dismissed EB-2 NIW Case: Biomedical Research

U.S. Department of Homeland Security 
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Washington, DC 20529 
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and Immigration 
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FILE: EA~ 04 022 ;I 547 Office: VERMONT SERVICE CENTER Date: (1 ', 
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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. 
Robert P. Wiemann, Director 
Administrative Appeals Ofice 
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DISCUSSION: The Director, Vermont 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. At the time of filing, the 
petitioner was a doctoral student at the Massachusetts Institute of Technology (MIT). 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, 
I01 st Cong., l st Sess., 1 1 (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. 215 (Comm. 19981, 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 US. worker having the same 
minimum qua1 ifications. 
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 describes the petitioner's work: 
[The petitioner] is leading research at Harvard University-MIT related to orthostatic 
intolerance among astronauts who have spent prolonged periods of time in space. This 
research is practically important for the nation's goal to be at the forefront of space 
exploration. It is also significant for our general understanding of syncope in the general 
population. 
Counsel observes that labor certification is not an option for the petitioner, because she is a graduate student 
with no offer of permanent employment. The unavailability of labor certification is not, by itself, grounds for 
a waiver. The waiver must be in the national interest, rather than merely the convenience of the alien seeking 
benefits. We note that the petitioner's inability to obtain permanent employment is only a temporary one, 
while she remains a student or early-stage trainee. The fact that the petitioner could not obtain a labor 
certification yet, as of the filing date, does not establish that it is in the national interest to give the beneficiary 
immigration benefits at the soonest opportunity, before she is eligible for permanent employment in her field. 
Furthermore, if the petitioner's current work is inherently temporary, then the petitioner bears the burden of 
explaining why this temporary work merits permanent immigration benefits. Her valid nonimmigrant status 
already permits her to carry on her short-term projects. 
Counsel asserts that the petitioner "has made significant contributions to her field of endeavor," as shown by 
"independent expert evaluations of [the petitioner's] accomplishments, contributions, and reputation." The 
first of six letters is from Professor f the Harvard University-MIT Division of Health 
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Sciences and Technology. Professor identifies himself as "the Team Leader of the Cardiovascular 
Alterations Team of the National Space Biomedical Research Institute which is the national agency that 
NASA has designated to develop countermeasures for the adverse effects of space flight on human health." 
He states: 
[The petitioner] has conducted advanced research in the field of cardiovascular health 
(pertaining to earth-bound patients and astronauts returning from space missions) for a 
number of years, and is well recognized by other experts for her contributions to this and 
related fields. . . . 
In her current work, [the petitioner] is leading research aimed at better understanding the 
human cardiovascular system. In particular, [the petitioner] is purs~~ing cardiovascular 
system identification during simulated microgravity, and examining mechanisms of 
orthostatic intolerance following long-term space missions. Orthostatic intolerance is a 
failure to maintain an upright posture due to inadequate blood supply to the brain. It often 
occurs in astronauts returning to the Earth after prolonged space flight, when their blood 
pressure drops significantly upon standing and, as a result, syncopelfainting occurs. . . . 
However, the basic mechanism of orthostatic intolerance remains unclear. . . . This is due to 
the lack of effective measurement techniques for this mechanism. [The petitioner's] research 
contributed significantly to the understanding of this problem. She developed a new, 
accurate, non-invasive approach to quantify the functioning of human autonomic nervous 
system. . . . Using this new method, [the petitioner] demonstrated that the autonomic nervous 
system was down-regulated after prolonged head-down tilt bed rest - an accepted ground- 
based simulation of the microgravity condition in space. She also proved that the diminished 
sympathetic tone . . . is a major factor causing orthostatic intolerance. . . . These findings can 
be viewed as milestones in the research of cardiovascular orthostatic intolerance and they 
shine lights on solutions for this long-existing problem. . . . 
In addition, [the petitioner] has been studying other aspects of the cardiovascular system after 
microgravity exposure, such as cardiac arrhythmia risk evaluation using a technique we 
developed called Microvolt T-Wave Alternans (MTWA). She is also studying the leg 
compliance changes and their correlation to orthostatic intolerance using her newly developed 
model-based method. Significantly promising results have been reached. . . . 
