dismissed EB-2 NIW Case: Bioorganic Chemistry

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: Office: NEBRASKA SERVICE CENTER Date: 
LIN 04 208 50808 
 JAN 0 9 2007 
IN RE: 
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 1 153(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. 
u 
hobert P. Wiemann, Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition, which 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. § 1153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as a research scientist. The petitioner asserts that an exemption from the 
requirement of a job offer, and thus of an alien employment 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 had 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 submits a brief and reference letters. The letters are from authors who have already 
written letters in the petitioner's behalf and either reiterate their previous statements or discuss the 
petitioner's work after the date of filing. For the reasons discussed below, we concur with the 
director's ultimate conclusion that the petitioner has not demonstrated the type of influence in the field 
that would warrant a waiver of the alien employment certification in the national interest. 
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 requirement 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 holds a Ph.D. in Chemistry from Mumbai University. The petitioner's occupation falls 
within the pertinent regulatory definition of a profession. The petitioner thus qualifies as a member of 
the professions holding an advanced degree. The remaining issue is whether the petitioner has 
established that a waiver of the job offer requirement, and thus an alien employment certification, is in 
the national interest. 
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Neither the statute nor 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, 101 st Cong., 1 st Sess., 1 1 (1 989). 
Supplementary information to the regulations implementing the Immigration Act of 1990 (IMMACT), 
published at 56 Fed. Reg. 60897,60900 (November 29, 1991), states: 
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. 21 5 (Comm. 1998), has set forth several 
factors which must be considered when evaluating a request for a national interest waiver. First, it must 
be shown that the alien seeks employment in an area of substantial intrinsic merit. Next, it must be 
shown that the proposed benefit will be national in scope. Finally, the petitioner seeking the waiver 
must establish that the alien will serve the national interest to a substantially greater degree than would 
an available U. S. worker having the same minimum qualifications. 
It must be noted that, while the national interest waiver hinges on prospective national benefit, it clearly 
must be established that the alien's past record justifies projections of future benefit to the national 
interest. The petitioner's subjective assurance that the alien will, in the future, serve the national 
interest cannot suffice to establish prospective national benefit. The inclusion of the term "prospective" 
is used here to require future contributions by the alien, rather than to facilitate the entry of an alien 
with no demonstrable prior achievements, and whose benefit to the national interest would thus be 
entirely speculative. 
We concur with the director that the petitioner works in an area of intrinsic merit, bioorganic 
chemistry, and that the proposed benefits of his work, improved cancer diagnosis and drug 
development, 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. 
On appeal, counsel asserts that the director erred in comparing the petitioner to his more experienced 
references instead of those with the same minimum qualifications. We withdraw any implication 
that the petitioner must compare with the most experienced members of his field. Nevertheless, 
eligibility for the waiver must rest with the alien's own qualifications rather than with the position 
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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. 
Matter of New York State Dep 't of Transp., 22 I&N Dec. at 2 18. Moreover, it cannot suffice to state 
that the alien 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 United States is an issue under the jurisdiction of the Department 
of Labor. Id. at 22 1. 
At issue is whether this petitioner's contributions in the field are of such unusual significance that the 
petitioner merits the special benefit of a national interest waiver, over and above the visa 
classification he seeks. By seeking an extra benefit, the petitioner assumes an extra burden of proof. 
A petitioner must demonstrate a past history of achievement with some degree of influence on the 
field as a whole. Id. at 219, n. 6. In evaluating the petitioner's achievements, we note that original 
innovation, such as demonstrated by a patent, is insufficient by itself. Whether the specific 
innovation serves the national interest must be decided on a case-by-case basis. Id. at 221, n. 7. 
As stated above, the petitioner received his Ph.D. from Mumbai University in 1999. The petitioner 
then accepted a postdoctoral research associate appointment at Stanford University. From June 2001 
through April 2003, the petitioner worked as a postdoctoral research scientist at Geron Corporation. 
From April 2003 through the date of filing, the petitioner worked as a research and development 
scientist at Transgenomic, Inc. while also serving as an unpaid visiting scientist at the State 
University of New Jersey, Rutgers. After the date of filing, the petitioner joined Firebird 
Biomelecular, Inc., but we cannot consider any accomplishments at that institution as they do not 
relate to his eligibility as of the date of filing. See 8 C.F.R. 5 103.2(b)(12); Matter of Katigbak, 14 
I&N Dec. 45,49 (Reg. Comm. 1971). 
Throughout the proceedings, the petitioner has relied on reference letters from colleagues. 
Citizenship and Immigration Services (CIS) may, in its discretion, use as advisory opinions 
statements submitted as expert testimony. See Matter of Caron International, 19 I&N Dec. 791, 795 
(Comm. 1988). However, CIS is ultimately responsible for making the final determination regarding 
an alien's eligibility for the benefit sought. Id. The submission of letters from experts supporting the 
petition is not presumptive evidence of eligibility; CIS may evaluate the content of those letters as to 
whether they support the alien's eligibility. See id. at 795-796. CIS 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 Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure 
Crafr ofCallfornia, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
In evaluating the reference letters, we note that letters containing vague assertions of talent and 
potential are less persuasive than letters that provide specific examples of how the petitioner has 
already influenced the field. In addition, letters from independent references who were previously 
aware of the petitioner through his reputation and who have applied his work are the most 
persuasive. 
