dismissed EB-2 NIW Case: Biophysics

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, D.C. 20529-2090 
. - 
prevent c!t.ssly unwarranted 
invssion aC personal privacy 
 U. S. Citizenship and Immigration 
PUBLIC COPY 
FILE: Office: TEXAS SERVICE CENTER Date: MAR 0 3 2CC9 9 SRC 07 800 25736 
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. 8 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 firther 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. 8 103.5(a)(l)(i). 
U 
F. Grissom Acting Chief 
Administrative Appeals Office 
DISCUSSION: 
 The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal 
will be dismissed. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. fj 1153(b)(2), as a member of the professions holding an advanced degree. At the 
time he filed the petition, the petitioner was a postdoctoral research associate at the University of North 
Texas (UNT). The petitioner subsequently relocated to Pullman, washington.' The petitioner asserts 
that an exemption fiom 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 fiom the requirement of a job offer would be in the national interest of the United States. 
On appeal, the petitioner submits a brief fiom counsel and copies of materials already in the record. 
Section 203(b) of the Act states, in pertinent part: 
(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. 
' According to USCIS records, Washmgton State University College of Veterinary Medicine, Department of Veterinary 
and Comparative Anatomy, Pharmacology and Physiology filed Form 1-129 to obtain an H-IB nonirnmigrant visa on the 
petitioner's behalf on March 28, 2008. The Form 1-129, receipt number WAC 08 125 50801, was approved on April 3, 
2008, but the approval was revoked on January 9,2009. 
Page 3 
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, 10 1 st Cong., 1 st Sess., 1 1 (1 989). 
Supplementary information to regulations implementing the Immigration Act of 1990 (IMMACT), 
published at 56 Fed. Reg. 60897,60900 (November 29, 1991), states: 
The Service [now U.S. Citizenship and Immigration Services (USCIS)] 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 (Comrnr. 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 fuhue, 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 also note that the regulation at 8 C.F.R. 8 204.5(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 offedlabor 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. 
Five letters accompanied the petitioner's initial submission. All of these letters emphasize one article 
that the petitioner published in Archives of Biochemistry and Biophysics. UNT Associate Professor 
, who supervised the petitioner's doctoral studies, focused on the petitioner's "great 
expertise" in various laboratory techniques such as liquid chromatography and molecular genetics. He 
stated: 
[The petitioner] quickly learned to implement cutting edge techniques that combine 
chemical modifications, computational modeling, and unique fluorescence labeling to 
clarify some of the mechanisms involved in the most widespread forms of heart disease 
that affect young adults. 
[The petitioner's] recent research has led to a cover photo and full-length publication in 
a leading journal, Archives of Biochemistry and Biophysics 456, 102-1 11, (2006). In 
this work he demonstrated a novel method for site-specific fluorescent labeling of 
proteins as illustrated in the protein myosin. He characterized a key structure for 
myosin's function in muscle contraction in a region that is sometimes modified by 
mutations that cause heart disease. He has also creatively developed fUrther results that 
provide insight into the complex internal interactions of the myosin protein that enable it 
to produce force in muscle. 
petitioner's "great breadth of technical knowledge'' but did not discuss the petitioner's work in much 
detail. stated that the petitioner's "research is also novel enough to have been published 
in Archives of Biochemistry and Biophysics." 
petitioner at a professional gathering in 2007. 
 stated: 
[The petitioner] is a very accomplished young biophysicist who has published an 
important contribution in a fundamental area. He published this work in the Archives of 
Biochemistry and Biophysics in 2006. This research involved the important molecule, 
myosin. Myosin is the molecule in muscle that does mechanical work. . . . To do work, 
myosin must convert chemical energy into mechanical work. Just how it does that is 
unknown, and is the fundamental question that [the petitioner's] method addresses. By 
combining a novel experimental technique with computer simulation based on structure 
of myosin S1, his research led to a striking conclusion: large movements of a part of 
myosin that might be the bridge between the release of fiee energy and the performance 
of work do not take place. This finding eliminates one of the strong contenders for how 
myosin converts energy. 
