dismissed EB-2 NIW Case: Cardiology Research

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U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: Office: NEBRASKA SERVICE CENTER Date: 
LIN 04 188 5 1477 
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. 
&% Administrative Appeals Office 
DISCUSSION: The Director, Nebraska Service Center, denied the employrnent-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. $ 1153(b)(2), as a member of the professions holding an advanced degree. 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 the 
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. For the reasons discussed below, counsel has not overcome all of 
the director's concerns. 
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. in Bacteriology from the University of Wisconsin-Madison. 
 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 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, 101 st Cong., 1 st Sess., 1 1 (1 989). 
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 fi-om, 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. 21 5 (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 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 concur with the director that the petitioner works in an area of intrinsic merit, cardiology 
research, and that the proposed benefits of her work, improved understanding of and treatments for 
heart disease, 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. 
Matter of New York State Dep 't of Transp., 22 I&N Dec. at 21 8. 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- 
Page 4 
trained workers are available in the U.S. is an issue under the jurisdiction of the Department of 
Labor. Id. at 22 1. 
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 she 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. Id. at 221, n. 7. 
The petitioner obtained her Bachelor of Science degree from Shandong University in 1987 and her 
Master of Science from the Institute of Microbiology, Chinese Academy of Sciences in 1990. She then 
engaged in research at the Beijing Veterinary Medicine Company and subsequently worked as an 
instructor at the Institute of Microbiology. As stated above, the petitioner obtained her Ph.D. from the 
University of Wisconsin-Madison 
 working at that institution as a 
research associate in the laboratory o 
Professor , Vice Chairman of the Department of Biology at the Graduate School of the 
Chinese Academy of Sciences, briefly discusses the petitioner's work at that institution. Specifically, 
~rofessom notes that one of the petitioner's projects, a lication of photosynthetic bacteria in 
prawn-raising, won a provincial award in 1995. Professo -d)e does not assert that the petitioner's 
work on this project has influenced prawn-raising in China nationwide. 
During her Ph.D. studies at the University of Wisconsin-Madison, the petitioner worked in the 
laboratory o. explains that the petitioner "identified the outcome of 
competition among the three most important fiber-digesting bacteria in the rumen, the major digestive 
organ in cattle and other ruminant animals." dentifies several issues that complicated this 
work and asserts that it resulted in elucidations of a microbial tripartite 
interaction reported to date." The petitioner then researched the underlying mechanisms of these 
interactions, discovering a new 
 albusin B, that inhibits the growth of competitor bacteria in the 
rumen. The petitioner isolated and cloned albusin B, which allowed her to comprehensively analyze 
the amino acid sequence and nucleotide sequence of the protein, depositing the sequ 
The petitioner was the first to perform these investigations on a ruminal bacterium. 
that all of this work has been published and presented at conferences. 
sserts that in her laboratory, the petitioner fo 
 JUMONJI, a protein demonstrated by 
group to be a transcriptional factor. While 
 is unclear as to whether the petitioner 
participated in the group's identification of JUMONJI as a transcriptional factor, ists a 2000 
article on JUMONJI on her curriculum vitae. This article predates when etitioner joined - 
laboratory. notes that the petitioner's work on JUMONJI, which h does not specifically 
explain, was published in the Journal of Biological Chemistry in 2003. a professor at 
the Medical College of Wisconsin who met the petitioner while giving a presentation to her 
department, asserts that the petitioner demonstrated that "JUMONJI is a transcription factor that 
contains a strong repressor domain, a nuclear localization domain and a DNA-binding domain." Dr. 
Lough explains that this work has "greatly advanced our understanding [ofJ the role JUMONJI has in 
heart development." 
furiher asserts that the petitioner "contributed significantly" to work demonstrating that 
JUMONJI represses the expression of 
 uretic factor (ANF), an important hormonal mediator 
of body fluid and electrolyte balance. 
 asserts that a manuscript reporting these results was 
being revised and that the results "may lead to develo JUMANJI as a therapeutic factor that prevent 
[sic] the occurrence of heart hypertrophy." Chair of the Department of Anatomy at 
University of Wisconsin-Madison, asserts that this work was presented at a conference in March 2004. 
In analyzing JUMONJI knock out mi 
 itioner identified new defects not apparent in mutant 
mice with a mixed genetic background 
 does not indicate that these results have been reported 
or presented. Finally, the petitioner made a breakthrough using the complex Cre-loxp conditional 
targeting biotechnology process, generating a transgenic mouse 1 e JUMONJI gene is floxed 
with loxp genetic markers. While not yet published or presented, predicts that the outcome of 
this work "will hrther our understanding of the molecular mechanisms underlying [the] spatial role of 
JUMONJI in congenital heart defects as well as normal heart development." 
The petitioner provides similar letters from other professors at the University of Wisconsin-Madison 
and her collaborators. While they assert, in general terms, that the petitioner's work is exceptional and 
beyond what most researchers accomplish, they provide no examples of independent research teams 
being impacted by the petitioner's results. 
In response to the director's request for additional evidence, the petitioner provided two independent 
letters. an assistant professor of medicine at Harvard Medical School who was studying in 
Shandong China around the same time as the ~etitioner. ~rovides similar information to that discussed 
L 
above. does not claim to have been influenced b the petitioner and does not explain how she 
came to know of the petitioner's work. We note tha 
* 
a transplant immunology expert, which is 
not the petitioner's field. an assistant pro essor at the University of Pittsburg, claims to 
have known the petitioner "as an excellent and devoted scientist for many years," but fails to explain 
how they met. As with the letter from does not claim to have been influenced by the 
petitioner and his own area of research, immunology and cancer research, in unrelated to the 
petitioner's current and past research. 
Citizenship and Immigration Services (CIS) may, in its discretion, use as advisory opinions 
statements submitted as expert testimony. See Matter of Caron 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 
Page 6 
opinion that is not corroborated, in accord with other information or is in any way questionable. Id. 
at 795; See also Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure 
Craft of California, 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, the most persuasive letters are those from 
independent references within the petitioner's narrow field who were previously aware of the 
petitioner through her reputation and who have applied her work. 
In addition to the letters, the petitioner submitted her seven published articles and evidence of her 
conference presentations. The director noted that publication is expected among researchers and 
concluded that the petitioner had not demonstrated that her publication record stood out. Specifically, 
the director noted the lack of evidence that the petitioner had been widely cited. Counsel does not 
address this concern on appeal and the petitioner submits no evidence that she has been cited by 
independent research teams or comparable evidence of the impact of her articles. 
The petitioner also submitted evidence that she was admitted to membership in the honor society 
Gamma Sigma Delta "in recognition of high scholarship, outstanding achievement or service. 
Academic performance, measured by such criteria as grade point average, cannot alone satisfy the 
national interest threshold or assure substantial prospective national benefit. In all cases the 
petitioner must demonstrate specific prior achievements that establish the alien's ability to benefit 
the national interest. Matter of New York State Dep 't. of Transp., 22 I&N Dec. at 2 19, n.6. 
In addition, the petitioner submitted evidence of professional memberships, but no evidence that 
membership in these associations is significant. Finally, the petitioner submitted evidence of formal 
recognition received in 1995 in China for her study on feed additives for prawns. Professional 
memberships and recognition for contributions are criteria for aliens of exceptional ability, a 
classification that normally requires an alien employment certification certified by the Department of 
Labor. We cannot conclude that meeting two, or even the requisite three, of the criteria for that 
classification warrants a waiver of that requirement. See generally id. at 222 (regarding experience in 
the alien's field, another criterion for aliens of exceptional ability). 
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. 
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. 
Page 7 
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. 4 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.