dismissed EB-2 NIW Case: Biotechnology

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identifying data deleted to 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
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 Ofice of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
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U. S. Citizenship 
and Immigration 
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FILE: Office: NEBRASKA SERVICE CENTER Date: wv 0 $ 209 
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: 
SELF-REPRESENTED 
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. 5 103.5(a)(l)(i). 
Acting Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Nebraska 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. 5 11 53@)(2), as an alien of exceptional ability in the sciences, arts or business or as 
a member of the professions holding an advanced degree. The petitioner initially stated that he seeks 
employment as a biotechnology consultant. 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 does not qualify for classification as a member of the 
professions holding an advanced degree, or 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 personal statement and receipts fiom auction houses. 
Section 203@) 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 devoted most of the decision to the question of whether the petitioner has established that a 
waiver of the job offer requirement, and thus a labor certification, is in the national interest. We will 
address ths question first. 
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., I st Sess., 1 1 (1 989). 
Page 3 
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 (Cornmr. 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 fkture 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. $ 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. 
The regulation at 8 C.F.R. $ 204.5(k)(4)(ii) requires that a petitioner seeking to apply for the 
exemption must submit Form ETA-750B, Statement of Qualifications of Alien, in duplicate. The 
record does not contain this required document, and therefore the petitioner has not properly applied 
for the national interest waiver. The director, however, did not note this omission in the denial 
notice. We will, therefore, review the matter on the merits. 
Page 4 
On the Form 1-140 petition, filed June 28, 2007, the petitioner described his occupation as 
"Biotechnology consultant / Scientist (former teacher & professor)." In a letter accompanying his initial 
submission, the petitioner stated: 
My main researches have been focused on finding the mechanisms for cell expansion, 
cell division, cell differentiation and re-differentiation which are critically important to 
understand the developmental stages in cancer cell growth and/or stem cell cultures. . . . 
My long-term goal in USA is to build up a global bio-network which connects both 
global academic resources and industrial resources together. As a first step for this 
project, I am currently devoting myself to build up a network between Pittsburgh and 
Far Eastern Asia: cooperation in Education, Technology, Health, Trade and Investment. 
The petitioner's resume includes a section marked "SKILLS," which reads as follows: 
1. Business Consulting: Solving International Cultural Barrier Problems. 
- Acting as an Intercultural Vehicle for Local and Global Networking: 
Cooperation in Education, Technology, Cultures and Sales (USA vs S. Korea & 
Far Eastern Asia) 
2. Biotechnology Consulting: 
- 
 GMP / GLP 1 Technology Transfer. 
- 
 Cell Culture Skills: somatic, suspension, tissue, re & de-differentiation, basic 
DNA skills, etc. 
- 
 Microscopic Skills: TEM, SEM, AFM, Fluorescent, Computer based Image 
Analysis, etc. 
The petitioner's initial submission did not indicate the exact nature of the petitioner's claimed 
consulting work, or any evidence of that work. The petitioner submitted copies of published research 
articles that he wrote between 1999 and 2003, but he did not indicate that he had engaged in such 
research since 2003, or that he intended to do so in the future. 
The only supporting material initially submitted relating to the petitioner's consulting work was a letter 
from, President of EOS Group, Inc., Pittsburgh, who stated: 
EOS Group, Inc. is an electronic and optical systems integrator with mostly European 
customers. . . . As many components of our customs-built [sic] systems included items 
built by small U.S. manufacturers, who has no representation abroad, we increased the 
U.S. export.. . . 
[The petitioner] feels that he is in debt to the American people for making a major 
investment into his education and the best way he could repay that debt is to become a 
productive citizen of the United States. 
Page 5 
We have been discussing EOS Group, Inc.'s activities, as well as what are [the 
petitioner's] capabilities and business connections in South Korea, etc. and came to the 
conclusion that [the petitioner] could built [sic] up similar activities between the USA 
and South Korea, etc., however this requires a permanent U.S. residency for [the 
petitioner]. 
