dismissed EB-2 NIW Case: Biomedical Science

identifying data deleted to 
prevent clearly inwarranted 
invasion of personal pnvs) 
PSJBLIC COPY 
1I.S. Departmrrrt of Honrrland Scctirity 
I1.S. Citi~enship and Immigration Scrvices 
Office c~f'Ahiiinisrrulive :?pperrls MS 2090 
Washington. t)C 20529-2090 
U.S. Citizenship 
and Immigration 
FILE: Office: TEXAS SERVICE CENTER Date: 
SRC 07 800 22598 JAN 2 6 2010 
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. 5 1 1 53(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. 5 103.5 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. 103.5(a)(l)(i). 
pdra { Peny Rhew 
rchief, Administrative Appeals Office 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas 
Service Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal 
will be dismissed. 
This petition, filed on July 25, 2007, seeks to classify the petitioner 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 she filed the petition, the petitioner was a postdoctoral 
researcher at the Center for Pharmaceutical Biotechnology at the University of Illinois at Chicago 
(UIC). The petitioner is now a staff scientist with Agave BioSystems in Ithaca, New York. 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. 
On appeal, counsel argues that the evidence submitted by the petitioner "has established that her past 
achievements are greater than those of her peers" and that "she will serve the national interest to a 
substantially greater degree than would an available U.S. worker having the same minimum 
qualifications." 
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 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 petitioner received her Ph.D. in Biophysics from Ohio State University (OSU) in December 2006. 
The director found 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. 
Page 3 
Neither the statute nor pertinent regulations define the term "national interest." Additionally, Congress 
did not provide a specific definition of the phrase, "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, 101 st Cong., 1 st Sess., 1 1 (1 989). 
A supplementary notice regarding the regulations implementing the Immigration Act of 1990 
(IMMACT), published at 56 Fed. Reg. 60897,60900 (November 29, 1991), states, in pertinent part: 
The Service 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 Dep 't of Transp., 22 I&N Dec. 2 15, 2 16 (Comm. 1998) [hereinafter 
"NYSDOT'], 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. Id. at 217. Next, it must be shown that the proposed benefit will be national 
in scope. Id 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. Id at 21 7- 18. 
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. Id. at 219. The petitioner's subjective assurance that the alien will, in the fibre, 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. Id. 
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 offerllabor 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. 
We concur with the director's finding that the petitioner works in an area of intrinsic merit, 
biomedical science, and that the proposed benefits of her work would be national in scope. It 
remains, then, to determine whether the petitioner will benefit the national interest to a greater extent 
than an available U.S. worker with the same minimum qualifications. Eligibility for the waiver must 
rest with the alien's own qualifications rather than with the position sought. In other words, we 
generally do not accept the argument that a given project is so important that any alien qualified to 
work on this project must also qualify for a national interest waiver. Id. at 2 18. Moreover, it cannot 
suffice to state that the alien possesses useful skills, or a "unique background." Id. at 221. Special 
or unusual knowledge or training does not inherently meet the national interest threshold. The issue 
of whether similarly-trained workers are available in the United States is an issue under the 
jurisdiction of the Department of Labor. Id. 
At issue is whether this petitioner's contributions in the field are of such unusual significance that 
she merits the special benefit of a national interest waiver, over and above the visa classification she 
seeks. By seeking an extra benefit, the petitioner assumes an extra element of proof. A petitioner 
must demonstrate a past history of achievement with some degree of influence on the field as a 
whole. Id. at 2 19, n. 6. 
Along with her published articles, educational qualifications, and other documentation pertaining to 
her activities and accomplishments, the petitioner submitted several letters of support. 
Medicinal Chemistry and Director of the Center for 
Pharmaceutical Biotechnology, UIC, states: 
I first met [the petitioner] in March of 2007 when she interviewed for a research position in 
my lab at UIC. I am glad to report that she has met and exceeded all my expectations for that 
position since joining the lab in April. 
One focus of our group's research is a project led by [the petitioner] in working to block the 
synthesis of nucleotides in various bacteria, thereby inhibiting their replication in the host. 
