dismissed EB-2 NIW Case: Biological Science

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COpy 
DATE: Office: TEXAS SERVICE CENTER 
MA'( 20 20" 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
u.s. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
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: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised 
that any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
infonnation that you wish to have considered, you may file a motion to reconsider or a motion to reopen. 
The specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Fonn I-290B, Notice of Appeal or 
Motion, with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must be 
filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
~rryRhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) 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 a member of the professions holding an advanced degree. The 
petitioner seeks employment as a researcher. 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 had not established that she qualifies for 
classification as a member of the professions holding an advanced degree or that an exemption from the 
requirement of a job offer would be in the national interest of the United States. 
On appeal, counsel submits a brief, the petitioner's transcript and reference letters. For the reasons 
discussed below, while the petitioner has established that she is a member of the professions holding an 
advanced degree, she has not established that it is in the national interest to waive the alien employment 
certification in this instance. Ultimately, the petitioner's record as a research assistant on one 
collaborative study that attracted moderate citation several years before the petitioner filed the petition 
followed by promising research that has yet to influence the field is insufficient evidence to warrant a 
waiver of the alien employment certification process in the national interest. 
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 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 record contains a Form 1-20, Certificate of Eligibility for Nonimmigrant (F-l) Student, dated 
August 10,2004 indicating that the petitioner would pursue her doctorate at the University of Arizona. 
The record contains no evidence that the petitioner received this degree or even that she continues to 
" 
Page 3 
pursue it. Instead, the petitioner works full-time as a Research Specialist at the University of Arizona 
pursuant to a J-1 nonimmigrant visa. The petitioner, however, holds a Master's degree in Biological 
Science from Ajou 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 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 the phrase, "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, WIst Cong., 1st Sess., 11 (1989). 
A supplementary notice regarding the regulations implementing the Immigration Act of 1990 
(IMMACT), published at 56 Fed. Reg. 60897,60900 (Nov. 29, 1991), states, in pertinent part: 
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, 217-18 (Comm'r. 1998) (hereinafter 
"NYSDOT"), has set forth several factors that U.S. Citizenship and Immigration Services (USCIS) 
must consider when evaluating a request for a national interest waiver. First, the petitioner must show 
that the alien seeks employment in an area of substantial intrinsic merit. Id. at 217. Next, the petitioner 
must show that the proposed benefit will be national in scope. Id. 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. Id. at 217-18. 
It must be noted that, while the national interest waiver hinges on prospective national benefit, the 
petitioner must establish that the alien's past record justifies projections of future benefit to the national 
interest. !d. at 219. The petitioner's SUbjective assurance that the alien will, in the future, serve the 
national interest cannot suffice to establish prospective national benefit. The use of the term 
"prospective" is meant to require future contributions by the alien and is not intended to facilitate the 
entry of an alien with no demonstrable prior achievements, and whose benefit to the national interest 
would thus be entirely speculative. Id. 
The AAO concurs with the director that the petitioner works in an area of intrinsic merit, drug 
screening, and that the proposed benefits of her work, improved cancer treatments, 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. 
Eligibility for the waiver must rest with the alien's own qualifications rather than with the position 
sought. In other words, U.S. Citizenship and Immigration Services (USCIS) generally does 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. NYSDOT, 22 I&N Dec. at 218. Moreover, it 
cannot 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. Id. at 221. 
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. In evaluating the petitioner's achievements, the AAO notes 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. 
The petitioner lists the following experience on her curriculum vitae: 
• Administrational assistant and teaching assistant at Ajou University from 1997 through 1999; 
• Research assistant at the Asan Institute for Life Sciences at the University of Ulsan from 1999 
through 2002; 
• Research specialist at Samsung Biomedical Research Institute from 2002 through 2003; 
• Research specialist at Y onsei Biomedical Research Center from 2003 through 2004; 
• Graduate assistant at the University of Arizona from 2004 through 2006; 
• Research technician and laboratory manager at the University of Arizona from 2006 through 
2008; and 
• Research specialist and laboratory manager at the University of Arizona from 2008 through the 
date of filing. 
The petitioner submitted three published articles dated in 2000 and 2002. The petitioner submitted an 
unpublished manuscript reporting collaborative work at the University of Arizona. As of the date of 
filing, this work was unpublished. The petitioner also submitted evidence of two presentations but no 
evidence as to where the petitioner or a coauthor presented this work. The petitioner does not even list 
these presentations on her curriculum vitae. Thus, as of the date of filing on January 14, 2010, the 
petitioner had not published a single article or presented work at a single major conference in over 
seven years. 
