and government recognition are two criteria for aliens of exceptional ability, a classification 
that normally requires a labor certification. We cannot conclude that meeting two, or even the requisite 
three, warrants a waiver of that requirement. 
In addition, as noted by the director, some of the petitioner's references discuss the difficulty in finding 
researchers with the petitioner's credentials in the United States. The director correctly noted that the issue 
of whether similarly-trained workers are available in the U.S. is an issue under the jurisdiction of the 
Department of Labor. Matter of New York State Dep't. of Transp., 22 I&N Dec. at 221. Counsel 
acknowledges this principle on appeal, but asserts that the record goes beyond this claim, demonstrating the 
petitioner's personal accomplishments in the field. 
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 the petitioner merits the special 
benefit of a national interest waiver, over and above the visa classification she seeks. 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 219, n. 6. 
The petitioner obtained her Ph.D. in computer aided design at Hong Kong Polytechnic University under the 
supervision o-frarer.' mplains that the petitioner's Ph.D. work "seriously 
investigated the application of generative and evolutionary techniques in the design field using genetic 
algorithms originating from the US but applied in a novel way in a new field." He continues that the 
petitioner and her colleagues "are the first to have successfully applied genetic algorithms and artificial 
intelligence technologies into industrial product design asserts that this work "is highly 
regarded in the research community" and that a team at the Massachusetts Institute of Technology (MIT) is 
"taking up this theme." The record contains no evidence that the petitioner's Ph.D. work has been cited or 
otherwise applied in the field of computer aided design. The record lacks letters from researchers at MIT 
who have applied the petitioner's ideas. 
1 
The petitioner indicated on the Form ETA-750B that she obtained her Ph.D. in September 2001 and began 
her postdoctoral fellowship in July 2002. The petitioner's degree, however, is dated November 2002. 
Page 5 
.) 
At the time of filing, the petitioner ole Eye Institute of the Cleveland 
Clinic Foundation in the laboratory o Director of the institute, discusses 
the petitioner's diversified experience and her work at the institute relating to data management and mining. 
Specifically, the petitioner created "relational databases using evolving vision related proteomics data" and 
developed "knowledge based computational tools to help researchers related important factors in proteomics 
.*to ocular diseases." The petitioner also contributed to "building a retinal pigment epithelium [(RPE)] 
database, which is a significant asset in our efforts to determine the protein content of the Interphotoreceptor 
(IPM) matrix." 
scribes the petitioner's RPE work as a "small but significant breakthrough in ophthalmic 
proteomics and important to US public health because the RPE is a critical tissue for normal retinal 
function." He continues: 
The bioinformatic methodology she helped develop for this project involves electronic 
assembly of experimental data, computer comparisons of experimentally derived mass 
spectra with theoretical mass spectra from known sequences in the human genome, 
evaluating the qualitylvalidity of the database, and database curating (i.e., updating accession 
numbers, preventing redundant entries, maintaining informative web-links for each entry, 
etc). For example, the RPE study mentioned above identified 278 proteins and provides a 
starting point for building a much larger database of the human RPE proteome. 
ofessor at the University of North Dakota who collaborated with the 
, expands on this project. He explains that the petitioner "creatively 
implemented Error Tolerant Searching technique, for database matching of uninterrupted tandem mass 
spectrum data." Utilization of this technique results in a searching accuracy that is "increased from 60% to 
klso discusses the petitioner's design of a protein interaction network database to store 
full descriptions of interactions, molecular complexes and pathways based on the human-bovine comparative 
sequence analysis performed by her group. 
rther describes the petitioner's ongoing research to "test the hypothesis that protein 
oxidative modifications contribute to drusen formation and Bruch's membrane thickening in Aged-related - - 
Macular Degeneration (AMD)" as "another significant contribution:" The record does not reveal, however, 
that the petitioner had produced any results on this project as of the date of filing. 
staff scientist and project leader at AppliedBiosystems, asserts that the petitioner has also 
contributed to her field b combining "bioinformatics and molecular modeling techniques for d 
applications." sserts that no other software exists to match the petitioner's results. 
continues: 
Although her work is primarily designed for her own laboratory environment, it is promised 
to have the great potential of becoming a major scientific tool for much wider bioinformatics 
study field [sic], rather than just in the RPE proteomic research. Her work has attracted 
several national bioinformatics funds' attention, and during her recent presentations to some 
biomedical research institutes and companies, they all showed great interest to fbrther 
cooperate and develop this technique together. 
