dismissed EB-2 NIW Case: Biomedical Research

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington. DC 20529 
PI'I"6WC COW 
dentitying data deleted @ 
orevent clearly unwmtecd 
U. S. Citizenship 
and Immigration 
FILE: 
2464 
Office: TEXAS SERVICE CENTER Date: JUL 2 2 m,5 
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. 9 11 53(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been ret~~rned to 
the office that originally decided your case. Any further inquiry must be made to that oftice. 
;AL 
Administrative Appeals Office 
1 
Page 2 
DISCUSSION: The Director, Texas 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 lmmigration 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 postdoctoral fellow at the University of Texas Health Science Center, San Antonio 
(UTHSCSA). 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 offer would be in the national interest of the United 
States. 
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 are members sf 
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, 
10 l st Cong., l st Sess., 1 1 (1 989). 
Supplementary information to regulations implementing the Immigration Act of 1990 (IMMACT), published at 
56 Fed. Reg. 60897,60900 (November 29, 1991), states: 
The Service [now Citizenship and lmmigration 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."] Thle 
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burden will rest with the alien to establish that exemption from, or waiver of, the job offer will Ise 
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. 2 15 (Comm. 1998), has set forth seve:ral 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 "belongs to the group of pioneers making significant scientific 
breakthroughs while utilizing the discovery and knowledge of death genes, or programmed cell death - a 
process that is termed 'apoptosis."' 
The petitioner submits several witness letters, examples of which we shall discuss here. Three of the seven 
witnesses are UTHSCSA faculty members; a fourth has collaborated with the petitioner in his work at 
UTHSCSA; and a fifth supervised the petitioner's doctoral studies at Beijing Medical University (now Peking 
University Health Science Center The remainin two witnesses do not specify how they became aware of 
the petitioner's work. Dr-an associate professor at UTHSCSA, supervises the 
petitioner's postdoctoral wor at t at institution. She states: 
[The petitioner's] current research involves the evaluation of the mechanism of apoptosis 
induced by two novel antitumor drugs, namely irofulven and oxaliplatin. Cancer fighting 
drugs are thought to act through the interaction with the DNA, however some of them also 
interfere with the protein function. Our own studies and studies performed with collaborators 
have shown that both interaction with DNA and protein play a role in the apoptosis initiated 
by these drugs. So far the research has been extremely helpful in demonstrating that dual 
reactivity with DNA and proteins can lead to: (i) potent apoptosis in tumor cells . . . ; (ii) 
profoundly different [non-lethal] responses in normal cells . . . ; (iii) by-passing the common 
blocks to apoptosis often responsible for a clinical failure of currently used anti-tumor agent:;. 
[The petitioner] is one of the key researchers for my projects. He is a recognized and 
accomplished scientist. I feel that his continued long-term involvement in these important 
projects is absolutely essential for their continuation. 
~rone of the petitioner's collaborators at UTHSCSA, states: 
It is vitally important to understand exactly how and why these drugs kill, not only to better 
target them to the appropriate patient and cancer type (i.e., prostate, breast, pancreatic) but 
also to guide the development of new and better drugs for the patient suffering cancer. 
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[The petitioner's] work build on an initial simple observation that cell protein is bound by 
these dual action drugs. His evaluation of how the drugs trigger the cell's natural death 
machinery, the apoptotic process, focuses on the timing of the cellular events. Consequently, 
his studies have vitally impacted the development of clinical protocols and dosing schedules 
for these investigated drugs. [The petitioner's] meticulous and innovative work is crucial in 
pinpointing both critical proteins and critical cellular organelles as targets for these drugs. 
His work underway to validate these findings in animal models will further favorably affect 
the clinical patient in both developing new drugs and fine-tuning treatment regimens to 
maximize efficacy and minimize side effects in the cancer patient. 
[The petitioner] has made key and significant contributions in the study of dual action drugs. 
Dr. senior director of Research and Development at 
manufactures irofulven), states that the petitioner "was the first to demonstrate 
irofulven-induced apoitosis . . . in human tumor cell lines." ~rstates tha; the petinoner "has 
contributed to the scientific understanding of antineoplastic drug action and has implications for improved 
clinical treatment options." 
~r. an associate professor at Meharry Medical College, lists the petitioner's various projects 
and concludes that the petitioner "has received international recognition for his work," but does not elaborate. 
Dr. technical director at Worthington Biochemical Corporation, states that the petitioner 
plays "an integral role in the development of a potentially useful drug for the treatment of a very cornmon and 
serious type of cancer." In the context of his other comments, Dr. mppears to refer to prostate 
cancer 
The director instructed the petitioner to submit additional evidence to meet the guidelines set forth in Matter 
of New York State Dept. of Transportation. In response, the petitioner states "on February 17, 2003, I was 
tiansferred to Dr. ~rl~n  chardsi sin's lab" at UTHSCSA ~he~~etitioner states: "Dr.lab 'is very 
strong in aging research. . . . So I can continue and expand cancer research in [the] aging field." The 
petitioner states that his new work involves "mitochondria protein turnover" and "establishing a cell line that 
over-expresses PGC-1 gene," a gene relating to aging, obesity, and diabetes. The petitioner, in describing his 
projects, does not mention cancer or cancer drugs. 
