dismissed EB-2 NIW Case: Biomedical Research

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
-T35 b" 
Office: NEBRASKA SERVICE CENTER Date: 
 JAN 0 6 LIJ~~ 
LIN 05 231 51047 
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. 8 1 153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
'd 
hbert P. Wiemann, Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa petition. 
The matter is now before the Administrative Appeals Office 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. 5 1153(b)(2), as a member of the professions holding an advanced degree. The petitioner seeks 
employment as a research assistant professor at Northwestern University., The petitioner asserts that an 
exemption fiom the requirement of a job offer, and thus of a labor certification, is in the national interest of the 
United States. The director found that the petitioner qualifies for classification as a member of the professions 
holding an advanced degree, but that the petitioner has not established that an exemption from the requirement of 
a job offer would be in the national interest of the United States. 
Section 203(b) of the Act states, in pertinent part: 
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of Exceptional 
Ability. -- 
(A) In General. -- Visas shall be made available . . . to qualified immigrants who are members of 
the professions holding advanced degrees or their equivalent or who because of their exceptional 
ability in the sciences, arts, or business, will substantially benefit prospectively the national 
economy, cultural or educational interests, or welfare of the United States, and whose services in 
the sciences, arts, professions, or business are sought by an employer in the United States. 
(B) Waiver of Job Offer. 
(i) . . . the Attorney General may, when the Attorney General deems it to be in the 
national interest, waive the requirements of subparagraph (A) that an alien's services in 
the sciences, arts, professions, or business be sought by an employer in the United 
States. 
The director 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. 
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, 
lOlst Cong., 1st Sess., 11 (1989). 
Supplementary information to regulations implementing the Immigration Act of 1990 (IMMACT), published 
at 56 Fed. Reg. 60897, 60900 (November 29, 1991), states: 
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The Service [now Citizenship and Immigration Services] believes it appropriate to leave the 
application of this test as flexible as possible, although clearly an alien seeking to meet the 
[national interest] standard must make a showing significantly above that necessary to prove 
the "prospective national benefit" [required of aliens seeking to qualify as "exceptional."] 
The burden will rest with the alien to establish that exemption from, or waiver of, the job 
offer will be in the national interest. Each case is to be judged on its own merits. 
Matter of New York State Dept. of Transportation, 22 I&N Dec. 21 5 (Comm. 1998), has set forth several factors 
which must be considered when evaluating a request for a national interest waiver. First, it must be shown that 
the alien seeks employment in an area of substantial intrinsic merit. Next, it must be shown that the proposed 
benefit will be national in scope. Finally, the petitioner seeking the waiver must establish that the alien will serve 
the national interest to a substantially greater degree than would an available U.S. worker having the same 
minimum qualifications. 
It must be noted that, while the national interest waiver hinges on prospective national benefit, it clearly must be 
established that the alien's past record justifies projections of future benefit to the national interest. The 
petitioner's subjective assurance that the alien will, in the future, serve the national interest cannot suffice to 
establish prospective national benefit. The inclusion of the term "prospective" is used here to require 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. 
Counsel states that the petitioner "is internationally recognized as on the forefront of research in gene 
therapy, specifically, the use of gene therapy for wound healing" (counsel's emphasis). The petitioner's 
recent work has been at the Wound Healing Laboratory at Northwestern University. 
Several witness letters accompany the petitioner's initial filing. We shall discuss examples of these letters 
here. Notwithstanding counsel's claim that the petitioner "is internationally recognized," all of the witnesses 
are in the United States, at institutions where the petitioner is working or engaged in collaborations. The 
letters themselves, therefore, are not prima facie evidence of the claimed international recognition. Professor 
- 
& 
irector of the Wound Healing Research Laboratory at Northwestern Laboratory, states 
as made significant outstanding scientific and scholarly contributions." In a separate 
describes some of the petitioner's work: 
[The petitioner] is a co-investigator on our NM grant on the regulation of dermal scamng by 
TGFB and is integral and indispensable to the work in our laboratory including the 
competitive renewal of our grant on the impact of ischemia, and aging on cytokine regulation 
of wound healing. [The petitioner] is an outstanding molecular biologist, and has played a 
crucial role in constructing plasmids and inserting them in retroviral, adenoviral, or naked 
DNA constructs for wound transfections. This strategy has been indispensable to the recent 
success of our laboratory. . . . In particular his success and experience in the past three years 
with in vivo transfection with viral and naked DNA vectors with novel promoters makes him 
indispensable and essentially irreplaceable. 
