dismissed EB-2 NIW Case: Cancer Research

US. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
- 
U. S. Citizenship 
and Immigration 
= mLICcopy 
FILE: Office: TEXAS SERVICE CENTER Date: OCT 0 6 2009 
SRC 07 800 18548 
PETITION: 
 Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
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. fj 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). 
\perry Rhew 
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 AAO will 
dismiss the appeal. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. $ 1153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as a postdoctoral scholar at the University of California, Davis (UCD). 
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. 
On appeal, the petitioner submits a brief from counsel and copies of documents 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. 
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] 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 (Cornrnr. 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 qualify for a waiver just by demonstrating a degree of expertise 
significantly above that ordinarily encountered in his or her field of expertise. 
The petitioner filed the petition on July 1,2007. The petitioner described her work: 
I will continue to work as a research scientist concentrating my research efforts in the 
mechanism of DNA repair and cancer initiation. My research efforts will greatly benefit 
the United States by providing new direction of cancer prognosis, drug design and 
screen, which will greatly advance medical research in public health. 
. . .My research findings have greatly advanced ow understanding of the mechanism of 
homologous recombination-dependent DNA repair efficiency and its modulating 
factors. . . . 
Since March, 2006, I have been working as a postdoctoral scholar at University of 
California, Davis. . . . The purpose of this project is to investigate the role of Brca2, a 
human breast cancer tumor suppressor, in cancer initiation and tumor formation. The 
outcome of this research will reveal why patients with mutations in this protein have 
highly elevated risks in both breast and ovarian cancer. Another project I am involved 
in is designed to characterize the functional counterpart of Brca2 in yeast, which is also 
critical to the understanding of the efficiency of DNA repair pathway. 
The petitioner submitted several witness letters. , who supervised the 
petitioner's Ph.D. research and subsequent postdoctoral work at the University of Vermont (UVM), 
stated: 
At all stages of her career to date [the petitioner] has made unique and powerful 
contributions to our knowledge of how DNA recombination and repair occurs at the 
molecular level. [The petitioner's] Ph.D. thesis research focused on the mechanism by 
which recombinase enzymes assemble into presynaptic filaments on single-stranded 
DNA during homologous recombination and DNA double-strand break repair 
transactions. . . . Using a viral model system, [the petitioner] performed ground-breaking 
research that . . . has resulted in three publications to date. . . . Together, [the petitioner's] 
three papers represent a major advance in our understanding of the mechanism of action 
of mediator proteins in presynaptic filament assembly during recombination and DNA 
double-strand break repair. 
of Duke University met the petitioner while visiting UVM. 
r's "articles reveal key information about the critical intermediate in 
homologous recombination and DNA repair, and are therefore highly significant to genome stability 
and the avoidance of cancer." 
[The petitioner] has been focusing her research efforts on the mechanism of homologous 
recombination, a central cellular pathway to repair DNA double-stranded breaks with an 
important function to maintain genomic stability. . . . [Tlhe functional principle of 
ionizing radiation and many anti-tumor drugs is the induction of double-stranded DNA 
breaks. Understanding how cells repair such breaks is critical to potentially enhance 
treatment efficacy and limiting side effect[s]. 
then described the petitioner's work in technical detail, and stated "[wle are preparing a high 
impact publication of our results . . . and [the petitioner] will be a prominently featured co-author." 
project. . . . Within a year, [the petitioner] demonstrated her roductivity by pushing the whole project a 
big step forward with promising experimental data." dasserted that the petitioner "is known 
internationally for her contributions in characterizing basic mechanism of homologous recombination 
proteins in DNA repair," but the record does not contain direct evidence of such a reputation. 
[The petitioner] fully utilized bacteriophage T4 as a model system to study presynaptic 
filament assembly; a key process in which recombinase overcomes the inhibitory effect 
of single-stranded DNA binding protein to form nucleoprotein complex. . . . [The 
petitioner's] research is a huge break-through in the field. She did extraordinary work in 
characterizing this complicated structure and dissecting the mechanistic steps of filament 
assembly in great detail. . . . 
Currently, [the petitioner] is investigating the biochemical mechanisms of human Brca2 
protein as a mediator protein in the human recombination system. . . . As I expected, she 
has produced some promising results in the breast cancer project in - 
laboratory. 
of the University of California, Berkeley, stated that the petitioner's 
"revolutionary research constitutes the theoretical framework in which we can understand better 
homologous recombination-dependent DNA repair and the cause of cancer predisposition diseases." 
The petitioner submitted copies of the articles she wrote with and copies of 34 articles 
independently citing the petitioner's work. Nearly all of the citations refer to a 2001 article of which the 
petitioner was the fifth if six named authors.   he heavy citation of this one article does not establish a 
continuing pattern of influence. The petitioner was the first author of other articles, but the petitioner 
has not shown that any of those articles have had an impact comparable to the 2001 article. 
The director denied the petition on February 1, 2008, stating that the petitioner had failed to show that 
she "has accomplished anything more significant than other capable members of [her] profession 
holding similar credentials and conducting similar research." 
On appeal, counsel asserts that the director "did not review and consider all supporting documents and 
legal arguments timely submitted by the petitioner." It is true that the director did not exhaustively 
catalog and discuss every exhibit in the record, but counsel does not establish that a more thorough 
discussion of the evidence would have resulted in a different outcome. 
Given counsel's complaint that the director did not sufficiently discuss the petitioner's evidence, it is 
somewhat ironic that counsel's appeal brief devotes very little space to that evidence. Counsel asserts 
that the director mentioned only the petitioner's earlier work, and "[tlhe decision is totally silent on other 
more significant work petitioner has done, such as her biochemical and structural studies of human 
Brca2, a cancer suppressor protein." The petitioner has not established that her work with Brca2 is 
"more significant" than the example that the director provided. 
The petitioner was the fifth author of a single well-cited publication that appeared in 2001. The 
petitioner has not shown comparable reception of her first-authored works, nor has she otherwise 
established that the citation of that one article is part of a consistent pattern of heavy citation. As for her 
work with Brca2 at UCD, the record does not show that the petitioner has produced any published work 
at all since she left UVM. asserted that the petitioner's work at UCD will result in "a high 
impact publication," but the record contains no evidence that this article has ever appeared. 
We do not dispute the intrinsic merit of cancer research, and it is possible that the petitioner's work 
may one day yield important findings. The available evidence, however, does not establish that the 
petitioner has consistently been a primary contributor to high-impact research that has broadly 
influenced the field beyond her circle of collaborators and mentors. Speculation about what might 
eventually result from the petitioner's work amounts to subjective opinion rather than evidence. We 
therefore agree with the director's basic finding that the petitioner has not established eligibility for 
the national interest waiver. 
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 291 of the Act, 
8 U.S.C. tj 1361. The petitioner has not sustained that burden. 
This decision 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.