dismissed EB-2 NIW Case: Chemical Biology

U.S. Department of IIomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: LIN 06 137 51548 Office: NEBRASKA SERVICE CENTER Date: 2 3 2008 
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. 3 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. 
u 
wert P. Wiemann, Chief 
Administrative Appeals Office 
LIN 06 137 51548 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa petition. 
The matter is now before the Administrative Appeals Office (AAO) 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. 5 1153(b)(2), as a member of the professions holding an advanced degree. At the time he filed the 
petition, the petitioner was a doctoral student at Harvard University. Since completing his doctorate in 2006, the 
petitioner has begun working a research associate at New England Biolabs, Inc., in Ipswich, Massachusetts. 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. 
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 increasing the number and proportion 
of visas for immigrants who would benefit the United States eco~lomically and otherwise. . . ." S. Rep. No. 55, 
I0 1 st Cong., 1 st Sess., 1 1 (1989). 
Supplementary information to regulations implementing the Immigration Act of 1990 (IMMACT), published 
at 56 Fed. Reg. 60897, 60900 (November 29, 1991), states: 
LIN 06 137 51548 
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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 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 (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 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 also note that the regulation at 8 C.F.R. $ 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 offerllabor 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. 
letters accompanied the initial filing. 
 The most detailed letter is from Pr 
who has supervised the petitioner's doctoral studies at Harvard University. Prof. 
 tated: 
The research interests of my group lie in the emerging area of chemical biology. My co- 
workers and I aim to gain a fundamental understanding of processes that control the 
expression and preserve the integrity of genetic information. . . . 
For his Ph.D. studies, [the petitioner] first worked on the Ada project. Ada is an E. coli 
protein that is responsible for its adaptive response to alkylation damage. . . . What make Ada 
unique are its dual roles, it is both a DNA repair protein and transcription factor. . . . 
[W]e . . . hypothesized that it was the alleviation of electrostatic repulsion between protein 
and DNA that gave rise to the tighter binding of Ada to DNA after methylation. If that is the 
case, we should also be able to get higher affinity by reducing the repulsion through other 
LIN 06 137 5 1548 
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means. Those were exactly the results that [the petitioner] obtained. . . . [The petitioner's] 
work has given us a clear and elegant picture of how Ada functions and inspired people in the 
field to look for other transcription factors that may have a similar mode ofaction. 
[The petitioner] then started his project on DNA topoisomerases in collaboration with 
Novartis. . . . [Ilnhibitors of DNA topoisomerases represent a major class of anticancer drugs. 
[The petitioner's] work has given us enormous insight about the molecular mechanism of two 
very important classes of proteins: Ada (DNA repair proteinltranscription factor) and DNA 
topoisomerase (DNA topology modulating enzyme). . . . [The petitioner's] crystal structures 
of the ATPase fragment of human topoisomerase IIa . . . provid[e] the atomic resolution 
images of this very important protein to inspire the creation of new drugs to target this protein 
and to kill cancer. 
All of the remaining initial witnesses are either Harvard faculty members, former students of Or 
have otherwise collaborated with the petitioner. Most of these witnesses discuss the same projects described 
above, except for some Harvard faculty members who offer general information on the petitioner's 
performance in classes that they taught or seminars that they led. The distribution of witnesses, therefore, is 
not strong evidence that the petitioner's work has attracted significant notice outside of Harvard University 
and alumni os group. 
The petitioner identified 21 articles that contain citations of the petitioner's articles. Ten of these citations are 
actually self-citations by the petitioner's coauthors, leaving a modest total of eleven apparently independent 
citations. 
On December 22, 2006, the director issued a request for evidence, instructing the petitioner to submit 
documentation of his influence on his field and other evidence to show that a waiver of the job offer 
requirement would serve the national interest. 
In res onse, the petitioner submitted additional letters and documentation. 1993 Nobel ~aureate- 
, Chief Scientific Officer of New England Biolabs, stated: "there was never any hesitation about 
offering [the petitioner] a job at New England Biolabs," but he did not indicate what the petitioner does at that 
company. It is, therefore, not possible to determine the extent to which the petitioner's current work 
represents a continuation of his prior work at Harvard upon which the waiver request was originally 
predicated. 
Harvard Professo Dean of that university's Faculty of Arts and Sciences, offered strong 
but general praise for the petitioner's abilities and stated: "There is no doubt that [the petitioner's] work has 
caught the attention of major pharmaceutical companies." The record contains no evidence from any "major 
pharmaceutical companies" to demonstrate this attention first-hand. 
