dismissed EB-2 NIW Case: Biology

(b)(6)
DATE: 
INRE : 
; . 
JAN 0 9 2,013 
Petitioner: · 
Beneficiary: 
Office: TEXAS SERVICE CENTER 
; r { 
U.S. Dq>art:mcnt: ofHomcland St~ curity 
l).S. Citi zenship and lmrnigrJLion Service 
.'-\dministrativ e Appeal s Office (AAO ) 
20 Massachu setts Ave., N. W ., MS 2090 
Washin!2ton. DC 20529-2090 
U.S. Citizenship 
and Immigration 
.Services 
Fll.,E: 
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. § l153(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 hav.e been l'etumed to the office that originally decided your case. Please 
be advised that any f~ither inquiry that you might have q)nGerning y~mr case must be made to that office. 
I. ,: ' 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen 
'in accordance with the instructions on Form Ir290B, Notice of Appeal or Motion, with a fee of $630., The 
specific requirements for filing such amotion can be found at S·C:f'.R. § 103.5. Do not tile any motion 
directly with the AAO. Please be aware thilt 8 C.F.R. § I 03.5(a)(l)(i) requires any motion, to be filed 
within 30 days of the decision that the motion' seeks to reconsider or reopen. 
Thank you, 
l-tOWYldD ·. ·~ , · · . . · 
() Ron Rosenberg · . . .. 
{ Acti.ng Chief, Administrative Appeals Off1ce 
www.uscis.gov 
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DISCUSSION: The . employment~based immigrant v.isa petition was der1ied by the Director, . 
Texas Service Cent~r, and is now b.efoh:~ tile Administrative Appeals Office (AAO) on appeal. The 
appeal will be dismis,sed. ' 
. i 
The petitioner seeks classification under section 203(b)(2) of the .lmmigrationand Nationality 
Act (the Act), 8 UJS.C. § 1153(b)(2), as a member of the ;professions holding an advanced. 
degree. The petitioper seeks employment as a "Research As~ociate II" (biological researcher). 
At the time of filing, the petitione~ was working as· a "resear~h technician" in the laboratory of 
petitioner asserts that an exemption from the requirement of a job offer, and thus. ofalabor 
certification, is in th~ national interest of the United States. The. director found that the petitioner 
qualifies for classification as a member of the professions hol,ding 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, counsel. asserts that the petitioner "has a past i record of accomplishments that 
demonstrate a future,benefit to the national interest" and that th~ petitioner "plays a significant role 
in her field, beyond any U.S. worker with similar qualifi~atio~s." The petjtioner submits a brief 
with additional evidence. For the reasons discussed below? the AAO will uphold the director's · 
decision. 
Section 203(b) of the Act states, in pertinent part: . 
(2) Aliens who Are Members of the Professions Hoiding Advanc~d 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 science~, iuts, 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 bu~iness are sought by an employer in the United States. 
(B) Waiver of Job Offer- · · 
(i) ... the Attorney General' rimy, when the Attorney Generaf deems it to be 
in tlw national. interest, waive the requirements of subparagraph.(A) that an 
.alien's s'ervi~esinthe sciences, arts, professions, or business be .sought by an 
.. employer in the United Stales. 
the petitoner r:eceived a Master of Science degree ·· in Biology from 
in 2009/ The director found that the petitioner qualifies as a member of the 
professions holding an advanced degree. The sole issue in contention is whether the petitioner has 
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established that a waiver of the job offer requirement, and thus a labor certification, is in the national 
interest. 
Neither th.e 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, lOlst Cong., 1st Sess., 11 (1989). 
Supplementary information to regulations implementing the Immigration Act of 1990, 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 t9 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 ~he nati,onal interest. Each case is to be judged on its own merits. 
· In reNew .York State Dept. of TransJ?ortation (NYSD01), 22 I&N Dec. 215, 217-18 (Act. Assoc. 
Comm'r 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. ld. at 217. Next, the petitioner must show th~t the proposed benefit will 
be national in scope. !d. Finally, the petitioner seeking the waiver must establish that the alien will 
serve the national ittterest to a substantially greater degree than would an available U.S. worker 
having the same 
minimum qualifications. ld. at 217-18. 
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. ld. 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 inclusion of 
the term "prospective': is··used here to require future contributions by th~ 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 entir~ly speculative. /d. 
The AAO also notes· that the regulation at 8 C.F.R. § 204.5(k)(2) defines "exceptional ability" as 
"a degree of expertise significantly above that ordinarily encountered'' in. a given area of 
endeavor. By statute, "exceptional' ability" is not, by itself sufficient cause for a national interest 
waiver. Id. at 218. Thus, the benefit which the alien presents to her field of endeavor must 
greatly exceed the "achievements and significant contributions" contemplated for that 
classification. ld; see also id. at 222. Therefore, whether a given alien seeks classification as an 
alien of exceptional ability, or as a member of the profes~dons holding an advanced degree, that 
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. alien cannot qualify for a waiver ju~t by demonstrating a degr~e of expertise significanrly above 
that ordinarily encountered in his or her field of expertise. · 
The AAO concurs v{ith the director's determination that the petitioner's work is in an area of 
intt:insic merit and finds that the-proposed benefits of her work would be national in scope . It 
remains, then, to determine whether the petitioner will benefd the national interest to a greater 
extent than an available U.S. worker with the same inininwm q\talifications. 
Eligibility Jor the . waiver must res~ with the alien's own q4alific.ations rather than with the 
position sought. In other words; the AAO genenilly does not :accept the argument that a given 
· project isso importqnt that any alien qualified to work on th~s project must also qualify for a 
national interest waiver. /d. at 218. Moreover, it qmnot suffiee 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 ,issJ.le under thejurisdiction of the Department ·of Labor. 
