dismissed EB-2 NIW Case: Cancer Research

U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
pmHC COPS 
FILE: Office: NEBRASKA SERVICE CENTER Date: 
 JUN 1 5 2009 
LIN 07 161 50842 
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. 9 1 1 53(b)(2) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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. § 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. 9 103.5(a)(l)(i). 
ing Chief, Administrative Appeals Office 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. The director subsequently reopened the petition on the petitioner's motion, and reaffirmed the 
denial of the petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. 
The AAO will dismiss the appeal. 
The petitioner seeks to classifl the beneficiary pursuant to section 203(b)(2) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 3 1 153(b)(2), as a member of the professions holding an advanced 
degree. The petitioner, a public university cancer research center, seeks to employ the beneficiary as a 
research investigator. 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 
beneficiary 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 from one of its professors, as well as published materials 
regarding a shortage of qualified workers in the beneficiary's specialty. 
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 
Page 3 
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 (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 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. 
We also note that the regulation at 8 C.F.R. 9 204.5(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 offedlabor 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 May 10, 2007. , Director of the petitioner's 
Office of International Affairs, described the beneficiary's work and the basis of the waiver application: 
[The beneficiary] is currently performing, with excellence, hghly specialized basic 
research . . . directed toward prostate cancer. . . . The objective is to identifjr specific 
molecules or proteins involved in the development of prostate cancer and its progression 
Page 4 
to aggressive and metastatic forms in prostate cancer metastasis. The ultimate goal is 
the development of targeted therapies. [The beneficiary] is performing a number of 
specific bio-molecular techtuques, prostate cancer cell assays, and investigative 
pathology in genetically engineered mouse (GEM) models. 
. . . Animal models provide critical information in translational research. . . . The rapid 
advances in molecular biology have also produced concomitant advances in the 
technology of animal modeling. . . . The development, and characterization of these 
models requires very specialized professionals with a wide area of expertise covering 
elements of molecular biology, molecular genetics, veterinary medicine and pathology. 
There is actually no formal training for this kind of professional in any program. . . . 
Despite the importance of this area of research, and the explosive growth in this 
complex technology, it has been virtually impossible to recruit properly trained 
investigators to support these pro-iects. [The beneficiaryl, bv virtue of his previous 
training as a veterinarian and extensive training at ow department in molecular 
pathology, has acquired a level of expertise which would be difficult, if not impossible, 
to replace. . . . 
JThe beneficiarvl is not only the lead investigator on his own proiect, but also is 
collaborating with other11 investigators on various related prostate cancer proiects 
as well as proiects in skin carcinogenesis. He has demonstrated outstanding 
achievement in his field, attaining results unmatched bv his peers as attested to in 
the attached letters of support from various experts. 
Based on [the beneficiary's] record of accomplishment, the future promise of ongoing 
substantial achevement, and the critically important national interest work yet to be 
done in his area of expertise, we believe that he is a candidate for the National Interest 
Waiver of the job offer and labor certification requirements for U.S. permanent 
residence. . . . 
Since [the beneficiary] will serve the nation to a substantially greater degree than anyone 
with minimum qualifications, the delay or absence from his current work would deprive 
the nation of his exceptional and crucial contribution and therefore damage the national 
interests of the United States. 
(Emphasis in original.) Several witness letters accompanied the initial filing of the petition. Most of the 
initial witnesses work at the petitioning center, in laboratories where the beneficiary works or has 
worked. stated: 
I have known [the beneficiary] since 2004 when he joined my laboratory as a research 
investigator. I offered him the position after receiving outstanding recommendations 
fiom colleagues in Argentina and the USA. . . . I believe that he has become an 
important player in the fight against cancer, in a field of study that is presently 
underrepresented. . . . 
[The beneficiary] has been at our institution for almost three years. During this time he 
has grown intellectually and techcally and has become a top scientist in cancer animal 
models, particularly in investigative pathology of the prostate of transgenic mice. . . . 
He has already made important contributions and is on the path to becoming one of the 
top scientists in his field of study. 
