dismissed EB-2 NIW Case: Biomedical Research

identifying data deleted to 
 U.S. Department of Homeland Security 
prejcnt unwarranted 
U.S. Citizenship and Immigration Services 
O!ce of Administrative Appeals MS 2090 
wasion of person~l privacy 
 Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
FILE: Office: TEXAS SERVICE CENTER Date: APR 2 9 2009 
SRC 08 109 51950 
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 : 
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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. $ 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. !j 103.5(a)(l)(i). 
ZJohn F. ~rigm 
Acting Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: 
 The Director, Texas Service Center, 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 to classify the beneficiary pursuant to section 203(b)(2) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 8 1153(b)(2), as a member of the professions holding an advanced 
degree. The petitioner, a non-profit charitable private foundation that exists to fund the Roskamp 
Institute in Sarasota, Florida, seeks to employ the beneficiary as a research associate. 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 beneficiary 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 appeal, the petitioner submits a brief fiom counsel. 
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 
Page 3 
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., 1 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 U.S. 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. 215 (Commr. 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. 
We also note that the regulation at 8 C.F.R. 5 204.5(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 offedlabor 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 of expertise. 
chief operating Officer of the petitioning entity, describes the Roskamp Institute and 
the beneficiary's work there: 
The Roskamp Institute is recognized worldwide as one of the top institutions in 
Alzheimer's research. . . . 
Page 4 
We wish to offer [the beneficiary] the position of Research Associate. As a Research 
Associate Professor [sic], [the beneficiary] will be responsible for anesthesia, controlled 
cortical impact procedure, tail clipping for DNA preparation and genotyping, perfusion 
and dissection of the mouse colony. . . . 
[The beneficiary] is also charged to display and analyze proteins fiom diverse sources, 
including human serum and plasma, as well as homogenous cell culture issue through 
the drug addiction and gulf war syndrome program. In addition [the beneficiary] used 
microarray analysis to determine the genomic response to agents used in the Gulf War. 
[The beneficiary] will continue to be up to date on the latest approaches to genomic and 
proteomic data analysis. He will be responsible for interacting with scientists at the 
James Haley Veterans Hospital and maintaining the mice colony in the Tampa Veteran 
Hospital. . . . 
[The beneficiary's] past research has been involving the following areas of interest: 
Marine sponge derived microorganism. 
Identification of DNA from fossilized plant material recovered fiom Peruvian 
Lake sediment cores. . . . 
[The beneficiary's] current research has been involving the following areas of interest: 
Gulf War Syndrome. 
Mechanisms of drug addiction. 
Traumatic Brain Injury (TBI). . . . 
[The beneficiary] has proven to be an asset to the entire research team with his 
competency to perform many different tasks simultaneously. [The beneficiary] has not 
only highly regarded understanding of research methods but also has the ability to 
collect and monitor data and present the findings in an effective, concise manner. [The 
beneficiary] has superior skills working with databases, spreadsheets, and word 
processing programs. . . . He has far exceeded others in his similar role. . . . 
It is clear that without the skills and unique expertise that [the beneficiary] brings to the 
United States, his absence will result in major delay in our understanding and treatment 
for TBI, drug addiction and the gulf war syndrome. 
Several witness letters accompanied the initial submission. 
 of the 
Florida Institute of Technology stated: 
[The beneficiary] worked in my laboratory as an undergraduate research scientist 
beginning in August 2003. He developed techniques to analyze fossilized plant DNA 
recovered fiom lakebed samples. . . . What is exciting about this work is that the 
information about the identified species can be used to determine what the surrounding 
flora looked like of geological time periods (tens of thousands of years). This can be 
extrapolated to determine what the regional climate was like, and thus, gain information 
about long-term climate change. 
of Nova Southeastern University stated: 
We first met when [the beneficiary] applied to be my summer intern in the Harbor 
Branch Oceanographic Institution (HBOI) summer intern ship program. . . . 
[The beneficiary's] project involved the complex analysis of gene transcripts from a 
marine sponge derived microorganism. Our laboratory . . . has been focused on finding 
new medicines from marine resources and organisms. To do this, [the beneficiary] 
learned and applied the mRNA differential display method to study different patterns of 
gene expression from microbes which may be producing potentially useful or 
therapeutic natural compounds. [The beneficiary] was excellent with the benchwork 
and molecular biology methodology, which was non-trivial, and he also very nicely 
wrote up a final report and presented the work in a public seminar forum to complete the 
internship. 
Laboratory Medicine at Bay Pines Veterans Affairs Healthcare System and a clinical assistant professor 
at the University of South Florida (USF), stated: 
I have known [the beneficiary] for ten years, and first met him while he was completing 
his secondary studies in France. . . . 