!d. 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 intere~t waiver, over and above the visa · 
·classification he see~s. By seeking an extra benefit, the petitjoner assumes an extra burden of 
proof. A petitioner , must demonstrate a past history of .achievement with some degree Qf 
influence on the field as a whole. ld. at 219, n. 6. In evaluadng the petitioner's achievements , 
the AAO notes that original innovation; -such as demcinstrat¢d by a patent, is insufficient by 
itself. whether the ~pecific inilovatioriserves the national intetest must be decided on a case-by­
case basis. /d. at 221; n. 7. 
Along with an article being drafted for publication in and copies of 
her presentations at: various symposiums and conferences;. the petitioner submitted lettei·s of 
support discussing her work and research qualifications. 
states: 
Because and I have worked closc;ly together I haveJirst-hand knowledge of her 
abilities. . . . [The petitioner's] graduate school tr~ining in. chemistry and biochemistry, 
and her experience in clinical research as well as biotechnology has been a very good fit 
for our research program. [The petitioner] also showed herself to be incredibly adept at 
mastering new techniques in. biochemistry and molecul~r biology, and a degree of 
expertise significantly above that ordinarily encountered in the life science field at her 
level. [The petitioner] has tackled a very difficult problem, and nevertheless because of 
her technical exp~rtise, intellectual prowess arid sh~er d~termination she successfully 
carried out a new line of investigation both technically and topically in which we are 
lools:irig for new fat cell genes that are candidates for treating obesity. Her work has 
great potential b~nefits for our country_ if.we can· develop therap}es for obesity. 
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comments on the petitioner's .educational trainillg, r~search · ex·perience, and mastery of 
biochemistry and rpolecular biology te.chrtiques. . Simple exposure to· aqvanced technology 
constitutes, essential~y, occupational trainingwhich can be artic~lated on an application for an alien 
, employment certific~tiort. Special or linusual knowl~dge or trail).ing, while perhaps attractive to the 
prospectiveU.S. employer, does:not inherently meenhe natiomll interest threshold. !d. at 221. ln 
addition, ;asserts that the petitioner'swork "has great potential benefits for our country 
if we can develop: therapies for obesity," but there is no' documentary evidence that the 
. petitioner's speci'fic rese~rch finding~ . have already resulted in improved treatment 
·methodologies or have otherwise influen~ed the field as a who)e. Eligibility must· be established 
at the tin)e of filing. 8 C.F.R. §§ 103.2(b)(l), (12); Matterof Katigbak, 14 I&N Dec. 45, 49 
(Reg'l Comm'r 1971). A petition cannot be approved at a future date after the petitioner becomes 
eligible under a new set of facts. Matter of /zummi, 22 I&N D~c. 1(59, 175 (Comm'r 1998). That 
decision further provides, citing Matter of Bardouflf.e, 18 I&N :Dec. 114 (BIA 1981), that USCIS 
cannot "consider facts that come into being only s~b s equent to the filing of a petition." /d. at 
176. . . 
states that the 
petitioner ·worked in . his · labor~tory during her graduate studi~s at 
further states: · 
[The petitioner's] research . is · of significant national interest because the damage of 
nematodes in agricultural products is a serious problem. In: the U ~ S., there is a $10 billion 
to $100 billion l0~s Worldwide caused annually by pathogepic nematodes: . . . Therefore , 
an urgent necess:ityrises to investigate a new method of n~matode management to solve 
these .problems: [The petitioner's] ·research. can provide rffective and environmentally 
friendly nematode control by developing the transgenic pl~nts to which programmed cell 
death pathway genes and ~e RNA interference based tec;:hnique have been introduced . · 
. ' . . . 
[The petitioner] is an excep~ional scientist with . extraordinary multiple disciplinary 
expertise. Since joining my laboratory , [the petitioner] ·ha~ achieved an impressive array 
of accompli shments ·requiriqg multidiscipline expertise . f\s' a molecular analysis expert , 
· ·she performed tr;emendous times of RT-PCR and extraction of RNA from the transgenic 
plants. In additi9n, she maintained more than 1000 transgynic plants for three years, and 
developed a unique method to measure hatching ratios of nematode embryos . After her 
gradu~tion, [the ;petitionet] joined laboratory ·;to study the health effects of 
pesticides and the molecular · impact towards breast caqcer. She is an accomplished 
scientist who h~s u~raveled the mole~i.tlar basis of impottant food crop destruction by 
pests to ~nderst~nding the disease ·i~pact of the very pesticides used to eradicate the 
problem- a truly extraordinary continuum of expertise. ' · 
• l • : ~ 
.j 
co·mments about the importance of research devoted to controlling nematodes 
.· . . . ' 
. to prevent damage 'to agricultUral products, but does not provide specific 
examples of how thG. petitioner's ,work has already been applied in .the a·griculturai industry as an 
effective nematode control technique 9r has otherwi se 1nfluem1ed the field as a whole at the time 
of filing. Assertions regarding 'the -overall importance of the alien's area of expe1tise cannot 
·. ·: 
.... ' ; 
(b)(6)Page 6 · 
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suffice to establish e:ligibility for ·a -national inter~st waiver. NYSDOT, 22l&N Dec. at 220. As 
previously discussed , eligibility for: the waiver must ' rest wi~h the alien's own qualifications 
rather than with the position sought.· USCIS does not accept 'the argument that a given project is · 
so import<;mt that any alien qualified to ~ork on rhis project! must also qualify for a national 
.interest waiver. !d. at 218. 
___ _. states that he served as the · 
petitioner's faculty advisor beginning in the Fall _ of 2007 and that she later worked in his 
laboratory in 2009. further stat~~: 
[The petitioner] joined my laboratory. after completing her advanced Master's degree to 
investigate the project of pesticide exposure in. estrogen~l}egative and estrogen"positive 
cells, which is supported by National Institute of He-alth, because of her unique 
combination of expertise in molecular . biology, microscopy :, and clinical lab training. She 
was an integral part of my research group at 
. . I . 