Research Associate Professor at E6tv6s University, Budapest, Hungary, stated: 
[The petitioner] has markedly advanced scientific understanding relating to myosin, a 
highly important motor protein driving a wide range of both autonomous and voluntary 
muscular actions. Among his contributions related to this topic, [the petitioner] created 
an innovative and generally applicable fluorescent labeling procedure specific for the so- 
Page 5 
called strut sequence of subfragment-1 (the catalytically active part) of myosin. His 
development of a protocol to label and isolate a skeletal muscle myosin subfragment-1 
with a single fluorescent probe at the strut sequence opens the door for spectroscopic 
studies of this key structure. . . . 
These findings by [the petitioner] provide remarkable insights for our knowledge of how 
small modifications to the contractile proteins impact their normal functions and activity 
and cause diseases. The interaction of myosin with actin filaments is a central element 
in the motile actin of the myosin motor, which is also investigated by my laboratory 
using different approaches. Therefore [the petitioner's] research findings have very 
important implications affecting my own research. 
For this letter, I will focus on [the petitioner's] breakthrough documented in Archives of 
Biochemistry and Biophysics. Through his paper in this journal, [the petitioner] . . . has 
convincingly ruled out the strut of S1 for being the cause of [conversion of chemical 
energy into mechanical energy]. . . . We now know that we should divert our attention to 
other critical sites in S1 other than the strut as a result of [the petitioner's] major finding. 
Counsel stated that the petitioner's "work has been highlighted in Biotech Business Week, thus further 
establishing the significant attention his work has garnered." The petitioner submitted a one-page 
printout from Biotech Business Week, dated April 2, 2007. The article reported that the petitioner and 
others had published a study on "[a] new fluorescent labeling procedure" in Archives of Biochemistry 
and Biophysics. The Biotech Business Week story consists almost entirely of quotations from that 
article, with no further comment on the significance or importance of the petitioner's article. The story 
appears to be, essentially, a press release announcing the publication of the Archives of Biochemistry 
and Biophysics article. The petitioner, at the time, provided no evidence to show how common or how 
rare it is for Biotech Business Week, an online publication of NewsRx, to publicize newly-published 
articles in this way, or the criteria by which that publication selects which articles to mention. 
Therefore, the petitioner did not establish how this story is evidence of "significant attention." 
The petitioner submitted copies of two articles he had co-authored. In addition to the Archives of 
Biochemistry and Biophysics article discussed above, the petitioner's work appeared in Biochemistry in 
2004. To establish the impact of these articles, the petitioner also submitted a printout from SciFinder 
Scholar, listing six articles by other researchers. The list itself offered no clue as to what these articles 
have in common - the printout does not even show the petitioner's name - but a later submission 
indicates that the list identifies articles that contain citations to the petitioner's work. 
As shown above, the initial submission focused very heavily on the publication of one of the 
petitioner's articles in Archives of Biochemistry and Biophysics. The petitioner's initial submission did 
not contain persuasive objective evidence to establish the impact of that article. For example, the initial 
submission included no documentation to show how frequently (if at all) other researchers had cited the 
petitioner's article. 
On March 21, 2008, the director issued a request for evidence. The director acknowledged that the 
petitioner had produced published work, but found that the petitioner had not yet established the impact 
of his published articles. The director therefore instructed the petitioner to "submit copies of any 
published articles by other researchers citing or otherwise recognizing [the petitioner's] research and/or 
contributions," or printouts from a citation database establishing that such citations exist. 
In response, counsel asserted that the petitioner's "paper in Archives of Biochemistry and Biophysics 
was featured as a cover photo article. (Exhibit 16)." Exhibit 16 is a copy of the article itself, with no 
evidence that it was the "cover photo article" for that issue of the journal. Even if it was the "cover 
photo article," the record contains nothing to establish the special significance of its appearance on the 
cover. The most one could infer without such evidence is that the article was among the most 
significant to appear in that one issue of the journal. 
The petitioner submitted copies of four articles containing independent citations to his work. (The other 
two articles identified in the previously submitted list were written by the petitioner's collaborator 
All of the citations refer to the petitioner's 2004 ~;ochenkry paper; there is no 
evidence that any researcher had cited his 2006 article in Archives of Biochemistry and Biophysics, 
despite the asse&ons as to the seminal nature of that paper. At least hvo of the four submitted articles 
are review articles, which summarize the existing literature rather than report new scientific findings. 
