dismissed EB-2 NIW Case: Cancer Research

PUBLICCopy
U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
U.S.Citizenship
and Immigration
Services
LIN 04 245 52073
Office: NEBRASKA SERVICE CENTER Date: APR •a...
INRE: 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. § 1153(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.
7R~.c~
Administrative Appeals Office
www.uscis.gov
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa
petition, which 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. § I I53(b)(2), as an alien of exceptional ability or a member of the professions
holding an advanced degree. The petitioner seeks employment as a postdoctoral research fellow. The
petitioner asserts that an exemption from the requirement of a job offer, and thus of an alien
employment certification, is in the national interest of the United States. The director found that tq1
petitioner qualifies for classification as a member of the professions holding an advanced degree, but
that the petitioner had not established that an exemption from the requirement of a job offer would be
in the national interest of the United States.
On appeal, counsel submits a brief and additional evidence. Much of the documentation submitted in
response to the director's request for additional evidence and on appeal relates to influence in the field
after the date of filing. The petitioner must establish his eligibility as of that date. See 8 C.F.R.
§ 103.2(b)(12); Matter of Katigbak, 14 I&N Dec. 45,49 (Reg. Comm. 1971). While we uphold the
director's decision in this matter, our decision is without prejudice to the subsequent petition filed by
the petitioner, receipt number LIN-06-106-52411, which the director approved on July 28, 2006.
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 requirement 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 petitioner holds a Ph.D. from Beijing Medical University. The petitioner's occupation falls within
the pertinent regulatory definition of a profession. The petitioner thus qualifies as a member of the
professions holding an advanced degree. The remaining issue is whether the petitioner has established
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that a waiver of the job offer requirement, and thus an alien employment certification, is in the national
interest.
Neither the statute nor 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, IOlst Cong., 1st Sess., 11 (1989).
Supplementary information to the regulations implementing the Immigration Act of 1990 (IMMACT),
published at 56 Fed. Reg. 60897, 60900 (November 29, 1991), states:
The Service 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 Dep't. of Transp., 22 I&N Dec. 215 (Comm. 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 onprospective 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 concur with the director that the petitioner works in an area of intrinsic merit, cancer research,
and that the proposed benefits of his work , improved cancer immunotherapy, would be national in
scope. It remains, then, to determine whether the petitioner will benefit the national interest to a
greater extent than an available U.S. worker with the same minimum qualifications.
Eligibility for the waiver must rest with the alien's own qualifications rather than with the position
sought. In other words, we generally do not accept the argument that a given project is so important
that any alien qualified to work on this project must also qualify for a national interest waiver.
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Matter ofNew York State Dep 't ofTransp. , 22 I&N Dec. at 218. Moreover, it cannot suffice to state
that the alien possesses useful skills, or a "unique background." Special or unusual knowledge or
training does not inherently meet the national interest threshold. The issue of whether similarly ­
trained workers are available in the United States is an issue under the jurisdiction of the Department
of Labor. Id. at 221.
At issue is whether this petitioner's contributions in the field are of such unusual significance that the
petitioner merits the special benefit of a national interest waiver , over and above the visa
classification he seeks . By seeking an extra benefit, the petitioner assumes an extra burden of proof.
A petitioner must demonstrate a past history of achievement with some degree of influence on the
field as a whole. Id. at 219, n. 6. In evaluating the petitioner's achievements, we note that original
innovation, such as demonstrated by a patent, is insufficient by itself. Whether the specific
innovation serves the national interest must be decided on a case-by-case basis. !d. at 221, n. 7.
The petitioner obtained his Ph .D. from Beijing Medical University in 2000. The petitioner then
worked as a postdoctoral fellow at Yale University School of Medicine. In 2002, the petitioner
followed his supervisor, to the Cleveland Clinic. While the record contains
evidence that the petitioner's postdoctoral position at Cleveland Clinic has been renewed, the record
also establishes that postdoctoral research fellowships at the Cleveland Clinic are limited to one year
or less. One of the bases claimed for a national interest waiver in this matter is Cleveland Clinic's
policy of not filing immigrant petitions on behalf of its postdoctoral fellows, who occupy inherently
temporary positions. This policy, and the petitioner's apparent disinterest in hiring the petitioner into
a more permanent position, does not bind this office . Nothing in the legislative history suggests that
the national interest waiver was intended simply as a means for employers (or self-petitioning aliens)
to avoid the inconvenience of the labor certification process. Id. at 223. The petitioner also relies on
his track record as a researcher, which we will consider below.
The petitioner has submitted several letters, most of which are from the petitioner's own colleagues.
Citizenship and Immigration Services (CIS) may, in its discretion, use as advisory opinions
statements submitted as expert testimony. See Matter ofCaron International, 19 I&N Dec. 791, 795
(Comm, 1988). However, CIS is ultimately responsible for making the final determination regarding
an alien's eligibility for the benefit sought. Id. The submission of letters from experts supporting the
petition is not presumptive evidence of eligibility; CIS may evaluate the content of those letters as to
whether they support the alien's eligibility. See id. at 795-796. CIS may even give less weight to an
opinion that is not corroborated, in accord with other information or is in any way questionable. Id.
at 795; See also Matter ofSoffici, 22 I&N Dec . 158, 165 (Comm. 1998) (citing Matter of Treasure
Craft ofCalifornia , 14 I&N Dec. 190 (Reg. Comm. 1972».
In evaluating the reference letters, we note that letters containing mere assertions of industry interest
and positive response in the field are less persuasive than letters that provide specific examples of
how the petitioner has influenced the field. In addition, letters from independent references who
were previously aware of the petitioner through his reputation and who have applied his work are far
Page 5
more persuasive than letters from independent references who were not previously aware of the
petitioner and are merely responding to a solicitation to review the petitioner's curriculum vitae and
work and provide an opinion based solely on this review.