[The beneficiary] is currently a Research Investigator in the Department of 
Carcinogenesis, having come to [the petitioner] in 2004. . . . We are developing a 
leading program in molecular mechanisms, particularly in the field of experimental 
animal models. There is a shortage of veterinarians trained for biomedical research and 
too few are working in laboratory animal medicine. [The beneficiary] possesses 
outstanding qualifications and experience which would be difficult, if not impossible, to 
replace. He is a fully trained veterinarian with research experience in microbiology, 
immunology, pathology and imaging technology. Since coming to [the petitioning 
center], he has added research experience in genetics and molecular mechanisms of 
carcinogenesis. Given the difficulty of recruiting veterinarians with solid research 
experience in molecular carcinogenesis and laboratory animal medicine, we have been 
training our own. 
The assertion of a shortage in the petitioner's occupation is not a persuasive argument for the national 
interest waiver. The Department of Labor is responsible for determining whether such a shortage exists, 
and labor certification is the process by which an employer demonstrates that qualified United States 
workers are not available for the position. See Matter ofNew YorkState Dept. of Transportation at 218. 
I have recruited [the beneficiary] to work in my own laboratory in a study of prostate 
cancer using transgenic mouse models. We have generated a new transgenic mouse 
model which expresses an activated form of STAT3 in the epithelial cells of the mouse 
prostate. . . . [The beneficiary] will utilize these transgenic mice to answer questions 
about the role of STAT3 activation in prostate cancer progression. This work, supported 
by a DOD [Department of Defense] award to [the beneficiary], may ultimately lead to 
the identification of new targets and model systems for chemoprevention/intervention 
studies. 
[The beneficiary] is rapidly progressing to an independent role, critical to this 
department's leadership in the development and use of animal models for cancer 
Page 6 
research. . . . [The beneficiary] has the potential to make outstanding contributions to our 
ongoing effort to understand the molecular mechanisms involved in the development of 
cancer and to develop diagnostic and treatment procedures. His work on genetically 
modified mice has opened new possibilities for the understanding of the carcinogenesis 
process, as well as identifling new targets for cancer prevention and intervention. The 
ongoing nature of these projects makes it imperative to continue [the beneficiary's] 
participation. 
discussed earlier clinical trials involving the use of finasteride to treat 
prostate cancer. stated that finasteride appeared to reduce the overall incidence of prostate 
cancer, but "the finding that a statistically significant percentage of finasteride-treated men had higher- 
grade cancers than those treated with placebo implied that finasteride induced the more aggressive 
tumors." She continued: 
To understand the significance of the reported finasteride-associated change in grade, we 
are conducting a Phase I1 Chemoprevention trial for finasteride. . . . [Olur ability to ask 
questions about the mechanism(s) by which finasteride promotes prostate cancer 
progression would be significantly enhanced by the availability of an animal model for 
adverse prostate cancer progression in which to conduct laboratory-based experiments. 
. . . [The beneficiary] is an outstanding researcher and an invaluable collaborator on this 
project. His expertise in pathology and animal models of cancer has been key in 
allowing us to identify biomarkers for prostate cancer that can be used in the clinic or 
pathological laboratory to better predict disease outcome. 
The only initial witness fiom outside the petitioning entity was - of the 
University of California, Davis (UCD), who stated: 
The beneficiary] has made important contributions to his field in Argentina. - 
h like the beneficiary, is originally fiom Argentina.] In that country, [the 
beneficiary] produced valuable research in diseases produced by bacteria of the genus 
Mycobacterium. . . . His research has helped to improve the diagnosis of bovine 
tuberculosis in Argentina. . . . He is also a co-author/illustrator of a book in the 
Microbiology field . . . which is being used as educational material for undergraduate 
veterinary students in Argentina. 
At present, his specialization in research pathology in the US has led him to occupy a 
unique and valuable position in the area of cancer research, which is of prime 
importance in this country as in many others. 
The petitioner submitted copies of the beneficiary's published work and abstracts of conference 
presentations, but no evidence as to the reception and impact of this work. 
On March 27, 2008, the director issued a request for evidence, instructing the petitioner to "submit 
evidence that establishes the beneficiary has a past record of specific prior achievement that justifies 
projections of future benefit to the national interest." The director also requested "documentary 
evidence that, as of the petition priority date, the beneficiary had a degree of influence on his field that 
distinguishes him from other researchers/scientists with comparable academic/professiona1 
qualifications." The director specifically requested evidence that other researchers have cited the 
beneficiary's published work. 