One review article, fi-om Chemical Reviews, contained citations to 661 articles. 
ling the aforementioned story in Biotech Business Week, the petitioner submitted a letter fiom 
1, Coordinator of Science and Technology Reference at UNT Libraries. Ms. 
repeatedly referred to the story as "a news release." The evidence indicates that the 
Biotech Business Week story appeared not because the petitioner's 2006 article attracted "attention," but 
rather because UNT arranged for Biotech Business Week, and several other online publications under 
the NewsRx umbrella, to issue a "news release" about the article in April 2007, some eight months after 
the article first became available in August 2006. 
The petitioner submitted four more witness letters in response to the request for evidence. Purdue 
University Assistant - stated: "we are now investigating the mechanism 
behind [the petitioner's] major discovery about the strut of myosin. . . . His work and protocols helped 
in laying the foundation for our research." 
of the University of California, San Francisco credited the petitioner with "the 
first time any researcher had succeeded in labeling the myosin strut using a fluorescent label which is a 
new advancement in biophysics." 
Page 7 
of the Mayo Clinic, Rochester, Minnesota, stated that the petitioner's 
"findings about the function of the strut has shown the way for our field in exploring this structure to 
understand the mechanism leading to cardiac diseases." 
University of ~innesota stated that he and his collaborators "have found 
[the petitioner's] breakthroughs to be very beneficial for our own research. . . . Our recent papers and 
grant proposals have benefited considerably fi-om his example." 
The director denied the petition on May 6, 2008, noting that the petitioner had published only two 
articles, one of which had no documented citation history. The director found that the available 
evidence "fails to establish that the petitioner has exlubited a significant degree of influence on his field 
of endeavor." 
On appeal, counsel argues that the director failed to give due consideration to independent witness 
letters and other evidence of the petitioner's wider influence on his field. While independent witness 
letters can provide strong support for a national interest waiver petition, it does not follow that the 
submission of such letters must result in approval of the petition. We must take all factors of a given 
proceeding into account. The letters in question are often general in nature, and unsupported by 
documentary evidence. For instance, Prof. Thomas asserted that his "recent papers . . . have benefited 
considerably fiom" the petitioner's work, but there is no evidence that Prof. Thomas had cited the 
petitioner's work in any published article. 
Counsel argues that Matter of New York State Dept. of Transportation requires only "'some degree of 
influence,' not a '& degree of influence"' (counsel's emphasis). The AAO rejects the implied 
argument that the job offer requirement is restricted only to those researchers who have had no 
influence whatsoever on their respective fields. The cited decision requires "a past history of 
demonstrable achievement with some degree of influence on the field as a whole. . . . In all cases the 
petitioner must demonstrate specific prior achievements which establish the alien's ability to benefit the 
national interest." Id. at 219, n.6. When we consider, also, that a basic purpose of academic scientific 
research is to disseminate novel findings to others in the field, it is apparent that rarely is a given's 
scientist's work entirely devoid of influence or benefit to others. The reference to "some influence" 
should not be interpreted to mean "any degree of influence above none at all," and removing that phrase 
fi-om its original context does not compel such an interpretation. 
Counsel condemns the director's "very simplistic counting of how many times Petitioner/Appellant's 
work has been cited." Considering the heavy emphasis that the petitioner has placed on his 2006 article 
in Archives of Biochemistry and Biophysics, to the point where many witnesses discuss little else, it is 
neither simplistic nor irrelevant to observe the total lack of evidence that any researcher has ever cited 
that article (UNT's own promotional press release is not a scholarly citation). 
The record clearly indicates that the petitioner filed the present petition at the very beginning of his 
professional career, having completed his doctorate only a few months earlier. His work may well 
prove to be influential and especially important with in hs field, but the record as a whole does not 
indicate that the petitioner had reached such a level as of August 2007 when he filed the petition. At 
best, the petition appears to have been filed prematurely. 
As is clear fkom 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 fkom 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. 8 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.