dismissed EB-2 NIW Case: Biomedical Research

(b)(6)
DATE: JAN 2 9 2013 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
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. Cit~enship 
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: 
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.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.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, 
.5R:on Rosenbe 
Acting Chief, Administrative Appeal~ Office 
~w.usCis.gov 
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DISCUSSION: The Director, Texas Service Center (TSC), denied the employment-based immigrant 
visa petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO 
will dismiss the 
appeal. 
The petitioner seeks classification under section 203(b)(2) of the Immigration andNationality Act (the 
Act), 8 U.S.C. § 1153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as a physician/biomedical researcher. The petitioner is currently a clinical 
research specialist at the The petitioner asserts that an 
exemption from the requirement of a job offer, and thus of a labor certification, is in the national interest 
of the United States. The director found that the petitioner qualifies for classification as a member of 
the professions holding an advanced degree, but that the petitioner has not established that an exemption 
from the requirement of a job o~fer would be in the national interest ofthe United States. 
On appeal, the petitioner submits a brief from counsel. 
Section 203(b) ofthe 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 
ofthe 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. 
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, lOlstCong., 1st Sess., l1 (1989). 
( 
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Supplementary information to regulations implementing the hnmigration Act of 1990, published at 
56 Fed. Reg. 60897, 60900 (November 29, 1991), states: 
The Service [now U.S. Citizenship and hnmigration Seryices (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 jop offer will be in the 
national interest. Each case is to be judged on its own merits. 
In reNew York State Dept. of Transportation (NYSD01), 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 
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 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 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 AAO also notes that the USCIS 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, 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 or~inarily encountered in his or her field of expertise; 
The petitioner filed the Form · 1-140 petiti6n on December 19, 2011. In an accompanying letter, 
C04fisel offered a capsule discussion of NYSDOT and listed a number of unpubli~hed AAO appellate 
decisions approving national interest waivers. Counsel did not provide any of the facts from the 
cited decisions except to identify the occupations of the respective beneficiaries. Counsel failed to 
explain how these unpublished decisions are relevant to the present proceeding. While the USCIS 
regulation at 8 C.F.R. § 103.3(c) provides that AAO precedent decisions are binding on all USCIS 
employees in the administration of the Act, unpublished decisions are not similarly binding. The 
decisions show that workers in a wide range of fields can qualify for the waiver, but they do not 
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establish blanket waivers for aliens in those fields. At issue is not what the petitioner does, but the 
significance of what the petitioner, has so far accomplished. 
The petitioner submitted a copy of a 2011 article from the. showing the 
petitioner as the fourth of seven authors. The petitioner claimed no other published work, although 
she documented a number of conference presentations. The petitioner also documented the status of 
numerous projects approved or pending with the Review 
Board (a body overseeing research involving human subjects). The petitioner's initial submission 
establishes her participation in medical research, but it does not establish her impact ot influence on 
her field, or otherwise distinguish the petitioner's work from that of other researchers in that field. 
On May 29, 2012, the director issued a request for evidence, instruqting the petitioner to submit 
documentation to meet the guidelines set forth in NYSDOT. All of the evidence submitted in 
response to the notice was testimonial rather than documentary. The P.etitioner submitted statements 
from herself, counsel, and six witnesses. (Counsel's statement listed seven witnesses, but there is no 
letter from the seventh named witness, identified as manager of 
Washington, DC.") Counsel asserted that the petitioner's 
"experience and abilities set her apart from other highly qualified professionals in her field," but 
counsel provided no details except in the form of quotations from witness letters. Therefore, a 
lengthy discussion of counsel's statement would be redundant. 
