dismissed EB-2 NIW Case: Biomedical Engineering

Identifying data deleted to 
prevent clearly unwarranted 
invasion of personal prtvacy 
PUBLICCOP¥ 
FILE: 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citi/.(;!IlShip and Immigration Services 
Administrative Appeals Oftice (Ai\O) 
20 Massachusetts Ave., N.W., MS 20l)() 
Washington. DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
omcc: NEBRASKA SERVICE CENTER Date: MAR J 8 ?f111 
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. § IIS3(b)(2) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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 omce. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a Illotion to reopen. 
The specitic requirements for tiling such a request can be found at 8 C.F.R. § 103.5. All motions mllst bc 
submitted to the office that originally decided your case by tiling a Form 1-290B, Notice of Appeal or 
Motion, with a fee of$630. Please be aware that 8 C.F.R. § 103.5(a)(I)(i) requires that any motion mllst be 
tiled within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
~~~ 7 Perry Rhew 
Chief Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Otlice (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. § IIS3(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as a life and envirorunental scientist. The petitioner asserts that an 
exemption from the requirement of a job ofTer, and thus of an alien employment certification, is in the 
national interest of the United States. The director found that the petitioner qualities for classitication 
as a member of the professions holding an advanced degree, but that the petitioner had not established 
that an exemption from the requirement of a job offer would be in the national interest of the United 
States. 
On appeal, the petltlOner submits a statement and additional evidence. For the reasons discussed 
below, we uphold the director's ultimate determination that the petitioner has not established his 
eligibility for the benefit sought. 
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 arc 
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. 
(8) 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. 
While the petitioner was still pursuing his Ph.D. as of the date of filing, the petitioner holds a Master's 
degree in Electrical Engineering The petitioner's occupation falls within 
the pertinent regulatory definition of a profession. The petitioner thus qualities 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 ofTer requirement, and thus an alien employment certitieation, is in the national 
interest. 
Page 3 
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 benctit the United States 
economically and otherwise, , ,," S. Rep. No. 55, IOlst Cong., 1st Sess., II (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, 
Maller olNew York Siale Dep'l. olTransp., 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. fd at 217. Next, the petitioner 
must show that the proposed benefit will be national in scope. /d 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. /d at 217-18. 
It must be noted that, while the national interest waiver hinges on prmpective national benefit, the 
petitioner must establish that the alien's past record justifies projections offuture 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. We include the term 
"prospective" to require future contributions by the alien, rather than to facilitate the entry of an alien 
with no demonstrable prior achievements, and whose benefit to the national interest would thus be 
entirely speculative. /d 
We concur with the director that the petitioner works in an area of intrinsic merit, engineering of 
biomedical devices, and that the proposed benefits of his work, improved medical scanning devices, 
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, we generally do not accept the argument that a given project is so important 
that any alien qualified to work on this project must also qualify for a national interest waiver. 
NYSDOT, 22 I&N Dec. at 2 I 8. Moreover, it cannot sullice to state that the alien possesses useful 
skills, or a "unique background." Special or unusual knowledge or training does not inherently meet 
the national interest threshold. The issue of whether similarly-trained workers are available in the 
United States is an issue under the jurisdiction of the Department of Labor. ld. at 22 I. 
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 he seeks. By seeking an extra benefit, the petitioner assumes an extra burden of proof. 
A petitioner must demonstrate a past history of achievement with some degree of influence on the 
field as a whole. ld. at 219, n. 6. In evaluating the petitioner's achievements, we note that original 
innovation, such as demonstrated by a patent. is insut1icient by itself. Whether the specific 
innovation serves the national interest must be decided on a case-by-case basis. Jd at 22 Ln. 7. 
submitted evidence of his student membership in the 
As noted by the director, professional memberships are one type of 
evidence that can be submitted to establish exceptional ability pursuant to section 203(b)(2) of the Act. 
8 C.F.R. § 204.5(k)(3)(ii)(E). As stated by the director, because exceptional ability, by itself: does not 
justify a waiver of the alien employment certification requirement, arguments hinging on the 
professional memberships, while relevant, are not dispositive to the matter at hand. ld. at 222. The 
petitioner submitted no evidence that membership in IEEE, especially a student membership. is 
indicative of an influence in the field. 
In response to the director's request for additional evidence, the petitioner submitted a letter Irom 
advising that the publisher had selected the petitioner's biography for inclusion. 