Dr. Director of the Institute of Science at Mumbai University, discusses the 
petitioner's Ph.D. work at that institution. Specifically, the petitioner's project involved the 
synthesis of fluorescein-labeled alternating anionic and cationic DNA probes that "could potentially 
develop into [a] technique by which we could detect disease-causing mutations in patients or early 
detection of cancer and other diseases." (Emphasis added.) Dr. does not assert that these 
probes are being implemented or even investigated in a clinical setting. 
The record also includes the first page of a letter purportedly from Dr. , a 
scientist at the National Chemical Laboratory in Pune, India. In response to the director's request for 
additional evidence, the petitioner resubmitted the first page only. The first page does not discuss 
the petitioner's work and, without a signature, has little evidentiary value. 
At Stanford, the petitioner worked in the laboratory of Dr. 
 ~r. characterizes the 
petitioner as hardworking, diligent and a talented experimentalist. As an example of the petitioner's 
recognition in the field, Dr. notes that the petitioner has published an article in Nature 
Biotechnology. We will not, however, infer the influence of a given article from the journal in which 
it appeared. Rather, we look for evidence that the individual article has been influential, such as a 
history of wide and frequent citation. We will examine the petitioner's citation record below. 
Finally, Dr. discusses the importance of the petitioner's area of research and concludes he has 
gained "valuable experience" in the field. Dr. does not explain how the petitioner's work at 
Stanford has influenced the field as a whole. ~r. a former group leader at 
who supervised the petitioner at that company, asserts that the petitioner's work at Stanford "led to 
the development of new tools in probing the chemical biology of DNA base pairing and protein- 
DNA recognition." None of the references provide examples of independent laboratories utilizing 
these new tools. 
Dr. 
 a former employee at corporation, discusses the petitioner's work at that 
company as follows: 
He accomplished, in timely fashion, multi-step synthesis of novel DNA and RNA 
strands as telomerase inhibitors that entered into the clinical trials. He also devised 
new building blocks of RNA nucleosides by altering the chemical functionalities to 
improve the synthetic efficiency in the nucleotide synthesis. 
Dr. 
 asserts that this work resulted in published articles, patent applications and has "the 
potential to impact the medical industry worldwide because they can suppress the growth of the 
majority of cancers and improve the quality of life in cancer patients." The petitioner's 
"achievements also pose as critical improvements for the study of cancer treatment in identifying 
unprecedented drug leads." 
Dr. s letter includes identical language. Dr. nd Dr. both signed their letters, 
affirming the content of the letters. The use of identical language, however, suggest that the verbiage 
is not their own. 
Dr. 
 Director of Nucleic Acids Chemistry and Senior Research Fellow at - 
asserts generally that the petitioner's work "has helped to significantly advance our drug-discovery 
program." Dr. provides no specifics or examples of how the petitioner's work advanced 
the program and does not mention any patents or patent applications. Primary evidence of filing a 
patent application is the patent application itself, with official confirmation that it has been filed. 
The petitioner has not demonstrated that such evidence does not exist or is unavailable. Thus, we 
need not accept affirmations as to the petitioner's contributions to patent-pending innovations. 
8 C.F.R. €j 103.2(b)(2). The record lacks evidence that the clinical trials advanced by the petitioner's 
work have garnered attention in the general or trade media. 
Dr. 
 Dean and Director of the Division of Life Sciences at the State University of 
New Jersey, Rutgers, discusses the petitioner's skills and concludes that he is "positioned to make 
unique contributions to important areas with immediate biomedical applications." Dr. - 
does not imply that the petitioner has already influenced the field. 
Dr. Chair of the Graduate Program in Chemistry at the State University of New 
Jersey, Rutgers, asserts generally that the petitioner is an expert with rare capabilities but identifies 
no specific accomplishments. 
Finally, 
 Vice President of the Advanced Technology Project at Transgenomic, 
praises the petitioner's ability to work independently. Dr. 
 asserts that the petitioner is 
working on new methods/approaches for the capture of molecules that "will be used for the 
purification of proteins, biological targets and has important biomedical application for drug 
discovery." Dr. 
 opines that the petitioner "is almost certainly headed for a distinguished 
career as a scientist" and that his work "holds promise in enhancing the effectiveness of novel 
Protein-based technological development in order to facilitate basic research." This letter does not 
establish the petitioner's influence in the field. 
In addition to the letters, the petitioner submitted his professional memberships, with no evidence 
that such memberships are recognition of his influence in the field, and his publications. 
Membership in professional associations is one of the regulatory criteria for aliens of exceptional 
ability, a classification that normally requires an alien employment certification. We cannot 
conclude that meeting one criterion, or even the requisite three criteria for that classification warrants 
a waiver of that requirement. Matter of New York State Dep 't of Transp., 22 I&N Dec. at 222. 
The petitioner submitted four articles and evidence of citations. The citation materials indicate that 
one of the petitioner's articles had been moderately cited by independent research laboratories as of 
the date of filing and other articles by the petitioner had been cited once each. The petitioner has not 
demonstrated that this citation record is notable in the petitioner's field. 
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 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. 
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 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. fj 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 an alien employment certification certified by the Department of Labor, appropriate 
supporting evidence and fee. 
ORDER: 
 The appeal is dismissed.