[Thepetitioner's'] research is of significant national interes;t because it engages an under" 
.served populatiqn .at high ~isk for pesticide exposure as a critic;al health disparity -
consistent with ~he mission of the NIMHD . [National lns~itute on Minority Health and 
Health Disparitiys]. Furthermore, this work has ·ramifications.on the biological effects of 
' pesticide accumulation within the human body that affect~ every American. This work 
'was presented at an international scientific meeting 
a~d is in the process of publication in an int~rnational cancer journal. 
4 
asserts thatthe petitioner has a :'unique combination :of expertise in molecular biology , 
microscopy, and clinical lab training." . It camiot suffice, ·however, to state that the alien 
possesses useful skil}s, 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 lJ.S .. is an issue under th~ jurisdiction of the DepartmP.nt nf 1 .~hM 
!d. at 21. also comments that the petitioner's work: was presented atthe : 
but there is no documentary evidep.ce indicating that the petitioner's 
pl:esented work has :been frprn .. mtly cited by independent researchers or has otherwise impact ed 
the field as a whoie . also sta.tes that the petitibner's work "is in the proces s of 
publication" in an ;internatiOnal cancer journal. _.·The AAO : notes, however, that any impact 
resulting from this 'publication ·post"dates the filing of the · petition . As previously discussed, 
eligibility must be :established at the time of filirig. 8 C.F.R. §§ 103.2(b)(l), (12); Matter of 
Katigbak; 14 I&N Dec . at 49. A petition cannot be approved :at a future date after the petitioner 
becomes eligible under a new set of facts. Matter of /zummi, 22 I&N Dec~ at 175. 
, . ·I· 
states: 
'In the department of Research and Development (R&D), we developed our own new 
diagnostic tes-t for melanoma .by using ~n assay of fluorescence in"situ 
. hybridization (FISH). is a four"probe FISH assay on three loci to identify 
genetic mutations that may be present even before phenotypic changes. 
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Since . JOining my laboratory, [the petitioner]' has achieved an impressive array of· 
accomplishment~ requiring multidiscipline ,expertise. [Tije petitioner] had completely · 
devoted her time and efforts on this new diagnostic test :for melanoma. She has spent 
~normous amou~t of time at the laboratory to analyze data and . determine the proper 
procedures to move forward. First; [the petitioner] optirpized a new protocol. for the 
:diagnostic test of melanoma by manual and demonstrated reproducible results. Next, [the : 
petitioner] analyied the captur~d images and automated probe signal enumerations which 
were obtained wjth the MetaferSlide ,Scanning System (Metasystems) .... The average 
signalcounts of: the individual probes and relqtive signal~ counts to centromere six for 
each cell were acquired by [the petitioner] and other clinical laboratory scientists .... 
Without [the petitioner's] excellent a~ilities and research cpntributions, the results would! 
not have been able to be accomplished and the company's .deadline would not ave been 
. met. . These accomplishments have been reported at the 
While states that the petitiqner evaluated data results for to 
optimize the diagnostic protocol, there is. no documentary evidence showing that 
the petitioner authored or originated the discovery of this : four~probe ·FISH assay tool for 
rli::u,..nosinQ melanoma. also· comments tha(th~ results were reported at the 
but there is no documentary eviderice 
demonstrating that the .petitioner's specific work pn the project has been frequently cited by 
independent researchers or has otherwise notably influenced th'e fiel~ as a whole. 
In his initial letter dated May 12, 2011, 
' states that he was the petitioner' sJundergraduate academic advisor and 
instructor in several courses at goes on to : discuss the petitioner's academic 
accomplishments ~hile pursuing a baccalaureate degree at . Academic performance, 
· measured by such criteria ·as grade point average, however, c' cannot alone satisfy the national 
interest threshold ot 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. · NYSDOT, 22 I&N Dec. at 219, n.6. In iiddition, states that the 
petitioner "possesses many skills that ·should continue to :make her an asset in biological 
. research: she has strong academic abilities in disciplines that · combi~e conceptual and technical 
. skills, she has excellent labor~t6ry skills, and she is very ·hard~working and disciplined." 
However, it cannqt suffice to· state that the alien . possesses useful skills, or a "unique 
background." Special or unusual knowledge or training Clods not inherently meet the national 
interest threshold. The issue of whether similarix.:.trained wor:kers are available in the U.S. is an 
issue under the jurisdiction ofthe Department of Labor. ld .. at 221. 
states: 
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spe,cific project involves the study of the novel · role of beta-adrenergic 
receptors on ad~pose cell.s in fat · tissue to regulate a growth-pi"omoting process. not 
normally associated with adrenaline action. Giyen the integral role of adipose tissue in 
the development .of obesity and· diabetes, this research project promotes basic 
understanding of the·biology of the fat cell and could assist in identifying· new targets for 
therapeutic intervention. [The petitioner's] research has national and international 
importance in that it is a critical step in the process of developing a greater undet:standing 
of the. cause .and' treatment of obesity and diabetes. The NIH has approved a new grant 
for this proj.ect ~n the . amount ·of approximately $500,000.00 because it recognizes the 
significant importance of this research project. 
This research project is guided by and her specially selected team of 
specialists, each: of whom forms . a critical. part of the reseC;lrch team. We understand that:. 
[the petitioner] is a part of this team and is tesponsibl~ for performing the study of 
fundamental . cellular and molecular mechanisms in adipocytes. . . . In lab, 
they identified ~ new splice variant of S6Kl in mice artd humans called S6Kl b and 
S6Klc. Importantly, S6Klc· is struCturally identical bet\;Veen mice and humans.· It is 
hypothesized th~t S6Klc can act as k~nase-dead due to lacking the catalytic domain , but . 
may act as dom?,in-inhibitor~ because it retains TOR signaling motif (TOS). 
