dismissed EB-2 NIW Case: Bioorganic Chemistry

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PUBLIC COPY 
FILE: Office: VERMONT SERVICE CENTE 
EAC 03 218 51458 
PETITION: Immigrant Petition for Alien Worker as a Member of the Profes: 
Degree or an Alien of Exceptional Ability Pursuant to Section 21 
and Nationality Act, 8 U.S.C. 9 1153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All docu 
the office that originally decided your case. Any further inquiry must be made tc 
3artment of Homeland Security 
. Ave., N.W., Rm. A3042 
;ton, DC 20529 
Zitizenship 
Immigration 
ices 
IS Holding an Advanced 
b)(2) of the Immigration 
~ts have been returned to 
at office. 
Administrative Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied by th 
Center, and is now before the Administrative Appeals Office on appeal. The appeal 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigrati 
Act), 8 U.S.C. 5 1153(b)(2), as an alien of exceptional ability or a member of 
advanced degree. The petitioner seeks employment as an instructor. The petition 
from the requirement of a job offer, and thus of a labor certification, is in the na 
States. The director found that the petitioner qualifies for classification as a membl 
an advanced degree, but that the petitioner had not established that an exemption fi 
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 ( 
Ability. -- 
(A) In General. -- Visas shall be made available . . . to qualified immigran 
of the professions holding advanced degrees or their equivalent or wl 
exceptional ability in the sciences, arts, or business, will substantially bene 
national economy, cultural or educational interests, or welfare of the Unite 
services in the sciences, arts, professions, or business are sought by an em 
States. 
(B) Waiver of Job Offer. 
(i) . . . the Attorney General may, when the Attorney General deen 
the national interest, waive the requirement of subparagraph (A) th 
services in the sciences, arts, professions, or business be so 
employer in the United States. 
The petitioner holds a Candidate of Science diploma in bioorganic chemistry from 
Chemical Institute in the Ukraine (Bogatsky Institute). The petitioner's occupati 
regulatory def nition of a profession. The director found that the petitioner thus ( 
professions holding an advanced degree. We will not contest that finding, althoug 
failed to submit an evaluation of this foreign degree or a certified translation of th 
The notary's seal on the translation does not meet the translator certification requi 
5 103.2(b)(3). The remaining issue is whether the petitioner has established thi 
requirement, and thus a labor certification, is in the national interest. 
Neither the statute nor pertinent regulations define the term "national interest." Ac 
provide a specific definition of "in the national interest." The Committee on the . 
report to the Senate that the committee had "focused on national interest by 
proportion of visas for immigrants who would benefit the United States econon 
S. Rep. No. 55, 101 st Cong., l st Sess., 1 1 (1989). 
Director, Vermont Service 
.ill be dismissed. 
I and Nationality Act (the 
ie professions holding an 
asserts that an exemption 
~nal interest of the United 
of the professions holding 
n the requirement of a job 
Aliens of Exceptional 
who are members 
because of their 
t prospectively the 
States, and whose 
oyer in the United 
it to be in 
an alien's 
,ht by an 
le O.V. Bogatsky Physico- 
I falls within the pertinent 
alifies as a member of the 
we note that the petitioner 
foreign language diploma. 
inents set forth at 8 C.F.R. 
a waiver of the job offer 
itionally, Congress did not 
jiciary merely noted in its 
creasing the number and 
:ally and otherwise. . . ." 
Supplementary information to the regulations implementing the Immigration Act of 990 (IMMACT), published 
at 56 Fed. Reg. 60897, 60900 (November 29, 1991), states: 
I 
The Service believes it appropriate to leave the application of this test as exible as possible, 
although clearly an alien seeking to meet the [national interest] standard m st 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 ali n 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. 
i 
Matter of New York State Dep 't. of Transp., 22 I&N Dec. 2 15 (Comm. 1998)' set forth several factors 
which must be considered when evaluating a request for a national interest waiver. it must be shown that 
the alien seeks employment in an area of substantial intrinsic merit. Next, it that the proposed 
benefit will be national in scope. Finally, the petitioner seeking the waiver that the alien will 
serve the national interest to a substantially greater degree than would an having the same 
minimum qualifications. 
On appeal, counsel states: 
First of all, it is worth noting that this decision, as well as most others by Vermont since 
that Center stopped issuing [requests for additional evidence], 
NYSDOT, perhaps the most important case on [national interest 
ignoring the law, and making up its own rules, which, by the 
This assertion is simply false. At the top of page two of the director's decision, she s ates: 
I 
The Administrative Appeals Unit, in 
1998)' provided a three prong test 
national interest. 