We identified several key bacterial enzymes with major roles in these pathways. A major 
component of our strategy is to study the molecular structure of these enzymes using X-Ray 
crystallography with the aim of designing chemical inhibitors for the enzymes. Such 
inhibitors, after careful laboratory and clinical testing, can be developed into drugs 
combating bacterial infections. [The petitioner] will be at the forefront of this structure based 
approach, relying on her in-depth experience in protein biochemistry and spectroscopy. 
[The petitioner] is currently playing a key role in my laboratory, and I expect that in the near 
future she will be one of the leading participants in our research. . . . [The petitioner's] 
research expertise makes her uniquely qualified for advanced biomolecular research. 
As discussed previously, it cannot suffice to state that the petitioner possesses useful skills, or a 
"unique background." Special or unusual knowledge or training does not inherently meet the 
national interest threshold. The issue of whether similarly-trained workers are available in the 
Page 5 
United States is an issue under the jurisdiction of the Department of Labor. NYSDOT, 22 I&N Dec. 
at 221. 
he was "a member of [the petitioner's] Master's thesis committee" and that she was one of his 
students. further states: 
[The petitioner's] graduate research work focused on the effect of gamma radiation on blood 
cells in the spleen known as splenic lymphocytes. The activity of the different oxidative 
stress enzymes in these cells were quantified by measuring the concentration of the 
enzymatic products. . . . [The petitioner] also discovered that the cellular death due to 
ionizing radiation was possibly triggered by the process of Apoptosis (a genetically 
programmed cell death). In the course of her dissertation, she became familiar with 
membrane related events like fluidity and the role of a number of phospholipid and 
sphingolipid molecules in the process of transducing the death signals to the lymphocytes. 
[The petitioner] is a remarkable researcher with self-taught expert knowledge of physical and 
mathematical concepts in Spectroscopy, Membrane Biophysics and Molecular Physiology. 
With regard to the petitioner's scientific knowledge and research experience, objective qualifications 
and experience necessary for the performance of a research position can be articulated in an 
application for alien labor certification. Pursuant to NYSDOT, 22 I&N Dec. at 221, an alien cannot 
demonstrate eligibility for the national interest waiver simply by establishing a certain level of 
training, education, or experience that could be articulated on an application for a labor certification. 
states: 
I have had the privilege of understanding and guiding [the petitioner's] research potential in 
my role as her Ph.D. advisor between 2003 and her graduation in late 2006. 
[The petitioner] used her background in biological sciences in identifying, isolating, and 
purifying the FHA [Forkhead Associated] domain of yeast in bacterial cells and her 
knowledge and aptitude in material physics in performing nuclear magnetic resonance 
(NMR) studies on the protein samples. The solution structure obtained from the NMR 
experiments was published in 2005 in the Journal ofAmerican Chemical Society (JACS) as 
an accelerated communication. [The petitioner's] publication has provided important 
knowledge toward identifying the active nodes of the domain so that its binding can be 
manipulated for achieving beneficial goals including the control of cancerous cells. 
Page 6 
While in my group, [the petitioner] also pursued research on another class of proteins 
containing motifs known as Ankyrin Repeats. Although present in beneficial proteins such as 
the tumor suppressing p16, they are also found in cancer causing proteins such as Gankyrin. 
Once again [the petitioner] not only used her NMR skills to refine the structure of the 
oncogenic protein, gankyrin, but also used biophysical methods to further study the 
properties that distinguish them. It was also determined that proteins with diagonally 
opposite functions can be made to behave in much the same way by making subtle changes 
to just one or two residues. This once again proves the importance of protein structure- 
function studies. The research on the protein domain that [the petitioner] pursued provided 
significant insights into the functional and structural specificity of human tumor-regulating 
proteins. Her efforts in this project have resulted in several publications in prestigious 
journals like Biochemistry and Journal of Molecular Biology. 
In addition to recruiting [the petitioner] to OSU, I also served on the graduate committees for 
[the petitioner's] general exam and thesis defense. 