The petitioner stated: "Currently, · I am a Research Specialist - Clinical at . the 
I am involved in various projects on liver diseases including hepatitis C, 
working to improve treatment outcomes and addressing health disparities especially among minority 
populations particularly African Americans." The petitioner cited statistics relating to hepatitis C, 
and other statistics regarding "the educational achievement gap betWeen blacks and whites at the 
college graduate level in the United States." The petitioner stated her intention to "continue to work 
collaboratively with seasoned researchers in the field to achieve ground breaking findings that will 
improve care and treatment outcomes." The petitioner did not, however, identify any specific 
"ground breaking findings" that she has made in the past, nor did she provide much information 
about her ongoing research except to state that it involved hepatitis C. · 
The six witness letters contain praise for the petitioner's re~earc.h . hu~~everal of the letters offer no 
useful information about the nature of that research. medical advisor at 
Rockville, Maryland, stated that he is "very familiarwith [the petitioner's] work" but did 
not elaborate. : stated: 
[The petitioner] has made extremely important contributions to hepatitis C research 
through her involvement in numerous very crucial research projects. . 
. . Her 
contributions include innovative ideas and vital coordination of the various aspects of . I 
the studies to ensure successful execution of these projects. She ensures quality data 
from these projects with the goal of improving treatment outcomes and reducing 
healthcare disparities. 
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The vague reference to "coordination" seems to imply that the 
logistical support than to direct participation in research. 
etitioner's role is more akin to 
letter lacks sufficient detail 
to permit a definitive conclusion, 
associate professor at the · 
the petitioner on several research projects. 
has collaborated with 
described one such project: 
From results of various ongoing studies, ribavirin is still the mainstay of treatment of 
hepatitis C and truly understanding how the drug exerts its effects ... is of upmost 
[sic] importance. This is the goal of one of the studies [the petitioner] is involved 
with . . .. [The petitioner's] work has aJso involved addressing disparities in allocation 
of liver for transplantation in minorities and vulnerable populations especially 
women. [The petitioner] has exhibited outstanding skills, dedication and consistently 
high level of competence since I have known her and have been collaborating on 
various projects. 
In the above passage, ; described the goal of a given project, but not the petitioner's role 
in that project. praised the petitioner as "an excellent researcher" but provided no 
information about the petitioner's actual research work. 
·In a similar vein, clinician manager for 
, praised the petitioner's "innovative ideas" but provided no examples of 
those ideas, no explanation of their importance and no evidence oftheir impact. 
/ 
Two witnesses from the both of whom interacted with the petitioner 
during her earlier training at the 
provided some idea of the actual nature of the etitioner's work (rather than the overall goals of 
projects in which she participates). health scientist administrator at 
was previously 
while the petitioner trained at stated that the petitioner 
"ensur[ ed] compliance with applicable Federal research regulations through 
1 
adequate informed 
consent and confidentiality of their clinical data and biospecimen samples." 
now coordinator of the at 
_ stated that the petitioner "is 
responsible for the recruitment and screening of study participants. In addition, she coordinates and 
monitors [the] enrollment process, develop[s] standard operating procedures for study protocols and 
obtain[ s] informed consent." 
is the principal resear<;:her on many of the petitioner's research 
projects. letter is consistent with other letters that describe the petitioner's role in 
terms of administrative 3.!1d logistical support: "Her responsibilities include managing IRB and 
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Page 6 
General Clinical Research Center applications, preparing adverse event and annual reports, and other 
regulatory requirements, subject recruitment and retention, specimen collection and shipping, data 
collection and data management." · 
The director denied the petition on September 18, 2012,-stating that the petitioner submitted "no 
corroborative primary evidence" to show "tqe direct role the beneficiary has played in the field as a 
. whole." The director found: "The evidence does not indicate that the beneficiary's work have [sic] 
garnered national or international attention, for example by being widely cited by independent 
researchers." · 
On appeal, counsel states: "Beneficiary believes that is [sic] the TSC is applying the test for EB-1, 
Extraordinary Ability alien, and not the standard mandate [si~] by Congress." Under section 
203(b)(1)(A)(i) of the Act, . the standard for extraordinary ability is "sustained national or 
international acclaim." The director did not require the petitioner to establish sustained national or 
international acclaim, or to submit the evidence of extraordinary ability required in the USCIS 
regulations at 8 C.F.R. § 204.5(h)(3). Rather, the director found that the' petitioner's work had not 
earned widespread "attention" (which is not the same as "acClaim"). The record does not show that 
the petitioner's work has attracted any notice outside of Baltimore. 
