dismissed EB-2 NIW Case: Chemistry

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U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
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 Ofice ofAdmznrstratrve '4ppeals MS 2090 
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Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
PUBLIC COPY 
SRC 07 800 26569 
IN RE: 
OCT 2 8 2009 
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. 
 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. 
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. 5 103.5 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. 5 103.5(a)(l)(i). 
eny Rhew 
hief, 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 (AAO) on appeal. The AAO will 
dismiss the appeal. 
In this decision, the term "prior counsel" shall refer to 
 who represented the petitioner 
at the time the petitioner filed the petition. The term "counsel" shall refer to the present attorney of 
record. 
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 an alien of exceptional ability in the sciences. At the time he filed 
the petition, the petitioner was a postdoctoral research scholar at the University of Iowa. He 
subsequently began working at the National Institute of Mental Health (NIMH). 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 the classification 
sought, 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 brief from counsel, copies of previously submitted documents, and 
materials relating to prior witnesses and the petitioner's current work. 
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 petitioner claims eligibility for classification as an alien of exceptional ability in the sciences. The 
record readily establishes that the petitioner, whose occupation requires at least a bachelor's degree and 
who holds a doctoral degree, qualifies as a member of the professions holding an advanced degree. The 
Page 3 
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. 
The regulation at 8 C.F.R. § 204.5(k)(4)(ii) requires that a petitioner seeking to apply for the 
exemption must submit Form ETA-750B, Statement of Qualifications of Alien (or equivalent 
sections of ETA Form 9089), in duplicate. The record does not contain this required document, and 
therefore the petitioner has not properly applied for the national interest waiver. The director, 
however, did not raise this issue. We will, therefore, review the matter on the merits rather than 
leave it at a finding that the petitioner did not properly apply for the waiver. 
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, 101 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 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. 8 204.5(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 July 30, 2007. 
 Prior counsel stated that the petitioner "has 
successfully and rapidly conducted research in the environmental and health industry, which has 
resulted in the compounds which are largely needed for a large number of biological and environmental 
studies by the researchers." Prior counsel added: "Due to his expertise and exceptional ability in the 
field . . . he has commanded a salary equal to his level of knowledge." The record shows that the 
beneficiary's salary was $33,000 per year at the time of filing. The petitioner submitted nothing to show 
that this is a particularly high salary in his field. 
The petitioner's curriculum vitae listed seven items under the heading "Publications," but only two of 
the items were published articles. Each of the other five items was described as a "manuscript in 
preparation. " 
Several letters accompanied the initial filing of the petition. 
 of the University 
of Akron, Ohio, stated: 
[The petitioner] conducted his doctoral dissertation research under my direction. . . . He 
is a bright, creative, and vigorous young scientist, and can be expected to enjoy a highly 
productive professional career. . . . 
[The petitioner] gained considerable experience in synthetic and physical organic 
chemistry and proved to be a thoughtful and accomplished experimentalist. [The 
petitioner's] dissertation is mainly focused on the reactivity of polycyclic aromatic 
hydrocarbons and other electron-rich aromatic compounds with hypervalent iodine 
reagents. . . . 
In my opinion, [the petitioner] has the right professional qualifications and personal gifts 
for an outstanding scientific career. . . . I am convinced that [the petitioner] will be an 
important contributing member of the U.S. scientific community. 
[The petitioner's] training and research skills are unique and exceptional. . . . 
During his time at the University of Akron . . . he was involved in numerous, highly 
challenging synthetic endeavors. Most of his research was aimed at modifjring existing 
organic molecules to obtain value added products for pharmaceutical and medical 
applications. For example, he . . . developed a method for the thiocyanation of 
polycyclic and heteroaromatic systems and established a synthetic approach for the 
biscarbonylalkylation of polycyclic hydrocarbons and thiophenes. This research is 
unprecedented and finally allows researchers worldwide to easily synthesize . . . 
compounds [that] are of great interest as pharmaceutical intermediates for the synthesis 
of penicillin, cephalosporin and many other drug molecules. . . . 