He has worked to help identify specific molecular mechanisms underlying the Gulf War 
Syndrome. . . . [The beneficiary's] involvement with research pertaining to Gulf War 
Syndrome may one day be part of the treatment program for our ailing Veterans. 
[The beneficiary] has contributed to the investigation of biomarkers of drug addiction. 
He uses the proteomics approaches to explore the brain's response to exposure to 
addictive drugs, such as cocaine. . . . 
[The beneficiary] has also played a key role in a Traumatic Brain Injury (TBI) research 
program. He has direct responsibility for the preparation, processing and analyzing the 
tissues samples, in research to develop pharrnacotherapeutic solutions to TBI. 
Tampa, Florida, stated: 
[The beneficiw] presently assists our efforts by providing, among other things, 
integration services between the Roskarnp Institute and the James A. Haley Veterans 
Administration Medical Center in Tampa. . . . 
[The beneficiary] has participated in multiple research projects at the Institute, including 
two very important projects under the direction of, one of which 
deals with investigating biomarkers and mechanisms of drug addiction. The other 
project deals with Traumatic Brain Injury (TBI). His presence at the Veteran Hospital is 
indispensable as he is in charge of the mice colony used to study TBI. . . . [The 
beneficiary's] involvement at the VA facility is growing and exposing neuronal cells to 
Pyridostigmine Bromide, a nerve gas protectant which was widely used by veterans in 
the first Gulf War. . . . [The beneficiary] is in the development stages [to] determine 
treatment programs for the Gulf War Syndrome victims. His knowledge . . . regarding 
the Gulf War Syndrome cannot be readily replaced. 
- Director of the Roskamp Institute and a neuroscientist at the James A. Haley 
Veterans Hospital, stated that the petitioner "is primarily responsible for leading the program to finding 
a treatment for Gulf War Syndrome." Regarding drug addiction research, 
 stated that the 
beneficiary's "contribution to finding the correlation of the brain and addiction is invaluable." 
Associate Director of the Roskamp Institute and a former USF Associate 
Professor, stated: 
[The beneficiary] was initially employed at the Institute in early 2006 to work on a three 
year Veterans Administration grant to research mechanisms underlying Gulf War 
Syndrome. His work . . . is currently revealing genes and proteins responding when 
human neurons are exposed to Pyridostigmine Bromide - the nerve gas protectant which 
was widely used by veterans in Gulf War 1991. . . . 
Another program to which [the beneficiary] contributes is the research under my 
contract with the Counterdrug Technology Assessment Center of the Office of National 
Drug Control Policy. . . . We have discovered that human neurons exhibit significant 
immune and inflammatory responses to cocaine exposure, as well as showing evidence 
for increased oxidative stress. . . . 
In September 2007 I was awarded a $ISM contract from the Department of Defense for 
the exploration of Traumatic Brain Injury (TBI) at the proteomic level. [The 
beneficiary] contributed both to the preliminary data (manuscripts in preparation) and 
the research and writing of ths proposal, and is named as an investigator. This project 
will investigate the mechanisms through which APOE genotype contributes to recovery 
after TBI. . . . 
In addition to his work on preparation and analysis of tissue samples from the mouse 
models of TBI it is he who performs the surgery to administer injury (or sham injury) to 
all of the mice in our many ongoing studies. . . . In addition to identifying novel targets 
for therapeutic intervention, we already have generated data to implicate the amyloid 
Page 7 
protein as contributing to the detrimental processes incipient after TBI and have a 
pipeline of novel anti-amyloid drugs which we will be testing in vivo. 
These vital programs would be significantly negatively impacted if [the beneficiary] 
were unable to continue his work. 
a Scientist at the Roskamp Institute, collaborates with the beneficiary under 
supervision. stated that the beneficiary "is one of only two researchers at 
Institute with the expertise to administer TBI to our research animal population." mad 
indicated that the beneficiary "is . . . currently training technicians in this technique.") 
The above letters tend to focus on the beneficiary's mastery of specialized laboratory techniques, rather 
than on the beneficiary's findings or on investigations begun on the beneficiary's own initiative. 
The petitioner submitted copies of various technical writings, mostly in manuscript form, co-authored 
by the beneficiary. The initial submission did not document the impact, if any, of these writings. 
On June 24, 2008, the director issued a request for evidence instructing the petitioner to submit more 
information regarding the beneficiary's "precise role" in his various projects, and evidence regarding 
the impact that the beneficiary's work has already had on medical treatment of Gulf War Syndrome, 
drug addiction, and TBI. The director requested documentation showing that other researchers have 
cited the beneficiary's published work. 