. ' 
In addition, [the' petitioner] has been working on. other research to determine the role of 
beta-adrenergic receptors CPARs) and cAMP-stimulated ~6Kl activity in adipocytes to 
selectivity stimulate the · translation of a set of mRN'A~ that are distinct from those 
regulated by insuiin. She has performed fractionation of poly-ribosomes, RNA isolations, 
and microarray profiling using 3T3-Ll adipocyte as a ceil model. . . . Because of the 
nigh-level nature of this research, as well as its uniqu~ role in the understanding of 
regulation of cell fate between W AT and BAT by alternat)ve splicing ,of the 56K 1 gene , 
·this may lead to ,drug discovery for controlling 
obesity in hlimans. · 
states t)1atthe NIH has approved a new grant for ' project in the amount 
of approximately $500 ~ 000 . 00 to continl]e her research. It ~an 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 research~r whose work is funde~ with a U.S. 
government grant inherently serves the national interest to an extent that justifies a waiver of the 
job offe~ requirement. The petitioner failed to submit supporti'ng documentary evidence showing 
that her specific wcirk ~epresents groundbreaking advances that have significantly impacted the 
field at large. also asserts that the petitioner's work "may lead to drug discovery fot 
controlling obesity in humans," but the record does not show that the petitioner's work has yet 
had that ·effect. Speculation · about the . possible future in).pact of the peritioner's work is 
corijecture, not evidence, and cannot establish eligibility for the . national interest waiver. As 
previously discussed, eligibility must be established at : the time of filing. 8 C.F.R. 
§§ 103.2(b)(l), -(12)'; Matter of ~atigbak, 14 I&N.Dec. at 49. 
states: " 
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· l have known ·[the petitioner] as her advisor in completingthe Biotechnology Certificate 
Program · and a~ the Departm~nt Chair overseeing her 'work as a Biology graduat e 
student.... For .her degree thesis, [the petitioner] ·completed an extremely exciting 
research project · under the guidance and mentorship of 
Professor of Biology , wherein she applied. -her skills as a recombinant DNA 
biotechnologist with new skills in the developmental biology and fluorescence cellular 
microscopy of nematodes (agricultural worm pests) to demonstrate the potential for 
genetic engineerin 'g of plants to protectthem from devast~tion -by nematode infection (a 
. very costly · agrieultural problein in the. U.S.). Her diligence and tenacity in conducting 
these lengthy research experiments led to seminal discoveries for this newfield ofcrop 
genetic engineering .to control of infectious agents. 
asserts that the petiti~ner's work "has led to seminal discoveries for this new field of 
crop genetic engineJriQg to control of infectious'.agents ," but fails to provide ,specific 
'examples of how the petitioner's original work has been successfully applied in the agricultural 
industry or has otherwise signifiCantly influenced the field .as a whole. While the petitioner's 
research is no doubt of value , it cim 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. Any 
' Ph.D . thesis or postdoctoral research , in order to be accepted for graduation, publication; 
presentation, ·or funding, must offer new and useful information to tpe pool of knowledge. . It 
does not follow that every researcher who performs original research that adds to the general 
pool of knowledge _irfierently serves the national interest to an extent that justifies a waiver of the 
job offer requirement. . · · · · · 
continues: 
Clinical Labon1tory Scientists are in extremely short S\}pply throughout the U.S . as 
·reported by a variety of scientific and news organizations; e.g. a recent article appearing 
in the Twin Citi~s "Star Tribune", cited on "iseek", a Mil1Flesota career resources website 
. (httn://www.iseek.org/news/fw/fw7815FutureWork .html) '[The · petitioner] initiated her 
post-graduate career . with an 
where she was hired quickly after graduation because of her unique combination of both 
CLS and biotechnology lab skills. 
As stated in NYSDO,T, 22 I&N Dec. at 2'fl , it cannot suffice to state that the alien possesses useful 
skills, or:a "unique background." In addition, whiie asserts that there is a shOitage of 
workers with the petitioner's skills, NYSDOT specifically rejects that argument. !d. at 221. When 
discussing claims that the alien in that case possessed · specialized design techniques, the · AAO 
assert.ed that·such ex;pertise: · · 
wou.ld appear to. be a valid requirement for the petiti~her to set f~rth on an application for a 
labor certificati6,n .. [The 1 assertion of a labor shOI:tage, therefore, should be tested through 
. the labor certification process. . 
. . .The issue of whether similar! y-trained workers are 
available in the U.S. is an issue under the jurisdiction of the Department of Labor. 
(b)(6)Page 10 
/d. at 220-221. 
states: 
[The petitioner] pursued plant pathogen-related work in the' lab of for 
her master's thes'is, and she has been working at .the 
on the regulatio'n of body weight, specificaily by performing an array of high-tech 
experimental techniques, including RNA analysis through t_he use of microarrays. In 
addition to . her :wide range of research interests, she has a wide range of technical 
experience, inch.Jding transgenics, nematode culture, PCK RT-PCR, microarrays, and a 
wide range of complex analytical techniques. [The petitioner's] thesis was one of the best 
two that I have read in 16 years at > • 
discusses the petitioner's researeh experience, but as previously discussed, s~mple 
training in advanced_technology orunusual knowledge, while perhaps attractive to the prospective 
·U.S. employer, does _not inherently meet the national interest threshold. /d. at 221. also 
comments onthe petitioner's maste~'s thesis, but then; is no docl!mentary evidence showing that her 
thesis is frequently cited by ' independent researchers or has otherwise' significantly influenced the 
· field as a whole. · · · -
asserts that the petitioner "has a relatively 
unique comb.ination of skills and t~aining- sub~tantial medicaf (clinical) training, a high level of 
expertise in molecular biology techniques, and substantial expertise in the molecular biology and 
cell biology of nematodes." Similarl , 
states: . "[The petitioner]possesses · a combination of unique ski1ls .. , . She became the laboratory 
expert in ' RT~PCR and since then · has developed multiple skills (RNAi, ELISA, MALDJ-MS, 
western blot, atomi:c absorption Spectroscopy, flow cytometry, GCMS, etc.)." However, as 
previously discussed, it cannot suffice to state that the alien possessys useful skills, or a "unique 
background." Regardless of the alien's .particular experience ; or skills, even assuming they are 
unique, · th{! benefit the alien's skills or background will provide to the United States must also 
considerably outweigh the inherent nation;:tl interest in protecting U.S: workers through the labor 
. certificationprocess.~ /d. at 221. · · 
On February 29, 2012, the director issued a request for evid.ence. The director instructed the 
petitioner to submit further evidence to establish "a past rec~rd ~f specific prior achievement 
· . with some degree of influence on the field as a wh~le." 