[The petitioner] has worked on several projects but the most significant one involved 
revealing the structure of a specific forkhead protein domain in complex with a biologically 
relevant peptide. A large number of sophisticated biophysical techniques were employed to 
determine this structure, which was an extremely difficult problem to solve. Another project 
involved determining the 31) structure of Gankyrin. Both of these projects are extremely 
important in understanding cancer development and in developing logical drug designs for 
cancer. 
While the petitioner's research is no doubt of value, it can be argued that any research must be 
shown to be original and present some benefit if it is to receive funding and attention from the 
scientific community. Any Ph.D. thesis or postdoctoral research, in order to be accepted for 
graduation, publication or funding, must offer new and useful information to the pool of knowledge. 
It does not follow that every researcher who performs original research that adds to the general pool 
of knowledge inherently serves the national interest to an extent that justifies a waiver of the job 
offer requirement. 
Australian National Health and Medical Research Council Senior Research 
Fellow and Head, Molecular Genetics Unit, St. Vincent's Institute of Medical Research, Australia, 
states: 
I have had the pleasure to work with [the petitioner] when our research groups collaborated 
in 2004 and early 2005 on a protein structure determination project. 
Although there are several techniques that can be employed to study the molecular structure 
of proteins, [the petitioner] used a type of Fourier Transform (FT) Nuclear Magnetic 
Resonance (NMR) spectroscopy called Multi-Dimensional NMR to study FHA. . . . [The 
petitioner] demonstrated her exceptional and tremendous knowledge in the fields of 
biochemistry, quantum mechanics, non-linear mathematics, and computer programming by 
employing NMR to determine the FLIA structure in complex with this peptide. This strong 
combination of skills is exactly what is needed in the field to advance such important 
research capable of leading to break-through drug designs for combating cancer. 
As previously discussed, it cannot suffice to state that the petitioner possesses useful skills or a unique 
background. Regardless of the petitioner's particular experience or skills, even assuming they are 
unique, the benefit her skills or background will provide to the United States must also considerably 
outweigh the inherent national interest in protecting U.S. workers through the labor certification 
process. NYSDOT, 22 I&N Dec. at 22 1. 
[The petitioner] determined the binding mode of a ubiquitous protein motif called Forkhead 
Associated (FHA) domain. This domain is key to the functioning of numerous human 
enzymes like DNA Ligases, phosphatases and polymerases. . . . [The petitioner] used . . . 
Nuclear Magnetic Resonance Spectroscopy (NMR) to determine the solution structure of the 
FHA complex. 
The results of her experiments, including the solution structure, were published in the 
Journal of the American Chemical Society . . . . The solution structure that she elucidated 
will eventually lead to structure-based drug designs targeting FHA domain with the aim of 
suppressing cell cycle kinases and controlling cancer. The solution structure is [the 
petitioner's] signature, original and extremely high impact contribution to the scientific 
community's fight against fatal diseases. However, her contributions do not end there - in 
another project, [the petitioner] showed great competence and perseverance in mutating and 
thus drastically changing the functionality of an oncogenic protein called gankyrin, into 
behaving like a tumor suppressor. 
The preceding letters of recommendation state that the petitioner has published her work in Journal 
of the American Chemical Society, Biochemistry, and Journal of Molecular Biology. We note that 
publication in journals and conference proceedings is inherent to scientific research. ' For this reason, 
I For "Biological Scientists," the Department of Labor's Occupational Outlook Handbook, 2008-2009 (accessed at 
http: \.t\i\i+.bls.gov oco), states that a "solid record of published research is essential in obtaining a permanent position 
involving basic research." See http ctat,tblsgo\ cc~-bin PI iiit 131 oco oco\O37 Iit~n, accessed on December 1 1, 2009, copy 
incorporated into the record of proceeding. The handbook also provides information about the nature of employment as a 
postsecondary teacher (professor) and the requirements for such a position. See ilttp ddt,i.bls~sL~~~- 
hpr~nt.pl oco oci~sOb6._ht1?1, accessed on December I 1, 2009, copy incorporated into the record of proceeding. The 
we will evaluate a citation history or other evidence of the impact of the petitioner's articles when 
determining their significance to the field. For example, numerous independent citations for an 
article authored by the petitioner would provide solid evidence that other researchers have been 
influenced by her work and are familiar with it. On the other hand, few or no citations of an article 
authored by the petitioner may indicate that her work has gone largely unnoticed by her field. The 
petitioner initially submitted search results from Google Scholar and copies of two articles 
demonstrating that her body of work had been minimally cited at the time of filing. For example, the 
documentation initially submitted did not indicate that any of the petitioner's articles were 
independently cited to more than ten times. While the citation evidence initially submitted indicates 
a small degree of interest in the petitioner's published work at the time of filing, the limited number of 
these cites is not sufficient to demonstrate that her work had significantly influenced her field as a 
whole or otherwise sets her apart from other researchers in her field. 