Publication alone merely demonstrates the dissemination of the research and cannot demonstrate the 
ultimate impact once published. The petitioner submitted evidence that, as of the date of filing, the 
petitioner's first-authored article had garnered a small number of independent citations and that the 
article listing the petitioner as fourth of five authors had garnered a moderate number of independent 
citations. 
Initially, in response to the director's request for additional evidence and again on appeal, counsel relies 
on an unpublished decision by this office sustaining an appeal where the beneficiary's research had 
garnered fewer citations than present in this matter. While 8 C.F.R. § 103.3(c) provides that AAO 
precedent decisions are binding on all USCIS employees in the administration of the Act, 
unpublished decisions are not similarly binding. USCIS decides national interest wavier cases on a 
case-by-case basis after analyzing all of the evidence of record, not just citations. There is no 
specific number of citations that either establishes or precludes eligibility. Moreover, as stated 
above, the petitioner had not published a single article in the past seven years. Thus, her publication 
record, regardless of citations, cannot establish a past record that justifies projections of future 
benefits to the national interest. See id. at 219. 
The remaining evidence consists of letters. an associate professor at the Asan 
Medical Center, discusses the petitioner's earlier work in Korea. _discusses the petitioner's 
graduate research on skeletal muscle in which she demonstrated that "retinoic acids negatively 
modulate the differential of L6 ~ by increasing the intracellular level of cAMP (an 
intracellular second messenger.)" __ does not explain how this work impacted the field. 
Instead, he asserts that the Asan Institute for Life Sciences recruited the petitioner based on her 
graduate research. . that at the Asan Institute for Life Sciences, the petitioner 
"participated in the development of new therapeutic anti-cancer treatments for bladder and kidney 
cancer." _further explains the importance of addressing resistance to chemotherapy for 
cancer patients and continues: 
[The petitioner's] research noted that the increased expression of Bcl2, which is 
known to suppress apoptosis, is related to the development of drug resistance in many 
different cancers. Specifically, in bladder cancer, she noted that transfection of Bcl2 
gene cell lines caused cancer cells to become resistant to the cisplatin in 
chemotherapy. [The petitioner's] research utilized this knowledge to assess the 
changes in the expression of Bc 12 in cisplatin-resistant bladder cancer cell lines and 
ultimately, the reversibility of chemoresistance to cisplatin with antisense 
oligonucleotide against Bcl2. 
The record establishes that the petitioner's research into Bcl2, performed as a research assistant in 
collaboration with four other authors, was the basis of her moderately cited article. This single 
collaboration, dating several years before the filing date of the petition, cannot form the sole basis of 
eligibility. 
Page 6 
_then discusses the petitioner's research on new therapeutic methods for treating tissue and 
organ damage from chronic disease and cancer. _ explains the importance and difficulty of 
using self-renewing cells and states that the petitioner proposed the use of umbilical cord blood . 
• ontinues: 
[The petitioner's] research attacked these two goals to propose a method for efficient 
isolation and cultivating the mesenchyal stem/progenitor cells from the umbilical cord 
blood through antigen-antibody reaction using the mesenchyal stem/progenitor cell­
regulated antibodies. Her research further led to ultimately providing a viable method 
for the differential of these cells into the mesenchyal tissues - representing a stunning 
achievement in treating the underlying causes of tissue and organ damage in humans. 
_rovides no examples of umbilical cord blood being used to treat tissue damage based on 
the petitioner's work or of independent pharmaceutical companies, clinics or academic laboratories 
pursuing such treatments based on this work. Instead,_ concludes that the petitioner's work 
"has vast potential to be applicable to human-based cancer research." This statement is speculative. 
The record also lacks evidence that the petitioner published the results of her study of umbilical cord 
blood. 
at the University of Arizona, 
discusses the petitioner's work at that institution. _tates that the petitioner investigated the 
gemcitabine signaling pathways as a means to prevent chemoresistance. _ discusses the goals 
of the research and continues: 
[The petitioner's] early research has shown that DNA ligase I levels are elevated after 
exposure to a variety of chemotherapeutic drugs, including cisplatin, ara-C, 
gemcitabine, and topotecan, in various human cancer cells. Overall, [the petitioner's] 
research has shown the potential to elucidate the molecular basis and the biological 
significance of induction of DNA repair genes in human cancer cells in response to 
major chemotherapeutics in order to identify potential targets appropriate for new 
anticancer agents that will enhance the lethal activity of many cancer chemotherapies. 
