dismissed EB-2 NIW Case: Bioinformatics

Identifyingdata deletldI»
prevatt clearlyunwarranted
invasionofpersonalpriVICJ
U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
PUBLIC-C0P1
FILE: LIN 06 013 52514 Office: NEBRASKA SERVICE CENTER Date: '*13 2007
INRE: 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. § 1153(b)(2)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office .
./l&tii tf) (J.eo<dj 1d.:t Robert P. Wiemann, Chief
Tl~ Administrative Appeals Office
www.uscis.gov
LIN 06013 52514
Page 2
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa
petition, which is now before the Administrative Appeals Office on appeal. The appeal will be
dismissed.
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act
(the Act), 8 U.S.C. § 1153(b)(2), as an alien of exceptional ability and a member of the professions
holding an advanced degree. The petitioner seeks employment as a postdoctoral scholar. The
petitioner asserts that an exemption from the requirement of a job offer, and thus of an alien
employment 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 asserts that the director erred by denying the matter for reasons not raised in the
request for additional evidence. Counsel relies on two non-precedent decisions by this office, not
provided, for the proposition that, having issued a request for additional evidence, the director may not
now deny the petition on a different basis without first issuing a new request. As counsel did not
provide those cases, it is not known whether they involved a similar benefit. Regardless, while the
regulation at 8 C.F.R. § l03.3(c) provides that AAO precedent decisions are binding on all CIS
employees in the administration of the Act, unpublished decisions are not similarly binding. Counsel
has not stated that evidence would have been available to submit in response to a second request for
additional evidence that was not submitted on appeal. Thus, we find that the most expedient remedy
for any failure to issue a second request for additional evidence is to consider the evidence submitted
on appeal in this decision.
Ultimately, the record does not support counsel's characterizations of the petitioner's credentials and
is not supported by letters from independent experts or evidence that the petitioner has been widely
cited. In fact, as of the date of filing, the most significant work done by the petitioner according to
his references had yet to be published and, thus, widely disseminated in the field. For these reasons,
which will be detailed below, we uphold the director's decision.
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.
LIN 06013 52514
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(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 record 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 Microbiology
and Molecular Genetics from the University of Vermont. 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.
While the issue of exceptional ability is moot, counsel's mischaracterizations of the significance of the
evidence submitted to demonstrate exceptional ability bear mention. Significantly, the unsupported
assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA
1988); Matter ofLaureano, 19 I&N Dec. 1 (BIA 1983); Matter ofRamirez-Sanchez, 17 I&N Dec. 503,
506 (BIA 1980). We note that the evidence submitted to meet the regulatory criteria for exceptional
ability, set forth at 8 C.F.R. § 204.5(k)(3)(ii) must be indicative of or consistent with the regulatory
standard for that classification: a degree of expertise significantly above that ordinarily encountered.
While counsel asserts that the petitioner has 12 years of experience, the petitioner only claims on his
curriculum vitae to have worked part-time prior to 2004. The regulation at 8 C.F.R.
§ 204.5(k)(3)(ii)(B) requires ten years of "full-time" experience. Regardless, the petitioner did not
submit the required evidence to meet that criterion: letters from employers documenting at least ten
years of employment.1 Finally, the petitioner submitted no evidence that his professional membership,
citation record of two citations and a scholar in training travel award are indicative of a degree of
expertise above that ordinarily encountered in the field.
The remaining issue is whether the petitioner has established that a waiver of the job offer requirement,
and thus an alien employment 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, 101st Cong., 1st Sess., 11 (1989).
I We do not read the regulations at 8 C.F.R. § 204.5(k)(3)(ii)(B) and 8 C.F.R. § 204.5(g)(l) as allowing an
employer to verify experience with a prior employer. See generally 8 C.F.R. § 103.2(b)(2) for the
proposition that affidavits should come from individuals with "direct personal knowledge" of the facts they
are verifying.
LIN 06013 52514
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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. 215 (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 mustbe
shown that the proposed benefit will be national in scope. Finally , the petitioner seeking the waiver
must establish that the alien will serve the national interest to a substantially greater degree than would
an available U.S. worker having the same minimum qualifications.