Counsel acknowledges the director's finding that the petitioner had not shown that her work was 
''widely cited by independent researchers," and contends that "this decision was reached in error." 
The petitioner has submitted no evidence of citation, and therefore a finding to that effect cannot be 
in error. ·The petitioner had apparently published only one article b~fore the petition's filing date, 
and even the most complimentary witness letters did not state that the petitioner's published work 
had influenced the field. 
In claiming that the director failed to apply "the standard mandate[ d] by Congress" for the national 
interest waiver, counsel does not identify that · standard. The statute itself does not defme the 
national interest or offer any evidentiary threshold. The most significant guidance found in the 
statute is that aliens of exceptional ability are typically subject to ·the job offer requirement. 
Therefore, elementary logic dictates that the petitioner cannot qualify for the waiver simply by 
establishing exceptional ability. The regulatiqn at 8 C.F.R. § 204.5(m)(2) defines "exceptional 
ability" as a degree of expertise significantly above that ordinarily encountered" in a given field. 
Counsel asserts that the petitioner has submitted the evidence required to meet her burden of proof, 
and that the director "did not give proper weight to [the petitioner's] corroborative evidence." Some 
of that evidence showed that the petitioner participates in research, but was so general that it did 
little except establish the nature of the petitioner's occupation. 
The only materials. that attempted to evaluate the petitioner's work. were witness letters, already 
discussed above. Counsel repeatedly asserts that the petitioner submitted "seven (7) letters" in 
support of the petition, but only six letters appear in the record. Counsel had previously identified a 
seventh witness (whose title had no evident connection with the petitioner's field), but the record 
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Page 7 
does not contain that letter and counsel has never quoted from it or otherwise established its 
existence. 
The Board of Immigration Appeals (BIA) has held that testimony should not be disregarded simply 
because it is "self-serving." See, e.g., Matter of S-A-, 22 I&N Dec. 1328, 13.32 (BIA 2000) (citing, 
cases). The BIA also held, however: "We not only encourage, but require the introduction of 
corroborative testimonial and documentary evidence, where available.'~ /d. If testimonial evidence 
lacks specificity, detail, or credibility, there is a greater need for the petitioner to submit 
corroborative evidence. Matter of Y-B-, 21 I&N Dec. 1136 (BIA 1998). 
The opinions of experts in the field are not without weight and have received consideration 
above. USCIS may, in its discretion, use as advisory opinions statements submitted as expert 
testimony. See Matter ofCaron International, 19 I&N Dec. 791, 795 (Comm'r 1988). However, 
USCIS is ultimately responsible for making the final determination regarding an alien's eligibility 
for 'the benefit sought. /d. Letters from experts are not presumptive evidence of eligibility; USCIS 
may, as above, evaluate the content of those letters as to whether they support the alien's eligibility. 
USCIS may even give less weight to an opinion that is not corroborated, in accord with other 
information or is in any way questionable. See id. at 795; see also Matter ofV-K-, 24 I&N Dec. 500, 
502 n.2 (BIA 2008) (noting that expert opinion testimony does not purport to be evidence as to 
"fact"). See also Matter ofSoffici, 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)). 
Many of the letters considered above contained bare assertions of the importance of the petitioner's 
work, without specifying what, exactly, is important about the petitioner's work. Those letters that 
offered any information about the petitioner's role portrayed that role as largely organizational and 
logistical. None of the letters showed that the petitioner has had a particularly substantial impact on 
her field as a whole (which is the standard articulated in NYSDOn; they have indicated only that the 
petitioner played an integral role in particular projects at and, later, at 
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 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 
estaplished 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. § 1361. The petitioner has not sustained that 
burden. 
ORDER: The appeal is dismissed.