dismissed EB-2 NIW Case: Biotechnology

(b)(6)
DATE: JUl 1 5 2013 OFFICE: NEBRASKA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S.. Citizenship 
and Immigration 
Services 
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. § 1153(b)(2) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
~~rP-A_A.;~-~ 
'jic;n Rosenber~ 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the AAO on appeal. The AAO will dismiss the appeal. 
The petitioner seeks classification under 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 biotechnology scientist. The petitioner has been the director of the 
. since 1999. 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. 
Before the filing of the appeal, attorney represented the petitioner. Shipping 
documents in the record show that the initial filing and responses to subsequent notices all originated 
from office. Subsequently, however, did not prepare or sign the Form 
I-290B Notice of Appeal; the petitioner's personal statement on appeal includes no mention of legal 
representation; and the petitioner mailed the appeal from his own address. Form I-290B advises that 
attorneys "must attach a Form G-28, Notice of Entry of Appearance as Attorney or Representative" to 
the appeal, as required by the U.S. Citizenship and Immigration Services (USCIS) regulation at 
8 C.F.R. § 292.4(a). The appeal does not include this form. Therefore, the record contains no evidence 
that Mr. Behlendorf is still the petitioner's attorney of record. The AAO will therefore consider the 
petitioner to be self-represented. 
On appeal, the petitioner contends that the director arrived 
at unwarranted conclusions, and that "[t]he 
denial is based on racial discrimination." 
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. 
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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. 
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, lOlst Cong., 1st Sess., 11 (1989). 
Supplementary information to regulations implementing the Immigration Act of 1990, 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. 
In reNew York State Dept. of Transportation (NYSDOT), 22 I&N Dec. 215 (Act. Assoc. Conim'r 
1998), has set forth several factors which must be considered when evaluating a request for a national 
interest waiver. First, the petitioner must show that the alien seeks employment in an area of substantial 
intrinsic merit. Next, the petitioner must show that the proposed benefit will be national in scope. 
Finally, the petitioner must establish that the alien will serve the national interest to a substantially 
greater degree than would an available United States worker having the same minimum qualifications. 
While the national interest waiver hinges on prospective national benefit, the petitioner must establish 
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 intention behind the term "prospective" is 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. 
The USCIS 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 offer/labor 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. 
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The petitioner filed the Form I-140 petition on January 12, 2012. In an accompanying statement, the 
petitioner provided background information about biomedical research. This information establishes 
the intrinsic merit and national scope of the occupation, but does not address the petitioner's 
individual eligibility for the waiver. To meet the latter requirement, the petitioner described his past 
work, referring to himself in the third person. The petitioner claimed to have completed "hundreds" 
of projects, among which "there are many highly recognized projects [that] must be noticed" as 
"breakthroughs of future technology." The petitioner identified only two specific examples: 
First in the world: 
1. Src protein induces phosphorylation of merlin: 
... In plain English, he discovered which gene prohibits [neurofibromatosis] tumor 
cell [growth] in what degree .... 
First in Korea: 
1. The effects of ionotropic and metabotropic glutamate agonists of the catfish 
retinal neurons 
We will explain in plain English so you can grasp an idea. [Compared to] other 
organs, [the] human eye or retina is more like human brain. It transmits signals just 
like [the] brain. However, the investigation and therefore recordings of which cell 
does what is not yet completely recorded. The alien's investigation is one of the few 
that register for the record. 
"The effects of ionotropic and metabotropic glutamate agonists of the catfish retinal neurons" is the 
title of the petitioner's 1997 master's thesis. "Src protein induces phosphorylation of merlin" is the 
title of the beneficiary's 2003 doctoral dissertation. With respect to the petitioner's assertion that he 
is the "first in the world" to report his particular findings, the petitioner has not shown that graduate 
dissertations typically duplicate findings already known in the field. Originality is not synonymous 
with importance or significance. 
The petitioner stated that he "opened his [own] company in 1999," and since then "has been working 
as a medical scientists [sic] investigating and developing biotechnology." The petitioner stated his 
intention to start a biotechnology company in the United States, using "advanced research technique 
he developed over 20 years." He stated that his work "eventually will lead to mass production of the 
medicine and create more jobs for U.S. workers by producing it," but he did not identify "the 
medicine." The petitioner stated that "he will 
attract foreign investments to build factories for his 
already developed products," which, again, he did not identify. The petitioner stated that the 
"increasing backlog and administrative processing time of labor certification" would put the United 
States at a disadvantage in "this timely battle for the leading edge opportunity to pursue America 
being world leader in biotechnology." 