At the same time, [the petitioner] has begun work on another project for the United States 
Department of Defense. The United States Army is fielding a Land Warrior system for 
remote triage of combat casualties. . . . One of several objectives of these systems must be to 
determine whether a soldier is going into shock due to hemorrhage. . . . [I]t would be 
desirable to monitor CO [cardiac output] rather than ABP [arterial blood p~tessure] in order to 
obtain an early indication of shock. . . . 
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An ideal CO measurement technique for remote triage (or clinical use) would operate 
autonomously and would be noninvasive (or minimally invasive), continuous, very accurate, 
and inexpensive. . . . [The petitioner] is developing a technique for continuous monitoring of 
CO by analysis of one ABP signal which can be easily measured non-invasively. . . . [The 
petitioner] has reached excellent preliminary results demonstrating a great promise of this 
technique. 
~rdirector of the National Space Biomedical Research Institute, formerly director of the 
Neural Systems Group at the Massachusetts General Hospital and the Harvard-MIT Division of Health 
Sciences and Technology, states that he was "greatly impressed by the results [the petitioner] presented" at a 
professional conference, and that the petitioner "has risen to the top echelon of her profession." ~r.= 
does not discuss the petitioner's work in any detail. 
Dr. director of the Cardiovascular Laboratory at the NASA Lyndon B. Johnson Space 
Center, states: 
I have worked with Dr. for several years. 
[The petitioner's] area of research focus in Dr. laboratory is cardiovascular 
alternations introduced by microgravity exposure. To my knowledge, [the petitioner] has 
developed a novel method to quantify the human autonomic function. . . . Using this 
approach, [the petitioner] has reached a number of significant conclusions about the 
relationship between changes in autonomic tone and symptoms of syncope after microgravity 
exposure. 
Dr. an assistant professor at Michigan State University, states: "I met [the 
petitioner] in January 2001 when I was a post-doctoral fellow at MIT. At this time, [the petitioner] was 
getting ready to continue where I left off in my dissertation. I have been closely working with her ever 
since " Re arding the petitioner's method of collecting data through bed rest as a lsimulation of microgravity, 
Dr .- states that the petitioner "found that she could predict which subjects would pass a standing 
test following prolonged bedrest before the subjects were bed-ridden. The implication of this result is 
profound, because it suggests that countermeasures . . . can be given only to those astronauts who require 
them prior to their re-entry from space. Her technique can be the solution to a problem that has plagued the 
human space program for over 30 years." ~r.tates that the petitioner's other project, for the 
Department of Defense, "may revolutionize the clinical measurement of cardiac output, which up to now has 
proven to be unsatisfactory." 
~r. director of Cardiac Electrophysiology at Harvard University7s Mount Auburn 
Hospital, states: 
I got to know [the petitioner's] research accomplishments for the first time when she took an 
elective with me last year, during which she attended rounds with me and was present during 
procedures I performed on patients. . . . 
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I am very impressed with [the petitioner's] accomplishments in the field of cardiovascular 
system research. . . . [The petitioner's] body of scholarship has garnered her an international 
recognition. 
The final letter is from ~r.assistant professor and director of the Syncope Center and 
Non-invasive Electrophysiology Laboratories at Columbia University. He states that he and the petitioner 
"started collaborating on a study of syncopetfainting related to microgravity exposure two years ago. . . . Her 
work has already demonstrated promising results."  res scribes the petitioner as "an individual 
who has made, and will surely continue to make, important contributions to her field of specialization." 
As shown above, the letters that counsel characterizes as "independent . . . evaluations" are mostly from the 
petitioner's own professors and collaborators. 
The petitioner submits copies of her published articles, and abstracts of her conference presentations. 
Counsel states that the petition includes evidence that this published and presented work "has been regularly 
cite[d] by her peers." The record contains evidence of only two citations. One of these is a self-citation by 
the petitioner; the other is a self-citation by the petitioner's collaborator- Even if thew 
citations were independent, it is not clear how two citations over a span of three years can justifiably be called 
a pattern of regular citation. 