I understand that the labor certification pertains to the minimum requirements for 
performing the duties for an assigned job. . . . [The beneficiary's] highly specialized 
position requires that an individual possess a minimum of a Doctor of Veterinary 
Medicine degree plus at least 4 years of research experience developing and using 
transgenic mouse models. . . . It is this unique combination of education and research 
experience-based skills that differentiates this position from a standard research 
investigator position. . . . 
A regular veterinary pathologist is not qualified for this position. . . . For this Researcher 
Investigatgor [sic] position, an individual must possess an advanced degree in veterinary 
medicine AND extensive clinical microbiology/immunology/pathology/GEM 
experience in the area of transgenic mouse models. 
It is not clear whether 
 means that the position actually "requires" the above 
qualifications, or merely that the petitioner strongly prefers those traits. If the position truly requires the 
above qualifications, then any applicant who lacks those qualifications is unqualified, rather than 
minimally qualified, because he or she lacks the minimum qualifications for the position. The labor 
certification process does not compel the hiring of unqualified workers. 
then repeats the assertion that there is a "shortage of veterinary pathologists." If there 
is a shortage of veterinary pathologists, and the position is open only to veterinary pathologists, then the 
asserted shortage would presumably reduce competition among United States workers for the 
beneficiary's position. appears to concede as much, having stated "I am confident 
that other qualified applicants are not available." 
Eligibility for the national interest waiver generally rests on the merits of the individual alien, rather 
than on the importance of the alien's duties or occupation. To this end, the petitioner submitted 
additional materials regarding the beneficiary, rather than the requirements for the position. 
referred to one of the new submissions (exhibit 30) as a "Citation index." Exhibit 30 
is a printout of an undated electronic mail message, listing two articles said to contain citations of the 
beneficiary's work. 
Page 8 
Several new witness letters accompanied the petitioner's response to the request for evidence. - 
in his second letter on the beneficiary's behalf, stated: 
I have neither worked nor collaborated with [the beneficiary] but am familiar with his 
research based on the reputation he has acquired in the U.S. and abroad in the field of 
investigative pathology specializing in the use of murine models to study prostate cancer 
in transgenic mice and to apply the results to studies covering prostate cancer in humans. 
Since [the beneficiary] and I share similar outline of interest . . . , for the past several 
years I closely follow [the beneficiary's] investigations. 
Since the use of mice to investigate prostate carcinogenesis and the pathology of the 
mouse prostate is a highly specialized area, only a select few experts exist in the U.S. 
and abroad qualified to undertake this genre of research . . . . [The beneficiary] has 
evidenced through his unique expertise . . . that he is an expert in this field. It is very 
well known that there exists a critical lack of pathologists and research scientists 
possessing a veterinary advanced degree together with research expertise in the use of 
mouse models to study human disease in the USA and abroad. 
of the National University of La Pampa School of Veterinary 
Medicine (where the beneficiary studied and worked from 1996 to 2002) stated: 
Upon joining our Department, [the beneficiary] outstandingly handled every area he 
collaborated in including a main project involving the study of environmental 
mycobacterias. . . . [The beneficiary] played a pivotal role in developing and improving 
unique techniques of micro inoculation in the skin and mammary glad [sic] of the 
mouse. He outstandingly performed all kinds of laboratory techniques used in a highly 
advanced microbiology laboratory. . . . 
Throughout his employment and university studies at the National University of La 
Pampa, Argentina, [the beneficiary] acquired a unique combination of education, 
training and skills in veterinary science, investigative pathology, microsurgery and 
microbiology. . . . Since joining [the petitioner] in the U.S., [the beneficiary] has 
expanded his area of specialization to include the development and study of mouse 
models for human prostate cancer research. 
stated that the petitioner "authored a book . . . that was copyrighted and used as a textbook in 
the National University of La Pampa, School of Veterinary Medicine." The petitioner lists this 
copyright as a "major prize." The available evidence does not discuss Argentinean copyright law, but it 
is not readily apparent that claiming a copyright for one's own work is a prize, award or comparable 
achievement. did not indicate whether the beneficiary's textbook is in use at any other 
institution. 