The petitioner's response to the request did not include any documentary evidence. Instead, the 
petitioner submitted five more witness letters. Former U.S. Senator William E. Brock, now a senior 
advisor to the Roskamp Institute, stated: "finding quick answers to the tragic consequences of traumatic 
brain injury for out troops is a substantial US priority." lks is not in dispute. At the same time, 
however, an alien researcher does not qualifl for a national interest waiver simply by engaging in TBI 
research. Substantial intrinsic merit is a necessary, but not sufficient, qualification for the waiver. 
Sen. Brock, like many prior witnesses, described the beneficiary's duties, stating that the beneficiary is 
"critically involved in the subsequent dissection and protein preparation, cognitive testing, data analysis, 
etc." Sen. Brock asserted that the beneficiary "is solely responsible for all of the surgeries on the mice 
in ALL the TBI work." had previously asserted that the beneficiary "is one of only two 
researchers at the Institute with the expertise to administer TBI to our research animal population." If 
these two claims do not exactly contradict one another, nevertheless indicated that the 
beneficiary is not the only researcher at the Institute who is capable of performing the TBI procedure on 
mice. Even if the beneficiary were the only person currently at the Roskamp Institute qualified in the 
procedure, it would not mean that other qualified workers cannot be found elsewhere. And if we 
assume that the beneficiary is simply the only person available to perform this work, and this ability is, 
in turn, a minimum qualification for the job that the beneficiary holds, then the labor certification 
process would yield a finding that no minimally qualified U.S. workers are available. Special or 
unusual knowledge or training, whlle perhaps attractive to the prospective U.S. employer, does not 
Page 8 
inherently meet the national interest threshold. The issue of whether similarly-trained workers are 
available in the U.S. is an issue under the jurisdiction of the Department of Labor. Matter of New York 
State Dept. of Transportation at 22 1. 
With respect to existing clinical implementation of the beneficiary's work, Sen. Brock stated "this is a 
relatively new area of research." Rather than identify any existing uses of the beneficiary's findings, 
Sen. Brock observed that "this team has already demonstrated their capability to successfully translate 
basic research into clinical testing in other neurodegenerative conditions." Sen. Brock appeared to state, 
in other words, that the Roskamp Institute has tested treatments for other conditions, and so it can be 
assumed that the beneficiary's research will eventually follow the same course. 
U.S. Representative Kathy Castor listed the human and economic costs of TBI and Alzheimer's disease, 
once again attesting to the uncontested intrinsic merit of the beneficiary's area of research. Rep. Castor 
said little about the beneficiary specifically, except that the beneficiary's "skills are in very high 
demand. His expertise in this field cannot be replaced." 
, Chief Scientist and Neuroscience Portfolio Manager at the U.S. Army 
Telemedicine and Advanced Technology Research Center, Fort Detrick, Maryland, explained what the 
Army hopes to learn from the TBI studies in which the beneficiary participates. argued that, 
if the beneficiary had to be replaced, the training of his replacement would delay the project's progress. 
in her second letter, stated that the beneficiary "is now the sole TBI surgeon in our 
Institute"; she did not specify what happened to the other qualified TBI surgeon to who- had 
previously referred. stated that the beneficiary's role in the research is "to manage the 
colony of APOE transgenic mice"; perform necessary surgery on the mice ("up to 12 such surgeries in a 
day"; euthanize the mice and collect tissue samples; "process the dissected tissue," "upload the datasets 
of differential proteomes . . . to identifl the molecular mechanisms predicted to be impacted by the 
observed protein changes"; and "specifically interrogate tissue samples for specific proteins to validate 
the [molecular] pathways." provided little information about the beneficiary's work apart 
from a technical description of his laboratory duties. 
estimated "a 15-20 year timeline" from the initiation of research to the first clinical 
studies, and stated that the beneficiary's projects "are at the earliest stages." She did not indicate 
whether the beneficiary's involvement would be required through that entire period. The beneficiary 
has stated his intention of pursuing a doctoral degree, and because the petitioner is not a degree-granting 
institution, his studies would necessarily require him to turn his attention elsewhere. 
, a Clinical Research Ps chiatrist at Defense and Veterans Brain Injury Center, 
Tampa, Florida, previously collaborated with h. D 
 stated that the beneficiary "is 
directly contributing to the success of [the Roskamp Institute's] programs through his surgical skills and 
also his technical expertise in protein manipulation." added that the beneficiary's future 
efforts "will clearly be instrumental" when the projects advance to later stages. 