LIN 06 137 51548 
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Three of the letters are from independent witnesses. Assistant Profess 
 of Rice University stated 
that she is "familiar with [the petitioner's] research through his substantial contributions to the field of DNA 
interacting proteins," and that the petitioner's findings "will stimulate research in this area for years to come." 
- of the University of California at Berkeley credited the petitioner with "several 
seminal discoveries" that have "had a critical impact on a number of vital biomedical areas." Assistant 
f Virginia Polytechnic Institute stated that the petitioner's "accomplishments 
are . . . significant and influential and have established him as a top young researcher in his field." The only 
- - - 
witness to describe the petitioner's influence on the field in any detail was 
 who summarized some of 
the published articles that cited the petitioner's work. 
The petitioner submitted an updated citation list, showing 46 citations, 15 of which are self-citations by the 
petitioner's coauthors. The articles arising from the petitioner's work at Harvard yielded 23 citations, one of 
which is a self-citation. The remaining citations pertain to the petitioner's earlier work in China and, judging 
from their titles (e.g., "Theoretical study of far-infrared spectra of some palladium and platinum halide 
complexes"), related to inorganic chemistry rather than organic or biochemistry. 
The director denied the petition on June 26, 2007. In the decision, the director acknowledged the intrinsic 
merit and national scope of the projects described in the record, but found that the witnesses' "letters fail to 
demonstrate a past history of significant accomplishments on the part of the petitioner." The director's 
decision contains some erroneous or contradictory claims. For instance, the director put forth the erroneous 
conclusion that "[tlhe petitioner offers no evidence that his work has been published," but then acknowledged 
the petitioner's publication history while stating that publication, by itself, is not evidence of eligibility for a 
waiver. Regarding citation of those publications, the director first stated "the evidence does not establish that 
the petitioner's research has been widely cited by other scientists." These flaws in specific portions of the 
decision, however, do not alter the director's overall finding that the petitioner had not established that his 
research has been more important or influential than that of others performing research in the same specialty. 
On appeal, counsel quotes from witness letters to support the contention that the petitioner has "demonstrated 
past achievements in the field of biochemistry and structural biology (with a focus on DNA repair and 
function)." Counsel then states that the petitioner's "work has been cited 46 times (non-self citations) by 
scientists from around the world." The figure cited by counsel is misleading for two reasons. First, while the 
citations are not self-citations by the petitioner, a significant number of the citations are self-citations by the 
petitioner's co-authors. Furthermore, half of the 46 citations pertain to the petitioner's research in inorganic 
chemistry in China, and therefore those citations do not relate to the petitioner's "achievements in the field of 
biochemistry and structural biology (with a focus on DNA repair and function)." There remain 22 
independent citations of the petitioner's recent work as it relates to biology/biochemistry, a number which, 
while respectable, does not automatically compel a finding of eligibility for the waiver. 
Counsel states that the petitioner's "non-participation in his current work would be contrary to the national 
interest." The record, however offers few clues about the petitioner's "current work." The etitioner studied 
structural biology under 
 at Harvard, but the petitioner is no longe 
 student. We 
see no reason to assume that the petitioner's undescribed current work at New England Biolabs is closely 
similar to his prior work at Harvard, given the significant differences between the petitioner's work in China 
LIN 06 137 51548 
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(which related to inorganic chemistry, focusing on metals) and his later work at Harvard. The only consistent 
thread in the petitioner's publication history is that the articles all relate to the broad discipline of chemistry. 
The word "Biolabs" in the company name supports a presumption that the petitioner's work relates somehow 
to biology, but the record is otherwise devoid of evidence to show that the petitioner's current work closely 
relates to his activities in s laboratory. Certainly, it cannot be argued at this stage that a denial 
of the waiver would have any direct impact on progress in a laboratory that the petitioner has already left. 
While the petitioner's work has not been entirely devoid of impact, the evidence submitted in this proceeding 
does not consistently demonstrate that the petitioner's work has attracted significant notice outside of Harvard 
and the petitioner's circle of collaborators. Furthermore, whatever the significance of the petitioner's work at 
Harvard, the petitioner has left that university and there is no evidence that the petitioner's subsequent work 
represents a close continuation of his doctoral research. These findings do not foreclose the possibility that 
the petitioner may eventually qualify for the waiver, but the present petition appears to be premature at best. 
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. $ 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.