It must be noted that, while the national interest waiver hinges on prospective national benefit, it clearly
must be established that the alien's past record justifies projections of future benefit to the national
interest. The petitioner's subjective assurance that the alien will, in the future, serve the national
interest cannot suffice to establish prospective national benefit. The inclusion of the term "prospective"
is used here to require future contributions by the alien , rather than to facilitate the entry of an alien
with no demonstrable prior achievements, and whose benefit to the national interest would thus be
entirely speculative.
We concur with the director that the petitioner works in an area of intrinsic merit, bioinformatics,
and that the proposed benefits of his work, improved individualization of cancer treatments based on
the patient's genetics, 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.
Counsel and some of the petitioner's references discuss the importance of attracting researchers to
the United States. The petitioner submits articles discussing the importance of scientists to the
national interest. Counsel cites no authority for a presumption that the national interest waiver was
intended as a blanket waiver for scientists . Significantly, Congress created a visa classification for
outstanding researchers and we know of no reason to presume that the national interest waiver was
intended as a blanket waiver for all researchers unable to meet the high standards of that classification?
It is the position of Citizenship and Immigration Services (CIS) to grant national interest waivers on a
case-by-case basis, rather than to establish blanket waivers for entire fields of specialization. Matter of
New York State Dep 't ofTransp., 22 I&N Dec. at 217.
2 See Section 203(b)(1)(B) of the Act , 8 U.S.C. § 1153(b)(1)(B).
LIN 06013 52514
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Several references discuss the importance of the multi-institution collaboration for which the
petitioner works. We have acknowledged the substantial intrinsic merit and national scope of the
proposed benefits of the petitioner's work above. Ultimately, however, 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. Matter ofNew York State Dep 't
ofTransp., 22 I&N Dec. at 218.
Several references also discuss the petitioner's unusual combination of skills. the
petitioner's current supervisor, asserts that the petitioner "has had extensive training in both
and bioinformatics. Scientists with the combination of both skills are very rare."
a collaborator, asserts that the petitioner's "unique skills" in computational
pharmacogenomics "ensure that he will develop innovative solutions to problems in the area of
cancer research." , a collaborator, asserts that the petitioner "is one of only a few
scientists in the world who has the background and trainin to address the biomedical problems as
both a computational biologist and molecular biologist." a member of the
petitioner's Ph.D. thesis committee, asserts:
[The petitioner's] background is unique because he has hands-on molecular biology
experience with cloning, expression and sequence analysis of genes in combination
with bioinformatics and computational biology. There are few scientists in this
country with this particular expertise and thus [the petitioner] is very much in demand
for industrial and academic positions.
the petitioner's Ph.D. supervisor, asserts that the U.S. needs scientists with the
petitioner's training and that it is difficult to recruit scientists with the petitioner's skills.
It cannot, however, suffice to state that the alien possesses useful skills, or a ''unique background."
Special or unusual knowledge or training does not inherently meet the national interest threshold.
The issue of whether similarly-trained workers are available in the United States is an issue under the
jurisdiction of the Department of Labor. ld. at 221.
_SUbSeqUentlY asserts that the national interest would not be served by pursuing the "time­
consuming" alien employment certification process. The record contains no evidence that the
Department of Labor's current process for certifying alien employment certifications (in effect since
March 28, 2005) is "time-consuming." Regardless, nothing in the legislative history suggests that the
national interest waiver was intended simply as a means for employers (or self-petitioning aliens) to
avoid the inconvenience of the labor certification process. Id. at 223.
On appeal, ~eiterates that the petitioner's specific combination of computational biology and
molecular biology expertise is essential and unique. _ then asserts that a "minimally qualified
LIN 06013 52514
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researcher with some bi computer science expertise could acquire the equivalent expertise
like [the petitioner's]." then states that this expertise "could not be readily articulated for
purposes of the labor certification." appears to equate minimally qualified with unqualified.
If the job requires, at a minimum, a combination of experience in two specific areas, it is not clear why
the petitioner's employer is unable to specify such experience on the application for alien employment
certification, ETA Form 9089. Moreover, _ provides no explanation for why no other
individual is capable of acquiring the experience the petitioner has acquired. Even if true, the alien
employment certification process would still serve to identify the petitioner as uniquely qualified.
asserts that she "intended" to say that "the specific combination of expertise like [the
petitioner's] was unique among his fellow researchers in the general field of computational genomics
and bioinformatics." Weare not persuaded that _ is saying anything new on appeal. If the
petitioner has unique training and experience , that training and experience can be expressed on an
application for alien employment certification.