The record contains a presentation of the preliminary results of this work but no evidence as to where 
the petitioner or a coauthor presented this work. The results ofthis work are too preliminary for USCIS 
to gauge the influence ofthis work in the field. 
an assistant professor at the University of Arizona, discusses his collaboration with 
the petItIOner investigating vascular endothelial growth factor (VEGF), a chemical signal that 
stimulates the growth of new blood vessels (angio the role of angiogenesis in 
tumor growth and continues: 
Page 7 
[The petitioner's] early research during this investigation demonstrated that the G-rich 
and C-rich strains could form specific G-quadruplex or i-motif structures, respectively, 
on the polypurine/polypyrimidine tract in the proximal promoter of these genes. That 
observation allowed [the petitioner] to subsequently explore a new therapeutic strategy 
to repress the transcription activation of the human VEGF and HIF-gene with small 
molecules capable of binding selectively to non-canonical DNA structures formed with 
the promoter region of these genes. Overall, the results of [the petitioner's] research 
have produced a promising pathway for the development of more effective human 
anticancer drugs - a notable achievement in light ofthe global nature of the disease. 
The results of [the petitioner's] research demonstrate that she is able to provide 
advanced solutions to human cancer treatment, through examining unique avenues for 
the development of anticancer drugs. Through development like that of [the 
petitioner's], it is possible that more effective anticancer therapies may soon be 
produced - benefiting millions of people worldwide who suffer from various forms of 
cancer. 
sentence, grouping the petitioner's study with similar research, is highly speculative. 
Once again, no journal has yet published this research. Rather, this research is the subject of the 
petitioner's unpublished manuscript. Thus, it is too early to gauge the ultimate influence ofthis work. 
at the University of 
Arizona, discusses the petitioner's drug screenmg the challenges in 
screening approximately 14,000 potential anti-cancer drugs and asserts that the petitioner "successfully 
created an ant~ screening method to determine the effect of various drugs on cancer cells." 
According to __ the petitioner first drugs with micro arrays to determine their 
effect on a breast cancer cell angiogenesis gene. continues: 
[The petitioner] then selected 2,000 drugs from the first screening test and subsequently 
very accurately measured the exact expression level of the angiogenesis gene of interest. 
Finally, [the petitioner] selected 40 drugs from the second screening test and used the 
techniques Western blot and ELISA assay to confirm that not only had the expression of 
the gene changed, but more importantly, levels of the protein product of that gene had 
also changed. 
'vu"' ......... "'u that the petitioner's technology "provides new approaches to testing potentially 
thousands of different candidate anti-cancer drugs on many different types of tissue. 
not suggest that the petitioner presented, published or patented her innovation or that other independent 
laboratories are applying or seeking to apply this methodology for screening anti-cancer drugs. 
Page 8 
••••• finally praises the petitioner's unique educational background and career experiences. 
Special or unusual knowledge or training, while perhaps attractive to the prospective U.S. employer, 
does not inherently meet the national interest threshold. !d. at 221 . 
••••••••• a former research assistant professor at the University of Arizona, asserts that 
some of the drugs the petitioner tested "are currently in the process of being tested in animals."_ 
~ letter postdates the filing of the petition. As such, the record does not establish that t~ 
~nderway as of the date of filing, the date as of which the petitioner must establish her 
eligibility. See 8 C.F.R. §§ 103.2(b)(1), (12); Matter ofKatigbak, 14 1&N Dec. 45,49 (Reg'l. Comm'r. 
1971). Moreover, _does not identify the laboratory where these tests are taking place or 
even whether or no~ a result of the petitioner's work rather than other studies pointing to 
the drugs' potential. _her states that the petitioner's new screening method allows 
researchers to save time, but fails to identify a single independent laboratory using this method. 
In response to the director's notice of intent to deny the petition, the petitioner submitted letters from 
more independent sources. an associate professor at Clarkson University, asserts 
that he is familiar with the petitioner's work based on his with the research "at many 
laboratories." not attach a curriculum vitae. discusses the petitioner's 
research with VEGF, characterizing it as "revolutionary." , however, that the 
petitioner needs to complete the in vivo trials of the candidate drugs. concludes: "I know 
that her work on repressing VEGF and HIF -1 a genes has caused other researchers like myself to realize 
the importance of VEGF and HIF-1a expression for the develo~ancer drugs from her 
work." USC1S need not accept primarily conclusory assertions.1 _oes not explain what 
research he is undertaking based on the petitioner's work or provide examples of other independent 
researchers pursuing VEGF and HIF-1a based on the petitioner's findings. In 
not explain how other researchers have learned of this work as the petitioner has yet to publish or 
present her results at a widely attended conference. 
at the University of Texas at 
Austin, asserts he has not met or worked with the petitioner, he is familiar with her 
"outstanding contributions to anti-cancer research." oes not attach a curriculum vitae. 
that the petitioner has screened thousands of drugs and asserts that she is "credited 
in the fiel~ing the series of reactions involving VEGF and HIF-1a that leads to tumor 
growth. __ does not identify any independent laboratory using the petitioner's drug 
screening method. He also fails to explain how the petitioner is credited in the field for her work on 
VEGF when this work remains unpublished. 
