dismissed EB-2 NIW Case: Biomedical Research

(b)(6)
DATE: JUN 1 0 2013 
INRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration 
and Nationality Act, 8 U.S.C. § 1153(b)(2) 
ON BEHALF OF PETITIONER: 
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 office. 
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 I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.P.R. § 1 03.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.P.R. § 103.5(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, 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The Administrative Appeals Office (AAO) summarily dismissed the appeal. The matter is 
now before the AAO on a motion to reopen and reconsider. The AAO will dismiss the motion. 
The petitioner filed the Form I-140 petition on November 15, 2011, seeking classification under section 
203(b)(2) ofthe Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2), as a member ofthe 
professions holding an advanced degree. The petitioner seeks employment as a biomedical researcher 
at : , operated by 
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 denied the petition on August 
3, 2012, having 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 September 5, 2012, the petitioner filed a skeletal appeal and indicated that a ''brief and/or additional 
evidence will be submitted to the AAO within 30 days." The AAO summarily dismissed the appeal on 
December 27, 2012, stating: 
The U.S. Citizenship and Immigration Services [USCIS] regulation at 8 C.F.R. 
§ 103.3(a)(1)(v) states, in pertinent part, "[a]n officer to whom an appeal is taken shall 
summarily dismiss any appeal when the party concerned fails to identify specifically any 
erroneous conclusion oflaw or statement of fact for the appeal." 
On the Form I-290B Notice of Appeal, filed on September 5, 2012, the petitioner 
disputes the director's decision in general terms but makes no specific allegation of 
error. She asserts: "In the brief to be submitted, I will show that the evidence 
submitted, together with additional evidence that may be submitted, does in fact meet 
all of the elements requirements [sic] for a national interest waiver." The bare 
assertion that the director somehow erred in rendering the decision is not sufficient 
basis for a substantive appeal. 
The petitioner indicated that she would submit her brief within thirty days. To date, over 
three months later, careful review of the record reveals no subsequent submission; all 
other documentation in the record predates the issuance of the notice of decision. 
Therefore, the record contains no substantive appeal; only a statement of intention to 
submit one. 
Because the petitioner has failed to identify specifically an erroneous conclusion of law 
or a statement of fact as a basis for the appeal, the AAO must summarily dismiss the 
appeal. 
The petitioner has now filed a motion to reopen and reconsider the AAO's decision. 
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A motion to reopen must state the new facts to be proved in the reopened proceeding and be supported 
by affidavits or other documentary evidence. 8 C.F.R. § 103.5(a)(2). A motion to reconsider must state 
the reasons for reconsideration and be supported by any pertinent precedent decisions to establish that 
the decision was based on an incorrect application of law or US CIS policy . A motion to reconsider a 
decision on an application or petition must, when filed, also establish that the decision was incorrect 
based on the evidence ofrecord at the time ofthe initial decision . 8 C.F.R. § 103.5(a)(3). A motion 
that does not meet applicable requirements shall be dismissed. 8 C.F.R. § 103.5(a)(4). 
The petitioner, on motion, makes the following allegation of error: "In fact, I submitted my subsequent 
supporting document within 30 thirty [sic] days through USPS certified mail, and it was received by 
USCIS on 10110/2012." The petitioner submits copies of the documents submitted to support the 
appeal, and a copy of a postal receipt showing delivery ofthe supplemental materials. 
The postal receipt shows that the USCIS Phoenix Lockbox received the brief on October 10, 2012. A 
benefit request will be considered received by USCIS as of the actual date of receipt at the location 
designated for filing such benefit request whether electronically or in paper format. 8 C.F.R. 
§ 103.2(a)(7)(i). Whenever a person has the right or is required to do some act within a prescribed 
period after the service of a notice upon him and the notice is served by mail, 3 days shall be added to 
the prescribed period. 8 C.P.R. § 103.8(b). Wednesday, October 10, 2012, fell 35 days after the 
appeal's filing date. Therefore, even allowing an extra three days to account for mailing, USCIS did not 
receive the brief within the 3 0 days that the petitioner specified on appeal. 
Furthermore, the cited regulation at 8 C.P.R. § 1 03.2(a)(7)(i) requires "receipt at the location designated 
for filing." The instructions to Form I-290B indicate that, while the petitioner may not file an appeal 
directly with the AAO, any subsequent brief or supplement must be mailed directly to the AAO at an 
address provided in the instructions. The petitioner did not follow those instructions, instead mailing 
the brief to an address in Phoenix dedicated solely to processing filings. 
The petitioner did not submit the brief to the correct address or in a timely manner. The AAO was 
correct in stating that the record, at the time of the appeal's adjudication, did not contain a timely brief. 
Therefore, the petitioner has not shown that the AAO's decision was incorrect. The motion does not 
meet the requirements of a motion to reconsider. 
The motion also does not meet the requirements of a motion to reopen. The only new fact alleged on 
motion is the AAO's claimed failure to consider a timely submitted supplement to the appeal. As 
shown above, the petitioner submitted the brief in an untimely manner, to the wrong address. 