Finally, _ asserts that there is no shortage of researchers "with minimum or even higher
qualifications in the general field of his research" but that the success of a federally funded national
medical research initiative, such as the one on which the petitioner works, "absolutely depends on
having a large number of highly qualified scientists working on the initiative."
assertion brings us to the real issue in this matter , 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 he 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. In evaluating
the petitioner's achievements, we note that original innovation, such as demonstrated by a patent, is
insufficient by itself. Whether the specific innovation serves the national interest must be decided on
a case-by-case basis. Id. at 221, n. 7.
Initially, counsel submitted a chart purporting to set the petitioner apart from his peers. The
unsupported assertions of counsel do not constitute evidence. Matter ofObaigbena, 19 I&N Dec. at
534; Matter of Laureano, 19 I&N Dec. at 1; Matter of Ramirez-Sanchez, 17 I&N Dec. at 506.
Counsel provides no support for his assertions as to what is average for a researcher. Moreover, the
record does not support counsel's factual assertions. For example, counsel concludes that the
petitioner's presentation rate exceeds that of the average researcher because he has presented his
work more than ten times. On the petitioner's curriculum vitae, the petitioner lists only three major
conference presentations in the United States. The remaining presentations include those in
preparation as of the date of filing, two retreats that appear to have had a more limited audience than
a major conference, and two presentations in China that appear unrelated to the petitioner's current
work.
LIN 06013 52514
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Counsel concludes that the petitioner exceeds the average researcher because he has been one of the
"major contributors" for six papers. Counsel conced~, that only three of those papers had
actually been published. In fact, despite a claim by _that the petitioner had published an
article in the Journal of Molecular Evolution, the record does not establish that, as of the date of
filing, the petitioner had published a single article based on his Ph.D. or postdoctoral research, the
focus of this petition.
In addition, while counsel may be correct that the "average" researcher does not have an "invention
claim," it would seem likely that the number of patents varies widely by field, with pharmacology
research more likely to lead to patents than more basic biology research. Regardless, as stated above,
an alien cannot secure a national interest waiver simply by demonstrating that he or she holds a patent.
Whether the specific innovation serves the national interest must be decided on a case-by-case basis.
Matter ofNew York State Dep 't. ofTransp., 22 I&N Dec. at 221, n. 7.
Finally, counsel asserts that the petitioner's contributions set him apart from his peers. In order to
evaluate this claim, we must review the reference letters of record. CIS may, in its discretion, use as
advisory opinions statements submitted as expert testimony. See Matter of Caron International, 19
I&N Dec. 791, 795 (Comm. 1988). However, CIS is ultimately responsible for making the final
determination regarding an alien's eligibility for the benefit sought. Id. The submission of letters
from experts supporting the petition is not presumptive evidence of eligibility; CIS may evaluate the
content of those letters as to whether they support the alien's eligibility. See id. at 795-796. CIS
may even give less weight to an opinion that is not corroborated, in accord with other information or
is in any way questionable. Id. at 795; See also Matter of Soffici, 22 I&N Dec. 158, 165 (Comm.
1998) (citing Matter ofTreasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972)).
In evaluating the reference letters, we note that letters containing mere assertions of industry interest
and positive response in the field are less persuasive than letters that provide specific examples of
how the petitioner has influenced the field. In addition, letters from independent references who
were previously aware of the petitioner through his reputation and who have applied his work are the
most persuasive.
As stated above, the petitioner obtained his Ph.D. in 2004 from the University of Vermont under the
direction Of_ The petitioner then joined the PAAR group at the University of Chicago (UIC),
chaired by at UIC and vice-chaired by _ at St. Jude Children's Hospital in
Memphis. As explained by _ PAAR, which also includes researchers from the University of
Pittsburgh, is one of twelve initiatives in phannacogenomic research funded by the National Institutes
of Health (NIH). The aim of PAAR is to examine how the benefits and toxic side effects of certain
chemotherapy drugs vary among people. We do not question the prestige of this research group. We
will not, however, infer the petitioner's influence in the field simply by his association with this group.
Rather, the petitioner must establish his individual influence in the field.
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discusses the petitioner's grades, standardized test scores and grant funding from the
epartment of Energy at the University of Vermont. 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 petitioner's research fellowship was approved
by the Department of Energy's Experimental Program to Stimulate Competitive research located at
the University of Vermont. Thus, while the funds may ultimately derive from the Department of
Energy, the individual funding decisions appear to be made locally and the fellowship appears
limited to students at that institution. Regardless, 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 inherently serves the national interest to an extent that
justifies a waiver of the job offer requirement.