In addition to the letters of support, the petitioner submitted evidence of her membership in the 
American Chemical Society, her academic honors. and an e-mail reflecting that she received a 
"Young Scientist Travel Award" to attend a scientific conference. We note that recognition for 
achievement in one's field and professional association memberships relate to the regulatory criteria 
for classification as an alien of exceptional ability, a classification that normally requires an 
approved labor certification. 8 C.F.R. 3 204.5(k)(3)(ii). We cannot conclude that meeting one, two, 
or even the requisite three criteria for classification as an alien of exceptional ability warrants a 
waiver of the labor certification requirement in the national interest. By statute, "exceptional ability" 
is not, by itself sufficient cause for a national interest waiver. NYSDOT, 22 I&N Dec. at 2 18. Thus, 
the hemfit which the alien presents to his field of endeavor must greatly exceed the "achievements 
and significant contributions" contemplated for that classification. Id.; see also id. at 222. 
Nevertheless, there is no evidence showing that the petitioner's American Chemical Society 
membership required significant research achievements in her field. Further, with regard to the 
petitioner's academic honors, we note that university study is not a field of endeavor, but rather 
training for future employment in a field of endeavor. The petitioner's student honors are not an 
indication that she has influenced her field and they offer no meaningful comparison between her 
and others in the field outside of her university who had already completed their graduate studies. 
Regarding the petitioner's travel award, there is no evidence from the National Institutes of Health 
showing the criteria for determining a recipient's eligibility for this award. Moreover, we cannot 
conclude that that the petitioner's receipt of funding to cover travel expenses to a scientific 
conference demonstrates a level of achievement consistent with some degree of influence on the 
field as a whole. 
On November 7, 2008, the director instructed the petitioner to "[s]ubmit evidence of the exact 
influence your work has had on your specialty or on the field in general." In response, the petitioner 
handbook expressly states that faculty members are pressured to perform research and publish their work and that the 
professor's research record is a consideration for tenure. Moreover, the doctoral programs training students for faculty 
positions require a dissertation, or written report on original research. Id This information reinforces USCIS's position that 
authorship of scholarly articles does not set the petitioner apart from others in his field; we must consider the research 
community's reaction to those articles. 
submitted additional recommendation letters, citation records, invitations to publish and present her 
work, information regarding her projects at Agave BioSystems, and material about UIC. 
[The petitioner] successfully completed her post doctoral tenure at our Center in the fall of 
2008 and has since moved on to accept a full-time position at Agave Biosystems. During her 
time here, [the petitioner] successfully worked on the key enzymes involved in the Purine 
Biosynthesis Pathway of the Anthrax pathogen. She cloned, expressed, purified, and 
determined the X-Ray structure of one of these enzymes. She also established a fluorescence- 
based assay to quantify the affinity of these enzymes to their substrates and inhibitors. Her 
results are being currently used by medicinal researchers at our center to develop therapeutic 
strategies for Anthrax. 
also discusses "the enormously important bioterrorism research grants" that supported 
the petitioner's work at UIC. We generally do not accept the argument that a given project is so 
important that any alien qualified to work on this project must also qualify for a national interest 
waiver. NYSDOT, 22 I&N Dec. at 218. The observations from various references about the 
importance of the petitioner's anthrax and cancer research establish the intrinsic merit and national 
scope of her work, but their comments are not adequate to show that her individual accomplishments 
are of such an unusual significance that she qualifies for a waiver of the job offer requirement. By 
law, advanced degree professionals and aliens of exceptional ability are generally required to have a 
job offer and a labor certification. A statute should be construed under the assumption that Congress 
intended it to have purpose and meaningful effect. Mountain States Tel. & Tel. v. Pueblo of Santa 
Ana, 472 U.S. 237, 249 (1985); Sutton v. United States, 819 F.2d 1289, 1295 (5'" Cir. 1987). 