Review ofthe materials shows that the petitioner would not have prevailed on the merits. 
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. -
(b)(6)
Page4 
(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 ofJob 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 did not dispute that the petitioner qualifies as a member of the professions holding an 
advanced degree. 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. 
The USCIS regulation at 8 C.F.R. § 204.5(k)(4)(ii) requires that a petitioner seeking to apply for the 
exemption must submit Form ETA-750B, Statement of Qualifications of Alien (or corresponding 
sections J, K and L of ETA Form 9089), in duplicate. The record does not contain this required 
document, and therefore the petitioner has not properly applied for the national interest waiver. 
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., 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 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. 
In reNew York State Dept. of Transportation (NYSDOI), 22 I&N Dec. 215 (Act. Assoc. Comm'r 
1998), has set forth several factors which must be considered when evaluating a request for a national 
interest waiver. First, the petitioner must show that the alien seeks employment in an area of substantial 
(b)(6)
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intrinsic merit. Next, the petitioner must show that the proposed benefit will be national in scope. 
Finally, the petitioner must establish that the alien will serve the national interest to a substantially 
greater degree than would an available United States worker having the same minimum qualifications. 
While the national interest waiver hinges on prospective national benefit, the petitioner must establish 
that the alien's past record justifies projections offuture 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 intention behind the term "prospective" is 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. 
The USCIS regulation at 8 C.P.R. § 204.5(k)(2) defmes "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 offer/labor 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. 
The petitioner had previously filed an earlier petition, seeking the same classification and the national 
interest waiver, on January 18, 2009. The Director, Nebraska Service Center, denied that petition on 
February 18, 2010, and the AAO dismissed the petitioner's appeal of that denial on July 5, 2011. Four 
months after the dismissal of that appeal, the petitioner filed the present petition, relying on the same 
basic claim and many of the same exhibits. 
Most of the petitioner's introductory letter, dated November 13, 2011, duplicates her earlier 
introductory letter of January 15, 2009, that accompanied her first petition. Every letter that 
accompanied the filing of the 2011 petition had previously appeared in the record of proceeding of the 
2009 petition. When the petitioner appealed the denial ofthe second petition in September 2012, her 
statement on Form I-290B, Notice of Appeal or Motion, was virtually identical to her then-attorney's 
statement on the first appeal in March 2010. Likewise, the appellate brief that the petitioner submitted 
in October 2012 is mostly copied from her attorney's Apri12010 brief submitted in support ofthe first 
appeal. Overall, the petitioner's appellate brief, which is just over six pages long, includes nearly five 
pages copied directly from her attorney's earlier appellate brief with few changes except for pronoun 
substitution. For example, the following passage from the 2010 brief 
The Nebraska Service Center did not challenge the fact that Petitioner/ Appellant meets 
the requirements being and [sic] an advanced degree professional. ... 
The Nebraska Service Center explicitly acknowledged that Petitioner/Appellant meets 
the frrst two elements of the national interest waiver test. ... 
became the following passage in the 2012 brief: 
(b)(6)
Page 6 
The Texas Service Center did not challenge the fact that I meets [sic] the requirements 
being and [sic] an advanced degree professional. ... 
The Texas Service Center explicitly acknowledged that I meets [sic] the frrst two 
elements of the national interest waiver test. ... 
In resubmitting exhibits and statements from the prior petition, the petitioner did not address or rebut 
the July 2011 appellate decision that already addressed those elements of the record. To discuss them 
again at length would be redundant. The July 2011 appellate decision reads, in part: 
The petitioner is involved with the National Institutes of Health (NIH) funded clinical 
study entitled 
The p~titioner submitted published material about the study. Eligibility 
for the waiver, however, must rest with the alien's own qualifications rather than with 
the position sought. In other words, U.S. Citizenship and Immigration Services 
(USCIS) generally does not 
accept the argument that a given project is so important that 
any alien qualified to work on this project must also qualify for a national interest 
waiver. NYSDOT, 22 I&N Dec. at 218. Moreover, it cannot suffice to state that the 
alien possesses useful skills, or a ''unique background." Special or unusual knowledge 
or training does not inherently meet the national interest threshold. The issue of whether 
similarly-trained workers are available in the United States is an issue under the 
jurisdiction of the Department ofLabor. Jd. at 221. ... 
of the 
discusses the 
petitioner's work for in his laboratory. While ======~ explains the 
importance of the project, the mere fact that the petitioner may play an important role in 
her current activity is insufficient to establish eligibility for a waiver of the alien 
employment certification because qualified U.S. workers may be available to play a 
similar role. I d. at 223. further states: 
[The petitioner] possesses not only extensive knowledge and critical thinking 
skills, but also a repertoire of essential molecular biology skills that are crucial to 
the execution of my research projects, such as DNA/RNA/protein isolation, RT­
PCR, methylation-specific PCR, immunohistochemistry, western blotting, 
adenovirus mammalian cell transfection, fluorescence microscopy, and 
mammalian primary cell culture. In addition, her dual degree in applied 
statistics allows her to have a deeper understanding of the statistical methods and 
analyses used, which propels her to the forefront of biological research 
compared to others without a statistics background. 
