dismissed EB-2 NIW Case: Biomedical Research

U.S. Department of Homelan~d Security 
20 Mass. Ave.. N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration1 
FILE: EAC 03 200 52204 Office: VERMONT SERVICE CENTER Date: AM 1 2 2005 
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 : 
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. 
Administrative Appeals Office 
EAC 03 200 52204 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the employment-based immigrant visa petition. 
The matter is now before the Administrative Appeals Office (AAO) 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. 9; 1153(b)(2), as a member of the professions holding an advanced degree. At the time of filing, the 
petitioner was a research associate at Penn State College of Medicine. 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 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: 
The Service [now Citizenship and Immigration Services (CIS)] believes it appropriate to leave 
the application of ths 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. 
EAC 03 200 52204 
Page 3 
Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Cornm. 1998), has set forth sever:d 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 seelung the waiver must establish that the alien will serve 
the national interest to a substantially greater degree than would an available US. 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 prospecfive 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. 
I . . . am a bio-medical research scientist, working in the Department of Nephrology at Penri 
State University College of Medicine at Hershey. . . . 
Currently, I have several projects going on. One is to study mechanism of acute renal failure 
by comparing different animal research models. The other one is to study mechanism of 
human kidney transplantation rejection. . . . The third project is focusing on renal cell repair 
and regeneration. . . . 
As a full-time bio-medical research scientist with a faculty position at Penn State University 
College of Medicine, I need to work continually on kidney failure research. Penn State 
University provides the best research support for me to reach my research goal. 
The petitioner adds that he has applied for the waiver because, as a permanent resident, he would be eligible 
to apply for grant funding from the National Institutes of Health. 
Along with copies of his published articles, the petitioner submits letters from five witnesses, most of whom 
all of whim work at institutions where the petitioner has worked and 
hief of Nephrology at Penn State College of Medicine, states: 
[The petitioner] is one of an elite few individuals who have been able to bridge the gap 
between information processingldata analysis and the theory and practice of modern 
molecular biology. . . . 
[The petitioner] and I have been collaborating on a project to employ high throughput gene 
expression profiling to examine the mechanisms of acute renal failure. . . . 
We hope to utilize the information generated by the NIH Human Genome Project to provide a 
more detailed picture of the cellular responses to renal failure. [The petitioner] has used his 
bioinformatics expertise to extract information from NM-supported public DNA databases 
. . . in order to assemble a collection of genes which are of particular relevance to the kidney. 
This work involved sorting through several million DNA sequences in order to determine the: 
relative abundance of these genes in the fabricated customized kidney Gene-chips for use in 
EAC 03 200 52204 
Page 4 
our studies. This constitutes a unique resource which will have application . . . to studies of 
other kidney diseases such as diabetes and AIDS related kidney disease. This is, in fact, tht: 
only specialized collection of kidney genes available for such a purpose. . . . 
[The petitioner] will need to continue in this cutting edge research by using these custoni 
Gene-chips to measure the patterns of gene expression in kidney disease. These aspects of 
his work will also require his substantial skills in computer programming and data analysis. 
. . . I view [the petitioner's] continued research in this project to be critical for its current ant1 
future success. 
Penn State ~rofessoescribes the petitioner's other projects at that institution: 
Gene expression profiling in human renal tissue. Microarrays have been used to study 
expression of thousands of genes concurrently. This technology has been applied to basic 
kidney disease but studies are limited in humans because of the lack of tissue. The approach 
has generally been to use tissue fi-om renal biopsies; however, this does not provide sufficient 
amounts of material for study. New techniques have been developed for amplification of 
RNA in order to perform DNA microassays from such small amounts of tissue. 