Congress plainly intends the national interest waiver to be the exception rather than the rule. 
and Co-founder of Agave BioSystems, the petitioner's present employer, states: 
Agave maintains a scientist workforce of around 10 people. I still serve as the scientific 
advisor to the firm and was recently entrusted with identifying the best possible young 
scientist to add to Agave's staff scientist list. . . . After interviewing several candidates, I 
ended up recommending [the petitioner] to the position. 
[The petitioner] is well recognized as a promising scientist by the scientific community . . . . 
I am happy to report that since coming on board at Agave, [the petitioner] has furthered my 
conviction that she will become a valuable member of our team with great contributions to 
furthering the important research we are involved in. She was hired for her expertise in the 
field of biomedical research and this is the field she continues to work in. 
We recently hired [the petitioner] to become part of our scientist staff. . . . We were 
impressed by [the petitioner's] demonstrated success in isolating, cloning, and determining 
the structure of therapeutic protein domains. . . . We also noted her use of NMR 
spectroscopy for determining protein structure, which demonstrated the inter-disciplinary 
nature of her research. Inferring the qualities of the protein binding sites from NMR graphs 
requires an understanding of the nuances of complex biomolecules. In another project that 
she was involved in, [the petitioner] successfully altered the binding site of a detrimental 
protein known as Ankyrin Repeats to make it behave in a manner similar to cancer 
suppressers. This had special significance to Agave as we are working on several projects 
requiring protein and antibody engineering. 
Training in advanced technology or unusual knowledge, while perhaps attractive to the petitioner's U.S. 
employer, does not inherently meet the national interest threshold. Id. at 22 1. letter also 
provides details about three projects the petitioner is currently working on at Agave BioSystems. 
These projects and much of the petitioner's work at UIC occurred subsequent to July 25, 2007. A 
petitioner, however, must establish eligibility at the time of filing. 8 C.F.R. $5 103.2(b)(l), (12); 
Matter of Katigbak, 14 I&N Dec. 45, 49 (Regl. Commr. 1971). Accordingly, the AAO will not 
consider research work and publications that post-date the filing of this petition in this proceeding. 
[The petitioner] has determined the solution structure of FHA domain containing complexes 
(JACS, 2005; Molecular Cell, 2008). This was a major accomplishment . . . . 
In her published results on Ankyrin repeat domains (Biochemistry, 2004), that are known for 
their highly degenerate primary sequences and as a result present a major challenge for 
NMR, [the petitioner] and her colleagues combined the use of TROSY-type experiments, 
perdeuterated protein samples, isotope-filtered NMR experiments, and residual dipolar 
couplings, to solve a three-dimensional solution structure of the human oncogenic protein 
Gankyrin. [The petitioner] followed her structural work on these domains with a functional 
study where she demonstrated the significance of single amino acids in determining the 
functional role of these ankyrin repeat proteins such as p16 and gankyrin (Journal of 
Molecular Biology, 2008) In addition, she studied by NMR titration the effect of mutations 
on the overall structure and stability of these proteins. 
discusses findings in Molecular Cell and Journal of Molecular Biology that were 
published by the petitioner subsequent to the petition's filing date. As discussed previously, a 
petitioner must establish eligibility at the time of filing. 8 C.F.R. $8 103.2(b)(l), (12); Matter of 
Katigbak, 14 I&N Dec. at 49. Accordingly, the AAO will not consider research findings published 
by the petitioner after July 25,2007 in this proceeding. 
