dismissed EB-2 NIW Case: Chemistry

identifying data deleted to 
prevent clearly unwarranted 
invasion of personai privacy 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
SRC 07 800 25579 
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. 5 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. fj 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). 
Acting Chief, Administrative Appeals Office 
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 AAO will 
dismiss the appeal. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. tj 1153(b)(2), as a member of the professions holding an advanced degree. At the 
time he filed the petition, the petitioner was a research associate at Macrocyclics Inc., Dallas, Texas. 
The petitioner asserts that an exemption fiom 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. 
On appeal, the petitioner submits a brief fiom counsel. 
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, lOlst Cong., 1st Sess., 11 (1989). 
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. 
The petitioner filed the petition on July 28, 2007. In a statement accompanying the initial filing of the 
petition, the petitioner stated: 
I am currently a key researcher in the Research and Development Division at 
Macrocyclics Inc., Dallas, TX, spearheading three vital investigations. One project is to 
develop novel[] bihctional chelates for targeted nano-particle applications. . . . The 
project includes multi-step synthesis and characterization of lanthanide chelates which 
will be used in the pre-clinical development of new PARACEST contrast agent 
formulations. The second project involves the creation of ligands that are largely used 
by university and company research labs which are looking to create novel drugs to 
target cancer treatment or diagnosis. The thrd project . . . is to develop and make 
available chelates that have performance features such as high efficiency radiolabelling 
at room temperature while maintaining stability comparable to industry standard 
chelates. . . . In general for all the projects, I am in charge of planning and conducting 
synthetic organic and inorganic chemistry transformations, carrying out analytical 
characterization of intermediates and final products . . . , consulting primary literature 
relevant to the projects and keeping accurate records of the progress of my work. 
The petitioner stated that he "served as an Adjunct Instructor of Organic Chemistry at Mountain View 
College, Dallas, TX. . . . Furthermore, I served as instructor of GED Preparation in Spanish through 
Continuing education program at the same college. Spanish GED is a crucial educational step for many 
Spanish-speaking students." He asserted: "my role as a teacher at the college level is [of] extreme 
importance for the US, since I am training and preparing young citizens for their careers. Critical 
budget shortages and an overworked full-time faculty have created opportunities in higher education for 
private citizens to function as part-time professors." Classroom instruction generally lacks national 
scope. CJ: Matter of New York State Dept. of Transportation at 217, n.3. Several of the petitioner's 
assertions about education are general, and apply to all competent teachers. As such, they address the 
intrinsic merit of teaching, but they do not distinguish the petitioner from others performing the same 
tasks. 
The petitioner has written published articles in his field, but the record does not establish the impact of 
those articles. The petitioner submitted what he described as "Search Results from IS1 Web of 
Knowledge database citing the research papers." This printout shows that the database includes two of 
the petitioner's articles, but it is not clear whether it indicates that other researchers have cited the 
petitioner's work in their articles. The printout shows the number "2" next to one listing, and the 
number "1" next to another, but from the formatting of the printout, we cannot determine whether these 
numbers refer to citations of the articles. 
The petitioner submitted letters from numerous witnesses, including "current collaborators, colleagues, 
and others." We will discuss examples of these letters below. A number of the witnesses (including a 
dentist and a missile defense research analyst) do not work in the petitioner's field. The petitioner 
asserted that this diversity of witnesses demonstrates the breadth of his recognition, but the petitioner 
did not explain how these individuals have the standing or expertise to attest to the merits of the 
petitioner's work as a chemist. 