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of the Veterans Affairs Medical Center in Hampton, Virginia, describes the petitioner's 
earlier work there as a research assistant: 
[The petitioner] was successfbl in identifying complex intermediates that are associated with 
abnormal gene expression during scarring in alcoholic liver disease. . . . [The petitioner] was 
the first to identify a gene, referred to as Smad 7 that can reduce the liver scar formation and 
therefore, the progression of liver cirrhosis. He then began pursuing this line of investigation 
with hopes of finding, through genetic engineering, a treatment of choice for liver fibrosis. 
The use of Smad7 as a feedback inhibitor for scar formation has now been internationally 
accepted and must await development of acceptable gene therapy methods before it can be 
used for treatment of patients. Regardless, many other laboratories have adopted the 
principle that Smad7 can be used as a biological mechanism for limiting scarring in injured 
tissue such as lung fibrosis, kidney sclerosis and inflammatory bowel disease. It has also 
been reported that affected lesions in skin of scleroderma patients have excess scarring due to 
a lack of Smad7 production in these patients. [The petitioner's] early work was therefore 
very instrumental in introducing this concept that Smad7 could be used as an important 
regulator in not only liver scar formation but also many other abnormalities associated with 
wound healing. 
of the University of Florida, who (lik is a past President of the 
Wound Healing Society, states: 
[The petitioner] has made outstanding original scientific research contributions to the field of 
hypertrophic scar formation. Excessive scarring is a major problem following trauma or 
surgical operations that causes reduced functions of the organs involved. Treatment 
modalities that would enable both diagnosis and treatment of scars would, therefore, have 
great potential clinical benefits. [The petitioner's] research addresses an issue of great 
importance to patients who are at increased risk of excessive, pathological scar formation. 
The focusing of his research has been understanding the impact of TGF-beta on wound 
healing and hypertrophic scar formation and the promising results could lead to novel 
treatment strategy for the treatment of hypertrophic scars. 
Clearly, the petitioner has made a very favorable impression on his collaborators. We turn now to the 
objective evidence by which the petitioner seeks to corroborate the claim that his work has indeed influenced 
others in the field. Along with copies of "selected publications" by the petitioner, the petitioner submits a 
"sample of some citations to [his] work." The "sample" shows that one of the petitioner's articles has been 
cited twice since it was published in 1994. We note the following passa e from "Biographical 
Sketch": "Science Citation Index lists 4,500 cumulative citations to e refereed publications and 
reviews in January 2003: 24 publications with >50 citations, 10 publications with >I00 citations, 7 
publications with >I50 citations and 3 publications with >250 citations." In this context, two documented 
citations over the course of a decade do not indicate particularly significant impact within the field. Certainly, 
to qualify for the waiver, the petitioner need not be one of the very top figures in the field, but once the claim 
is put forward that the petitioner "is internationally recognized as on the forefront of research," it is fair and 
reasonable to determine whether the objective evidence bears out such a hyperbolic assertion. 
The remainder of the petitioner's initial submission deals with his professional credentials, such as 
memberships in associations and fellowships that funded his postdoctoral training. These materials do not 
directly address the question of whether or not the petitioner qualifies for an exemption from the job offer 
requirement that normally applies to individuals in his field. While some of these awards recognize the 
petitioner's achievements, we note that 8 C.F.R. 15 204.5(k)(3)(ii)(E) and (F) indicate, respectively, that 
membership in professional associations and recognition for achievements and significant contributions to the 
industry or field can formpart, but not all, of a successful claim of exceptional ability. The plain wording of 
section 203(b)(2)(A) of the Act shows that a job offer is generally required for aliens of exceptional ability. 
Therefore, evidence of exceptional ability, including postdoctoral-level awards, is not presumptive evidence 
of eligibility for the waiver. 