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The petitioner claimed "many nationally acclaimed awards," but identified only one claimed award, 
stating: "he won the '2011 Outstanding Associate' from for his outstanding 
investigation in the field of bio technology." The award certificate stated that the petitioner "has 
been awarded for contributing greatly to the establishment of the medical delivery system by the 
active mutual exchange of investigation as the associate investigator of ' 
The petitioner submitted no evidence to support the claim that the "20 11 Award for Outstanding 
Associate" is a "nationally acclaimed award." 
ThP nPt1tioner stated that he received "National Recognition [from the] 
' in the form of "a designation for National Disease Control." A 
certificate bearing the seals of the 
Control and Prevention, and the refers to as a 
"National Designated Sentinel Clinic." The petitioner submitted no background information about 
this designation. Therefore, the petitioner has not shown that the certificate is a form of 
"recognition" rather than an administrative designation for which any given clinic could qualify by 
meeting certain requirements. 
The petitioner asserted that, as a "Keynote Speaker of ' he influenced his peers 
"so that others can benefit from" his work. The on y evidence t at the petitioner submitted to 
support this claim consists of a photocopied "Speaker" ribbon from the · 
This evidence does not provide any context about the gathering where the 
petitioner spoke, or the nature or significance of his presentation. 
The director issued a request for evidence on May 17, 2012. The director instructed the petitioner to 
document "a past record of specific prior achievement that justifies projections of future benefit to 
the national interest," including evidence that other researchers have cited the petitioner's published 
work. In response, the petitioner, again 
referring to himself in the third person, stated: 
His research endeavor has never stopped to date. In fact, in U.S., he will continue his 
research work focused on finding advanced medical treatment for ocular disorder. ... 
[H]e has been involv[ed] in [a] research team [that] published 3 papers in year of 
2012. Considering this kind of work takes at least 2-3 years to study before finally 
coming to li[f]e, many experts find it extraordinary. 
With respect to the claim that the petitioner "has never stopped" conducting research, the petitioner 
does not claim or establish that he published anything between 1999 and 2012. The petitioner did 
not submit copies of any new articles or other evidence of their publication. Therefore, the 
petitioner's response to the request for evidence did not include any support for his claim of multiple 
recent publications. 
The petitioner asserted that a citation record "is probably the most proper document to prove alien's 
· influence to other peers all over the world. In fact, his research papers are being cited as we speak 
... by worldwide experts." The petitioner submitted a printout from the Google Scholar search 
engine showing four citations of one of his articles from 1996. The printout did not identify the four 
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citing articles. The petitioner submitted copies of two citing articles, both from 2009 and both in the 
Korean language. The petitioner did not identify the other two citing articles. The omission is 
significant because Google Scholar sometimes contains duplicate listings, for example listing a 
foreign-language article and its English translation as two separate articles. Furthermore, because 
the submitted citing articles are in Korean 
with no English translation, the record does not establish 
the context of the citations. See 8 C.F.R. § 103.2(b)(3). For the above reasons, the petitioner 
documented only two unique citations of his published work between 1996 and 2012. 
Regarding his plans for the future, the petitioner stated: 
He has many personal assets which he will bring to US to support him and his family . 
. . . His property's current market value is approximately $1.6 Million US .... Also, 
cash from savings account and disposition from securities are totaled $80,000. 
Therefore, the total money alien will bring to US is approximately $2.4 Million US. 
The petitioner submitted copies of bank and real estate records to support the above figures. 
The petitioner submitted two letters from faculty members of the Department of Ophthalmology at 
the , associate professor and 
director of the department, stated: 
[The petitioner's] contribution to a range of issues in biomedical science[] 
demonstrates his valuable capacity for novel and relevant research with direct 
applications to the medical field .... 
[The petitioner] is one of a select few in his field who have the demonstrated ability 
and vision to significantly improve how a nation provides healthcare. 
One of the most significant finding[ s] which I believe is noteworthy is "Src protein 
induces phosphorylation of merlin." ... [T]he mechanism by which merlin exerts its 
tumor suppressor activity is not well understood. The alien investigated the 
regulation of merlin function and establish[ ed] a framework for elucidating 
tumorigenic mechanisams [sic]. Because of his discovery, other scientists can benefit 
by reducing or eliminating unnecessary time finding which gene prohibits tumor cell. 
This is a first in the world discovery .... 
The number of publications alone is telling as to his superior skill in this field. Given 
[the petitioner's] past productivity, I have every expectation that he will continue to 
be productive upon arrival in the U.S., and that our field will greatly benefit from a 
researcher who can contribute so much at such a fast pace. 
