dismissed EB-2 NIW Case: Cancer Biology

PUBLIC copy 
U.S. Department of fIomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
Office: TEXAS SERVICE CENTER Date: 
SRC 07 148 52200 
 JUL a 0 2008 
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. €j 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. 
Administrative Appeals Office 
Page 2 
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. 5 1153(b)(2), as a member of the professions holding an advanced degree. The petitioner seeks 
employment as a postdoctoral research associate at the University of Massachusetts Medical School (UMMS), 
Worcester. 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. 
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. 
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, 199 I), states: 
The Service [now Citizenship and Immigration Services] 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 ofNew York State Dept. of Transportation, 22 I&N Dec. 2 15 (Commr. 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 also note that the regulation at 8 C.F.R. 5 204.5(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 qualie 
for a waiver just by demonstrating a degree of expertise significantly above that ordinarily encountered in his 
or her field of expertise. 
On the Form 1-140 petition, the petitioner indicated that he "[ils conducting three projects related to different 
cancers, involved in leukemia, glioblastoma and apoptosis mechanism at the forefront of cancer biology 
aiming to develop new drugs to treat cancers." The intrinsic merit of cancer research is beyond dispute, and 
the petitioner's research has national scope through publication of the petitioner's findings in major scholarly 
journals. At issue is whether the petitioner stands apart from other cancer researchers to an extent that would 
justify the special added benefit of a national interest waiver. 
In a "Research Statement" accompanying the initial filing, the petitioner described his past and present work: 
I spent three years in Shanghai Medical University in studying the effect of a chemical 
isolated from a Chinese herb on antagonizing lung cancers. . . . The compound I studied 
damaged lung cancer cells through inhibiting protein kinase C signaling pathways providing 
a potential clinical treatment for lung cancer. . . . 
Page 4 
1 spent 7 years [at the] State University of New York [SUNY] Downstate Medical Center at 
Brooklyn in studying a critical growth factor in cancer development. Fibroblast growth 
factor-2 (FGF-2) is an essential growth factor required for many cell types including cancer 
cells. . . . My research, advised byho is an excellent cancer biologist, 
demonstrated [for the] first time in the world that nuclear FGF-2 regulates cell growth 
directly through stimulating ribosome biogenesis, a key step in controlling cell proliferation. 
This finding not only shed light on the molecular mechanisms involved in mediation of cell 
dividing but also provide[d a] theoretical basis for developing drugs for cancer therapy. . . . 
I chose - laboratory at University of Massachusetts Medical School to 
pursue my scientific research. . . . My current research in his lab includes investigating 
different apoptotic pathways involved in leukemia and glioblastoma. . . . The only way to 
overcome and cure those dangerous diseases is to understand how they form and develop. 
One of the key mechanisms for the un-limited growth of cancer cells is their ability to escape 
. . . programmed cell death or apoptosis. . . . [Olther colleagues in lab 
have [previously] identified a new apoptotic pathway governed by intracellular iron which is 
mis-regulated in leukemia cells. Nonetheless, this pathway is still not completely illustrated 
and its relationship to drug target discovery is still unclear. 
. . . My recent research has uncovered several new components involved in this pathway 
which provides more potential targets for leukemia therapy. . . . The most pronounced finding 
in my recent work is that a cocktail with an inhibitor of a signaling pathway and Gleevec is 
able to induce cell death in leukemia cells with chemo-resistance. Thus to those leukemia 
patients with chemo-resistance, a novel potential therapy can be applied. The manuscript 
about these findings is under preparation. 
There is no evidence that the aforementioned manuscript has appeared in print in the sixteen months that have 
elapsed since the petitioner first submitted the above introductory statement. 
Several witness letters accom~anied the initial filing. We shall consider exam~les of these letters here. 
V 
UMMS Professor 
-m 
tated that the petitioner "has made major contributions in a surprisingly 
of time" at Pro 
 laboratory, but he appears to have identified only one specific finding. 
Pro 
 credited the petitioner with the finding that "a combination of Gleevec and a MAPK signaling 
pathway inhibitor successfully destroys tumor cells but not normal cells," which "has opened up new avenues 
of investigation to develop . . . novel strategies for the treatment of chronic myeloid leukemia." 
Associate Professor at SUNY Downstate Medical Center, credited the petitioner with 
"several extremely impressive scientific achievements" during his time in 
 laboratory. Dr. 
-emphasized the petitioner's findings with regard to FGF-2. 
Associate Professor -of the University of Southern California, who has collaborated with Dr. 
nd served on the petitioner's doctoral thesis committee, stated that the petitioner's "achievements 
provide pharmaceutical industries the molecular basis to develop anticancer drugs." 
Page 5 
Professor 
 of the University of Alabama at 
 ed: "I don't know [the 
petitioner]. However, his research work is very impressive." Prof iscussed the petitioner's 
work with FGF-2 and asserted: "These studies provide a theoretical basis for investigating possible 
treatment methods for cancer." Prof. m offered no specific comments regarding the petitioner's 
more recent work in Pro 
 laboratory at UMMS. 
Associate Professor at Columbia University, stated: "Although I have not 
collaborated or directly communicated with [the petitioner], I am familiar with his scientific publications. . . . 
[The petitioner] is a highly accomplished scientist who has already reached the top level of his field of 
research." Like Prof. praised the petitioner's research with FGF-2 but said little 
about the petitioner's subsequent work at UMMS. 