On August 8, 2005, the director issued a request for evidence. The director called for materials to meet the 
guidelines set forth in Matter of New York State Dept. of Transportation, and instructed the petitioner to 
"submit copies of any published articles by other researchers citing or otherwise recognizing [the petitioner's] 
research and/or contributions." In response, the petitioner submits additional evidence (to be discussed 
momentarily) and new assertions from counsel. 
Counsel observes that, as a nonimmigrant, the petitioner is often unable to apply for grant funding as a 
principal investigator. Counsel calls this situation a "Catch-22" because, if the petitioner were able to obtain 
this funding and call himself the principal investigator, there would be more grants in his name and he would 
be the first author of more articles. This would only be a "Catch-22" if the sole or primary obstacle to 
approval was the petitioner's lack of first authorships and grants in his name. In fact, the issue is broader than 
that. Counsel has asserted that various evidence shows that the petitioner stands out in his field, when in fact 
the evidence merely shows that the petitioner is active and prolific in his field. For instance, counsel states: 
[The petitioner's] influence on his field of employment is Mher evidenced by the fact that at 
the 1 5th Annual Wound Healing Society meeting at Chicago (May 18-21, 2005) out of a total 
of 177 research presentatiodposters, he has co-authored/presented five of them. Out of over 
five hundred attendees, only eight other researchers have five or more research presentations 
at this conference. 
Counsel thus equates the petitioner's "influence on his field" to the quantity of "presentatiodposters" 
presented at the conference. Counsel fails to explain how quantity demonstrates influence in thls way. 
Counsel is also selective in the data presented. For instance, there is no indication of how many of the "over 
five hundred attendees" even submitted five or more posters or presentations for consideration. With no 
objective gauge of the field's reaction to the petitioner's posters and presentations, the above facts serve only 
to illustrate the volume of the petitioner's output, not its influence. 
New witness letters, from prior witnesses such as 
 indicate that a waiver would serve the 
national interest because the petitioner is involved in collaborative projects that would suffer from his 
Page 6 
absence. 
 of Loyola University calls the petitioner "a bright member of [the] 
wound healing research community," whose "work, if continued, promises to develop new therapeutic 
strategies which could lead to more cost effective wound care management. Thus his ability to serve the 
national interest is substantially greater than the majority of my colleagues." This conclusion does not follow 
from the stated premises unless one assumes that the work of most members of the "wound healing research 
community" holds no promise for "new therapeutic strategies" or "more cost effective wound care 
management." This, in turn, raises the question of what this purported majority in the "wound healing 
research communityy' actually does. brief, eight-sentence letter states that the petitioner "has 
already significantly influenced the field by designing many novel techniques, tools and reagents," but she 
does not hrther elaborate by specifying these techniques or explaining how these techniques are known to 
have "influenced the field" (for instance, throu h implementation at institutions where the petitioner is not an 
active researcher or collaborator). does not list any "new therapeutic strategies7' arising from 
the petitioner's work that have already been widely implemented or even advanced beyond hypothetical 
expectations. 
The petitioner submits new evidence showing four citations of one of his articles. The petitioner also submits 
a copy of an article from Perspective, which appears to be an in-house publication at Strategic Analysis, Inc. 
(SA). The article is simply a list of "New Publications by SA Staff." 
 itioner's collaborators, 
is an SA employee. The article lists five articles by 
 the petitioner is a co- 
author of two of them. This appears to be the only reason the petitioner's publications were listed in this 
publication. 
The petitioner submits copies of manuscripts and other documentation showing that the petitioner has 
continued to produce articles for publication (at least one of which required "some major revisions" before 
being accepted for publication). The objective evidence (i.e., materials that were not created especially to 
support the petition) fails to show how the petitioner's work thus far has been so important, influential, or 
significant that the petitioner should receive a special benefit (the national interest waiver) that is not routinely 
granted to competent professionals - or aliens of exceptional ability - in his field. 
The director denied the petition on March 10, 2006, stating that the petitioner's "witness letters demonstrate 
that the petitioner has excelled academically and is a competent researcher. The witnesses, however, fall 
short of demonstrating the petitioner's impact on the field beyond his educational institutions. . . . The 
petitioner offers no evidence that his findings have attracted significant attention from independent 
researchers in the field."   he director asserted that the volume of the petitioner's published and presented 
output does not demonstrate the quality or impact of that work. 