A petitioner must establish eligibility at the time of filing. If the alien was not eligible at the time of filing, 
subsequent developments cannot cause the alien to become eligible. See Matter of Katigbak, 14 I&N Dec. 
45, 49 (Reg. Comm. 1971). Therefore, if the petitioner was not already eligible at the time of filing, then his 
work with ~r.cannot qualify him for a waiver in the present proceeding. We cor~sider the 
petitioner's subsequent work only to the extent that it may establish the extent to which the petitioner has 
continued to serve the national interest in the same way described in the initial filing. 
D research health scientist at UTHSCSA's Geriatric Research Education and Clinical 
Center, states: "Prior to joining our lab in 2003, [the petitioner] was doing cancer related research and he had 
several impressive publications in this area." This wording supports the conclusion that the petitioner has 
ceased performing research directly related to the treatment of cancer. Dradds that the 
petitioner's "continued long term involvement in these important projects is absolutely essential to their 
success." ~r.m had previously used almost exactly the same phrase in relation to the  petitioner.^ 
work, five months before the petitioner left Dr. laboratory and thereby ceased his 
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involvement in her projects. ~r.had stated that the petitioner should receive a waiver because, 
otherwise, the process of attempting to recrult and train a replacement would significantly delay the progress 
of the project. Now that the petitioner has left ~r. laboratory, presumably necessitating the 
hiring and training of a replacement, the petitioner's new supervisors make the same argument. 
The cessation of the petitioner's cancer research is not intrinsically fatal to the outcome of the petition. The 
petitioner continues to work in the sameoverall field. What is most important at this point is to determine the 
extent of the impact that the petitioner had on his field up to the filing date, from which we can, to some 
extent, project his likely future impact on that field. The petitioner, in his response to the director's notice, 
included no new evidence to establish that his overall track record as of the filing date was of a caliber that 
would warrant a national interest waiver. 
The director denied the petition, stating that the evidence "does not establish that [the petitioner] has made 
significant research achievements." The director added that an alien's choice of an important research 
specialty is not sufficient grounds for a waiver. 
On appeal, counsel states that the petitioner "is not only a major contributor but spearheaded the research on 
the caspace-mediated apoptosis and caspase-independent cell death induced by irofulven in prostiite cancer 
cells." The record contains the manuscript of a scholarly article, and information indicating that ithe article 
had been accepted for publication in Molecular Cancer Therapeutics. Counsel states that this acceptance is 
"a very prestigious feat and unmatched by any available U.S. worker." Counsel presents absc)lutely no 
evidence to support the claim that no available U.S. worker has had an article accepted for publication in 
Moleculur Cancer Therapeutics, or that publication in that journal is substantially different from publication 
in any of a number of other scholarly journals relating to the petitioner's work. 
Apart from the unsubstantiated claim that acceptance of an article for publication in Molecular Cancer 
Therapeutics is, on its face, a prestigious achievement, counsel focuses on the petitioner's now-abandoned 
work in cancer drug research. Counsel states: 
The formula of E=MC* as crafted by Dr. Albert Einstein was invented in a small laboratory 
during the World War I1 so could [the petitioner] working at his laboratory at one of the 
prestigious and leading research institutes i.e. University of Texas Health Sciences Center, 
could lead to a true solution toward the treatment of cancer. 
(Sic.) The record is utterly devoid of any indication that anyone other than counsel compares the pt:titioner's 
work with irofulven to Einstein's formulation of the famous equation E=mc2 (an event that took place in 
1905, while Einstein worked as a patent clerk, rather than "in a small laboratory during . . . World War 11"). 
The idle speculation that the petitioner's work may one day be compared with that of Einstein cannot take the 
place of actual evidence. We note, further, that the petitioner did not invent irofulven; he is, rather, one of a 
number of researchers who have studied its effects. The petitioner is in no way responsible for the existence 
of the drug. 
Counsel states: 
You also stated in your letter that [the petitioner's] sphere of influence does not extend far 
beyond his colleagues. However, the nature of science research is not limited by the actual 
geographic locations by the researcher himself rather it is the intrinsic manner of one's 
research coupled by its innate potential as well as perspective application that can dictate the 
influence and sphere of influence of one's research. 
(Sic.) Counsel is correct that a researcher's work can have influence around the world, but this general 
principle does not show that this particular petitioner's work has had a significant influence outside of the 
university where he has worked and the pharmaceutical company that has bankrolled his research. The 
petitioner, on appeal, shows that one of his articles has been cited six times since its January 2002 publication; 
two of these six are instances of self-citation by the petitioner or his co-authors. An earlier article by the 
petitioner. relating to work he had performed at Tel Aviv University, shows five citations since its February 
2000 publication date. The petitioner has submitted nothing to show, objectively, that nine independent 
citations over the course of more than four years indicate a rare level of impact and influence in the field. 
The petitioner is clearly a productive researcher whose efforts are valued by those most closely involved in 
his work. The record, however, contains no objective indication that the United States has benefited, or is 
likely to benefit, from the petitioner's actions to such an unusually great extent that it is in the national interest 
to exempt him from the job offerllabor certification requirement that normally attaches to the immigrant 
classification that the petitioner has chosen to seek. 
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 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 ofthe Act, 8 U.S.C:. 13 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 accomparlied by a 
labor certification issued by the Department of Labor, appropriate supporting evidence and fee. 
ORDER: The appeal is dismissed.