I~ response, the petition~~ submitted an artiCle that she coauthored with and 
that was "published online'' in on March 30, -2012. 
This article was published subsequent to the petition's July 5, f.Oll filing date. Thus, any impact 
resulting from this .·publication post-dates the filing of the petition. As previously discussed, 
eligibility must be established at the time of filing. 8 C.F.J,t §§ 103.2(b)(1), (12); Matter (~l 
. Katigbak, 14 I&N Dec. at 49. A petition cannot be approved ;at a future date after the petitioner 
becomes· eligible under a new set of facts. Matter of !Zummi, 22 I&N Dec. at 175. 
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Page 11 
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In addition, the petitioner submitted additi~nal l¢tters of support focusing on her academic 
accomplishments. In his· second letter dated April 13, 201~2; again discusses the. 
petitioner undergraduate academic·achievements stating: 
[The petition ·er]' was a' recipient of Biology- Prcignim bo~ors. 'Program honors are 
'restricted to two: seniors and two juniors in each program, clearly placing her in strong 
position relative to her p~ers in science. . · · 
. _. : . .· . I. . . 
In addition, fthe: petitioner] wa.s accepted into the hationali honors organization .to which 
is a member: member schools 
are limited to selecting student§ with a·minimum cif 3.5gpa and may. only nominate lOo/o 
of their student. body. Faculty collectively vote upon the list of eligible students, so 
membership requires a student ·to sufficiently impress a sigpificant number of faculty. · . . ~ . - . 
Similarly, . in his secortd letter dated March 20, 2012, also comments on acad~mic 
recognition received . by the petitioner stating: 
[The petitioner] received an · Outstanding 
university in May of 2009. She was . also . - . 
Biology · Graduate Student Award at our 
nominated as the ' . 
Dean's .medalist. There were 5 candidates, ar}.d this award was given to one 
student in each :department .: once a year. -The student . notninated for this award should 
qemo'nstrate dist;inguished scholarly and creative excellence in their discipline/field .. ... 
i . 
.. . . ' . ' . \ ' ~ 
As previously dischssed, academic- performance, measured~ by such criteria as grade point ' ' . 
average, .cannot alone satisfy the national interest threshold ~ or assure substant~al prospective 
· national benefit. Instead, the petitioner must d.emonstrate . specific prior achievements that 
• . . ' . 1 
establish the alien's : ability to benefit the national interest. NYSDOT, 22 I&N Dec. at 219, n.6. 
The petitioner also 'submitted a letter from the Director of International Student Services and 
· Programs at S.tating that the petitioner received the 
and the ....., 
, documentation showing .that she .received a 
The petitioner also submittP~ 
to attend the 
Regarding the petitioner's student awards.· and 
. membership, the AAO notes that' recognition for achievement andmemberships relate 
to the regulatory criteria for 'classification as an alien of exceptional ability, a classification that 
not'J11ally requires ~n alien employment certification. S.C.F.R. § 204.5(k)(3)(ii). The AAO 
cannot conclude tha.t meeting one, two; of even the requisite three criteria for classification as ai1 
.. J . ' • . ' ' 
alien of exceptional ability w::mants a waiver of the employm~r\.t certification requirement in the 
national interest. Bystatute, ''exceptional ability" is not, by itself sufficient cause for a national 
'interest waiver. /d:>at'218: Thus ; the bfnefit which the alien presents to his field of endeavor · 
must greatly exceed the "achievements and significant contributions" contemplated for that 
class-ification. !d.;· see also id.'. at 222'. Regardless, there is nq evidence showing that the 
petitioner's student membership in. _ required d:emonstrating significant research 
advancem~nts in her Held. Furthbt, with regard to . the p.etitibner' s other academic honors , the 
. ' _,- . . . . . . 
--.;· 
(b)(6)
I . 
'.. ·. ~ . 
Pag<:; 12 
AAO notes that university study is not a field of endeavor, but rather trammg for future 
I 
employment in a field of endeavor. The petitioner's student honor~ are not an indication that she 
has influenced her field and they offer no meaningful comparison between the petitioner and 
others in the field outside of her .universities who had alread completed their graduate and 
undergraduate studies. ·Re!!aidim! .the oetitioner's __ there is no 
evidence from the showing the criteria for determining 
. a recipient's eligibility for this award. Moreover, the AAO cannot concluqe that the petitioner's 
receipt of funding to cover travel expenses to a scientific conference demonstrates a level of 
achieve~ent consistent with influencing the field as"a whole. 