The petitioner submits two new letters on appeal. a ~he University of 
Missouri-Columbia, discusses the petitioner's . _ states: "These 
phenomenal discoveries are exactly what we have been waiting for to help us fight the resistance some 
1 1756, Inc. v. The Attorney General a/the United States, 745 F. Supp. 9, 15 (D.C. Dist. 1990). 
Page 9 
cancer cells develop towards chemotherapy drugs." _then concludes: "Thanks to [the 
petitioner's] research findings cancer patients can expect Improved therapy options."_does 
not provide examples of any developments towards this end in the last seven years since the petitioner 
published these findings. 
at Chapel Hill, asserts that after 
reading the petitioner's publications, he knows "that she has made several discoveries that have had a 
major impact on cancer research, and has made profound contributions to what we know concerning 
this group of diseases." He then discusses the petitioner's original work with cisplatin, stating that her 
work "has provided researchers an opportunity to develop new tec~revent resistance to 
anticancer drugs in cancer cells using antisense oligonucleotides." __ fails to provide any 
examples of work towards these new techniques in the seven years since the petitioner published her 
findings. 
notes the petitioner's more recent work on "drug development." He explains that drug 
discovery yield results and involves intellectual property concerns that prevent 
publication. that while the petitioner has no recent publications, she has been 
"intensely focused on the development and testing of several potential drug candidates." The petitioner 
is working for a university rather than a pharmaceutical company. Moreover, while the AAO will take 
intellectual property issues into consideration, it is still the petitioner's burden to demonstrate her 
influence in the field. The petitioner has submitted no patents or evidence of pharmaceutical 
companies expressing interest in licensing or otherwise applying her results. The record also contains 
two presentations and an unpublished manuscript. Thus, the record is not persuasive that the petitioner 
~ing on issues that are too confidential to publish should a journal accept the manuscript. _ 
_ Iso notes the petitioner's "invention of a new method to rapidly screen thousands of drug 
candidates." While he asserts that this technique "has significantly aided the drug discovery field," he 
provides no examples of independent laboratories using the technique. 
The Board of Immigration Appeals (the Board) has held that testimony should not be disregarded 
simply because it is "self-serving." See, e.g., Matter of S-A-, 22 I&N Dec. 1328, 1332 (BIA 2000) 
(citing cases). The Board also held, however: "We not only encourage, but require the introduction 
of corroborative testimonial and documentary evidence, where available." Id. If testimonial 
evidence lacks specificity, detail, or credibility, there is a greater need for the petitioner to submit 
corroborative evidence. Matter of Y-B-, 21 I&N Dec. 1136 (BIA 1998). 
The opinions of experts in the field are not without weight and have been considered above. USCIS 
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'r. 1988). However, USCIS 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; USCIS may, as we have done above, evaluate the content of those letters as to whether 
they support the alien's eligibility. See id. at 795; see also Matter of V-K-, 24 I&N Dec. 500, n.2 
.. 
Page 10 
(BIA 2008) (noting that expert opinion testimony does not purport to be evidence as to "fact"). 
USCIS 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 SojJici, 22 I&N Dec. 158, 
165 (Comm'r. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l. 
Comm'r. 1972». 
The letters considered above primarily contain bare assertions of an impact in the field without 
providing specific examples of how the petitioner's innovations have influenced the field. Merely 
repeating the legal standards does not satisfy the petitioner's burden of proof.2 The petitioner also 
failed to submit sufficient corroborating evidence in existence prior to the preparation of the petition, 
which could have bolstered the weight of the reference letters. 
Ultimately, the petitioner is a research specialist who, as a research assistant, has contributed to a 
single moderately cited study seven years before filing the petition. While the petitioner has 
technical expertise, such objective qualifications can be articulated on an application for alien 
employment certification. NYSDOT, 22 I&N Dec. at 220-21. While the petitioner's research is no 
doubt of value, it can be argued that any research must be shown to be original and present some 
benefit if it is to receive funding and attention from the scientific community. The record does not 
demonstrate that the petitioner's documented past record justifies projections of future benefit to the 
national interest to a greater extent than an available U.S. worker with the minimum requirements for 
the occupation. 
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 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. 
ORDER: The appeal is dismissed. 
2 Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), afj'd, 905 F. 2d 41 (2d. Cir. 1990); 
Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). Similarly, USCIS need not accept 
primarily conclusory assertions. 1756, Inc., 745 F. Supp. at 15.