dismissed EB-2 NIW Case: Cardiovascular Physiology

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Office: NEBRASKA SERVICE CENTER 
 Date: HAY 2 4 
LIN 03 259 50797 
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. 8 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 retumed to 
the office that originally decided your case. Any fuRher inquiry must be made to that office. 
&P '4 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Nebraska 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. 9 1153(b)(2), as a member of the professions holding an advanced degree. At the time of filing, the 
petitioner was a postdoctoral research associate at the University of Nebraska Medical Center (UNMC). The 
petitioner's title has since been changed to, simply, "research associate." The petitioner asserts that an exemption 
fkom 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 fkom the requirement of a job offer 
would be in the national interest of the United States. 
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., 1st 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: 
Page 3 
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 
[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 fiom, 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. 21 5 (Cornrn. 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. 
Counsel states: 
Since [she] came to the United States in 2000, [the petitioner] has been conducting research 
as [a] postdoctoral research fellow at the University of Nebraska Medical Center on the 
effects of alterations in central nervous system mechanisms in diabetes mellitus and 
cardiovascular disease, that are of major public health concerns. . . . 
[The petitioner] has produced numerous contributions that significantly impacted his [sic] 
field of research on cardiovascular physiology, particularly in the area of neural control of 
circulation during diseases for better understanding of diabetes and related cardiovascular 
diseases. . . .Her remarkable achievements and huge potential in the field of cardiovascular 
physiology . . . have been recognized by the international community of her field. . . . 
[The petitioner's] innovative and novel contributions . . . prove her ability to make 
unprecedented, unparalleled, and vital contributions to the national interest. 
Eight witness letters accompany the petitioner's initial filing. We shall discuss examples of these letters 
below. Half of the witnesses have supervised or collaborated with the petitioner in some way. 
~rofessorof UNMC describes the petitioner's current work: 
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[The petitioner] has worked in our department for nearly three years conducting important 
research into the effects of alterations in central nervous system mechanisms in diabetes 
mellitus and other cardiovascular diseases that are of major public health concern. . . . [The 
petitioner] did a preliminary study in my laboratory during her first year where she examined 
the effect of introducing specific compounds such as L-NMMA, inhibitor of nitric oxide 
synthase, in the paraventricular nucleus (PVN) on renal sympathetic nerve discharge. We 
believe that research on the effects of PVN on renal sympathetic nerve discharge can lead to 
new and better treatments of diabetes mellitus and cardiovascular disease. She obtained . . . 
the first physiological evidence demonstrating a role for nitric oxide in the PVN on 
sympathetic outflow and her research created an important avenue of investigation in finding 
the cause and treatment of diabetes mellitus. 
~rofndicates that the petitioner has received grant funding to study "the role of central NMDA 
receptors within the PVN during diabetes 
 ," but does not 
 t the petitioner has made any 
progress in this area as of the date of Pro 
 letter. Rather, Pro efers to the funded project as 
"proposed research." 
Professor 
 of Wayne State University states: "1 have been following [the petitioner's] 
recent work. I have read her grant, papers and curriculum vitae. Therefore, I feel that I know her well, 
understand her lon -term goals, and thus can accurately attest to her strengths as an outstanding researcher." 
Profess0 n his letter, does not mention that he and the petitioner collaborated on a published article 
(included in the record as Exhibit 16). 
Four of the letters are from individuals with no evident connection to the petitioner. ~r- 
chief of the Clinical Neurocardiology Section at the National Institute of Neurological Disorders and Stroke, 
calls the petitioner "a gifted researcher with unique and extraordinary skills." ~r.also states that 
the petitioner "has n ed with me. I checked-d did confi that she has indeed published 
two papers with Dr. as lead author, in confirmation of the documentation she sent me." When 
reputation within the field, and the impact of her published work, we cannot 
was apparently unaware of the petitioner's published work until the petitioner 
contacted Dr. 
 who subsequently verified the existence of those publications. 
Several of the witness letters follow the same basic format: The witnesses discuss their own credentials; 
praise the petitioner as a gifted researcher; stress the importance of diabetes research; discuss the petitioner's 
credentials and her current work; assert that the petitioner's grant funding from the American Heart 
Association is a rare privilege; and conclude by asserting that the petitioner's unique abilities qualify her for a 
waiver. 
The similarities, in some instances, extend to the wording of the letters. For example, two letters contain the 
same exact passage, indicating that the petitioner "success~lly completed her resident training and became an 
attending physician. She did nearly 250 cardiopulmonary bypass cases every year and successful rate is 
100%. During this period, she also performed a lot of clinical studies related to the myocardium and cerebral 
protection during heart surgery." Other passages are either identical or contain only trivial differences (such 
as the substitution of a pronoun for the petitioner's name). 
Some witnesses do not indicate how they know of the petitioner's work. Apart from the petitioner's own 
collaborators, no witnesses specify that they already knew of the petitioner's work before the petitioner 
contacted them for letters. 
Dr. 
 sserts that the petitioner "has been a member of several scientific societies including 
the American Physiological Society, the American Heart Association, and the Neuroscience Society. One can 
not become [a] member without making outstanding achievements in the respective fields." The petitioner 
documents her membership in the three named associations, but nothing in the record corroborates the claim 
that "outstanding achievements" are a basic requirement for membership. The petitioner has submitted a 
printout from the American Heart Association's website (http://www.americanheart.org) indicates that there 
are "[olver 3 1,000 members" and invites readers to "Become a Member - Sign Up or Renew Today!'' There 
is no indication of particularly stringent membership requirements. The open invitation to "sign up" and the 
large membership size both suggest relatively loose membership standards. 