[The petitioner] joined my research team in 2006 and currently makes unique 
contributions to several projects. . . . [H]e has developed new and urgently needed 
synthetic approaches to a group of environmental contaminants called Polychlorinated 
Biphenyls (PCBs). . . . These compounds are needed for a large number of biological 
and environmental studies by the researchers of the Iowa Superhd Basic Research 
Program [ISBRP]. Thanks to [the petitioner's] expertise and tireless effort, many of the 
study compounds needed by Superfund researchers are now available in large quantities. 
University of 1owa described the petitioner's postdoctoral work in 
technical detail, and stated that the petitioner "is a rare chemist with a unique combination of experience 
in both the chemical and biological sciences. . . . I am confident that this bright scientist will contribute 
greatly to the various fields of science and to the growth of American society." 
University of Iowa in an effort to develop fluorous probe molecules (dyes) for 
biomedical applications. . . . The potential applications of the dyes are in Fluorous solid 
phase extractions (F-SPE), liquid crystal displays, thermal transfer printing and contrast 
agents. The newly available dyes have provided valuable scientific insights into the 
process of forming materials for F-SPE that could not have been gained by any other 
means. 
. . . Apart from synthetic achievements, [the petitioner] also has deep understanding and 
working experience in toxicology experiments with animal models. . . . 
As a graduate student at The University of Akron, [the petitioner] accomplished 
innovative research in the fields of synthetic organic and medicinal chemistry. . . . 
[The petitioner] has the ingenuity and knowledge to synthesize drug leads and thereby 
aid in the design and development of new and potent pharmacological agents. Also his 
research at [the] University of Iowa in toxicology will definitely be helpful in 
understanding the mechanism of carcinogenesis and oxidative stress, leading towards 
remedies for acute exposure to environmental health hazards. 
The remaining three witnesses provided specific details about the petitioner's professional career, 
including his-most recent, not-vet-published work, but did not explain how they learned this 
information. of the University of California, San Diego, stated that the 
petitioner "has provided many individual PCB congeners and PCB metabolites to several projects" and, 
ki a doctoral student, "prepared many . . . novel s thetic materials [that] will have impact in the 
development of functionalized aromatic systems." stated that the petitioner "is a highly 
gifted chemist whose unique combination of knowledge, skills and experience is rare among research 
scientists." 
- Senior Scientific Officer at Expicor Pharma Private Ltd., Hyderabad, India, 
contended that the petitioner "was one of the best TA~ of his graduate studies in the department of 
chemistry [at] The University of Akron." Such a claim presupposes substantial knowledge of the 
abilities of all the other teaching assistants in that department, but did not claim ever to 
have spent time at the University of Akron. described the petitioner's work in technical 
detail and concluded that the petitioner "is involved in research with importance which addresses 
environmental concerns. He will undoubtedly play a key role in conducting cutting-edge research in the 
fields of fundamental organic, medicinal, environmental chemistry and toxicology." 
of Saxion University of Applied Sciences, Enschede, the 
Netherlands, discussed the petitioner's work in technical detail and stated that the petitioner's "findings 
prove his versatility in different fields of chemistry research." 
On August 4, 2008, the director instructed the petitioner to establish the extent, if any, to whlch other 
researchers have cited the petitioner's published work. The director stated that the petitioner "must 
establish . . . a past record of specific prior achievement that justifies projections of future benefit to the 
national interest." 
In response to the notice, the petitioner submitted four additional letters, copies of publications, and 
documentation of the petitioner's new job at NIMH. The petitioner's work at NIMH, relating to age- 
related macular degeneration, did not begin until well after the petition's filing date. An applicant or 
petitioner must establish that he or she is eligible for the requested benefit at the time of filing the 
application or petition. 8 C.F.R. 5 103.2(b)(l). Therefore, we cannot consider the petitioner's work at 
NIMH except to acknowledge that the petitioner continues to work in areas related to his prior work. 
University of Iowa Professor - stated that the petitioner "made very substantial 
scholarly contributions to . . . health-related projects within the ISBRP. . . . He . . . has made exceptional 
contributions to the advancement of synthetic organic chemistry, medicinal chemistry, and toxicology." 