The letter offers to sell the petitioner an edition of the publication "at a special pre-publication 
savings." The letter does not indicate the number of biographies the volume will contain. The 
petitioner also submitted promotional materials from Wikipedia about 
publications The materials state that the publications profile those who are influencing their nation's 
development but also indicate that that the publisher "offers some features associated with the vanity 
press business models, such as selling merchandise to persons selected as biographees. although this is 
not a criterion and there is never a charge for being listed or aggressive sales tactics used"· The 
materials do not state how many biographies are included in each edition. 
With regard to information Irom Wikipedia, there are no assurances about the reliability of the 
content trom this open, user-edited internet site.' See Lamilem Badasa v. Michael Mukasey. 540 
I Online content from Wikipedia is subject to the following general disclaimer: 
WIKIPEDIA MAKES NO GUARANTEE OF VALIDITY. Wikipedia is an online open-content 
collaborative encyclopedia, that is, a voluntary association of individuals and grours working to 
develop a common resource of human knowledge. The structure of the project allows anyone with 
an Internet connection to alter its content. Please be advised that nothing found here has necessarily 
been reviewed by people with the expertise required to provide you with complete, accurate or 
Page 5 
F.3d 909 (8th Cir. 2008). That said, we cannot ignore that the information from this website 
submitted by the petitioner for our consideration is consistent with a publisher that publishes 
volumes containing thousands, if not hundreds of thousands of brief biographies and offers to sell 
memorabilia to those whose biographies are included. Inclusion in one of these large collections of 
biographies is not significant. 
Initially, the petitioner submitted a single email request from 
_ inviting the petitioner to review a manuscript submitted for publication. The email further 
requests that if the petitioner is unable to complete the review that he suggest an alternate reviewer. 
The petitioner did not submit any evidence that he actually completed the review. Regardless, we 
cannot ignore that scientific journals are peer reviewed and rely on many scientists to review 
submitted articles. Thus, peer review is routine in the field and cannot, by itself, demonstrate the 
petitioner's influence in the field. 
In response to the director's request for additional evidence, the petitioner submitted evidence of 
requests to review manuscripts postdating the tiling of the petition. As noted by the director, the 
petitioner must establish his eligibility as of the date of tiling. See 8 C.F.R. §§ 103.2(b)(I), (I2)~ 
Malter of Katigbak, 14 I&N Dec. 45,49 (Reg'l. Comm'r. 1971). Thus, the director declined to 
consider this evidence. 
On appeal, the petitioner asserts that while the requests postdate the liling of the petitIOn, they 
resulted from his influence in the field prior to that date. As stated above, the petitioner must 
demonstrate his eligibility as of the filing date. See 8 C.F.R. §§ 103.2(b)(I), (I2)~ ,'vIaller of 
Katigbak. 14 I&N Dec. at 49. In this matter, that means that he must demonstrate his track record of 
success with some degree of inl1uence on the field as a whole as of that date. All of the case law on 
this issue focuses on the policy of preventing petitioners from securing a priority date in the hope 
that they will subsequently be able to demonstrate eligibility. Matter of Wing's Tea House, 16 I&N 
Dec. 158, 160 (Reg'l. Comm'r. 1977); Matter olKatigbak. 14 I&N Dec, at 49; see also Maller of 
izummi, 22 I&N Dec. 169, 175-76 (Comm'r. 1998) (citing Matter of Bardouille, 18 I&N Dec. 114 
(BIA 1981) for the proposition that we cannot "consider facts that come into being only subsequent 
to the tiling of a petition.") Consistent with these decisions, a petitioner cannot secure a priority date 
in the hope that he will subsequently accrue evidence demonstrating his influence in the field. 
Ultimately, in order to be meritorious in fact, a petition must meet the statutory and regulatory 
requirements for approval as of the date it was filed, Ogundipe v. Mukasey, 541 F.3d 257, 261 (4th 
Cir. 2008). 
reliable information .... Wikipedia cannot guarantee the validity of the information found here. The 
content of any given article may recently have been changed, vandalized or altered by someone 
whose opinion does not correspond with the state of knowledge in the relevant fields. 
See http://en.wikipedia.orglwiki/Wikipedia:Gencral disclaimer, accessed on March 17, 2011, a copy or 
which is incorporated into the record of proceeding. 