During his graduate studies, the petitioner worked in the laboratory of•••••••••••
explains that the petitioner worked on studies funded by both Chinese authorities and the Rockefeller
Foundation. _ praises the petitioner's techniques and skills and asserts that he demonstrated
the protective effect of an antioxidant used to preserve food. These results "would help to maintain
normal function of the heart when Doxorubicin is given to patients. It would be possibly developed
into a new drug to treat the side effects caused by Doxorubicin." While the record indicates that the
petitioner's innovation was patented, does not indicate that any pharmaceutical company has
licensed the patent or otherwise begun working on a drug based on the petitioner's work. An alien
cannot secure a national interest waiver simply by demonstrating that he or she holds a patent. Whether
the specific innovation serves the national interest must be decided on a case-by-case basis . Matter of
New York State Dep't. of Transp., 22 I&N Dec. at 221, n . 7. further indicates that the .
petitioner's other project demonstrated that Dimethyl Fumarate "is a very promising drug candidate
in the prevention and treatment of gastric ulcers ." Once again , however, the record lacks
confirmation from pharmaceutical companies confirming that they are pursuing this work.
_ asserts that the petitioner is currently pursuing a cancer vaccine for patients with
malignant brain tumors . In 2002, the petitioner published a paper in the Journal of Immunology
reporting his development of "a method to amplify the anti-tumor immune response more than one
thousand-fold." ~explains that the "hyperexpanded T cells were able to cure advanced
tumors in a very~ mouse preclinical model, similar to patients with advanced metastatic
cancer." A second manuscript, published shortly before the petition was filed, "describes important
features of a sustained anti-tumor immune response. This work has highly relevant implications for
other researchers who are working toward development of immunotherapy for cancer."
While the petitioner had completed another manuscript with _ that work had not been
published as of the date of filing. Director of the Center for Surgery at the Cleveland
Clinic, asserts that the petitioner's work may also be applicable to other forms of cancer and even
other diseases.
The petitioner also submitted two letters from independent sources. _ Chief of the
Laboratory of Molecular and Tumor Immunology at Providence Port~nter, does not
explain how he has knowledge of the petitioner's work, although he indicates that he gained his
information from _ and his own interactions with the petitioner. Significantly, the third
through seventh paragraphs in _ letters are taken nearly verbatim from _ letter with
appropriate pronouns changed. While _ signed the letter , attesting to its contents, the
duplication of entire paragraphs from_ letters suggests that did not author the
content of his letter. _ does not indicate that his own work has been influenced by the
petitioner.
Page6
The petitioner also submitted a letter from Director of the Tumor Vaccine Group at
the University of Washington. asserts that the petitioner has "consistently performed at the
highest level, publishing in journals such as the Journal ofImmunology and Cancer Research ." As
of the date of_ letter, January 13, 2004 , the petitioner had only published in the Journal of
Immunology. In fact, the record reflects that as late as May 2005, well after the September 2,2004
filing date of the petition, the petitioner's manuscript was deemed unacceptable for publication in
Cancer Research. The revised manuscript was not accepted until at least August 2005 and was not
published until October 2005.
The petitioner submitted·evidence of her membership in the American Association of Immunologists
(AAI) and the American Association for Cancer Research (AACR). AN requires only a Ph.D. and
first-authorship of one article . As stated by the director, membership in professional associations is
one of the regulatory criteria for alien of exceptional ability, a classification that normally requires an
alien employment certification. We cannot conclude that meeting one criterion , or even the requisite
three criteria, warrants a waiver of that requirement in the national interest . Matter of New York
State Dep 't ofTransp., 22 I&N Dec. at 222.
As of the date of filing, the petitioner had authored 11 articles reporting his work in China, two
articles reporting his work with and is listed as an author for work presented by _
Kjaergaard of the Cleveland Clinic at an AACR conference in 2004. The petitioner 's references
discuss the prestige of the journals that have published his work. We will not, however, presume the
influence of an article from the journal in which it appears . Rather, the petitioner must demonstrate
the influence of the individual article. As of the date of filing; the petitioner's 2002 article in the
Journal of Immunology had been cited twice by independent research teams. On appeal, counsel
asserts that these citations were just the beginning and submits evidence that this article has now
been cited by six independent research groups . We further acknowledge that an article published
after the date of filing has been accessed 1,259 times.
On appeal,_ and_ assert that there is a limited number of institutions performing
research in the narrow are~er immunology. In a new letter, _ asserts that her own
laboratory is relying on th~er' s work . This statement is supported by a paper presented in
September 2004 in which __ cites the petitioner's work. While the record reflects that the
petitioner's work had begun to attract a limited amount of attention as of the date of filing and has
subsequently become more influential since that date a petitioner cannot establish a priority date in
the hope that work just being completed will prove influential during the petition's adjudication
period. See generally 8 C.F.R. § 103.2(b)(12); Matter ofKatigbak, 14 I&N Dec. at 49.
While the petitioner's research is no doubt of value, it can be argued that any research must be
shown to be original and present some benefit if it is to receive funding and attention from the
scientific community . Any Ph.D. thesis or postdoctoral research, in order to be accepted for
graduation, publication or funding, must offer new and useful information to the pool of knowledge.
Page 7
It does not follow that every researcher who performs original research that adds to the general pool
of knowledge inherently serves the national interest to an extent that justifies a waiver of the job
offer requirement. We concur with the director that the petitioner's accomplishments as of the date
of filing were not indicative of a degree of influence over the field as a whole.
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 alien employment certification will be in
the national interest ofthe 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 an alien employment certification certified by the Department of Labor, appropriate
supporting evidence and fee.
ORDER: The appeal is dismissed.