Several of the letters are general letters of recommendation, with little information about the etitioner7s 
specific achevements that set him apart from others in his field. For example, -of 
Mountain View College stated that the petitioner "has demonstrated exemplary chemical knowledge 
and scholarship. . . . He is well organized, patient and dependable." Vague and general letters of this 
sort offer little useful information. Other letters address the merits of a particular area of endeavor, 
without addressing the petitioner's individual talents at all. I, for instance, 
Page 5 
provided brief comments "regarding the use and worthiness of magnetic resonance imaging." Some 
letters are not letters of recommendation at all, but apologies for not providing such letters. A District 
Court judge explained "[tlhe North Carolina Code of Judicial Conduct prohibits judges fiom lending the 
prestige of the office to advance the private interests of others," and an aide to a Texas state 
representative informed the petitioner that the official does not know the petitioner and therefore "is not 
able to prepare a letter of recommendation." 
The most substantive letters are fiom officials of Macrocyclics and collaborators in the petitioner's 
current work. Director of Operations at Macrocyclics and a Professor at the 
University of Texas at Dallas, stated: 
[The petitioner] has been under my direct supervision for the past year. 
In his past research experience, he designed and synthesized novel compounds with 
applications in radiopharmaceutical imaging and cancer therapy. This level of 
accomplishment clearly demonstrates a high degree of expertise and maturity which is 
necessary and valuable to both industry and academics in the United States. [The 
petitioner's] skill set has allowed him to make valuable contributions to his current 
project in which he designs and synthesizes new bifunctional chelates for targeted nano- 
particle imaging applications. Ths high profile project between Washington University 
and Macrocyclics will be instrumental in establishing future studies leading to 
commercialization. 
, Associate 
 University in St. Louis, Missouri, offered 
more details about the project mentioned by 
Under the supervision of 
 [the petitioner] has been responsible for 
performing advanced organic syntheses of highly novel, PARACEST chelates . . . to 
detect, characterize, and treat cancer in its most nascent and vulnerable stages. . . . The 
synthetic and nanotechnology work performed by [the petitioner] is highly specialized 
and only a few laboratories are able to contribute similar research worldwide. . . . 
Because of the rarity of scientists in the United States with [the petitioner's] skills and 
experience, we consider ourselves very fortunate to have established hs collaboration, 
which we hope will continue long into the hture. 
University of Texas Professor - Scientific Founder of Macrocyclics, stated: 
I can assure you that talented, young chemists like [the petitioner] are rather difficult to 
find in the United States currently because so few individuals are being trained. Ths 
makes him rather valuable to the United States research community in the field of 
synthetic chemistry. 
Page 6 
. . . [The petitioner] was chosen as an employee of Macrocyclics one year ago because 
of his extensive training in organic synthesis he received during his PhD training. . . . 
[The petitioner] is an important contributor to the efforts at Macrocyclics to invent new 
molecules and techniques that generally promote new discoveries in the medical field. 
On October 17, 2008, the director issued a request for evidence, instructing the petitioner to submit 
documentary evidence of his impact on his field. In response, the petitioner submitted background 
information about Macrocyclics and its grant funding. These materials do not address the question of 
why it is in the national interest for the petitioner, rather than another qualified researcher, to work on 
the fimded project at Macrocyclics. The petitioner stated: 
Another way to look at the impact of my research and work would be by checking into 
the scientific papers published during the last two years that claimed the use of 
compounds made by Macrocyclics. It is important to add that since the company is 
small, the work and contribution[s] of its members have a tremendous impact on its 
overall performance. . . . The common feature to highlight about these research papers is 
that without the compounds we made at Macrocyclics such studies could not take place. 
The petitioner did not show that Macrocyclics was unable to produce anything for sale prior to the 
petitioner's arrival; that he was personally responsible for every product subsequently developed; or that 
Macrocyclics was the only possible source for the compounds used in the published research. 
Therefore, we cannot be persuaded by the assertion that the petitioner deserves indirect credit for every 
published experiment that involved Macrocyclics products. 