Page 6 
The pelllloner submitted evidence that he authored three articles, including one in the conference 
proceedings of the Society of Photo-Optical Instrumentation Engineers (SPIE). The petitioner also 
submitted evidence that he presented his work at three conferences. Finally, the petitioner submitted 
poster presentations that appear to have been presented locally at the Center for Subsurface Sensing and 
Imaging Systems (CenSSIS) at Northeastern University where the petitioner was a student. 
Publication and presentation, while demonstrating that the petitioner has disseminated his work, do not 
demonstrate thc influence of that work. As evidence of the influence of the petitioner's publications 
and presentations, he initially submitted evidence that a book chapter, an unpublished manuscript. two 
articles and a technical memorandum cite the petitioner's publications. In response to the director's 
request for additional evidence, the petitioner submitted three additional articles that cite the 
petitioner's work, at least two of which postdate the filing of the petition. The petitioner also submitted 
an Internet citation index reflecting that two of the petitioner's articles have garnered four citations 
each. 
The director concluded that the petitioner's citation record was not indicative of an influence in the 
field. On appeal, the petitioner asserts that his citation record is impressive given the publication date of 
his articles and the impact factors of the journals in which his articles appeared. The petitioner asserts 
that the impact tactor is based on the average number of citations per year and asserts that his articles 
have garnered above the average number of citations per year. We are not persuaded that any article 
with citations that exceed the journal's impact factor has influenced the field as a whole. Ultimately, 
while we concur with the petitioner that the small number of citations in this matter does not preclude 
eligibility, four citations per article do not, by themselves, establish the petitioner's influence in the 
tield as a whole. 
The remaining evidence consists of letters and press coverage of a recent innovation trom 
where the petitioner was working as of the date of tiling. We will address the letters below. 
also address the press coverage below in the context of the letters from the founder of_ and a 
former employee of that company. On appeal, the petitioner asserts that of the eight letters, live are 
from independent or "external researchers." We are not persuaded that individuals who work or 
rccently worked or studied at the same institution where the petitioner was a student are "independent" 
or "external." Thus, we concur with the director's conclusion that only two of the letters are trom 
independent sources. We will address all of the letters below. 
explains that he served as the 
confirms that the petitioner's Master of Science work 
rela:e(U2.'::!.E!£.i~.t)nvolving the [sic llaser-ge~erated acoust!c ,~ignals to detect objects buried in soil." 
Whlle_ as 'very successful' and notes that the pelltlOner presented 
this work at conferences, provides no examples of how this work is being used in the 
field. 
Page 7 
next discusses the pelitlOner's work developing new algorithms for hyperspectral 
combination with confocal microscopy. asserts that the petitioner's work in 
this area "has led to new imaging techniques for imaging blood and blood oxygen in the skin:' _ 
_ notes that the petitioner published this work. fUrther explains that thc 
petitioner combined this work with confocal microscopy to image possible skin cancers. 
does not, however, provide any examples of how this work is being used in the field. 
concludes only that the petitioner'S current work has the "potential for widespread manufacture and 
use." 
Finally, states: 
The expertise that [the petitioner] has gained here in working on his MS and Ph.D. 
research is unique. To replicate the expertise he has gained in this field through years of 
study would be difficult, costly, and time-consuming. The projects on which he has 
been involved give him insights into a variety of mechanisms for subsurfacing imaging, 
whether under the ground, inside the body, or inside the cell. 
It cannot suffice to state that the alien possesses useful skills, or a "unique background." Regardless of 
the alien's particular experience or skills, even assuming they are unique, the benefit the alien's skills or 
background will provide to the United States must also considerably outweigh the inherent national 
interest in protecting U.S. workers through the alien employment certification process. NYS[)OT. 
22 I&N Dec. at 22 I. Ultimately, simple training in advanced technology or unusual knowledge, while 
perhaps attractive to the prospective U.S. employer, does not inherently meet the national interest 
threshold. ld. 
professor Education Thrust Leader with 
asserts that the petitioner's work has practical applications for land mine detection. _ 
_ notes the importance of landmine detection, which is not at issue, and asserts that the 
petitioner's use oflaser-induced acoustic imaging is "novel."..- does not explain, however. 
how the petitioner's work in this area has already impacted the field. As stated above, we generally do 
not accept the argument that a given project is so important that any alien qualified to work on this 
project must also qualify for a national interest waiver. ld. at 218. 