Regarding the last quoted paragraph, did not specify the number or frequency of the 
petitioner's publications. The petitioner himself claimed only 
three publications on his curriculum 
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vitae: two articles, both published in the in 1996, and one book, 
published in 1999. The petitioner did not identify or submit any 
subsequent published work. The petitioner's initial submission, therefore, provided no credible 
context for reference to the "fast pace" of the petitioner's output of published work. 
stated: 
[The petitioner's] discovery on finding a cause of retinal vein occlusion of 
noteworthy. RVO (retinal vein occlusion) is a common vascular disorder of the retina 
and is one of the most common causes of blindness after diabetic retinopathy. . . . 
However, the pathogenesis and management of this disorder remains somewhat of an 
enigma. However, [the petitioner's] contributions to the field of retinal vein 
occlusion are original and of utmost significance, and have extremely useful 
applications in the field of medical science. His work in this area is groundbreaking 
because it is leading the generation of novel therapy for retinal diseases which in 
result f sic 1 prevention from the blindness. His article titled 
is the 
example. [The petitioner] discovered that multiple myeloma is a malignant 
proliferation of the atypical plasma cells which usually involves antibody synthesis in 
the inimune system .... [The petitioner] discovered a cause of multiple myeloma with 
hyperviscosity syndrome who presented with central retinal vein occlusion in both 
eyes. 
[The petitioner's] research has already considerably benefited the United States. His 
contributions to this area far exceed those of his peers that are employed in the same 
field. He has served as a corresponding author to nationally renowned journals. 
Also, [the petitioner] serves as committee member to professional associations such 
as the 
Further, [the petitioner's] research clinic has [been] designated as 
the Disease Control and Prevention Center by the 
One cannot become a member of these organizations without making 
outstanding achievements in the respective fields. 
The petitioner did not submit first-hand documentary evidence of the membership requirements of 
the above-named organizations. Therefore, assertions regarding those requirements are 
uncorroborated. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 
165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 
1972)). 
On August 27, 2012, the director issued a notice of intent to deny the petition. The director stated 
that the petitioner had established the intrinsic merit of his occupation but had not met the other 
prongs of the NYSDOT national interest test. Regarding the petitioner's published work, the director 
noted that the petitioner had not documented any publications after 1996, and that the petitioner's 
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minimal citation record did not establish "an unusual level of interest [in his work] as to distinguish 
him from his peers." The director acknowledged the petitioner's two witness letters, but noted that 
both witnesses are on the faculty of the university where the petitioner obtained all of his degrees, 
and therefore their statements do not establish wider influence. 
In response, the petitioner submitted copies of previously submitted materials, and stated: "You 
stated that alien's journals have been cited a total of 4 times, but, you counted only Google Scholar 
citation record sheet and left out domestically cited ones." The petitioner submitted evidence of 
three further citations, all in Korean-language journals. The three newly submitted articles show 
publication dates of 1997, 2004, and 2005, respectively. Prior to this submission, the petitioner had 
documented no more than four citations, and therefore the director's assertions in the August 2012 
notice accurately reflected the evidence of record at the time of that notice. With the new evidence, 
the petitioner had documented five citations, an increase of one over the four previously claimed. 
By claiming a distinction between "domestically cited" articles and those listed on Google Scholar, 
the petitioner implied the existence of further citing articles published outside Korea. The petitioner 
did not, however, document the existence of such articles or establish that the Google Scholar 
citation count included any articles published outside Korea. 
The petitioner submitted copies of three new English-language papers, naming him as co-author. 
also co-wrote all three papers.) The papers are in manuscript form, and the 
petitioner submitted no evidence that any journal had published the articles or accepted them for 
publication. The petitioner also submitted, for the first time, copies of his two articles from 1996. 
These articles are in Korean, but include English abstracts. Four of the papers are case studies, in 
which the co-authors discussed one particular instance of patient treatment. Such case studies have 
their place in medical literature, because they can provide guidance to other physicians, but the 
petitioner has not demonstrated that they constitute research. One of the two 1996 papers, on the 
other hand, documented a research project that "compared postoperative 
visual outcome and corneal 
refractive power" on "91 eyes" following photorefractive keratotomy (a type of laser eye surgery). 
The petitioner did not document any citations of the research paper; all five documented citations 
refer to a 1996 case study (' 
The director denied the petition on December 14, 2012. The director found that the petitioner had 
not shown that his intended work in the United States would be national in scope. The director 
stated: "An alien cannot self-petition under this classification in the hope that he or she will secure 
an employer as a sponsor in the future." The director cited the regulation at 8 C.F.R. § 103.2(b)(12) 
and supporting case law relating to the assertion that the petitioner must be eligible for the benefit 
sought at the time of the petition's filing. 
