dismissed EB-2 NIW Case: Biology

U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
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 Ofice of ~drnznistrative ~&eals MS 2090 
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 U. S. Citizenship 
and Immigration 
PUBLIC COPY 
FILE: Office: NEBRASKA SERVICE CENTER Date: MAY 0 4 zoo!, 
LIN 06 256 50514 
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. 9 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. 9 103.5 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. 9 103.5(a)(l)(i). 
&ddr L~L 
,- JohnF. Grissom 
9 Acting Chief, Administrative Appeals Office 
DISCUSSION: The Director, Nebraska 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. 8 1 153(b)(2), as an alien of exceptional ability in the sciences. The petitioner seeks 
employment as a "scientist-biologist." 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 found that the petitioner qualifies as a member of the professions holding an advanced 
degree, a finding that is statutorily equivalent to a finding that the petitioner qualifies as an alien of 
exceptional ability in the sciences. 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., I1 (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 (Cornmr. 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 hture 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 hre 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. 5 204.5(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 August 16,2006, indicating that she was in the United States under a 
"Visitor" visa. The petitioner stated that her nonimrnigrant status was due to expire on August 10, 
2006, the day she signed the Form 1-140 petition. USCIS records do not reflect any subsequent 
nonimmigrant visa petition filed by, or on behalf of, the petitioner, and the petitioner has not identified 
any U.S. employer. In August 2006 and again in May 2008, the petitioner applied for work 
authorization not through any valid nonimmigrant status, but as an alien with a pending adjustment 
application. The petitioner's current nonimmigrant status is, therefore, not clear fi-om the available 
evidence. 
Page 4 
The petitioner submitted a copy of an abstract fiom a presentation she made at a 2004 conference, and a 
color photograph showing the covers of several other publications. The record does not reveal the 
contents of these publications. 
The petitioner submitted several witness letters with her petition. - of the 
Kutateladze Institute of Biochemistry, Tblisi, Georgia, described the petitioner as a lonairne 
collaborator "whom I have known forten alread;." btated that the 
"unquestionable talent . . . has made her outshine not only the Institute in which she used to work, but 
also in various scientific circles in Georgia. She is versatile, extraordinary, and commands the interest 
of the leading scientists in our country." 
 provided no fbrther details. 
The petitioner submitted two letters fiom - who supervised the petitioner's doctoral 
dissertation work at the Georgian Academy of Sciences. In one letter, described the 
petitioner as "a brilliant specialist" destined to be a "world leader" in her field. In his second letter, Dr. 
detailed the petitioner's doctoral dissertation research: "She . . . studied chemical composition 
of persimmon . . . and . . . distinguished the phenolic compounds. This fact contributes to deepen our 
knowledge of chemical composition of plants and grows the prospect of persimmon usage, as a source 
of biologically active compounds." 
In a joint letter, an stated that the petitioner "had been working 
at the Biochemistry Department at the State Agricultural-Economic University since April, 2004. She 
was distinguished as a hard-working person and had good authority with professors, teachers and 
students." 
On November 1, 2007, the director issued a request for evidence (RFE), instructing the petitioner to 
submit documentation to meet the guidelines set forth in Matter of New York State Dept. of 
Transportation. The director requested evidence to establish the extent of the petitioner's influence on 
her field. 
In response, counsel stated that the director had essentially requested "evidence to establish Exceptional 
Ability as defined under 8 C.F.R. 4 204.5(k)(2). The Regulation defines Exceptional Ability as a degree 
of expertise significantly above that ordinarily encountered in the science[s], art or business." Counsel 
then argued that the petitioner qualifies as an alien of exceptional ability in the sciences. Exceptional 
ability, however, merely qualifies an alien to apply for the national interest waiver; it is not automatic 
evidence of eligibility for the waiver. The national interest waiver is a separate benefit, over and above 
the underlying immigrant classification. Therefore, eligibility for the waiver requires a separate 
showing that exemption fiom the job offer requirement would serve the national interest. 
Counsel stated that the petitioner's "last job application was with the nationally recognized Stony Brook 
University . . . , where she has been seeking [an] Associate Professor Position in [the] Biochemistry 
Department. See Exhibit 3." Exhibit 3 is an electronic mail message fiom Stony Brook University, 
dated November 23, 2007, acknowledging receipt of the petitioner's r6sumC. The message does not 
indicate that the petitioner applied for an bbAssociate Professor Position." Rather, the message refers to 
"the Postdoctoral Associate position." 
A second message, dated December 6, 2007, indicated that the petitioner applied for an unspecified 
position at Brookhaven National Laboratory. The record does not indicate the outcome of either 
application. The messages confirming receipt of the applications are dated several weeks after the 
director issued the RFE in early November 2007. The timing of the applications suggests that the 
petitioner filed these applications as a reaction to the RFE. 
Counsel stated: "science like every other endeavor of high skill requires constant and uninterrupted 
work in the area of expertise. Significant periods of inactivity in such work could and would bare [sic] 
adverse consequences for the qualifications of such professional." Significantly, although the petitioner 
claimed to have been in the United States since September 2005, nearly a year before she filed the 
petition, the record does not reflect any attempt by the petitioner to secure employment until after the 
director requested evidence of her impact in her field. 