On April 1,2008, the director issued a request for evidence (RFE), instructing the petitioner: 
Please submit any available additional documentary evidence that, as of the petition 
priority date, you had a degree of influence on your field that distinguishes you from 
other scientists in your field with comparable academic/professional qualifications. The 
evidence may include, for example, copies of additional published articles that cite or 
otherwise recognize your research achievements. 
In response to the RFE, the petitioner stated: 
I am working as an intercultural vehicle between the United States of America and 
South Korea to build up a global network in both academic and cultural fields. As I am 
focusing on building social and cultural network at this moment, I am afraid that I 
cannot satisfl your request asking for additional academic achievement documents. 
Instead, I am attaching parts of my efforts for developing social and cultural network in 
the last six months related to be being [sic] an intercultural vehicle. 
The petitioner submitted copies of invoices and receipts from several auction houses, showing that he 
had purchased several thousand dollars' worth of antique tableware and artwork. The petitioner did not 
explain how his purchase of such items as "assorted table linens and placemats," a "curio cabinet" and 
dozens of "sterling silver spoons" amounted to "developing [a] social and cultural network." 
Furthermore, the invoices all date between December 2007 and May 2008, well aRer the petition's June 
2007 filing date. Even if buying antiques at auction was a qualifying activity, which it is not, the 
petitioner has not shown that he engaged in this activity at the time he filed the petition. An application 
or petition shall be denied where evidence submitted in response to a request for evidence does not 
establish filing eligibility at the time the application or petition was filed. 8 C.F.R. 8 103.2@)(12). 
The director denied the petition on September 28, 2008, stating that the petitioner had not established 
how his purchase of items at auction relates to his claimed efforts "to build up a network between 
Pittsburgh and Far Eastern Asia [for] cooperation in Education, Technology, Health, Trade and 
Investment." The director stated that the intrinsic merit of the petitioner's activities "is very unclear," 
and that the petitioner has not established that his work is national in scope. The director also found that 
the petitioner had failed to show that a waiver of the job offer requirement would be in the national 
interest. 
Page 6 
On appeal, the petitioner submits copies of additional auction receipts, and states: 
I found that every person qualified to engage in a profession in the USA can be exempt 
fi-om the requirement of a job offer based on national interest. When I visited USCIS 
office in Pittsburgh to ask about this, an officer told me that I could be qualified for this 
case because I hold a USA Ph.D. degree in Biological Sciences. Thus I applied for the 
petitions for I-140,I-485 [adjustment application] and 1-765 [employment authorization] 
in June,28,2007. 
Meanwhile, not as an educator any more, after deep thinking on what kind of business I 
can start and help developing and improving relationships between the USA and South 
Korea, I reached a conclusion that building a global networking business between 
American and Korean [sic] would be the best thing I can do because I can effectively 
use my analytical knowledge, researching experience, scientific approaching methods, 
and personal networks which were previously developed and accumulated through my 
academic and professional careers. Thus, to prepare and start this business in Pittsburgh, 
I focused on studying and collecting a variety of American arts and antiques in the last 
one year. That's why I sent copies in the previous letter as a evidence [sic] of my 
activities for this business. During those periods, I conducted a variety of market 
investigation and met many people, including private arts and antiques collectors, 
dealers and auctioneers who were interested in cultural-diversity exchange business. 
In the same statement on appeal, the petitioner requests the "chance to start a cultural-diversity 
networking business in Pittsburgh." As explained earlier in this decision, the waiver is intended for 
individuals with a proven track record of achievement in a given field; the waiver cannot rest solely on 
future plans. Furthermore, a petitioner must establish eligibility at the time of filing. Matter of 
Katigbak, 14 I&N Dec. 45, 49 (Comrn. 1971). Here, the petitioner appears to have filed his petition 
before he decided to buy and sell antiques. His initial filing contained no mention of antiques. Instead, 
he listed his occupation as ''Biotechnology consultant" and "Scientist" on Form 1-140. The record does 
not indicate that the petitioner purchased any antiques before December 2007, which is consistent with 
the petitioner's June 2008 reference to "the last six months." 