The director denied the petition on September 10, 2008, stating: "The issue in this case is not whether 
the alien's field of employment is in the national interest, but rather whether this particular beneficiary, 
to a greater extent than U.S. workers having the same minimum qualification[s], plays a significant role 
in the furtherance of that field." The director concluded that the petitioner had not established that the 
beneficiary's accomplishments exceed those of other researchers qualified to do comparable work. 
Counsel, on appeal, asserts that the beneficiary's "contributions and skill set are virtually irreplaceable 
because he functions as the sole surgeon in the Roskamp Institute who is able to administer TBI in the 
research mice." Leaving aside the somewhat inconsistent statements about how many workers at the 
Roskamp Institute are qualified to administer TBI to mice, counsel assertion that the beneficiary is the 
only qualified "surgeon in the Roskamp Institute" begs the question of why the beneficiary would have 
to be replaced by someone else already at the Roskamp Institute. The record is silent as to the 
availability of qualified surgeons who do not yet work at the Roskamp Institute. We note, furthermore, 
that the beneficiary holds valid nonimmigrant status permitting him to work at the Institute, and that 
status is independent of the outcome of the present petition. Denial of the petition or dismissal of the 
appeal will not void his nonirnrnigrant status or compel the immediate termination of his employment. 
Counsel protests that "the third prong [of the national interest test in Matter of New York State Dept. of 
Transportation] . . . is really not well set out in the opinion." We acknowledge that the precedent 
decision lacks firm, objective guidelines in ths regard. Thls is largely because, as noted in the decision 
itself, neither the statute nor regulations relating to the waiver provide any guidance whatsoever as to 
what is considered to be in the national interest. The phrase "national interest" is simply set forth as 
though its meaning were self-evident, which it is not. A precedent decision is limited in its ability to 
conjure specificity out of vagueness. 
That being said, Matter of New York State Dept. of Transportation is clear on a number of relevant 
points. At several points in that decision, such as pages 21 5 and 221, the decision indicates that simply 
possessing the necessary training for a given position is not grounds for a waiver, regardless of how 
narrow or specialized that training may be, because the labor certification process exists to test the 
availability of trained U.S. workers. Page 219 of that decision specifies that expectations of what the 
alien will one day accomplish must be supported by the alien's prior track record. In the present 
proceeding, the beneficiary's track record does not show any involvement in murine surgery, or medical 
research of any kind, prior to working for the Institute. If the beneficiary had such a track record, the 
record does not reflect it. His past work described in the record involved genetic research in sponges 
and fossils. The eclectic nature of the beneficiary's past work and training is hardly a sure sign that the 
beneficiary's work at the Institute would continue several years into the future. 
Witnesses have asserted that it would take a new worker at least two years to become competent at 
performing TBI surgery on mice; but when the petitioner filed the petition, the beneficiary had only 
worked for the petitioner for two years and was considered not only competent, but an irreplaceable 
expert who was seen as qualified to train others in the procedure. (This is assuming that the beneficiary 
participated in this activity throughout his time at the Institute, when the record indicates that he has 
engaged in at least three very different projects there.) The available evidence strongly suggests that the 
methods used by the beneficiary take considerably less than two years to master, unless very significant 
segments of the beneficiary's past training and experience have been omitted from the record. 
The petitioner has pointed out the beneficiary's co-authorship of a number of scholarly articles. The 
record is silent as to how researchers outside of the Roskamp Institute have responded to this work. The 
director specifically requested documentation to show citation of the petitioner's published work; the 
petitioner's response contained no such evidence. 
Counsel attempts to distinguish the beneficiary in this proceeding from the beneficiary in Matter of Nav 
York State Dept. of Transportation, who was an engineer involved in the construction of bridges. 
Counsel does this by citing statistics relating to TBI, without citing contrasting statistics to show what 
effect the beneficiary's work to date has already had in that important area of research. The petitioner 
has not shown that the beneficiary is an accomplished TBI researcher. The petitioner has shown only 
that the beneficiary is a valued participant in a project that may take decades to bear fruit. It cannot 
suffice to assert that the beneficiary must receive a waiver now, in order to accumulate, over many 
years, a track record that would retroactively justify the waiver. 
Even then, by consistently focusing on the beneficiary's expertise in laboratory methods and 
preparation of materials, the petitioner has essentially portrayed the beneficiary as more of a laboratory 
technician than a researcher in his own right. The petitioner claimed, on Form 1-140, that the 
beneficiary's position is permanent, but the record shows several indications that the beneficiary's 
research associate position is essentially a short-term training assignment. Not the least of these 
indications is the beneficiary's stated intention of pursuing a higher degree, indicating that the 
beneficiary himself considers his training and education to be incomplete. 
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 of the Act, 
8 U.S.C. 8 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.