In the WE, the director had requested published articles that discussed the petitioner's work (if such 
articles existed). The petitioner did not submit any articles by others that discussed her work. She did, 
however, submit copies of four of her own published articles. All four articles were published between 
2002 and 2004. Given counsel's assertion regarding the importance of "constant and uninterrupted 
work in the [petitioner's] area of expertise," it is significant that the petitioner seems to have ceased 
producing new work well before she filed the petition in mid-2006. 
The petitioner submitted copies of previously submitted letters, as well as three new letters containing 
very general praise for the petitioner. As with the first group of letters, these letters are all fiom 
witnesses in the Republic of Georgia. In a joint letter, - and of Tbilisi 
State University praised the petitioner as "a diligent and active student" who "can undertake scientific- 
research and administrative activity as well." 
The remaining two letters, respectively signed by - and - 
of the Durmishidze Institute of Biochemistry and Biotechnology, Tbilisi, are identical 
except for portions of their first, introductory paragraphs. Both letters referred to the petitioner as an 
"enthusiastic and purposehl scientist with excellent capabilities for experimental work. She has 
comprehensive theoretical knowledge especially in the field of modern Biochemistry and 
Biotechnology, which allows her to conceive new and interesting approaches to scientific problems." 
The director denied the petition on August 13,2008, stating that the petitioner had failed to establish the 
national scope of her work, or that her work has been particularly influential outside of the institutions 
where she has worked or studied. 
On appeal, counsel states that the "director's decision violates petitioner's statutory and constitutional 
rights" because the director imposed unreasonable burdens on the petitioner and relied on "very 
Page 6 
contradictory" arguments. Counsel asserts that the director's findings are not consistent with the statute, 
regulations or case law. 
Counsel argues: "The Director . . . erred as a matter of law and fact in concluding Petitioner did not 
qualifL for classification under Section 203(b)(2) of the Immigration and Nationality Act." The 
director, however, made no such finding. In the third paragraph of the decision, the director clearly 
stated: "the alien petitioner qualifies as a member of the professions holding an advanced degree." This 
language amounts to a finding that the petitioner qualifies for the underlying classification sought. 
Counsel objects that the director made no finding that the petitioner qualifies as an alien of exceptional 
ability in the sciences, but such a finding would be moot in the face of the director's acknowledgment 
that the petitioner is a member of the professions holding an advanced degree. An additional finding of 
exceptional ability would be of no benefit to the petitioner and would serve no constructive purpose in 
this proceeding. Accordingly, the AAO will not discuss the details of counsel's argument regarding the 
petitioner's claim of exceptional ability in the sciences. 
Counsel contests the director's finding that the petitioner's work lacks national scope. We agree with 
counsel that published scientific or medical research is national rather than local in scope. The 
petitioner's recent apparent inactivity in her field affects her personal impact on her field, but not the 
fundamental reach of her type of work. The AAO therefore withdraws the finding that the petitioner 
has not established the national scope of her occupation. 
The petitioner cannot, however, so easily overcome the final obstacle to eligibility. 
 Counsel's 
arguments regarding the impact of the petitioner's work in her field are not persuasive, and sometimes 
lack coherence. Counsel states: 
[The director concluded] that Petitioner failed to show that her "scholarly articles have 
been cited by other researchers at a beyond-exceptional rate." However, this conclusion 
makes no sense in light of the fact that the Director acknowledges in the same paragraph 
that "the petitioner has conducted original researches, and has published the results of 
her researches in learned journals." The fact that Petitioner has conducted original 
research and published scholarly articles in learned journals demonstrates her work 
would serve as a national interest [sic] that is substantially greater than would be 
produced by a United States worker. 
(Citations omitted.) There is no dispute that the petitioner has published original articles. The existence 
of those articles, however, tells us nothing about the field's subsequent response to the petitioner's 
work. The director was quite correct in finding that the petitioner submitted no evidence to show that 
other researchers, in their own articles, have cited the petitioner's work. There is simply no logical 
basis to assume, as counsel demands, that the very existence of published work by the petitioner forces 
us to presume that other researchers have heavily cited the petitioner's work. 
We turn now to this claim by counsel: "The fact that Petitioner has conducted orignal research and 
published scholarly articles in learned journals demonstrates her work would serve as a national 
Page 7 
interest [sic] that is substantially greater than would be produced by a United States worker." This is 
a rather startling proposition on counsel's part. The petitioner's field of endeavor, after all, is 
biological research. A fundamental goal of biological research is to uncover and disseminate new 
information in the field of biology. Yet counsel, here, asserts that the petitioner stands apart fiom 
her peers because she has uncovered and disseminated new information. Thus, counsel begins with 
the tacit presumption that qualified United States biological researchers generally do not "conduct[] 
original research" or "publish[] scholarly articles." Counsel does not provide any evidence to 
support this argument. 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). Furthermore, counsel's claim 
that the petitioner is an exceptionally productive researcher is difficult to defend, gven that the 
petitioner apparently produced no new work in the four years prior to the appeal. 
As is clear fiom 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 fiom 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 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 a labor certification issued by the Department of Labor, appropriate supporting evidence and fee. 
ORDER: The appeal is dismissed.