Beyond the timing of the petitioner's venture in to buying antiques, we must also look at the nature of 
the intended work. While it is true that a particular immigrant classification exists for members of the 
professions holding advanced degrees, the petitioner must continue to engage in the profession that 
relates to his degree. His doctorate is not a permanent entitlement for him to enter the United States 
under any terms of his choosing. 
Furthermore, the petitioner appears to be under the impression that every professional with an advanced 
degree qualifies for a waiver of the job offer requirement. A plain reading of section 203(b)(2) of the 
Act shows that this is not so. Such individuals are generally subject to the job offer requirement, but 
they may qualifl for a waiver if it is in the national interest to grant the waiver. 
Page 7 
In this instance, the petitioner has not claimed that his scientific career was particularly distinguished or 
influential, and he admits that he has not worked as a scientific researcher for several years. He filed the 
petition as a "Biotechnology consultant," but the record contains no evidence that he has ever worked in 
this capacity. Instead, he claims that he will act as "an intercultural vehicle" by buying American 
antiques and selling them in Korea. The petitioner has not explained how ths activity benefits the 
United States, much less why it is in the national interest for him, in particular, to be the one conducting 
the transactions. He claims no prior expertise regarding antiques. His future plans are very vague, and 
he has not explained how his sale of antiques will significantly improve relations or cultural 
understanding between the United States and South Korea. 
For the reasons explained above, we agree with the director. The petitioner has not shown that he 
qualifies for the national interest waiver. 
Another issue in this proceeding relates to the petitioner's eligibility for the visa classification he seeks. 
The director addressed this point briefly in the denial notice, stating: "The Service does not accept that 
the petitioner's current employment, or the described proposed employment require an advanced degree 
or exceptional ability as required under Service law." The director appears, here, to rely on 8 C.F.R. 
5 204.5&)(4)(i), which states, in part: "The job offer portion of the individual labor certification, 
Schedule A application, or Pilot Program application must demonstrate that the job requires a 
professional holding an advanced degree or the equivalent or an alien of exceptional ability." That 
regulation, however, applies only to petitions that include a specific job offer. The petitioner seeks a 
waiver of the job offer requirement under 8 C.F.R. 5 204.5@)(4)(ii). Whether he qualifies for that 
waiver is a separate point, addressed elsewhere in this decision. Here, it is important to note that there 
is no job offer, and therefore no specific job requirements. The only requirement that the director can 
reasonably impose is that the position qualify as a profession - and even then, this applies only if the 
petitioner claims to be a member of the professions holding an advanced degree. 
The director has not addressed the more relevant question of whether the petitioner qualifies for 
classification under section 203(b)(2) of the Act as either a member of the professions holding an 
advanced degree, or as an alien of exceptional ability in the sciences, arts or business. We shall 
address this question here. The AAO maintains plenary power to review each appeal on a de novo 
basis. 5 U.S.C. 8 557(b) ("On appeal from or review of the initial decision, the agency has all the 
powers which it would have in making the initial decision except as it may limit the issues on notice 
or by rule."); see also Janka v. US. Dept. ofTransp., NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). 
The AAO's de novo authority has been long recognized by the federal courts. See, e.g., Dor v. INS, 
891 F.2d 997, 1002 n. 9 (2d Cir. 1989). 
First, we shall consider whether the petitioner qualifies for classification as a member of the professions 
holding an advanced degree. USCIS regulations at 8 C.F.R. $ 204.5@)(2) provide the following 
relevant definitions: 
Advanced degree means any United States academic or professional degree or a 
foreign equivalent degree above that of baccalaureate. A United States baccalaureate 
Page 8 
degree or a foreign equivalent degree followed by at least five years of progressive 
experience in the specialty shall be considered the equivalent of a master's degree. If 
a doctoral degree is customarily required by the specialty, the alien must have a 
United States doctorate or a foreign equivalent degree. 
Profession means one of the occupations listed in section 101(a)(32) of the Act, as 
well as any occupation for which a United States baccalaureate degree or its foreign 
equivalent is the minimum requirement for entry into the occupation. 
