dismissed EB-2 NIW Case: Chemistry

I 
 u.S. Department of Homeland Security 
jbabhg data deleted to 
 20 Massachusetts Ave., N.W., Rm. 3000 
Washington, D.C. 20529-2090 
pEvmt clearly unwarranted 
U. s. Citizenship 
and Immigration 
Services 
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. 4 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. 4 103.5 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. $ 103.5(a)(l)(i). 
Administrative Appeals Office 
Page 2 
DISCUSSION: 
 The Director, Texas 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. The 
petitioner seeks employment as a senior scientist at , Morrisville, Pennsylvania. 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 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: 
(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, 10 1 st Cong., 1 st Sess., 1 1 (1 989). 
Page 3 
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 (USCIS)] 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 (Comrnr. 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. 
Several witness letters, describin the etitioner's work and its claimed significance, accompanied the 
initial filing of the petition. g, under whose direction the petitioner studied for his 
doctorate, stated: 
During his Ph.D. studies, [the petitioner] synthesized two important biologically active 
oligosaccharides, in the course of which he developed a remarkable synthetic 
methodology that fbndarnentally contributed to the development of a powefil reagent 
that has been marketed and widely used in both academic and industrial research. 
Page 4 
[The petitioner's] first scientific contribution was the total synthesis of one of the most 
challenging oligosaccharides, a beta-1,2-mannan with potential as a vaccine against 
Candida Albicans, a yeast-like fungus that causes candidiasis, or Moniliasis. 
Candidiasis is one of the most prevalent hospital-acquired and mycotic infections. . . . 
The preparation of vaccines against candidiasis had been severely hampered by the 
chemical difficulties in the synthesis of the extremely challenging beta-mannoside 
linkage that constitutes the core of the beta-mannans. [The petitioner] was the first to 
synthesize a beta-mannan in my research group, and presented a promising approach 
toward preventing candidiasis. . . . 
[The petitioner] used his newly established methodology to synthesize an antigenic 
oligosaccharide found in Escherichia hermannii ATCC 33650 and 33652, an atypical 
bio-group of Escherichia coli, which causes a wide variety of infections. 
very popular chemical reagent used in organic synthesis. This chemical, called TTBP, . . . [is] used 
widely in both academia and stated that the petitioner's isolation of 
oligosaccharides, described above by 
 novel and at the forefkont of ths 
important field." 
University, stated: 
[The petitioner] has demonstrated himself to be an extraordinary chemist in the field of 
carbohydrates who has made significant contributions greatly impacting the field of 
carbohydrate and new drug development. . . . 
[the petitioner's] research has had a profound and lasting influence on the field of 
chemistry and pharmacy and has directly benefited the United States in terms of national 
health and economy. 
. . . [The petitioner] worked on the development of an anti-norovirus drug. Norovirus is 
a major virus that causes acute gastroenteritis. . . . In just a few months, [the petitioner] 
designed and synthesized trisaccharide-containing hydrogels that have proven to 
efficiently trap noroviruses in the in-vivo assay, and will undergo animal trial in the 
coming future. . . . This new drug has great potential to control diseases caused by 
norovirus. . . . 
Recently he made a breakthrough discovery by synthesizing an anti-cancer drug. 
Surprisingly, this drug can effectively stimulate the immune system to lull tumor cells. . 
. . This discovery is a significant milestone in anti-tumor immunotherapy. 
Page 5 
I collaborated with laboratory, which is how 1 met [the petitioner]. In our 
collaboration, we did bioaisays for the new drugs which [the petitioner] had so 
remarkably designed and synthesized. . . . 
I can attest that [the petitioner's] postdoctoral achievements in this field have been 
seminal and important to our field. 
The most independent initial witness appears to b- a senior research scientist at deCODE 
genetics, Inc., who has met the petitioner but '%ever collaborated or worked" with him. Dr.eprised 
the descriptions of the petitioner's various efforts found in other letters, already discussed above, and 
concluded that the petitioner "is the ideal scientist to perform these anti-HN, anti-cancer and 
biodefense related anti-virus projects that are certainly in our nation's interest." 