Mechanism of renal injury repair. At an earlier stage of development but perhaps 
ultimately of potentially more importance are [the petitioner's] efforts to understand renal cell 
repair and regeneration following acute injury. He is developing methods to culture renal 
proxlmal tubular cells (the target of injury in acute renal failure). . . . The planned approach is 
to use oxidants at a sub-lethal dose to stimulate gene expression, which will then be analyzeti 
using microarray techniques. Genes activated during injury and repair can be assessed for 
function using cell transfection or RNA interference approaches. This novel approach has the 
potential to open a new field for the study of renal injury and repair. 
ssistant professor at Penn State, states that the petitioner "has taken on the daunting task 
of establishing an in-house facility for both production and application of cDNA microarray technology. His -. 
skills in bioinformatics were instrumental in building and running the facility. 
associate professor at McGill University, states that under his tutelage, the petitioner 
of transcriptional a unique blend 
of molecular biology and computer science skills. "supervised [the peti.tioner's1 
Ph.D. in Molecular Biology from the 
Academy of Sciences at the University of Utrecht in the Netherlands. 
"developed an outstanding knowledge 
cancer research and molecular medicine," but does not otherwise elaborate. 
The director denied the petition, stating "all of the letters of support and recommendation . . . appear to be 
from individuals who work with the beneficiary." The director added that the evidence submitted "does not 
establish that the beneficiary's accomplishments have been recognized as having advanced the f~eld to a 
greater degree than others involved in similar pursuits." The director indicated that it is not sufficient simply 
to demonstrate that the petitioner possesses useful skills in an important field of endeavor. 
On appeal, the petitioner submits an unpublished manuscript that arose from his work at Penn State, as well as 
a letter prepared in support of a separate, nonimmigrant petition filed on the petitioner's behalf by Colgate- 
EAC 03 200 52204 
Page 5 
Palmolive company.' The letter indicates that the company has offered the petitioner a position "[iln the 
specialty occupation of Senior Scientist - Geonomics," in which "[tlhe activities and scope of this specialty 
occupation are focused on Nutrition Technology." The petitioner cites this information to show that he "was 
highly sought after for my skills and experience by the Colgate-Palmolive Company." 
Even if the job offer from Colgate-Palmolive were intrinsically a qualifying factor (which it does not appear 
to be), if the petitioner was not already eligible as of the date he first filed the petition, the job offer from 
Colgate-Palmolive could not cause him to become eligble. See Matter of Izummi, 22 I&N Dec. 169 (Comm. 
1998), and Matter of Katigbak, 14 I&N Dec. 45 (Reg. Cornm. 1971), which require that beneficiaries seehng 
employment-based immigrant classification must possess the necessary qualifications as of the filing date of the 
visa petition. 
Furthermore, the materials from Colgate-Palmolive do not indicate that the position offered to the petitioner 
would involve kidney research, or human medicine; rather, it would involve "feline and canine tissues," 
consistent with "Pet Nutrition" as mentioned in the letter. Considering that the petitioner's original claim 
relied very heavily and specifically on research relating to human kidney failure, the job offer from Colgate- 
Palmolive does not tend to support reversal of the director's decision. The fact that a large corporation, with 
many employees, has offered the petitioner a job does not, on its face, distinguish the petitioner from others in 
his field or show that his admission would serve the national interest to an extent that would justify a waiver 
of the job offer requirement. The record does not reflect comparable demand for the petitioner's services 
from employers that engage in human kidney research. 
More generally, the record shows that the petitioner's employers and mentors have valued the petitioner's 
contributions, but there is no objective, documentary evidence to show that the petitioner has had a 
demonstrable impact in his field. His chief contribution appears to be organizing genomic data that had 
already been gathered and made publicly available by other researchers. 
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 iindividual 
alien. On the basis of the evidence submitted, the petitioner has not established that a waiver of the req~uirement 
of an approved labor cerhfication 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. 
I CIS records show that the petition was approved, valid from September 30, 2004 to September 20, 2007. The validity 
of the petitioner's nonirnrnigrant visa petition that allowed him to work at Penn State expired on September 30, 2004, 
and CIS records show no extension of that visa petition.