The director denied the petition, acknowledging the intrinsic merit of the petitioner's work, but finding that 
the petitioner had not demonstrated national scope or justified a waiver. Medical and scientific research at 
major institutions is inherently national in scope, however, because the results are disseminated nationally 
(and internationally) through publications and conferences and because the findings of such research tend to 
apply universally rather than only locally. We therefore withdraw the director's finding that the petitioner's 
work lacks national scope. 
The director was correct, however, in noting that grant funding from NASA or other federal agencies does not 
automatically warrant a national interest waiver for the alien conducting the funded research. The director 
also concluded, from the petitioner's minimal citation history and the sources of her witness letters, that the 
petitioner's work has attracted little notice outside her own circle of collaborators and professors. 
On appeal, counsel protests that the director "improperly denied the Petition without first issuing a Request 
for Evidence or a Notice of Intent to Deny, without clear evidence of the Petitioner/Beneficiary's 
ineligibility," as required by 8 C.F.R. tj 103.2(b)(8). The most expedient remedy for this deficiency is to give 
full consideration at the appellate stage to any materials that the petitioner would have submitted earlier in 
response to such a notice. Given that the petitioner, upon filing the appeal, indicated that there would be no 
future supplement to the appeal, we consider the record to be complete. 
Counsel states "the stated bases for the Service Center's decision are contradicted by the evidence of record." 
The first claimed contradiction concerns the national scope of the petitioner's work, already addressed above. 
Counsel then asserts that the petitioner is "indispensable" and "one of the few young researchers in this field 
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who has the ability" to conduct the research in which she was engaged at the time of filing. If a permanent 
position exists in which to conduct this research, and there are indeed very few individuals qualified to fill 
that position, then labor certification would appear to be a viable option. Counsel, however, contends that the 
petitioner's "position is not permanent. Therefore, a labor certification is not an option for MIT to retain her 
expertise." Counsel fails to address the inherent contradiction in this statement. If the position is not 
permanent, then there is no reason to believe that MIT intends "to retain her expertise" in the long term. If 
MIT saw fit to offer the petitioner a permanent position, then labor certification would become an option. If 
MIT desires only to employ the beneficiary in the short term, on specific projects of limited duration, then 
nonimmigrant classifications such as F-l and H-1B already exist for that purpose (as demonstrated by the 
petitioner's own history of nonimmigrant research work at MIT). The assertion that labor certification is not 
available to students and postdoctoral researchers is a weak argument for a national interest waiver. 
The director had found that "all of the submitted letters . . . appear to be from individuals who have worked 
with the beneficiary or knew her from various academic settings where she pursued her education or 
conducted research." Counsel states that this finding "is not accurate. The letter from Dr. n NSBRI is 
NOT from an individual who has worked with the beneficiary or knew her from where she pursued her 
education or conducted research. As stated in the letter, they met at [a professional] conference . . . [that] is 
not in any way related to NSBRI or MIT." Thus, counsel objects to the director's finding, on the grounds that 
only five of the six witnesses have demonstrable connections to the petitioner, not "all of' them as the 
director stated. We note that the record contains ~r.urriculum vitae, according to which ~r- 
was at the HarvardfMIT Division of Health Sciences and Technology as an associate professor from 2000 to 
2002, and a visiting professor from 2002 to 2003. Thus, ~r.was on the faculty of the HarvardIMIT 
Division of Health Sciences and Technology for three years while the petitioner was a doctoral student at the 
same institution. His letter, therefore, is not strong evidence of a reputation outside of the HarvardIMlT 
Division of Health Sciences and Technology. We also note that Dr. letter contains very little 
discussion of the petitioner's actual work. 
The next statement with which counsel takes issue is the director's assertion that "[tlhe record contains 
insufficient evidence that others have cited the beneficiary's work to a degree that would be indicative of her 
claimed accomplishments in the field." On appeal, counsel states: "The paper that is most relevant to the 
research . . . mentioned in the notice of denial . . . was accepted and published online (Sept. 26,2003) a month 
before the 1-140 petition was filed (Oct. 27, 2003). The hard copy of the paper was still in press. There was 
no time for any citations to appear in any peer-reviewed journals." Counsel also explains that experiments of 
the type conducted by the petitioner sometimes take years to complete, and therefore citations of the 
petitioner's work would take years to surface. Counsel fails to explain why this contradicts the directors 
finding of "insufficient evidence that others have cited the beneficiary's work." If, as counsel stipulates, the 
petitioner's "most relevant" article had never been cited as of the date of the denial, then obviously the record 
could not possibly have contained any citations of that article. 