___ a research . acknowledges 
that he received his Ph.D. and that he has known the petitioner "/(lr more 
than six years." _ discusses the importance of early skin cancer detection and asserts that the 
petitioner "is the first scientist who has successfully developed a visible wide field multispectral system 
for comprehensive imaging of skin chromophores and blood vessels as well as inhomogeneous 
statistical model of diffuse light migration." While _ speculates that this work "will" help 
address specific issues relating to skin cancer, he does not provide examples of how the ~ 
work is already impacting the petitioner's field of engineering imaging devices. Rather,_ 
discusses the significance of the journal that carried the petitioner's work. As discussed above, 
however, the fact that the petitioner disseminated his work does not demonstrate its ultimate influence 
in the lield . 
••••••• a professor and Director 01_ asserts that 
he has "never worked with" the Given the petitioner's employment as a research assistant at 
••••• we cannot consider an independent reference. In fact. 
implication that he is an independent reference somewhat reduces his overall credibility. 
asserts tha_' invitation to the petitioner to present his work at a poster exhibition program 
demonstrates that he is "one of the most brilliant and promising young scientists in the nation .. · ••• 
_ does not sufIiciently explain how an invitation to present the petitioner's work at the center 
where he works demonstrates the significance of the petitioner's work in the lield generally. More 
specifically, _ states that the petitioner's imaging technology for skin cancer "could greatly 
helps [sic] to expand our understanding of the skin cancer and its growth mechanism" and has 
"tremendous " At issue, however, is whether the petitioner's research has already influenccd 
the lield. does not suggest that it has. 
Director of the Optical Imaging Laboratory at asserts that 
while he has never worked with the petitioner he has "benelited very much from his work." We cannot 
ignore that_obtained his Ph.D. from 2002 and, thus, his studies there 
overlapped with the petitioner. Moreover, his letter does not demonstrate the petitioner's inlluence 
beyond the_ area. _discusses~itioner's microscopy research and the potential 
significance of the developing technology. _ states that he and the petitioner "had detailed 
discussions and exchanged ideas in optical imaging techniques and optical microscopy .. ' _ 
continues that the petitioner's "expertise and insights in optical imaging system helped us in a lot of 
aspects of development and trouble-shooting lor new imaging methods at the hospital." _oes 
not explicitly identify an imaging device that Harvard Medical School adopted or perfected based on 
consultations with the petitioner. 
asserts that the petitioner joined_ in 2007 and "has made signiticant contributions 
to the milestone of acquiring FDA clearance and launching the company's tirst product, a tiber-optic, 
catheter-based, near infrared (NIR) spectroscopy system designed to characterize the composition of 
coronary plaques in patients undergoing catheterization." __ explains that the petitioner 
focused on overcoming the challenges of performing spectroscopy 111 the human heart and that the 
petitioner's "invaluable work contributed [to] developing the innovative product." More specilically, 
according to_, the petitioner'S "extensive study in the characterization and compensation of 
the blood degradation ei1ect established a link between received near infrared signals and tissue 
components despite blood." 
formerly a senior scientist explains that __ ecruited the 
ad<ire:ss an obstacle involving the reduction of detection ability due to "highly absorbing 
and scattering blood." _concludes that the petitioner made a key contribution to the ability to 
detect vulnerable lipid-rich plaques, bringing the device "into a practical stage." 
Page 9 
In response to the director's request for additional evidence, 
Development , asserts that the petitioner helped develop a test of the catheter and helped 
finalize the company's algorithm to estimate the amount of blood between the catheter and artery wall. 
The petitioner submitted news coverage confirming that the U.S. Food and Drug Administration (FDA) 
approved _ LipiScan NJR Catheter Imaging System for sale and marketing in 2008. In 
response to the director's request for additional evidence, the petitioner submitted a May 19,2009 press 
release from reprinted by Reuters confirming the first use of the LipiScan imaging system in 
a patient. The record also contains abstracts of presentations relating to the testing of the imaging 
system listing the petitioner as a coauthor. As the petitioner submitted these abstracts in response to the 
director's request for additional evidence and the record contains no evidence of the exact presentation 
date, the petitioner has not established that these presentations predate the filing of the petition. The 
only presentation relating to coronary imaging submitted initially, presented in 2007 according to the 
petitioner's curriculum vitae, reports the results of an algorithm for an existing catheter based system. 