The director then listed the three factors discussed above. Thus, counsel's asserti n that the director did not 
mention this precedent decision is not supported by the record and, in fact, is con radicted by counsel's own 
statements later in his appellate brief, where he concedes that the director found tha the petitioner's work is in 
an area of intrinsic merit and that the proposed benefits of the petitioner's work wo Id be national in scope, the 
first two factors set forth in that precedent decision. We further note that every attempt by the director to 
explain the standard being used is dismissed by counsel as "boilerplate garbage." It 's reasonable that language 
that sets forth the standard used in adjudicating all cases seeking this benefit would e repeated in the director's 
decisions. 
I 
We concur with the director that the petitioner works in an area of intrinsic 
Resonance (NMR) spectroscopy, and that the proposed benefits of his work, 
macromolecules implicated in cancer and AIDS, would be national in scope. It 
whether the petitioner will benefit the national interest to a greater extent than an 
the same minimum qualifications. 
merit, Nuclear Magnetic 
ir~proved understanding of 
rc:mains, then, to determine 
available U.S. worker with 
Page 4 
Eligibility for the waiver must rest with the alien's own qualifications rather than 
other words, we generally do not accept the argument that a given project is 
qualified to work on this project must also qualify for a national interest waiv 
petitioner's contributions in the field are of such unusual significance that the 
benefit of a national interest waiver, over and above the visa classification he 
benefit, the petitioner assumes an extra burden of proof. A petitioner must d 
achievement with some degree of influence on the field as a whole. Id. at 219, n. 
It must be noted that, while the national interest waiver hinges on prospective natic 
established that the alien's past record justifies projections of future benefit tc 
petitioner's subjective assurance that the alien will, in the future, serve the natia 
establish prospective national benefit. The inclusion of the term "prospective" i 
contributions by the alien, rather than to facilitate the entry of an alien with no dem 
and whose benefit to the national interest would thus be entirely speculative. 
The director concluded that "all of the letters of support and recommendation that 
be from individuals who work with the beneficiary or have known him from t 
where he has pursued his education." On appeal, counsel asserts that some "of 
people who knew the etitioner, but about half were not." Subsequently, coun 
I Dr. and Dr.- "hav rked with[,] c 
or supervised [the petitioner]." We note that Dr s a principal 
Biomedical Sciences in Taipei, where the petitioner worked for two and a half yea 
"knew" the petitioner. Thus, only two of the petitioner's six references are indeper 
Counsel asserts that the director's concern regarding the independence of the petil 
administrative fiat." Counsel, however, provides no legal authority for the prop( 
own immediate circle of colleagues are sufficient to establish an influence on the 
set forth in Matter of New York Dep 't of Transp., 22 I&N Dec. at 2 1 9, n .6. Counsc 
is "the most important case" on the benefit sought. We note that no federal court 
decision. As consistently stated in our decisions, letters from one's colleagues a] 
explain the alien's role on various projects. Such, letters, however, are more p 
other evidence of the petitioner's influence beyond those colleagues, such 
researchers who have applied the alien's work or frequent citation of the alien's wc 
Equally important as the source of the letter is the content of the letters. General ( 
in the field are far less persuasive than concrete examples of the petitioner's influe 
consider the content of the letters submitted. 
The petitioner obtained a degree in physics from Mechnikov State University in 
obtained his Candidate of Science diploma from the Bogatsky Institute. On the F( 
listed in field of study as bioorganic chemistry. The petitioner worked for the I 
when he went to work as a postdoctoral research fellow at the Institute of Bic 
Taiwan. In 2001, the petitioner accepted another postdoctoral position at the Uni 
Center where he was promoted to an instructor in February 2003. The petitioner rc 
time of filing. 
th the position sought. In 
important that any alien 
At issue is whether this 
titioner merits the special 
:ks. By seeking an extra 
onstrate a past history of 
I benefit, it clearly must be 
~e national interest. The 
interest cannot suffice to 
~sed here to require future 
jtrable prior achievements, 
lu have provided appear to 
- - 
various academic settings 
: letters were in fact from 
asserts that ~r.- 
iborated with, studied with 
earcher at the Institute of 
D= indicates that he 
nt. 