whileworks for a biotechnology company, he does not indicate that his own company has expressed 
interest in cooperating with the petitioner or licensing her software. The record lacks letters from 
biotechnology or pharmaceutical companies addressed to the petitioner or her supervisor expressing an 
interest in licensing or otherwise applying the petitioner's software. 
an associate member of the Crystallography Research Program at the Oklahoma Medical 
Research Foundation, asserts that he knows the petitioner from her publications and attendance and scientific 
meetings. He explains that other institutions applying informatics to protein research "emphasize the 
theoretical or conceptual design." Thus, their "practical function and application of their work is 
comparatively weak." The petitioner's work, however, includes "a database, knowledge base, artificial 
intelligence, computer graphics, a series of computational algorithms, and dynamic simulations" that "can be 
applied to managing, analyzing and identifying various kinds of proteins that affects a wide verity [sic] of 
human diseases." According t-er technique "is the only complete approach that is designed for 
both direct application and basic research." 
a professor at the Institute of Chemistry, Chinese Academy of Sciences, provides similar 
above. While he predicts significant applications for the petitioner's work, he 
does not claim to have applied the petitioner's work or provide examples of independent laboratories that 
have done so. 
Head of the Nuclear Research Group at the Department of Computer Science, University 
the only computer science expert independent of the petitioner to provide a reference 
asserts that the petitioner "has played [a] crucial role in the development of artificial 
intelligence and computational technology, especially the implementation of Genetic Algorithms, 
Computational Graphics and Artificial Intelligence technologies to industrial product design, and dynamic 
molecular structure modeling, as well as the simulation of the evolutionary process of protein structure and 
function." He further asserts that the petitioner's work has impacted drug design, but provides no examples. 
Regarding the petitioner's knowledge base system developed at the Cole Eye Institute, Dr. Bentley discusses 
the flotential uses of this system, but is ambiguous as to whether it is actually being accessed beyond the 
institute or merely has the potential for that function. The record contains no data establishing how often the 
petitioner's knowledge base system is accessed from outside the Cleveland Clinic Foundation. More 
persuasive would be evidence that other designers of bioinformatics systems have expressed an interest in 
modeling their systems after the petitioner's system. 
We acknowledge that the petitioner has authored published articles and work presented at conferences. The 
director noted that researchers are generally expected to publish their research results and concluded that the 
petitioner had not demonstrated the petitioner's publication history "greatly exceeds that expected of 
exceptional scientists." The director noted the lack of evidence that the petitioner's work had been cited. On 
appeal, counsel asserts that the petitioner should not be compared to exceptional researchers and that the 
director failed to consider evidence demonstrating the quality of the petitioner's publications. Counsel 
asserts that the petitioner's articles have been cited in highly prestigious journals, were referenced in 
Blueprint and were the subject of reprint requests. Finally, counsel notes that several of the published 
articles were authored before the petitioner obtained her Ph.D. 
We will not presume the impact of a given article based on the journal in which it appeared. Rather, we look 
for evidence of the impact of the article itself. Most persuasive would be citations of the petitioner's articles 
for their bioinformatics approach, as opposed to the research the petitioner's computer skills assisted. As 
noted by the director, the record lacks evidence that independent researchers have cited the petitioner's work. 
The evidence characterized as requests for reprints consists of photocopies of several business cards. 
Nothing about these cards establishes that the entities identified on the cards have requested reprints of the 
petitioner's work. Regardless, while requests for reprints demonstrate an interest in the work requested, they 
are not as persuasive as actual citations, which demonstrate a reliance on the work cited. 
A technology reporter for the British magazine New Scientist requested images of product designs resulting 
from the petitioner's use of genetic algorithms for his story on the subject. The record does not contain the 
final article on the subject indicating the context in which these images were finally used. 
The record shows that the petitioner is respected by her colleagues and has made useful contributions in her 
field of endeavor. It can be argued, however, that most research, in order to receive funding, must present 
some benefit to the general pool of scientific knowledge. It does not follow that every researcher working 
with a government grant at a distinguished institution inherently serves the national interest to an extent that 
justifies a waiver of the job offer requirement. 
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. 
5 136 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.