Diabetes and Obesity Research Center, Burnham Institute for 
Medical Research at Lake Noma, Florida, states: 
[The petitioner] refined the solution structure of the ankyrin repeat oncogenic protein 
Gankyrin, as reported in Biochemistry, and then went on to use Gankyrin as a prototype to 
explore structure-activity relationships of other ankyrin repeat proteins. She developed a 
strategy for the rational design of mutants to explore the critical structural components of the 
domain, and has used this most recently to pinpoint key functional motifs in the cyclin- 
dependent kinase-interacting tumor suppressor protein P16. Since the ankyrin repeat motif is 
so widely distributed among proteins, this work has important ramifications in a variety of 
fields. 
For the last 6 years, the major focus of my laboratory has involved the MEF2 class of 
transcription factors. . . . We are currently exploring roles of these functional interactions in 
the regulation of MEF2 function in parallel with other approaches to identify genetic 
programs driven by the various MEF2 isoforms. Though our work is not yet published, [the 
petitioner's] published work is critical to our dissection of this problem, and we incorporate 
her findings in our experimental approaches. She has certainly influenced our research and 
we expect . . . she will continue to greatly impact research in this field in the future. 
discusses findings reported by the petitioner and her coauthors that were published in an 
article entitled "Dissection of Protein-Protein Interaction and CDK4 Inhibition in the Oncogenic 
versus Tumor Suppressing Functions of Gankyrin and P16." This article was published online on 
August 22,2007 and in the Journal of Molecular Biology in November 2007. Moreover, - 
states that his article incorporating her findings "is not yet published." The petitioner, however, 
must demonstrate her eligibility as of the petition's filing date of July 25, 2007. 8 C.F.R. 
$9 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. at 49. In this matter, that means that the 
petitioner must demonstrate her track record of success with some degree of influence on the field as 
a whole as of that date. All of the case law on this issue focuses on the policy of preventing 
petitioners from securing a priority date in the hope that they will subsequently be able to 
demonstrate eligibility. See Matter of' Wing's Tea House, 16 I&N Dec. 158, 160 (Reg'l. Comm'r. 
1977); Matter oJ'Katighak, 14 I&N Dec. at 49; see also Matter of'lzummi, 22 I&N Dec. 169, 175-76 
(Comm'r. 1998) (citing Matter of Bardouille, 18 I&N Dec. 1 14 (BIA 198 1) for the proposition that 
we cannot "consider facts that come into being only subsequent to the filing of a petition.") 
Consistent with these decisions, a petitioner cannot secure a priority date in the hope that her 
research will subsequently prove influential. Ultimately, in order to be meritorious in fact, a petition 
must meet the statutory and regulatory requirements for approval as of the date it was filed. 
Ogundipe v. Mukmey, 541 F.3d 257, 261 (4th Cir. 2008). Accordingly, articles by the alien that 
were not published as of the date of filing and, thus, had not been subject to peer review and 
disseminated in the field as of that date, cannot establish eligibility for the national interest waiver as 
of the date of filing. Further, while citations published after the date of filing may serve as evidence 
of the continued relevance of an alien's work that had already been well cited as of the filing date, 
they cannot be considered evidence that the alien was already influential as of that date. To hold 
otherwise would have the untenable result of an alien securing a priority date based on the 
speculation that her work might prove influential while the petition is pending. 
In my view, [the petitioner] has made two significant and original contributions to 
ourunderstanding of the structure-function relationship of key protein domains. First, she 
played a crucial role in the elucidation of the binding specificity of the Forkhead Associated 
(FHA) Protein Domain and made the important discovery that conventional chemical 
approaches of selecting ligands miss important biologically relevant ones that rely on subtle 
hydrophobic interactions. Second, [the petitioner] refined the solution structure of gankyrin, 
an oncogenic protein containing a motif called Ankyrin repeat and generated a single site- 
specific mutation in this protein by rational design to generate a behavior corresponding to a 
tumor suppressor, which is a completely opposite functionality. 
I am quite familiar with [the petitioner's] work in -1 which is very 
relevant to our own work on DNA damage checkpoint signal transduction. 
