dismissed EB-2 NIW Case: Cancer Research

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: EAC 03 176 50340 Office: VERMONT SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
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. $ 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. 
e48 ?/~obert P. Wiemann, Director 
Administrative Appeals Office 
EAC 03 176 50340 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the employment-based immigrant visa petition. 
The matter is now before the Administrative Appeals Office 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. § 1153(b)(2), as a member of the professions holding an advanced degree. At the time of filing, the 
petitioner was a postdoctoral fellow conducting cancer research at the Wistar Institute, Philadelphia, 
Pennsylvania. 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 letter and examples of her published work. There is no indication that counsel 
participated in the preparation or filing of the appeal. 
Section 203(b) of the Act states in pertinent part that: 
(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, 
lOlst Cong., 1 st Sess., 11 (1989). 
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 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 
EAC 03 176 50340 
Page 3 
[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. 2 15 (Comrn. 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 hture, 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. 
An unsigned introductory statement indicates that the petitioner "currently conducts cancer research, studying 
the role of CD44 in tumor development and tumor metastasis." The statement also indicates that the 
petitioner "has a demonstrable track record of achievement. She has spent the years since 1980 involved in 
the pursuit of science." We note that the petitioner was born in 1972, and therefore she was eight years old in 
1980. We further note that the petitioner's passport identifies her as an "engineer." 
The petitioner discusses her work: 
During my PhD career, I participated in the study of prostate cancer for three years. . . . Our 
results not only confirmed other researchers' previous discoveries, but also pointed several 
potential new directions in identifying new therapy target (e.g. Fibroblast Growth Factor 
axis). In addition, we studied the signal transductions in prostate cancer cells and the 
synergistic effect of different growth factors on the fate of these cancer cells. The discovery 
we made supports a newly raised theory that the abundance of IRS-1, a cell messenger 
protein, may dictate cell fate, including the possibility that too much IRS-1 in cells will lead 
to uncontrolled cell growth and cancer like phenotype. The mechanisms of the regulation of 
IRS-1 were elegantly examined and two new independent mechanisms were successfully 
identified by us. One of them (calpain-mediated regulation) indicated IRS-1 may also be 
involved in Alzheimer's disease. 
My current postdoctoral projects at the Wistar Institute are to reveal the code of CD44 in 
cancer development, growth, progression and metastasis. CD44 is a cell surface protein. It 
has been demonstrated that CD44 facilitates the development of many diseases such as 
arthritis, atherosclerosis and cancer. Its essential role has been particularly emphasized in 
cancer metastasis. Researchers found that putting specific forms of CD44 alone into certain 
cells is enough to make them become metastatic in animal models. Our current academic 
goal is to determine if CD44 on local tissues (instead of CD44 on tumor cells) also contribute 
to tumor growth, migration and invasion. . . . Our preliminary data suggest that the host CD44 
EAC 03 176 50340 
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may actively participate in the support of cancer cell growth and angiogenesis after their 
invasion into healthy lung tissues. 
The petitioner submits letters from five witnesses. One of the witnesses, Dr. who has "known [the 
petitioner] for more than eight years," is a polymer chemist who claims no expertise in the petitioner's area of 
research. 
All of the rgmaining witnesses are on the faculty of the Medical College of Philadelphia-Hahnemann 
(MCP-Hahnemann), or at least were on that faculty while the petitioner was a student there. Dr. 
Sell, now an associate investigator at Lankenau Institute for Medical Research, states that the 
petitioner "performed her thesis research in my laboratory. . . . [The petitioner] has performed outstanding 
research. Her work has lei to the development of new concepts in the area of cellular growth control and 
cancer." Professor states that the petitioner "impressed me about her profound 
knowledge in basi biochemical sciences. She demonstrated her extraordinary ability in biomedical field." 
Professor - states that the petitioner "is an extremely bright and motivated individual" who 
"has done a lot of important studies in and mechanisms of IGF-I 
regulated growth in prostate tumor lines." director of the Program of Cancer 
Genetics at MCP-Hahnemann's "investigated the cellular 
senescence in human fibroblast cells and signal transduction of IGF-I in human prostate cancer cells. In both 
areas she has made important discoveries." 
1 
The petitioner submits copies of her published articles, and documentation showing that one of those articles 
has been cited eight times; a second has been cited once. 
The director denied the petition, stating that the record does not demonstrate that the petitioner's work has 
stood out in the field to a degree sufficient to warrant the special benefit of a national interest waiver. The 
director noted that all of the witnesses who work in the petitioner's field have worked with her directly. In 
denying the petition, the director concluded that the petitioner has not shown that her work is national in 
scope. Medical and scientific research at major institutions is inherently national in scope, however, because 
the results are disseminated nationally (and internationally) through publications and conferences and because 
the findings of such research tend to apply universally rather than only locally. We therefore withdraw the 
director's finding that the petitioner's work lacks national scope. 
On appeal, the petitioner submits a copy of previously submitted article published in 2000. The petitioner has 
highlighted various section headings, as well as a sentence that reads: "These results imply that IRS-1 is 
targeted to the proteasome upon exposure to IGF-I." Given that this article was already in the record, its 
resubmission on appeal adds nothing of substance to the record. 
also submits a copy of Cell Cycle Control and Dysregulation Protocols, a volume in the 
Biology" series; the petitioner is a co-author of two chapters in the book. The 
book shows that she developed a research protocol that "has been established as the 
biomedical scientists to follow." The petitioner submits no independent evidence 
in "Methods in Molecular Biology" are routinely adopted throughout the 
field. 
Furthermore, the book has a 2004 copyright date, and thus it did not exist in May 2003 when the petitioner 
filed the petition. A petitioner must establish eligibility at the time of filing; subsequent developments cannot 
cause eligibility where it did not already obtain. See Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg. Comm. 
EAC 03 176 50340 
Page 5 
1971). The list of contributors indicates that the petitioner works at the Lankenau Institute for Medical 
Research, having evidently left the Wistar Institute. The list identifies 40 contributors, all but four of whom 
are located in only three areas (Philadelphia/Wynnewood, Pennsylvania; Worcester, Massachusetts; and 
Bologna, Italy). 
The petitioner states that she has "demonstrated I have made contribution[s] to the biomedical research field 
above and beyond the capabilities of most of the trained professionals in my field." The record contains no 
objective, documentary evidence to substantiate this claim. That the petitioner has co-authored published 
articles would be a significant factor if the petitioner had shown that publication is rare in her field, but there 
is no evidence that such is the case.' 
.The petitioner has not demonstrated that her research has attracted significant attention outside of the 
Philadelphia area. Every institution where she has worked in the United States is in or near Philadelphia; all 
of her witnesses are or were on the faculty of the Philadelphia university where she studied; even the editors 
of Cell Cycle Control and Dysregulation Protocols are both on the faculties of universities in Philadelphia. 
The petitioner has shown that her colleagues in the Philadelphia area consider her to be a talented and 
competent scientist, but there is no persuasive evidence that the petitioner's work has had a larger impact. 
The petitioner filed this petition at a very early stage in her career, and the petition appears, at best, to have 
been filed prematurely. 
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. 5 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. 
1 We note that the Association of American Universities' Committee on Postdoctoral Education, on page 5 of its Report 
and Recommendations, March 3 1, 1998, set forth its recommended definition of a postdoctoral appointment. Among the 
factors included in this definition is the assertion that "the appointee has the fi-eedom, and is expected, to publish the 
results of his or her research or scholarship during the period of the appointment." Thus, this national organization of 
prestigious universities takes it as "expected" for a postdoctoral researcher to publish his or her work.