I o 
The petitioner's response also included a March 27, 2012 lette~ from 
discussing the petitioner's work in the 
beginning ;in Oc;tober ·of '20 11. The petitioner's work in laboratory at 
. . _post -dates tli'e petition's July 5, 2011 filing date. As previous! y discussed, 
eligibility must be established at the time of filing. 8 C.F.R. § 103.2(b)(1), (12); Matter qf 
Katigbak , 14 I&N Dec. at 49. A petition cannot be approved at a future date after the petitioner 
becomes eligible under a new set of facts. Matter of /zu~mi, 22 I&N Dec. at 175 .. Accordingly, 
the AAO will not consider res~arch conducted by the petitioner after July 5, 2011 in this 
proceeding. . I . . 
. . 
. The director denied ·the petition finding tl:lat the petitioner faih;d to establish that a waiver of the 
requi.rement of an approved labor certification wol.lld be in the national interest of the United 
States. The director noted that while the petitioner submitted evidence · of her student 
·achievements, the submitted evidence . did not show ''a past record of documented 
' accomplishments" in the·field sufficient to "justify' a future benefit to the national interest." 
/ . . . . . . . . 
On appeal, the pt;!titidner submits additional documentation pertaining to her student awards, 
scholarships, publications in preparation, and recent activities in the field. None of this 
documentation demonstrates that the petitioner's past research has significantly influenced the 
' ) 
field as a whole. ·In add:ition, the p~titiorter submits additional letters of support. 
•••• states: 
[The petitioner's] unique knowledge and expertise in the field of molecular biology, 
genomics and proteomics performance of DNA/RNA makes her an indispensable 
sci~ntist for the advancement of our field. - Since .she. came to our laboratory, [the . 
petitioner] , has erformed scientific functions as : a Clinical Laboratory Scientist at the 
. She is . responsible · for the development of 
. ' 
clinical ·tests ' of HLA genqtyping . using high-throughput sequencing technologies, 
designing .new primer sets .for HLA genotyping for next generation sequencing and 
profiling drug resistance cytomegalovirus mutations cau~ing kidney transplant failure. 
[The·. petitioner's] unique kn()wledge and : ·expertise . in; these . fields , makes her an 
(b)(6)
. ~) 
.. 
Page 13 
indispensable Clinical Laboratory Scientist not only at ·Stanford , but-also to the national 
medical commu~ity .. 
comriients on thepetitioner ;s job functions and : resportsibiliti~s in the ·but 
the petitioner's work there post-dates the petition's July 5, ,2011 filing date. As previou sly 
discussed, eligibility must be established at' the· time of filipg. 8 C.F.R. § 103.2(b)(l), (12); _ 
Maiter of Katigbak, 14 I&N Dec. at 49. A petition. cannot be 'approved at a future date after the 
petitioner.becomes eligible · under a ne\y set of facts. Matter of /zummi, 22 I&N Dec.< at 175. 
Accordingly, the AAO will not con~ider the research conducted by the petitioner in the 
in this pr<;>ceeding: ' ·also emphasizes . the pe~itioner' s "unique knowledge and 
expertise in the field.". However, as previously noted, . 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-tr;1ined 
workers are availabie in the. U.S. is an issue under the jurisdiction of the Department of l,aboi· . 
. NYSDOT, 22 I&N Dec. at 221. ; . 
states : 
Our Laboratory ~onducts essential and critical tests to determine that donor organs/bone 
marrow are matched in order to achieve successful transplantation a'nd long term graft 
· and patient survivaL .. .. These· tests are highly specialized, excellence is required, and 
there is zero. tolerance for errors. Consequently ; new methods being developed must pass 
very high standa:rds and clinical validationbefore they can be routinely employed. 
[The petitioner] brings this kind of excellence and specialized skill to this highly complex 
and unique field. She is skilled in all areas requisite to, the success of the molecular 
biology testing :performed and is . U~iquely trained ·tO dyvelop and validate the 'next . 
generation ' seqU:encing platforms that will determine compatibility and whether the bone 
marrow transplant has worked. or not. Of the more than .S:o members of the Laboratory , 
she is one of on~y two technologists who . know how to perform the complex procedures 
involved and to :design new methods and material s to define donor and recipient 'type s' 
. I .. 
and. compatibility with better precision than any existing m~thod provides. : . 
* * * 
It is with great concem to me that dyspite several open positions advertised broaqly for 
the past two years. at our L,aboratory for technologists with these skills, no applicai1ts 
. apart from [the petitioner] have met the educational and experientlal criteria. . . ~ ' . ' . ' ' ' 
comments on the· petitioner's specialized skills arid the Jack of .qualified applicants for the 
laboratory technologist position. ·As previously discussed, training in advanced technology or 
unusual·knowledge; .while perhaps· attracti.ve to the prospectivy 'U.S. employer, does nQt inherently 
meet the national interest threshold. Id,. at 221. Further, givep that the employment certification 
process was designed to address the issue of worker shortages, ~· shortage of qualified workers in a 
given fie~d is not a persuasive argument for demonstr~ting , eligib.ility for the national interest waiver. 
(b)(6)Page 1~ 
The issue of whether similarly-trained workers are available · in the U.S. is an issue . under the 
jurisdiction of the Department of Labor. /d. 
. In his second letter dated June 29, 2012, 
the petitioner after her arrival at 
states: · · 
again comments on work erformed by 
. in October 2011. 
In the relatively short time she has been in the laboratory, [the petitioner's] research has 
focused on designing strategies for sequencing the coding regions of clinically relevant 
HLA genes. This is no simple task, and many others before her have beei1 unsuccessful. 
[The petitioner] has been successful in this effort, and she has now designed a sequencing 
strategy that takes advantage of novel microfluidic PCR technology 'to allow for many 
samples to be processed and sequenced simultaneously. In addition, she has s.ingle­
handedly built tpe Disease Pr_ofiling area of the laboratory, overseeing the purch~se, 
installation, and . daily usage of complex sequencing and PCR equipment. In general, 
next-.generation ~equencing equipment has only been avail;:tble in large academic genome 
cente~s ~nd biotechnology companies. [The petitioner] is pne of a handful of people in 
the United StateS who has knowledge and experience with )thistype of instrumentation in 
the clinical laboratory setting. . 