The director noted the petitioner's claim that he "will bring over $2.4 million dollars of his money to 
U.S.," but found an arithmetical error in the petitioner's calculations. Specifically, the sum of"$1.6 
million and $80,000 is not $2.4 million. It is in fact $1.68 million .... [T]here is a significant 
difference of $720,000 between the amount claimed and the evidence provided." The director 
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stated: "Even if the Service were to assume that the beneficiary would be able to liquidate all of his 
assets in Korea the Service finds it very unlikely that the beneficiary would be able not to only pay 
for his relocation and settlement to the United States but also be able to set up a proper research lab." 
The director concluded that the petitioner had not explained "how he will be able to achieve his 
ambitious business plans in the United States. It is simply not enough to assert that, given the 
petitioner's background, he is sure to succeed in the United States and serve the national interest." 
The director found an "absence of coherent evidence to show what, exactly, the petitioner intends to 
do in the United States and how he intends to do it." Absent such evidence, the director found that 
the petitioner had not established that his "proposed employment will be national in scope through 
his as ofyet [not] started business." 
The director also repeated the earlier assertion that the petitioner had not shown that his publication 
or citation history stood out in the field. The director stated that the petitioner had documented 
minimal citations, and that "The citations ... as well as the submitted articles are all from Korea and 
no evidence was ... provided to show that the petitioner has been cited internationally." 
On appeal, the petitioner 
states: 
The denial is based on racial discrimination by [the] director. ... His decision is 
extremely opinionat[ed and] has nothing to do with facts. Further, he stated a bunch 
of legal statu[t]es to make [an] adverse decision [on] my case, however, his own 
words have no ground of legal statu[t]es .... 
Based on his wording[], I cannot express enough that the decision by [the director] is 
based on prejudice and therefore, I am certain that all other evidences I submitted had 
not [been] reviewed properly. Further, it is discrimination based on ignorance of 
nationality (Japanese people have tendency of ignoring other Asians, especially 
Koreans because they once occupied the country as their colony). 
In basing much of the appeal on a claim of "ignorance of nationality," the petitioner appears to have 
assumed, based on the director's surname C , that the director is Japanese. He cites no other 
reason for that assumption, and the record contains no evidence of the director's ethnic origin. Even 
if the director were Japanese, the petitioner has not established personal bias on the director's part. 
Aside from allegations of racial discrimination, the petitioner devotes one paragraph of his appellate 
statement to the merits of the petition. The petitioner states: "I am a medical doctor in Korea. There 
are only 70,000 medical doctors actively working to date out of out of 50 million population. My 
position itself proves and establishes extreme success in Korea: I belong to top 0.14%." The 
petitioner submits no evidence to support these claimed figures, but even if he had done so, he has 
failed to establish that all medical doctors constitute the "top" of the Korean population. 
Under section 101(a)(32) of the Act, 8 U.S.C. § 1101(a)(32), physicians are members of the 
professions, and section 203(b )(2)(A) of the Act subjects members of the professions to the job offer 
(b)(6)
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requirement. Section 203(b )(2)(B)(ii) of the Act established a waiver for certain physicians 
practicing in designated shortage areas, but the petitioner has not claimed eligibility under that 
specialized provision of law or submitted the evidence required under the implementing regulations 
at 8 C.F.R. § 204.12. 
Furthermore, whatever the petitioner's credentials as a physician (specifically an ophthalmologist), 
he originally based his waiver application on his intended career as a "biotechnology scientist," a 
term that is not synonymous with "physician." Operating an ophthalmology clinic does not establish 
a track record in biotechnology research, and competence in one field does not guarantee or imply 
success in the other. 
Regarding the director's assertion that "the Service finds it very unlikely that the beneficiary would 
be able not to only pay for his relocation and settlement to the United States but also be able to set 
up a proper research lab," the petitioner states: "This statement is the personal opinion of [the 
director]. It has nothing to do with actual facts. Who is he judging me and my plan? Does he have 
any idea how much it would cost to set up a personal research lab?" 
In this proceeding, there is no presumption of eligibility that the director must rebut. Rather, the 
burden of proof rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. The 
petitioner has asserted his intention to sell $1.6 million worth of property in Korea, and use the 
money to fund research in the United States, but he provided almost no information or evidence 
regarding his specific plans, instead relying on general statistics about biotechnology. There is no 
blanket waiver for biotechnological researchers, whether or not the petitioner intends to fund his 
research with his own money. It is certainly possible for a researcher to qualify for the waiver, 
whatever the specific circumstances of his or her employment, but it cannot suffice for the petitioner 
to claim that he will conduct influential (and economically beneficial) research once he arrives in the 
United States. The petitioner has not demonstrated that his prior research career has been 
particularly influential, or even consistently active. 
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 labor certification will be in the national 
interest of the United States. 
The AAO will dismiss the appeal for the above stated reasons. In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the 
Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the petitioner has 
not met that burden. 
ORDER: The appeal is dismissed.