~er's references as "law by 
ion that letters from one's 
Id as a whole, the standard 
cknowledges that this case 
; overturned that precedent 
mportant and necessary to 
aasive when supported by 
independent letters from 
ms of ability and notoriety 
: in the field. We will now 
11. In 1995, the petitioner 
I ETA-750B. the petitioner 
;atsky Institute until 1998, 
:dical Sciences in Taipei, 
sity of Connecticut Health 
lined in that position at the 
Dr. the petitioner's collaborator at the Bogatsky Institute, attests 
creativity. He asserts that the petitioner developed "new NMR methods, expe 
research methodology" and "provided a number of improvements for the methoc 
More specifically, Dr. asserts that the petitioner's work with bioacti 
supramolecular complexes resulted in the identification of "the bioactive confirma 
the drug discovery." The petitioner "contributed substantially to the fundamental I 
recognition of peptide hormones and neurotransmitters and has contributed to t 
neurotropic medicine substances." Dr-does not identify any medicil 
petitioner's work. The record does not include a letter from any Ukrainian pharm 
to their reliance on the petitioner's work. 
Dr. irector of the National NMR Facility at the Institute of B 
asse s a w I e wor mg at that institute, the petitioner "solved an NMR structun 
resolution which allows scientists to model an interaction of molecules and thus to 
a protein bioactivity." ~r.nother researcher at this institute, provides simil 
because of this work, "scientists can figure out a mechanism of antitumor activity 
further toward development of new effective therapeutic agents for cancer treatme 
explain that onconase is in phase three trials as an anti-tumor drug, but 1 
petitioner's work led to these trials. Rather, they appear to be saying that the petitic 
in trials as an anti-cancer agent will allow researchers to develop other such agents 
record does not include letters from high-level officials of pharmaceutical compani 
the properties of onconase in order to develop other anti-cancer agents. 
~r. the petitioner's supervisor at the University of Connecticut, provid 
[The petitioner] discovered the biologically active conformation of se 
Based on this result it has been possible to predict new neurotropic a 
antiamnesic and antidepressive potency. By elucidating the three-dim( 
onconase, a potent anti-cancer protein, the extremely high atomic resolutioi 
significantly contributed to the design of effective agents for cancer and 1 
work will greatly help biologists and therapists to better understand the nat 
His work is clearly in the national interest. 
[The petitioner's] current project involves determining the three dimensi 
complex between cofilin and phospholipids molecules. Cofilin regulates t 
filaments, which constitute the intracellular scaffold of most cells and are 
cytokinesis. Cofilin regulates actin polymerization, but its interaction wit1 
when it binds phosphoinositides. [The petitioner] has already identified 
every magnetic nucleus of cofilin and he published the results in the hi{ 
Biomolecular NMR. He subsequently determined an atomic resolution str 
has mapped the surface of the molecule that is responsible for bindin 
Based on this information he has developed a novel model for how phosp 
the interaction between actin and cofilin. 
the petitioner's skill and 
iental techniques and the 
3gy and instrumentation." 
organic compounds and 
n of neuropeptides toward 
lerstanding of the receptor 
novel and more effective 
developed based on the 
:utical companies attesting 
iedical Sciences in Taipei, 
f onconase to 0.34 A - the 
ierstand the mechanism of 
information, asserting that 
onconase and 
' Both I - q do not lndlcate 1 Zat the 
r's work on a drug already 
ith similar properties. The 
expressing their interest in 
the following information: 
.a1 neuropeptides. 
its with selective 
ional structure of 
the petitioner] has 
IS treatment. His 
of these diseases. 
tl structure of the 
formation of actin 
tical in eukaryotic 
3filin is abrogated 
MR properties of 
:mpact Journal of 
:ure of cofilin and 
~hosphoinositides. 
nositides regulate 
Dr.oncedes that the final work discussed had yet to be published. The 
science, is research-driven, and there would be little point in publishing reses 
general pool of knowledge in the field. 
~r. an assistant professor at New York University, provides sin 
that the detailed information provided by the petitioner's work allows for "a rationa 
does not assert that his laboratory or any other laboratory is pursuing such a design. 
The most persuasive letter is from Dr. a professor at the University of A 
that he is familiar with the petitioner from his publications and that he has in\ 
seminar at the University of Alabama. Even this letter, however, merely speculates 
likely to lead to new therapeutic agents against cancer and HIV" and that the pet] 
eventually be one of the major milestones in the field of biology." While this let 
has some recognition beyond his immediate circle of colleagues, the letter is vague 
work has already proven influential. D-oes not indicate that his labor 
work after the petitioner's seminar. Nor does Dr. identify any other in 
petitioner's work. 