The petitioner established that he earned a Ph.D. in Biological Sciences at the University of Rhode 
Island, which qualifies as an advanced degree. At issue is whether the petitioner qualifies as a member 
of the professions, which depends on the nature of the petitioner's work rather than his educational 
background. 
The petitioner submitted a letter from 
 Principal of Northside Urban Pathways 
Charter School in Pittsburgh, Pennsylvania, indicating that the petitioner "is a full-time employee at our 
school" who "began his employment on July 5,2005." The letter is dated July 14,2005, only nine days 
after the petitioner began working at the school. On his resume, the petitioner claimed that he taught 
chemistry at that school from July 2005 to March 2006. On appeal, the petitioner asserts that he "was 
laid off' fiom that position. The record contains no evidence or claim that the petitioner was a teacher 
after 2006. The record provides no basis for the director's assertion that the petitioner is "currently" a 
science teacher. 
At the same time, we must point out that elementary and secondary school teachers are included in the 
definition of "profession" at section 101(a)(32) of the Act. Therefore, if the petitioner were actively 
teaching, and intended to continue teaching, then he would clearly qualifl. as a member of the 
professions holding an advanced degree. Because the petitioner admits that he is no longer teaching, hs 
past teaching work cannot qualify him as a member of the professions. Similarly, because the petitioner 
does not appear to have worked as a scientific researcher since 2003, we cannot find that the petitioner 
is, or intends to be, engaged in that profession either. A biotechnology consultant would appear to be a 
member of the professions, but the petitioner has not shown that he has ever worked as such a 
consultant, or that he has made any effort to do so. 
Regarding the petitioner's claimed work as a "consultant," he has not provided any evidence, or even an 
adequate description, of that consulting work. Instead, he has shown that he buys art and antiques at 
auction, and he claims that he intends to sell them. The petitioner has not shown that buying and selling 
antiques is a profession, i.e., an occupation that requires at least a bachelor's degree. Therefore, the 
petitioner has not shown that he works, or intends to work, in a profession. As such, he does not qualifl. 
as a member of the professions holding an advanced degree. 
The other classification under section 203(b)(2) of the Act relates to aliens of exceptional ability in the 
sciences, arts or business. USCIS regulations at 8 C.F.R. 5 204.5(k)(3)(ii) set forth the requirements for 
that classification: 
6 
- Page 9 
To show that the alien is an alien of exceptional ability in the sciences, arts, or 
business, the petition must be accompanied by at least three of the following: 
(A) An official academic record showing that the alien has a degree, diploma, 
certificate, or similar award from a college, university, school, or other 
institution of learning relating to the area of exceptional ability; 
(B) Evidence in the form of letter(s) from current or former employer(s) 
showing that the alien has at least ten years of full-time experience in the 
occupation for which he or she is being sought; 
(C) A license to practice the profession or certification for a particular 
profession or occupation; 
(D) Evidence that the alien has commanded a salary, or other remuneration for 
services, which demonstrates exceptional ability; 
(E) Evidence of membership in professional associations; or 
(F) Evidence of recognition for achievements and significant contributions to 
the industry or field by peers, governmental entities, or professional or 
business organizations. 
Because the petitioner has not discussed the above regulatory standards, it is not clear which (if any) he 
claims to have met. The only evidence that directly relates to any of the regulatory requirements is the 
documentation of the petitioner's doctoral degree, in a field that has no relation to antique sales. The 
petitioner's rksume lists less than ten years of employment experience of any kind, and his only 
submitted letter from an employer documents ten days of employment as a teacher. The petitioner has 
not shown that he qualifies as an alien of exceptional ability in the sciences, arts or business. 
For the reasons explained above, we find that the petitioner has not shown that he qualifies for 
classification under section 203(b)(2) of the Act. Also, he has not shown that he qualifies for the 
national interest waiver. Either of these two factors would, alone, be enough to justify denial of the 
petition. 
The appeal will be dismissed for the above stated reasons, with each considered as an independent and 
alternative basis for dismissal. In visa petition proceedings, the buden of proving eligibility for the 
benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, that 
burden has not been met. 
ORDER: The appeal is dismissed.