Although the petitioner began working at 
 a year before he filed the petition, none of the 
initial letters discussed the petitioner's work for that employer. Judging by the petitioner's initial 
submission, it is not clear whether the petitioner continues to perform research for publication and 
dissemination now that he has lefi academia, This is significant because the national interest waiver is 
concerned with prospective national benefit; it is not simply a reward for now-completed past work. 
The impact of a given alien's past work is a vital ingredient of a successful waiver application, but there 
must be some reasonable assurance that the alien will continue to have such impact into the future. 
Science news articles in the record reflect a burst of attention to the petitioner's work in mid-2001, but 
there is no comparable evidence from more recent years. 
A citation database printout indicates that the petitioner's articles have been cited 128 times between 
2000 and 2007. Handwritten annotations on the printout indicate that 114 of these citations are "non- 
self cites." This latter figure does not appear to take into account self-citations by the petitioner's co- 
authors, which are no more evidence of wider impact than self-citations by the petitioner hunself. The 
most-cited article, with 48 citations, shows only four self-citations by the petitioner, but co-author 
cited that article 19 times, accounting for almost 40% of the article's citation history. For 
another article, 
 accounts for 13 out of 21 citations, nearly 62%. The true number of 
independent citations appears to be closer to 65 than to the 114 claimed. The lower total is still a 
respectable figure, but we note that the petitioner's most recent work does not appear to have yielded 
any published work. 
On September 26, 2007, the director issued a request for evidence, instructing the petitioner to 
demonstrate not only the significance of his past work, but also to show that "the benefits of the 
employment will be national in scope and benefit more than a particular sector." The latter request 
clearly relates to the petitioner's intended future work, and references to the petitioner's now-completed 
doctoral studies and postdoctoral training cannot suffice to address this concern. 
In response, the petitioner submitted additional information about his past work in - 
laboratory, and five new witness letters. One witness is, founder and chief executive 
Page 6 
officer of 
 Most of his letter is devoted to the petitioner's doctoral and post-doctoral 
research, which we have already discussed. There is only one paragraph specifically devoted to the 
petitioner's current work, and it is rather vague. The paragraph begins: "In my company, [the 
petitioner] is currently developing a library of building blocks and reagents for carbohydrate synthesis. 
This project will directly speed up the oligosaccharide synthesis in the pharmaceutical industry and in 
academic research." The petitioner's employer asserted that the petitioner's background makes him not 
only well-suited but "unique and irreplaceable" in his current position. The letter did not indicate that 
the petitioner continues to engage in research as such, as opposed to making materials available for 
researchers at other institutions. The national scope of the petitioner's work is not evident fi-om this 
letter. 
The remaining letters, fi-om independent witnesses, focus on the petitioner's work at the University of 
Illinois and the Ohio State University, with no discussion of the petitioner's current work. 
The director denied the petition on January 22, 2008. 
 In denying the petition, the director 
acknowledged the intrinsic merit and national scope of the petitioner's work but found that the 
petitioner has not shown that his continued achievements justify approving the national interest waiver. 
On appeal, counsel lists some of the petitioner's past achievements, adding: "all of the above 
contributions were made prior to the filing of the immediate 1-140 petition." All of the achievements 
were, likewise, made before hired the petitioner. This is not a trivial observation; 
counsel, on appeal, acknowledges the requirement for prospective benefit to the United States. The 
petitioner underscores this issue on appeal by submitting an article from 
htt~://www.dru~discoven/online.com describing his work. The article is from 2001. Likewise, two 
further witness letters submitted on appeal follow the established pattern of highly praising the 
petitioner's student and postdoctoral research while ignoring anything the petitioner has done since 
April 2006. 
Witnesses have consistently and persuasively described the usefulness of the petitioner's work in the 
area of drug design, but the record is devoid of evidence that the petitioner is, in fact, engaged in drug 
design, or even that any potential employer has expressed an interest in retaining the petitioner's 
services for such a urpose. The record suggests that the petitioner synthesizes "intermediate" materials 
that 4 then sells to client companies for Mer processing. While not insignificant, the 
petitioner's work developing a "library" of such compounds (as his employer put it) does not readily 
compare to the earlier published research upon which the petitioner has predicated his waiver claim. 
Therefore, the petitioner has not established that his present and intended future work in the United 
States warrants a national interest waiver. 
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.