The above evidence establishes that the petitioner's employer values his work testing a product that has 
gained FDA approval and is being tested in patients. The petitioner, however, has not submitted 
corroborating evidence of the significance of his role on what is likely a patented or patent-pending 
technology. Specifically, the petitioner did not submit a patent application listing the petitioner as an 
inventor. 
The petitioner's ability to perform the duties for which he was hired does not, by itselt: warrant a 
waiver of the alien employment certification process . ..-asserts that the national interest 
waiver is necessary because it would take three years to obtain the same visa classilication for the 
petitioner without the waiver. The processing time at USCIS is unatIected by whether an employer 
liles a petition supported by ~lien employment certilication or a self-petitioner seeks a 
waiver of that requirement. _provides no support for the implication that the current 
Department of Labor processing times would add an unreasonable amount of time to the overall 
processing. Regardless, nothing in the legislative history suggests that the national interest waiver was 
intended simply as a means for employers (or self~pctitioning aliens) to avoid the inconvenience of the 
labor certification process. [d. at 223. 
Finally, the record does contain two letters trom independent relerences that the petitioner submitted in 
response to the director's request for additional evidence. an assistant professor at _ 
••••••••••• ~., asserts that the petitioner's research has practical applications and "will 
correct the issue of over-estimation of the diameter and spatial distribution of blood vessels." The 
petitioner submitted evidence that, after the date of filing, ...-cited the petitioner's research, 
apparently utilizing one of the petitioner's equations. A single example of an independent author's use 
of one of the petitioner's equations after the date of filing cannot demonstrate the petitioner's intluence 
on the field as a whole as of that date. 
Page 10 
an associate ~rc,f;'ooAr 
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 ofS-A-, 22 I&N Dec. 1328, 1332 (BrA 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 ofY-B-, 21 I&N Dec. 1136 (BIA 1998). 
The opinions of experts in the tield are not without weight and have been considered above. USCIS 
may, in its discretion, use as advisory opinions statements submitted as expert testimony. See Muller 
oj' Caron International, 19 I&N Dec. 791, 795 (Comm'r. 1988). However. USCIS is ultimately 
responsible for making the tinal determination regarding an alien's eligibility for the benetit sought. 
Id. The submission of letters trom 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 oj'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"). 
USCIS may even give less weight to an opinion that is not corroborated, in accord with other 
information or is in any way questionable. Jd. at 795; see also Matter oj'Sojfici, 22 I&N Dec. 158. 
165 (Comm'r. 1998) (citing Malter of Treasure Crafi oj' Cali/iJrnia, 14 I&N Dec. 190 (Reg'!. 
Comm'r. 1972». 
The letters considered above primarily contain bare assertions of contributions without providing 
specific examples of how those innovations have influenced the field of medical imaging 
engineering. Merely repeating the language of the statute or regulations does not satisfy the 
petitioner's burden of proof 3 The petitioner 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. 
According to the Department of Labor's Occupational Outlook Handbook (001-1), electrical 
engineers "design, develop, test, and supervise the manufacture of electrical equipment.·' See 
http://www.bls.l!.ov/oco/ocos027.htm (accessed March 9, 2011 and incorporated into the record of 
~ 1756. Inc. v. The Attorney General of the United States. 745 F. Supp. 9. IS (D.C. Dis!. 1990). 
'Fedin Byos. Co .. Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), a/I'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 IS. 
Page 11 
proceeding). Thus, designing and testing original devices is an inherent part of the petitioner' s 
occupation. As such. these duties, even if successfully performed, do not, by themselves, warrant a 
waiver of the alien employment certification process. 
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. Any Ph.D. thesis or postdoctoral research. in order to be accepted for 
graduation. publication or funding, must ofTer new and useful information to the pool of knowledge. 
It does not follow that every researcher who is working towards a Ph.D. or who is working for a 
private medical technology company that produces marketable products inherently serves the 
national interest to an extent that justifies a waiver of the job offer requirement. 
As is clear from a plain reading of the statute, it was not the intent of Congress that every person 
qualified to engage in a profession in the United States should be exempt from the requirement ofajob 
ofTer 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. 
This denial is without prejudice to the tiling of a new petition by a United States employer 
accompanied by an alien employment certitication certified by the Department of Labor. appropriate 
supporting evidence and fee. 
ORDER: The appeal is dismissed.