* * * 
[The petitioner] has developed a ~ next-generation seqtJencing protocol to analyze 
cytomegalovirus (CMV), an important viral pathogen for transplant patients. · An abstract 
detailing her research 91;1 CMV was r~cently submitted for:pl1blication at the Association · 
for Molecular ~athology annual meeting. She is also a9tively engaged in a research 
· project to use next-generation sequencing to better define the role of BK virus in kidney 
transplantation . ' 
As previously ' discu~sed,the petitioner's work in th:e i ,ncluding her cytomegalovirus and 
BK virus research, post-dates the petition's July 5, 2011 filing date . . Eligibility, however •. must 
be established at the till1e of filing. 8 CF.R. § 103.2(b)(l), (12); Matter of Katigbak, 14 I&N 
Dec. at 49. A petition cannot be approved .at a future date after the. petitioner becomes eligible 
under a new set of facts~ Matter of Izummi, 22 · ~&N Dec. at 175. Accordingly, the AAO will not 
consider the recent . Work conducted by. the . petitioner in ,fud . , in this proceeding. 
also comments on · the : petitioner's knowledge and experience with PCR 
instrumentation. However, aspreviously no.ted, special or unusual knowledge or training does 
not inherently meet the national 'interest threshold. · The issue of whether similarly-trained 
workers are avai1able in the U.S. is an. issu~ under the j~risdibion of the Department of Labor. 
NYSDOT, 22 I&N Dec. at 221: . 
The petitioner's appellate submission ~ncludes letters of support from 
and . · 
The A:AO notes that their letters contain language that is . identical or· 
vittually the ~arne as i11 May 16, 20 ll·letter. ' This suggests that the language in 
(b)(6)Page 15 
.·-. __ .... 
_ letters. is not tl;leir own. While it is acknowledged that 
have both . offered their suppOrt to this petition, it is apparent that they did not 
independently prepare significant portions of their. letters. Accordingly, the AAO .finds their 
duplicative commeilts to be ·of limited probative value. Cj · Surinder Singh v. Board of 
Immigration Appeals, 438 F.3d 145, 148 (2d Cir .. 2006) (upholding an immigration judge's 
adverse credibility determination in asylum proceedings based in _part on the similarity of some 
of the affidavits). · .\vhile the preceding letters of SUI? Ort state that the petitioner evaluated data 
results for to optimjze the diagnostic protocol, there is no 
documentary evidence showing that the petitioner · authored or originated the discovery of this 
four-probe FISH assay tool for diagnosing m,elanoma . also comment 
that the results ·from the work were reported at the 
and published in but there is no 
documentary evidence demon strating that the petitioner's speqific findings have been frequently 
cited by independen~ research,ers or have otherwise_ notably -influenced the field as a. whole . . 
' coauthored ~ the article with· the pet1t10ner and oth¢rs that was published in 
subsequent to the petition's filing date. . states: . 
[The petitioner} has left an· indelible footprint in · the field of Plant Biotechnology, 
specifically in dbveloping nematode .resistant transgenic pl'ants. Ber exceptional work in 
this field has yi~ided ~ultiple publications, presentations ~nd awards, demon strating her 
exceptional research talents. It is clear that she has played. a significant role in impacting 
U.S. a~riculture,: in light of her work 'on plant parasitic nematodes, which affect crops in 
· the U.S. More recently, [the petitioner's] research endeavors have yielded a novel 
diagnostic test tq detect early stages of melanoma (skin cancer). · 
* ·* * 
[The petitioner's] research in biomedkine has been critical to understand the regulation 
of-fat cell metabolism as welL This work was conducted at . . 
Her work has clear relevance to a current national obesity epidemic. 
yomments on the pe!itioner' s published, presented, and ongoing work, but he 
fails to provide sgecific examples of hbw the petitioner's research findings are being applied by 
others in the field at a level that would justify a waiver of the job offer requirement. Further , 
there is no documentary evidence showing that the petitioner's work is frequently cited by 
independent resean~9ers or his otherwise influenced the field as _a whole. . 
The above letters are from the petitioner ' s professors, supervisors, coauthors, and individuals 
affiliated with institutions where the petitioner has worked. While such letters are important in 
proviciirig d~ta:ils about the petitioner's role in various projects, they cannot by . themselves 
establish the petitioner's influence over the fiet'd as a whole. Moreover, simply listing the 
petitioner's novel res,earch findings cannot suffice in this regard, because all research scientists 
are arguably expect~d to produce original work. Jn the absence of evidence of publication at the 
(b)(6)
. ''I . '· ·." ~. , • ' 
,, Page I~ I. 
\ 
time of filing, the record does not show that the petitioner's worl< has corrie to the attention of 
other researchers outside ofher professional acquaintance~. 
The petitioner's appellate submis.sion also · includes a joint letter signed by more than fifty ·of her 
colleagues in stating: 
[The petitioner's] past accomplishments m agricJitural and biomedical research 
demonstrates th:at her exceptional research talents have pl
1
ayed a significant role in u.s. 
agriculture ·. Most notable [the petitiqner's] research on n~matodes to prevent cell death 
in crops would .save the U.S. billions of dollars in crop clestruction. This research was 
recently published ih [The petitioner's] 
further research in biomedic.ine has led to .. the significant development of a new 
diagnostic test i~ the detection of the early stages of melm)oma and in the discrimination 
' between its noh-cancerqus and cancerous forms, which greatly affects this nation's 
heaith care, especially millions of Americans suffering frotn cancer. · · 
Furthermore, [the petitioner's] research in biomedicine was a prerequisite to the 
. understanding of the regulation of fat cell inet£t..bolism and the process b which calories 
stored in fat can be released and metabolized at 
Her work addresses the national health crisis Of obesity and the consequent 
maladies that ~rise from it: diabetes, hypertension, cardiovascular diseases, and even 
certain cancers. In addition, [the petitioner's] sp~cialized skill in polysome 
'fractionations ~as . adapted to identify abnormal patterns . of regulation of certain non­
coding RNA CnoRNA) and microRNA genes to determine the aggressiveness of 
metastatic melanoma. This 'is a novel discovery with diagnosis and therapy applications 
ih other types of cancers . . . . 