In his initial cover letter, counsel asserts that in 1998, the petitioner received th 
Foundation - Open Society Institute (New York) Award (George Soros)." Counsc 
"a highly competitive international award with a significant monetary stipend attac 
counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 
Ramirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
Several of the petitioner's references assert that the petitioner received a 1998 "Inte 
prize." None of the references attest to any personal knowledge of this awa 
petitioner's academic diplomas and a second place diploma in the VII Scientific 
Young Investigators of the South Regional Scientific Center of the Academy of ; 
Exhibit D includes a 1994 grant from INTAS and a foreign language document u 
partial translation, which is not certified as required pursuant to the regulation at 8 
that the document is a letter to the petitioner advising him of "a grant for scholars a1 
of International Science and Education Program (ISEP). The top of the translation 
International Renaissance Foundation 
Open Society Institute (New York) 
International Science and Education Program 
The uncertified partial translation does not include any information as to the size of 
On appeal, counsel accuses the director of ignoring "a highly competitive internati 
monetary stipend" funded by Subsequently, counsel references th 
and in his conclusion he 
We cannot fault the director for failing to consider documentation of a "prize" that 
requirements for foreign language evidence. Specifically, as stated above, 
titioner's field, like most 
1 that did not add to the 
ug design." 
,ama. Drasserts 
d the petitioner to give a 
~t the petitioner's work "is 
ner7s current work "could 
reflects that the petitioner 
to whether the petitioner's 
ry applied the petitioner's 
:ution that is applying the 
'International Renaissance 
.haracterizes this award as 
d to it." The assertions of 
4 (BLA 1988); Matter of 
ltional Science Foundation 
Exhibit C includes the 
ompetitive Conference of 
ence of the Soviet Union. 
a partial translation. The 
'.R. 5 103.2(b)(3), reflects 
educators" from the Board 
ds: 
: stipend. 
11 award with a significant 
'award" as a "fellowship" 
es not meet the regulatory 
: regulation at 8 C.F.R. 
5 103.2(b)(3) requires a full certified translation for all foreign language docume tation. Further, counsel's 
personal assertions regarding the significance of this "prize" and the amount of the s ipend cannot be considered 
evidence.' Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Ra irez-Sanchez, 17 I&N Dec. 
503, 506 (BIA 1980). Moreover, while several references mention a 19 8 "International Science 
Foundation's prize" they do not discuss its significance as claimed by counsel. T e record does not establish 
the relationship of the "International Science Foundation" to the "lnternational Renaissance Foundation." 
Finally, recognition for achievements or significant contributions is one criterio for aliens of exceptional 
ability, a classification that normally requires a labor certification. We cannot co clude that meeting one, or 
even the requisite three criteria, warrants a waiver of that requirement. 
i 
Finally, the petitioner's publication record, while indicative of a prolific researche , falls short of establishing 
his influence in the field. Counsel initially asserted that the petitioner had authore 36 published articles and 
presented his work at 10 international conferences. The record contains two abstra ts and 16 articles. We will 
not presume the influence of an article from the journal in which it appears. Rather, e look for evidence of the 
impact of the individual article itself, such as evidence that it is widely cited. The cord contains no evidence 
that the petitioner's work has been cited by other research teams, in review articles o in commentaries. 
i 
The record shows that the petitioner is respected by his colleagues and has contributions in his 
field of endeavor. The record does not, however, establish that the work represented a 
groundbreaking advance in NMR spectrometry such that it can be viewed the field as a 
whole. 
As is clear from a plain reading of the statute, it was not the intent of Congress every person qualified to 
engage in a profession in the United States should be exempt from the t of a job offer based on 
national interest. Likewise, it does not appear to have been the intent to grant national interest 
waivers on the basis of the overall importance of a given profession, merits of the individual 
alien. On the basis of the evidence submitted, the petitioner has not 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. Sectio 291 of the Act, 8 U.S.C. 
5 1361. The petitioner has not sustained that burden. 
I 
1 While we are under no obligation to research information that should have been 
petition, and do not fault the director for not having done so, we have verified, 
website on the foreign language document is for the International Renaissance 
which is funded by George Soros. We emphasize that such information is not 
such that the director should have taken administrative notice of such a relationsk 
should have provided the evidence we so easily obtained. The foundation, however, 
non-governmental organizations." As such, it appears that the award, while funde,d 
be directly from the ISEP. Our Internet research into the ISEP reveals that 
International Student Exchange Program. We were unable to find any informa:ion 
International Science and Education." Regardless, it is the petitioner's 
significance of the grant and he failed to submit such evidence. 
~ovided in support of the 
via the Internet, that the 
Fx~ndation in the Ukraine, 
nec:ssarily commonly known 
ip. Rather, the petitioner 
"makes its grants only to 
by the foundation, may 
:t actually stands for the 
about the "Board of 
bu.den to demonstrate the 
This denial is without prejudice to the filing of a new petition by a United States 
labor certification issued by the Department of Labor, appropriate supporting eviden 
ORDER: The appeal is dismissed. 
imployer accompanied by a 
:e and fee.