The petitioner's appeal includes no new evidence. It consists entirely of a 17-page brief from counsel. 
Counsel asserts that the director did not give sufficient weight to documentation of the petitioner's 
professional memberships and awards. The director had already observed, in the notice of decision, that 
evidence of exceptional ability does not establish eligibility for the waiver. Counsel does not address this 
observation, stating only that the director failed to consider the prestige of the awards and memberships. 
Counsel's arguments are not persuasive. For instance, counsel states: "Membership in the American Society 
of Gene Therapy is limited to those whose work in the field has demonstrated their serious interest in research 
on gene therapy." "Serious interest," however, is not the threshold for the national interest waiver. 
Counsel asserts that the petitioner's work was "well received" at professional gatherings, but this is a poor 
gauge of the extent to which other researchers have actually implemented the petitioner's findings and 
innovations. The petitioner does not automatically advance progress in the field simply by describing his 
work. Counsel repeats the unpersuasive argument that, because the petitioner presented a large number of 
posters and presentations at a meeting in Chicago, he must be among the most influential researchers in the 
field. 
Counsel acknowledges that letters from independent witnesses would have helped to establish the breadth of 
the petitioner's reputation, but counsel contends that the petitioner's collaborators are, themselves, the top 
names in the field, and that the petitioner "should not be penalized for having such recognition that he already 
knows the top experts in the field and has been recruited by them." This assertion relies on the assumption 
that the beneficiary already enjoyed such "recognition" when he joined Northwestern in 2001. Thus, the 
argument assumes the very "recognition" that it sets out to prove. 
We do not deny that the ,witness letters have some weight, but it remains that objective, documentary 
evidence ought to be available to support many of the key claims therein. Other assertions seem to limit the 
scope of the petitioner's achievements, such as repeated references to the potential usefulness of the 
petitioner's current work, with no indication of widespread implementation of work previously completed by 
the petitioner. Some letters claim without elaboration that the petitioner has set himself apart from others in 
the field; for instance, the assertion that "the petitioner's ability to serve the national interest is substantially 
greater than the majority of my colleagues" because the petitioner's work "promises to develop new 
therapeutic strategies," the implication being that most work in the field shows no such promise but is, for 
some reason, pursued nevertheless. It is difficult to see how this is the case, or what is the purpose for most 
wound healing research if not "to develop new therapeutic strategies." 
Counsel states: "Among those who do manage to get a foot into the golden door of academic [sic], a very 
small percentage scale the ranks to full faculty positions such as Research Assistant Professor. Only those 
with clearly demonstrated achievements who are major contributors to the field do so." The assertions of 
counsel do not constitute evidence. Matter of laureano, 19 I&N Dec. 1, 2,4 (BIA 1983); Matter of Obaigbena, 
19 I&N Dec. 533, 534 (BIA 1988); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Counsel 
seems to assert that the petitioner's attainment of a "full faculty position," albeit a non-tenure-track position that is 
renewed annually and requires the petitioner to raise his own funds, demonstrates the petitioner's eligibility for a 
waiver. We reject the assertion that university faculty, as a class, are entitled to a blanket waiver. 
We do not discount the reputations of the petitioner's employer or the witnesses who have offered statements on 
hls behalf. We concur with the director, however, that the petitioner has failed to establish a reliable objective 
basis for approval of the waiver. 
As is clear kom a plain reading of the statute, it was not the intent of Congress that every person qualified to 
engage in a profession in the United States should be exempt fiom the requirement of a job offer based on 
national interest. Likewise, it does not appear to have been the intent of Congress to grant national interest 
waivers on the basis of the overall importance of a given profession, rather than on the merits of the individual 
alien. On the basis of the evidence submitted, the petitioner has not established that a waiver of the requirement 
of an approved labor certification will be in the national interest of the United States. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. 
The petitioner has not sustained that burden. 
This denial is without prejudice to the filing of a new petition by a United States employer accompanied by a 
labor certification issued by the Department of Labor, appropriate supporting evidence and fee. 
ORDER: The appeal is dismissed.