Thus, counsel's assertion that the admitted absence of citations "contradicts" the director's finding of 
"insufficient evidence" of citations defies logic. This is a particularly relevant finding because, in the initial 
filing, counsel had not claimed that the petitioner has produced important work that was too new to be cited. 
Rather, as noted above, counsel had previously claimed that the record contains "[elvidence that the proposed 
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beneficiary's research has been discussed in the work of other researchers, and has been regularly cite[d] by 
her peers." The director correctly demonstrated the inaccuracy of counsel's initial claim, and counsel's post 
hoc arguments on appeal only emphasizes that inaccuracy. 
Having abandoned the assertion that the petitioner's work is "regularly cited," counsel now claims on appeal 
that the petitioner's "work has attracted great attention of other researchers." Given that counsel's prior claim 
has collapsed due to lack of evidence, we must give this new claim equal scrutiny. The assertions of counsel 
do not constitute evidence. Mutter of Laureuno, 19 I&N Dec. 1, 3 (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). 
The petitioner submits copies of several electronic mail messages. Counsel refers to these messages as 
"requesting reprints of the beneficiary's petition was filed." An evidence 
list accompanying the appeal includes requesting reprints of papers" and 
(forwarded by of papers." - 
message) requests a copy of one of the petitioner's articles, and copy 
moctoral thesis. also a co-author of the requested paper.) 
The message from intended for was inadvertently addressed tm 
who forwarded the message to the petitioner. Dr. -requests copies of four papers, three 
of which were published before the petitioner began studying at MIT. The remaining paper is the September 
2003 paper that counsel deems to be "most relevant," as discussed above. Both of these messages include 
requests for the petitioner's work and the work of others. The requests appear to be based on subject matter 
rather than authorship.- The record does not indicate whether it is rare or common for one researcher to 
request copies of another's work, and there is nothing to show that a request for a copy is a sure sign of a 
future citation. Indeed, we might conclude that the requestors are unfamiliar with the contents of the articles, 
and had to request copies in order to determine whether or not the information therein would be of value to 
their own research. In any event, the fact that researchers have requested copies of six articles and theses, 
only two of which were co-authored by the petitioner, does not strongly indicate that the requestors consider 
the petitioner to be an especially significant researcher in the field. The two requests do not translate into 
evidence of heavy demand for the petitioner's work. 
There are two other email messages in the record. One, from Dr. f the Cleveland Clinic 
Foundation, requests "status of your bedrest studies. We would like to get additional data (echo exams)." 
The other message, from Om Kapoor of Columbia Presbyterian Hospital, requests assistance 
having trouble converting data from Ponemah to MEA files.'' As with the reprint reque 
courtesies. Counsel's claims about the significance of the messages are not dispositive. 
determine from the content of these messages whether they are anything beyond 
In sum, the record does not demonstrate that the petitioner has established a consistent track record of 
significant achievements with substantial impact on her field. Instead, the waiver request rests entirely on two 
projects that the petitioner undertook as a doctoral student, and is (apparently) continuing in a postdoctoral 
capacity. While MIT's faculty and the petitioner's collaborators are impressed with the results she has 
achieved, there is no evidence that MTT's interest in the petitioner extends beyond her involvement in these 
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specific projects, on which she is already authorized to work, first as an F-1 student and now under an H-1B 
petition filed and approved in February 2005. The available evidence suggests that the petitioner is 
conducting research in an important area of inquiry, and that her collaborators find this work to be promising, 
but it is in many ways too soon to determine the importance of the petitioner's contributions to that area. The 
petitioner's waiver request appears to be premature at best. Exaggerations and omissions in counsel's 
arguments significantly undermine the strength of those arguments. 
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. § 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.