Regarding the project specifically, asserts that the petitioner 
measures ROS and respiratory control ratios (RCR) and explains the importance and 
(b)(6)
Page? 
complexities of these measurements to the project. further 
asserts that the petitioner "is also responsible for measuring two biomarkers of oxidative 
stress in vitro: DNA damage in blood and oxidative stress in protein." 
concludes that the petitioner "is one of the few in the United States who have the 
knowledge and skills to measure RCR." asserts that the alien employment 
certification process might result in hiring an available U.S. worker "with minimal 
qualifications" who might be unable to successfully perform the work the petitioner is 
doing. further asserts that ''training a new person to replace [the petitioner] 
is an impossible solution." ... 
has never explained why the petitioner's skills, enumerated above, are not 
amenable to articulation on an application for alien employment certification. As stated 
in NYSDOT, 22 I&N Dec. at 221, it cannot suffice to state that the alien possesses useful 
skills, or a ''unique background." ... 
While the petitioner has produced some evidence of outside interest in her protocols, 
that evidence is minimal. Ultimately, the basis for requesting a waiver of the alien 
employment certification is the claimed shortage of available U.S. workers with the 
petitioner's laboratory skills and experience and the importance of the project on which 
the petitioner is working. The AAO unequivocally rejected claims ofunique skills as a 
basis for a waiver of the alien employment certification process in the national interest. 
NYSDOT, 22 I&N Dec. at 221. The mere fact that the petitioner may play an important 
role in the activity to be performed for her employer is insufficient to established 
eligibility for a waiver of the alien employment certification because qualified U.S. 
workers may be available to play a similar role. !d. at 223. Nothing in the legislative 
history suggests that the national interest waiver was intended simply as a means for 
employers (or self-petitioning aliens) to avoid the inconvenience of the labor 
certification process. !d. 
The new portions of the brief consist of the last two paragraphs on page 4, all of page 5, and the frrst 
two sentences on page 6. In those passages, the petitioner discussed some of the new exhibits not 
addressed in the 2011 appellate decision. Those exhibits consist of the following: 
Initial submission: 
• Two articles published in 2011 
• Evidence of publication of a previously submitted manuscript 
• Three manuscripts submitted for publication 
• Three conference papers 
Response to February 28, 2012 request for evidence: 
• April25, 2012 letter from the petitioner's supervisor, 
• Evidence of the petitioner's participation in peer review 
• Updated evidence of citation of her work 
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October 12, 2012 appeal supplement: 
• An article by the petitioner published in July 2012 
• A July 2011 master's thesis citing one of the petitioner's articles 
The petitioner's resubmission of the brief also included a printout from the Google Scholar search 
engine, establishing the citation history of her published work. The printout is dated January 25, 2013, 
and therefore could not have accompanied the October 2012 appellate submission. 
in his latest letter, stated that the petitioner developed a respiratory control ratio (RCR) 
protocol for human skeletal muscle where others had failed, and that other researchers now use the 
protocol in other laboratories. The petitioner submitted no evidence to support this claim. Going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. Matter of Sojfici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). Furthermore, while innovation 
of a new method is of greater importance than mere training in that method, it must be stressed that such 
innovation is not always sufficient to meet the national interest threshold. For example, an alien cannot 
secure a national interest waiver simply by demonstrating that he or she holds a patent. Whether the 
specific innovation serves the national interest must be decided on a case by case basis. NYSDOT, 
22 I&N Dec. 221, n.7. 
The petitioner asserts: "I have published 
4 papers in high impact factor journals and further shows that 
my contributions are superior to my peers." A journal's impact factor is calculated from the average 
citation rate of papers published in that journal. The appearance of a paper in a high-impact journal 
does not automatically make the paper itself high-impact. Rather, it is the aggregate impact of the 
individual papers that give the journal a high impact factor. Thus, the petitioner must show heavy 
citation of her own papers; it cannot suffice to show that her papers appeared in journals that have 
published heavily cited articles by others. 
The 2013 Google Scholar printout showed six citations of one article (including at least one self-citation 
by the petitioner's co-authors), and 13 of another (including at least three self-citations by co-authors). 
The petitioner did not show that this level of citation demonstrated a consistent pattern of impact and 
influence on the field that would warrant the national interest waiver. 
For the reasons discussed above, the brief and exhibits that the petitioner submitted on motion would 
not have resulted in approval of the petition, even if the petitioner had timely submitted them to the 
proper address. 
The petitioner's latest filing does not meet the requirements of a motion to reopen or a motion to 
reconsider, and therefore the USCIS regulation 
at 8 C.F.R. § 103.5(a)(4) requires its dismissal. 
ORDER: The motion is dismissed.