_then discusses the petitioner's research at the University of Vermont. Specifically, the
petitioner investigated mutation and selection effects relevant to p53, a human cancer gene. The
petitioner "estimated the sequence-dependent DNA mutation rates using primate genomic sequences
provided by the NIH Intramural sequencing Center." The petitioner, for the first time, "presented the
mutation rates of the 96 classes of triplet-triplet changes in DNA estimated using a set of primate
genomic sequences, while other researchers usually assume that the mutation sites are independent,
which we know it [sic] is incorrect. '_I asserts that this work provided a "novel way to study
the evaluation" of p53 and, in fact to study the evolution of other disease-related genes. _
asserts that this work was presented at a conference and "led to [the petitioner's] first-authored paper
for the Journal of Molecular Evolution." I who served on the petitioner's thesis committee,
provides similar information. further states that the petitioner "confirmed what we learned
from experiments in my lab.'
While the record contains a May 2004 e-mail adViSing. that the petitioner's article had been
found acceptable "pending revisions," the record lack that the petitioner completed those
revisions and that the journal ultimately published this work. The record does, however, confirm that
the petitioner presented this work at a conference in 2004. The petitioner did not, however, submit
evidence from independent researchers pursuing new avenues of research with p53 or other disease­
related genes based on his work. The record also lacks evidence that the petitioner's conference
presentation has been cited.
The petitioner submitted a lengthy letter fro identifying and discussing ten contributions.
These ten contributions include the petitioner's work at the University of Vermont, three projects that
predate the petitioner's Ph.D. research, and several projects where the results had yet to be disseminated
in the field either through conference presentation or publication.
_ explains that Epidermal Growth Factor Receptor (EGFR) is a novel target for chemotherapy
due to its function in the control of cell growth and relation to the development of cancer. Thus, the
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FDA has approved several EGFR inhibitors although little is known about the relationship between
human gene expression and the toxicity of these drugs. The petitioner "contributed significantly to the
project of identifying candidate genes that affect the pharmacodynamics of EGFR-targeted anti-cancer
agents," establishing for the first time the relationship between the expression of a specific phosphate
transporter, SLC17Al, and the cellular toxicity of EGFR inhibitors. This work was presented via
PAAR videoconference to other PAAR members and was being prepared as a manuscript but had yet
to be reported outside of PAAR. _ asserts that this work has led to additional research
avenues within PAAR and has the potential to benefit the pharmaceutical industry. As of the date of
filing, VIC was evaluating the technology disclosure regarding this work and ultimately decided to
pursue a patent. The record lacks evidence that pharmaceutical companies or other laboratories had
expressed any interest in licensing or otherwise applying this patent-pending innovation.
The petitioner also investigated an enzyme subfamily, VGTIA, that make metabolic products more
easily excreted from the body and, thus, are related to the effectiveness of anticancer drugs. The
petitioner analyzed the nucleotide sequences of members of this subfamily using bioinformatics
methods, identifying a pool of nucleotides that are correlated with an observed tissue-specific
expression pattern of the VGTIA members. _ asserts that this work reduced costly and time­
consuming research by identifying a pool of nucleotides on which to focus. The petitioner received his
Scholar-in-Training travel grant to attend a conference to present this work. While the grant may
indicate the promising nature of this work, it does not establish the ultimate influenceof this work. The
record lacks letters from independent experts applying this work or evidence that the presentation has
been widely cited.
The petitioner's remaining research performed at VIC discussed b had yet to be presented
or published as of the date of filing. Thus, it had not been widely disseminated in the field. While_
speculates as to the future benefit of this work, those benefits had yet to be realized. The
remaining letters are from other PAAR members and provide similar information.
The record shows that the petitioner is respected by his colleagues and has made useful contributions
in his field of endeavor with potential practical applications. 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 within a government-sponsored
collaboration inherently serves the national interest to an extent that justifies a waiver of the job offer
requirement. At best, the petition was filed prematurely, before the petitioner's influence in the field
could be gauged.
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
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established that a waiver of the requirement of an approved alien employment 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. § 1361. 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 an alien employment certification certified by the Department of Labor, appropriate
supporting evidence and fee.
ORDER: The appeal is dismissed.