Texas, previously studied at the 
Associate Director of i3, a pharmaceutical services company in Austin, 
petitioner's parent university. tated: 
Even though I have not collaborated with [the beneficiary], I am very familiar with his 
innovative research through the stellar reputation he has gained in America over the past 
4 years. . . . Very few professionals are willing to dedicate their time and effort to such 
sophisticated research and the United States needs such high caliber research scientists 
to aid our country in maintaining its scientific and medical leadership. 
. . . I became familiar with [the beneficiary's] unique expertise and extraordinary 
scientific contributions back in 2006. At that time, he had been awarded a Department 
of Defense (DOD) postdoctoral fellowship for the study of the specific protein Stat3 
with respect to activation during Prostate Cancer Progression. . . . The fact that a federal 
agency awarded [the beneficiary] this fellowship clearly evidences that he has a highly 
specialized sill [sic] set needed for prostate cancer research. 
The record contains nothing from the DOD to confirm assessment of why the DOD 
funded the beneficiary's project. 
The director denied the petition on August 5, 2008, stating that while the beneficiary's occupation has 
substantial intrinsic merit and national scope, the documentary evidence submitted by the petitioner 
indicated that the beneficiary had had minimal influence on his field. The director acknowledged the 
witness letters, but found that the letters "do not demonstrate why the labor certification [process] would 
be inappropriate in this case." The director found that the beneficiary does not merit a waiver simply 
because he is qualified for a highly specialized position. 
On September 2, 2008, the petitioner filed a motion to reopen the proceeding. - 
stated "we have . . . been determined to attract and retain top scientists in our institution" in accordance 
with "[tlhe National Cancer Act of 1971," and that "the need for veterinarians trained in comparative 
medicine have [sic] far outpaced availability." 
The petitioner submitted a letter from -, who stated that the beneficiary 
has spent several years obtaining rare expertise relating to the mouse model for prostate cancer. Prof. 
repeated the assertion that there is a severe shortage of trained workers in the beneficiary's 
specialty. 
On October 21, 2008, the director reaffirmed the denial of the petition, stating that a worker shortage is 
a favorable factor in the labor certification process, and therefore a poor basis for a waiver. The director 
also stated that simply listing the petitioner's accomplishments does not show that he stands apart from 
others in the same specialty. 
The petitioner appealed the director's second decision on November 20,2008. On appeal, the petitioner 
continues to rely on the assertion that there is a shortage in the beneficiary's field. -~ 
states: "The crux of this petition is the worldwide shortage of laboratory animal veterinarians, such as 
[the beneficiary], who are skilled in comparative medicine and mouse pathology." - 
adds that the beneficiary "has successfully developed several new transgenic mouse models for prostate 
cancer." 
The petitioner submits copies of two letters to the editors of scholarly journals, attesting to the lack of 
"expert comparative pathologists knowledgeable in mouse biology and human disease." UCD 
wrote or co-wrote both of these letters. One letter indicates: "The number of 
genetically engineered mouse mutants is rising substantially. . . . However, there is insufficient 
manpower and expertise in comparative pathology to characterize and validate these model animals 
effectively." 
As the petitioner has acknowledged, "[tlhe crux of this petition" is not that the beneficiary has been a 
particularly influential researcher in his field, but rather that he possesses hard-to-find qualifications. 
Special or unusual knowledge or training, while perhaps attractive to the prospective U.S. employer, 
does not inherently meet the national interest threshold. The issue of whether similarly-trained workers 
are available in the U.S. is an issue under the jurisdiction of the Department of Labor. Matter of New 
York State Dept. of Transportation at 221. 
The AAO is not indifferent to the petitioner's desire to maintain continuity in its staffing, and the 
petitioner's preference to retain an already-trained worker over potentially having to re-train a 
replacement is understandable. The petitioner, however, has not persuasively established that the 
matter at hand rises to the level of a national interest issue. The petitioner has relied on the 
seemingly contradictory arguments that, on the one hand, the petitioner cannot possibly recruit a 
replacement for the beneficiary because no such replacement is available; but, on the other hand, the 
labor certification process would inevitably displace the beneficiary from his position, in favor of a 
less-qualified replacement. The petitioner has been unable to reconcile these conflicting claims. 
As is clear fiom 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 fiom 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. § 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.