The petitioner has submitted a letter from an official of the Society for Neuroscience, indicating that the 
society is "the world's largest organization of scientists dedicated to the study of the brain, spinal cord, and 
peripheral nervous system," with "over 31,000 members to date." It is not clear how the Society for 
Neuroscience could become "the world's largest or anization of its kind" while requiring "outstanding 
achievements." It appears, therefore, that Dr. 
d~ 
letter contains exaggerations that undermine the 
credibility of the assertions in that letter. Given these exaggerations, there is no particularly strong reason to 
believe that the petitioner's grant from the American Heart Association is in fact the rare honor it is claimed 
to be, rather than more or less typical financial support for a postdoctoral researcher. More generally, doubt 
cast on any aspect of the petitioner's proof may lead to a reevaluation of the reliability and sufficiency of the 
remaining evidence offered in support of the visa petition. It is incumbent upon the petitioner to resolve any 
inconsistencies in the record by independent objective evidence, and attempts to explain or reconcile such 
inconsistencies, absent competent objective evidence pointing to where the truth, in fact, lies, will not suffice. 
Matter ofHo, 19 I&N Dec. 582,586 (BIA 1988). 
The director instructed the petitioner to submit additional evidence, including documentation to show that 
other researchers have cited the petitioner's published work. 
 In response, the petitioner submits 
documentation of various awards she has received, generally for postdoctoral researchers or 'tjunior 
investigators." These awards amount to recognition from professional organizations for the petitioner's 
contributions to the field. In this regard, we note 8 C.F.R. 5 204.5(k)(3)(ii)(F), which indicates that evidence 
of such recognition can form part, but not all, of a claim of exceptional ability. Exceptional ability, in turn, is 
not sufficient to warrant a national interest waiver, as shown by the plain wording of the statute at section 
203(b)(2)(A) of the Act. Therefore, the awards are not strong prima facie evidence of eligibility for the 
waiver. 
In a new letter, Prof. tates that the petitioner's departure "would be a major interruption in our project," 
which in turn is hnded over a five-year period. Temporary involvement in a single project is feasible under a 
Page 6 
nonimmigrant visa; the petitioner's involvement to date has been under such an arrangement. Denial of the 
national interest waiver does not invalidate the nonimmigrant visa or void the petitioner's nonimmigrant 
status. To show that she should receive permanent immigration benefits, the petitioner must do more than 
simply show that she is an important part of one closed-ended project; she must demonstrate a sustained 
record of past achievement that would justify expectations of continued future benefit. 
With regard to the director's request for evidence of citations, the petitioner submits copies of eight articles 
that cite her work. Three of these citations are self-citations by the petitioner and/or her collaborators. The 
petitioner also submits statistical information about the impact factors of the journals in which the citations 
appeared. This information does not indicate that a career total of five independent citations demonstrates 
unusually significant impact within the petitioner's field. 
The director denied the petition, stating that the evidence submitted does not distinguish the petitioner from 
other researchers to an extent that would justify the special benefit of a national interest waiver. On appeal, 
the petitioner asserts that the director failed to give due consideration to various claims. For instance, the 
petitioner asserts that her fellowship from the American Heart Association is "highly competitive" with only 
1520% of the applications being approved. The petitioner does not cite any source for these figures; the 
documentation informing her of the approval of her fellowship does not show such figures. The petitioner 
also fails to show that these percentages are unusually small, or that a postdoctoral researcher's reliance on 
competitive grant funding is the exception rather than the norm in academia. 
The petitioner submits additional witness letters. As shown above, in the case of one witnesses' unrealistic 
portrayal of the membership requirements of certain professional societies, witness letters are not always the 
most reliable means of establishing objective facts. 
One of the new letters on ap eal is from Professor-of the University of Missouri-Columbia. 
A previous letter from Prof. 
 had accompanied the petitioner's initial submission. The new letter is, 
essentially, a revision of that previous letter. Large sections of the new letter have simply been copied 
verbatim from the older letter. In the original letter, Prof. 
 had stated that the petitioner's "work is 
likely to make important new contributions." In the new letter, Prof. hanges this phrase, stating that 
the petitioner's "work will continue to make important new contributions." In the same paragraph, the phrase 
"the entire population of the United States" has been changed to "the a huge percentage of American citizens" 
(sic). 
Other witnesses now work in various countries but have collaborated to varying degrees with the petitioner's 
mentor, prom ~r of the ity of Birmingham, United Kingdom, appears to be the 
most indepe 
 en new witness on appeal. Dr. 
 deems the petitioner's work to be "outstanding and of 
practical significance for developing 
 for Americans, especially for diabetic patients, 
which have higher risk of developing cardiovascular diseases." 
The evidentiary weight of the letters has been somewhat compromised for reasons already discussed. The 
record does not contain significant first-hand documentary evidence to corroborate witnesses' (sometimes 
demonstrably exaggerated) claims regarding the importance and influence of the petitioner's work. While the 
witnesses clearly see promise in the petitioner's work, and there is no doubt that the petitioner is a qualified 
researcher performing meritorious work, the present petition appears to be premature at best. 
As is clear tkom 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 £?om 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.