Information included in the initial filing showed that the three articles co-authored by the petitioner and Prof. 
Chirico had been cited two, five, and 13 times, respectively. Four of these 20 citations (including both 
citations of the twice-cited article) were self-citations by the petitioner or his co-authors. The initial 
submission showed no citation of the petitioner's earlier work, and no publication of subsequent work. 
On September 4, 2007, the director issued a request for evidence, instructing the petitioner to "demonstrate 
how your achievements are more significant/noteworthy than others in the field and are above that normally 
attained by somebody at your current level." 
In response to the director's request, the petitioner submitted additional witness letters, most of which focused 
on the petitioner's work with FGF-2 at SUNY Downstate Medical Center, which ended in 2005, two years 
before the letters were written. An exception is a letter from 
" " 
 -. 
 Assistant Professor at 
Institute of Science and Technology, whose "research group has been in collaboration with Dr. 
laboratory.' stated that the petitioner had discovered the mechanism by which the 
drug Gleevec "inhibits the growth of leukemic" (sic). did not indicate how much notice this finding 
had attracted outside of the petitioner's own circle of collaborators. 
The petitioner submitted copies of the petitioner's published articles and unpublished manuscripts, and 
updated citation information showing that the aggregate total number of independent citations of two of the 
petitioner's articles had increased from 18 to 23. The cited articles derive from the petitioner's student work. 
The director denied the petition on December 21, 2007. The director acknowledged the intrinsic merit and 
national scope of the petitioner's work in cancer research, and noted the positive reaction to the petitioner's 
work with FGF-2, but the director found that "[nlone of the evidence of record establishes that the self- 
petitioner has accomplished anything more significant than other capable members of her [sic] profession 
holding similar credentials and conducting similar research." 
On appeal, counsel cites three claimed errors in the director's decision, and asserts that these errors 
"evidenced that denial officer even did not know or care whose cases he/she reviewed and denied [sic]." 
Specifically, counsel states that the director provided the wrong date for the request for evidence, the wrong 
Page 6 
alien number (A-number), and the wrong gender pronoun in reference to the petitioner. Regarding the first 
error, the director actually cited two different dates for the request for evidence; the second cited date is 
correct. The reference to the incorrect date appears to be an editing error rather than evidence that the 
adjudicator reviewed the wrong file. 
With regard to the issue of the A-number, we note that the petitioner filed the Form 1-140 petition with the 
Texas Service Center, and then, some months later, he filed a Form 1-485 adjustment application with the 
California Service Center. It .appears that each Service Center assigned an A-number to the petitioner upon 
receipt of the respective forms. Because the petitioner filed the Form 1-140 before he filed the Form 1-485, 
the A-number relating to the Form 1-140 has priority and is the correct number. Counsel, on appeal, 
incorrectly asserts that the number assigned by the California Service Center is the correct number. The 
"wrong alien number" to which counsel refers is, in fact, the number assigned by the Texas Service Center 
and printed on the jacket of the file containing the present record of proceeding. Computerized records 
relating to the 1-485 reflect an "A-Number Change" on January 8,2008. 
Finally, counsel notes that the director used the feminine pronoun "her" instead of the masculine pronoun 
"his" in reference to the male petitioner, and speculates that the decision therefore refers to some other 
individual altogether. To use counsel's exact words: "We would like to point it again that officer use 'her' 
here. So the comments might not against " The claimed errors in the director's decision are not 
substantive, adjudicative errors, but rather grammatical or typographical errors (except for the reference to the 
petitioner's A-number, which is not an error at all). The director's specific reference to the petitioner's 
research "on fibroblast growth factor-2" dispels counsel's speculation that the adjudicating officer reviewed 
the wrong record of proceeding. We reject counsel's contention that the adjudicator "dealt with this case with 
careless attitude [sic]" to an extent that compromised the integrity of the decision. 
Counsel claims that the director failed to consider "strong evidence testifying that [the petitioner's] 
publications are all noteworthy and has [sic] already had huge impact on the field." The petitioner submits a 
new letter, attributed to prof. indicating that the petitioner has made discoveries "for the first-time . . . 
in the world." It is not clear how a given finding could qualify as a "discovery" if it is already known to the 
scientific community (i.e., if it has already been "discovered" at least once before). Therefore the "first-time" 
qualification, while technically true, does not impart significant weight to a given "discovery." It is to be 
expected that scientific researchers seek new information, rather than simply confming existing discoveries. 
The latest letter under Prof. 
 name indicates that the petitioner has conducted pioneering research 
relating to the drug Gleevec, and that the petitioner "is preparing the manuscript and will submit this paper 
with his new findings out very soon." This paper appears to be the same paper that was first described as "in 
preparation" at the time of filing in April 2007, and was later submitted in manuscript form in response to the 
request for evidence. The record continues to be devoid of evidence that the petitioner's work in Prof. 
laboratory, which began three years ago, has yielded any finished product that has either been 
published or accepted for publication. 
Some witnesses have attested that the petitioner's work is especially significant, but the record lacks sufficient 
objective evidence to lend persuasive support to such claims. The record reflects, at best, a burst of interest in 
Page 7 
the now-completed work with FGF-2 that the petitioner conducted during his doctoral studies. While the 
petitioner's past findings are clearly useful, the record does not establish that these findings have been 
particularly influential. 
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 burden of proof in these proceedings rests solely with the petitioner. Section 29 1 of the Act, 8 U.S.C. 8 136 1. 
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.