[The petitioner's] Ph.D. dissertation in the Tsai laboratory placed her at the cutting edge of 
structural analysis of FHA signaling, and parallel work on modular protein interactions 
mediated by ankyrin repeats. 
Our work on the checkpoint controls in both budding yeast and humans involve proteins such 
as Chk2 and Rad53 Kinase. Since these proteins have FHA domains, and functions as a 
result of their interactions with other proteins, our research draws extensively on the results 
that [the petitioner] published on the FHA domain. [The petitioner's] work on these 
interactions has influenced our own understanding of the signaling and structural aspects of 
checkpoint signaling, and has had similar impact on the entire (large) community of scientists 
with these interests. [The petitioner's] published work takes novel approaches in solving this 
important protein domain structure and the results published. 
In addition, [the petitioner's] citation record shows that her articles have been widely cited.. . . 
In support of assertion that articles have been widely cited, the petitioner submitted 2009 
search results from Google Scholar and PubMed reflecting that her work has now been cited to 
approximately four dozen times (including several self-citations by the petitioner and her 
 coauthor^).^ We cannot ignore, however, that half of the submitted cites to the petitioner's work 
post-date the filing of this petition. The articles citing to the petitioner's work after July 25,2007 do 
not constitute evidence that she was already influential as of that date. As discussed previously, a 
petitioner must establish eligibility at the time of filing. 8 C.F.R. $5 103.2(b)(l), (12); Matter of 
Kutigbak, 14 I&N Dec. at 49. Accordingly, the AAO will not consider cites to the petitioner's work 
from August 2007 and later in this proceeding. 
The director denied the petition stating that the petitioner failed to establish that a waiver of the 
requirement of an approved labor certification would be in the national interest of the United States. 
Noting a lack of evidence that the petitioner's work had been heavily cited, the director found that 
the petitioner had not established that she has influenced her field overall to greater extent than 
similarly qualified researchers in her specialty. 
On appeal, the petitioner submits additional recommendation letters and copies of scientific articles 
citing to her work. 
and Medical Research, France, states: 
In 2005, [the petitioner] had demonstrated a novel interaction between the FHA1 domain of 
Rad53 and a pTXXI motif of Mdtl protein in her publication in Journal of American 
Chemical Society under article titled "FHA Domain-Ligand Interactions: Importance of 
Integrating Chemical and Biological Approaches." This was the first structure of a 
biologically significant peptide with any FHA domain that had ever been solved. This also 
presented a novel-binding mode of the FHA1 domain different from those previously 
determined using synthetic peptides. We relied on [the petitioner's] results to establish the 
binding of FHAl to another peptide of biological significance. Our data published in 
Molecular and Cellular Biology in 2007 . . . indicated a similar binding mode for pT(Ptc2) 
and pT(Rad9)' different from that of the peptide from the pT(Mdt1) protein, establishing the 
fact that such diversified functions of FHA domains can be explained by the existence of 
multiple binding modes in viva. We also used [the petitioner's] results in comparing the 
thermodynamic parameters of the molecular interactions between FHAl and pT(Ptc2) that 
we obtained using Isotherimal Calorimetry. 
2 Self-citation is a normal, expected practice among researchers in the scientific community. Self-citation cannot, 
however, demonstrate the response of independent researchers. 
[The petitioner's] contributions are well into the category of "above-average." I also note 
that my own research group has used [the petitioner's] published results, methods, and 
inferences starting in 2006, and continue to draw on her discoveries on various ankyrin 
repeat proteins to complement, interpret, and support our work on the ankyrin repeat protein 
Notch, and on other repeat proteins we study. [The petitioner's] work on this topic largely 
culminated in her excellent 2007 paper published on multiple proteins, Gankyrin and P16, 
both of which are structurally homologous to Notch protein that was cited in one of our 
papers, "Predicting repeat protein folding kinetics from an experimentally determined folding 
energy landscape." 