, a research scientist at Trius Therapeutics, Inc., San .- Diego, California, stated that 
the petitioner's "fluorous tagging of PCBs and PBDEs coupled with "F-NMR for the straight-forward 
detection of metabolites in toxicological studies . . . [is] a milestone discovery in toxicology." 
Discussing the petitioner's work at the University of Akron, asserted that the petitioner's 
Page 7 
"findings in hypervalent iodine chemistry are exceptional and proved valuable in both industry and 
academia." 
California, stated that the petitioner's doctoral and postdoctoral work is "novel1' with a number of 
potential industrial and research applications. 
A number of witnesses stated that the petitioner's work had been cited, but they did not provide specific 
figures. The petitioner submitted copies of three articles with independent citations of his work. The 
petitioner submitted other articles which he stated were related to his research, but he did not claim that 
the articles contain citations of his work. 
The director denied the petition on February 21, 2009, stating that the petitioner had not adequately 
shown that his "modest publication record" has had substantial impact in his field. The director 
acknowledged the witnesses' letters, but found that the record lacked objective, documentary evidence 
to support their statements. 
On appeal, counsel argues that the director "failed to recognize" the "substantial merit" and "national . . . 
scope" of the petitioner's ongoing work. The director, in the decision, did not deny or dispute the 
intrinsic merit or national scope of the petitioner's occupation. At issue was the relative significance of 
the petitioner's work in what is, overall, an important field. 
Counsel takes issue with the director's observation that the petitioner must establish eligibility at the 
time of filing. This policy, however, is taken directly from the regulation at 8 C.F.R. 103.2(b)(l). 
The director does not have the discretion to disregard the regulations, even if it would benefit the 
petitioner. See Reuters Ltd. v. F.C.C., 781 F.2d 946, (C.A.D.C.,1986) (an agency must adhere to its 
own rules and regulations; ad hoc departures fiom those rules, even to achieve laudable aims, cannot 
be sanctioned). We cannot justify a finding that, because the petitioner began working at NIMH in 
2008, he was already eligible for the national interest waiver in 2007. Qualifications gained after the 
filing date cannot cause a previously ineligible alien to become eligible after the filing date. See 
Matter of Katigbak, 14 I&N Dec. 45, 49 (Regl. Commr. 1971). A detailed discussion of the 
petitioner's work at NIMH would serve no useful purpose in this decision, and we will not conclude 
that NIMH's decision to hire the petitioner is, itself, strong evidence of the petitioner's prior 
reputation. 
Counsel argues that the petitioner failed to follow Matter of New York State Dept. of Transportation, 
because that decision's evidentiary "factors do not include evidence of influence" (counsel's 
emphasis). 
 Counsel then acknowledges that the decision does require "a past history of 
demonstrable achievement with some degree of influence on the field as a whole" (Id. at 219, n.6), 
but does not explain why the director erred by requiring evidence of that influence. 
Counsel quotes at length fi-om previously submitted witness letters. 
 For the most part, these 
quotations are highly technical descriptions of the petitioner's work, sometimes followed by the 
Page 8 
summary conclusion that the work described is of great importance. General assertions to the effect 
that the petitioner made "a milestone discovery" or that "his findings . . . proved valuable in both 
industry and academia" do not answer the question of how, exactly, the petitioner's work has 
advanced knowledge or produced new practical applications. It cannot suffice simply to describe the 
petitioner's work in technical terms that are unintelligible to non-specialists, and then pronounce that 
work to be of seminal importance in the field. 
The petitioner's exhibits on appeal include evidence that a number of the petitioner's witnesses, and 
his current supervisor at NIMH, - have published large quantities of heavily cited 
articles. seven top articles, by themselves, show approximately 500 citations between 
them. This evidence serves to illustrate the gulf between these highly accomplished researchers and 
the petitioner, who finished his last degree less than a year before he filed the petition. 
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. 5 136 1. The petitioner has not sustained that burden. 
This decision 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.