Currently, [the petitioner]' is . conducting research at· which 
demonstrates her future benefit to the national interest. [The petitioner's clinical 
research is currently focused on designing and validating novel diagnostic assays to 
determine pre~transplant organ c~mpatibility and mon\tor antibody mediated organ 
· rejection : This research is to develop and validate novendiagnostic test methods using 
new next generation DNA sequencing technology to improve patient care through more 
. rapid and accurate sequencing of HLA genes . 
. T_he oetitioner 's colleagues state that she published . an article in in 
As previously discussed, this article ·was published subsequent to the petition's 
July 5, 2011 filing date. Thus, any impact resulting from this publication post -dates the filing of 
the petition. Eligibi ,Iity must be established at the· time of filihg. 8 C.F.R. §§ 103.2(b )(1 ), ( 12); 
Matter of Katigbak , , 14 I&N Dec. at 49. A petition cannot be <approved at ·a futui·e date after ·the 
petitioner becomes eligible l.lnder a new· set of facts. Matter oflzummi, 22 I&N Dec. at 175 . . The 
petitioner's colleagues also assert that the petitjoner' s work has "led to the significant 
development of a new diagnostic test ih the detection of the early stages of melanoma and in the 
discrimination between its non-cancerous and cancerous fonius," but there is no documentary 
evidence showing that thepetitioner authored or originated the'discovery of this four-probe FISH 
(b)(6)Page 17 
assay tool for diagnosing melanoma . The petition~r's colleagues. further state that the 
petitioner's , "research in I biomedicin~.' was a prerequisite to the ;understanding ofthe regulat!on of 
fat cell metabolism and the process by which calories stored in-fat" and'that her work "to identify 
abnormal -patterns of regulation of certain non-coding RNA (noRNA) and microRNA genes to 
determine the aggressiveness ofmetastatic melanoma" is "a nqvel discovery," but her colleagues 
. fail to provide specific ex~mple_s of how the petitioner workl is being applied by others in the 
. medical field. Further, there is no documetitary evidence showing that the petitioner's work is 
·frequently cited by-independent researchers or has otherwise influenced the field as a whole . · ln 
addition, the pet-itioner's colleagues 'comment on her ·recel)t wqrk at 
but the petitioner's \vorl<· there post-dates : the ·petition's July 5, 2011 filing date. As 
previously discuss_eq, eligibility must be established at the tim~ of filing. 8 c;:.F.R. § 103.2(b)( 1), 
(12); Matter of Katigbak, 14I&N Dec. at 49. A petition cannot be approved at a future date after 
the petitioner becomes eligible under a n~w set _of facts. Matter of /zummi, 22 I&N Dec. at 175. 
Accordingly, the AAO. will not consider 'the research cond~ct~d by the petitioner in the HIDPL 
in this proceeding . · . · · 
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 statem~nts submitted as expert testimoqy . 
See Matter of Car01i International, 19 I&NDec. 791, 795 (Coinm'r. 1988). However; USCIS is 
ultimately respo.nsiblefor making the final determination reg4rding an alien's eligibility for the. 
benefit sought. IdJ · The submission of. letters' from experts supporting the petition is not 
presumptive evid~nce of eligibility; USC IS may evaluate the content . of those letters as to 
whether they support the alien's eligibility . See id. at 795-796; see also Matter of V-K-, 24 I&N 
Dec. 500, n.2 (BIA 2008) (noting that expert opinion testimony does not purport to be evidence 
as to "fact"). Thus; the content of the experts' .statements and ho~ they l:i,ecame aware of the 
petitioner's reputatio.n are important considerations. Even whe'n written by independent experts, 
letters soli~ited by an alien in support of an immigration ~ petition are of less weight than . 
preexisting, independent evidet:J.c~ that one would expect oL a biological researcher who has 
influenced the field as a whole. . 
While petitioner has performed admirably. on the research pr&jects 'to which she was ·assigned, 
she has not established that her past rec;ord of achievement ;is at a level that would justify a 
waiver of the job ~ffer requirement which, bylaw, normally. attaches t~ the visa classification 
sought by the pe,titioner. The A,J\0 notes that the petitioner ~eed not demonstrate notoriety on 
. the scale of national: acclaim, butthe national interest waiver contemplates ~hat her influence be 
national in scope. NYSDOT, 22 I&N Dec._ a:t ~17 n.3. More specifically, the petitioner "must 
clearly present a significant benefit to the field of endeavor_;, /d. at 218. See also id. at 219 n.6 
(the alien must have: "a past history of demonstrable achievem'ent with some degree 0f influence 
on the field as a whdle.'') · · . 
As is clear from a plain reading. of the statute, it was not the intent of Congress thin every alien of 
exceptional ability should be exempt from the requirement of a job offer based on national interest. 
Likewise; it does not :appear to have been tl)e Intent of Congress to grant national interest waivers on 
the basis of the overail importance of a given occupation, 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 
(b)(6)
' . Page. IS 
·t 
I 
. i 
requirement · of an appr~ved alien employment certification will. be in the national intetest ~f the 
United States. ' ' · 
The burden o{ proof. iri these proceedings rests solbly with tpe petitioner. Section 291 of the Act, 
8 U .S.C. § 1361. The petitioner has not sustained. that burden. 
ORDER:. The appeal is dismissed. 
',•, 
,. 
·. , .