The petitioner's "paper published on multiple proteins, Gankyrin and P16" to which -~ 
refers was published online on August 22, 2007 and in the Journal of Molecular Biology in 
November 2007. further states that he reviewed the preceding paper for Journal of 
Molecular Biology and that the petitioner also "co-authored an in vivo study that was published 
recently in Gene Expression that proved that reduced expression of P16 is a common event in human 
pheochromocytomas (neuroendocrine tumor), and is caused by genetic abnormalities in the p16 
gene." The petitioner's paper in Gene Expression was published in 2008. As discussed previously, 
an applicant or petitioner must establish that she is eligible for the requested benefit at the time of 
filing the application or petition. 8 C.F.R. $5 103.2(b)(l), (12). Therefore, subsequent events cannot 
cause a previously ineligible alien to become eligible after the filing date. See Matter of Katigbak, 
14 I&N Dec. at 49. Accordingly, the AAO will not consider research findings published by the 
petitioner after July 25,2007 in this proceeding. 
Counsel argues that the submitted documentation shows that the petitioner "has achieved significant 
contributions that have markedly influenced her field beginning prior to the 1-140 filing and 
continuing since that date." Counsel points out that the petitioner's work has now been cited more 
than 40 times. With regard to the articles citing to the petitioner's work that were submitted on 
appeal, we note that several of them were published subsequent the filing date of this petition. The 
number of remaining articles shows that the petitioner's work had been independently cited to 
approximately one dozen times as of the filing date. This minimal number is not sufficient to 
demonstrate that the petitioner's body of work had a significant degree of influence on her field as of 
July 25,2007. 8 C.F.R. $5 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. at 49. In this case, at 
the time of filing, there was not already an established pattern of heavy citation of the petitioner's 
work. Thus, even if the petitioner had documented a significant later pattern of citation, which we 
do not concede here, this would not establish that she was eligible for a national interest waiver at 
the time of filing. 
Citations are not the only means by which to show the petitioner's impact on her field. Independent 
witness letters can play a significant role in this respect. Here, however, the petitioner has submitted 
only a handful of such letters, which collectively fail to establish the depth or extent of her influence 
on the field as whole. Simply listing the petitioner's novel findings cannot suffice in this regard, 
because all graduate students and postdoctoral researchers are arguably expected to produce original 
work. 
With further regard to the letters of support, USCIS may, in its discretion, use as advisory opinion 
statements submitted as expert testimony. See Matter of Caron International, 19 I&N Dec. 791,795 
(Commr. 1988). However, USCIS is ultimately responsible for making the final determination 
regarding an alien's eligibility for the benefit sought. Id. The submission of letters of support from 
individuals selected by the petitioner is not presumptive evidence of eligibility; USCIS may evaluate 
the content of those letters as to whether they support the alien's eligibility. See id. at 795. USCIS 
may even give less weight to an opinion that is not corroborated, in accord with other information or 
is in any way questionable. Id. at 795; see also Matter of Sofffici, 22 I&N Dec. 158, 165 (Commr. 
1998) (citing Matter of Treasure Crufl qf California, 14 I&N Dec. 190 (Regl. Commr. 1972)). In 
this case, the content of the letters of support submitted by the petitioner does not establish that her 
work at the time of filing had already had a significant national impact or otherwise influenced her 
field as a whole. 
While petitioner has contributed to biomedical research projects at the universities where she earned 
her advanced degrees and received her postdoctoral training, she has not established that her past 
record of achievement is at a level that would justify a waiver of the job offer requirement which, by 
law, normally attaches to the visa classification sought by the petitioner. We note that the petitioner 
need not demonstrate notoriety on the scale of national acclaim, but the national interest waiver 
contemplates that her influence be national in scope. NYSDOT, 22 I&N Dec. at 217 n.3. More 
specifically, the petitioner "must clearly present a significant benefit to the field of endeavor." Id. at 
21 8. See also id. at 21 9 n.6 (the alien must have "a past history of demonstrable achievement with 
some degree of influence on the field as a whole.") 
As is clear from a plain reading of the statute, it was not the intent of Congress that every alien of 
exceptional ability 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 occupation, 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 alien employment 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. 9 136 1. 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 an alien employment certification certified by the Department of Labor, appropriate supporting 
evidence and fee. 
ORDER: The appeal is dismissed.