The petitioner also submitted new witness letters. Several of the witnesses (and the petitioner himself) 
referred to the petitioner's work at Macrocyclics in the past tense, suggesting that the petitioner no 
longer works there. Assistant Professor at the University of Texas Southwestern 
Medical Center (UTSMC), Dallas, "got to know [the petitioner] through a collaborative project in 2006, 
for which [the petitioner] was directly responsible at Macrocyclics Inc." described this project 
in technical detail, stating "we are about to move this exciting research to diagnostic PET imaging of 
cancer. [The petitioner] made tremendous contributions to our current DOTA-related projects in 
collaboration with Macrocyclics Inc." 
Assistant Professor at UTSMC, stated: "I have known and interacted with [the 
petitioner] since 2006 when he interviewed for a Research Associate position at Macrocyclics. At that 
time I was working there as a Senior Research Scientist." Nevertheless, the petitioner listed - 
among "people that I do not know andlor have not work[ed] with them." Regarding the petitioner's 
work, stated: 
At Macrocyclics [the petitioner's] role included the optimization of PARACREST 
chelates for targeted perfluoro nanoparticle formulations, the synthesis [ofl DOTA- 
intermediates for solid phase peptide synthesis and the development of novel 
bifunctional chelators for copper(I1)-radiopharmaceuticals. . . . [The petitioner's] 
background and training enabled him to be very productive and to make important 
contributions to developing these new drugs and imaging agents. 
Georgetown University Assistant -7 stated that his laboratory "decided to 
purchase [certain] compounds from Macrocyclics, Inc." after attempting "with limited success" to 
synthesize the compounds themselves. asserted: "The science that [the petitioner] has 
developed and continues to investigate strongly impacts the chemistry of Molecular Medicine." 
I of the University of Dallas stated: "I have only known [the petitioner] since 
Au st 2008 when I hired [the petitioner] as an affiliate assistant professor at the University of Dallas." 
--I credited the petitioner with "significant contributions in the area of macrocyclic 
compounds," but did not elaborate. Other University of Dallas faculty members asserted that the 
petitioner has performed well in his position there. It is not clear whether this new position is in 
addition to, or instead of, his prior position at Macrocyclics. 
With respect to the citation of his work, the petitioner submitted printouts from various databases. One 
printout showed that one of his articles was cited three times (including one self-citation), and another 
was cited four times (including two self-citations). A third article was cited once, in a review article. 
The petitioner did not show that ths is a particularly significant citation rate in his specialty. 
The director denied the petition on December 3, 2008, stating that the petitioner had failed to establish 
that hs work in chemistry had had a significant impact. On appeal, counsel asserts that Matter of New 
York State Dept. of Transportation "imposes criteria on the national interest waiver process that are 
ultra vires of the statute." The statute itself offers negligible guidance as to such criteria, and therefore 
any kind of specific requirements will not be mirrored in the statutory language. 
Congress is presumed to be aware of existing administrative and judicial interpretations. See 
Lorillard v. Pons, 434 U.S. 575, 580 (1978). We note that, after the issuance of Matter of New York 
State Dept. of Transportation, Congress amended the Act to make the waiver available to certain 
physicians. Therefore, not only was Congress aware of the precedent decision, but Congress also 
acted to change the statute in response to that decision. To date, more than a decade after the 
issuance of the precedent decision, Congress has made no further changes to the statute with regard 
to the national interest waiver. There is, therefore, no reason to conclude that Matter of New York 
State Dept. of Transportation is in serious opposition to Congressional intent. 
Counsel asserts that, in response to the director's request for evidence, the petitioner "provid[ed] 
detailed evidence of his unique contributions to the field." The petitioner, in that submission, 
provided more details about his work, but he did not establish how his contributions set him apart 
from others in the field. Witness letters and other exhibits showed that the petitioner developed 
compounds that other laboratories purchased and used, but the petitioner has not shown that this 
makes him at all unusual in his field. His employer, Macrocyclics, exists for the purpose of 
formulating and selling certain chemical compounds. That the petitioner acts within those 
parameters is a mark of professional competence rather than one of distinction. By the same token, 
identification of Macrocyclics' clients does not distinguish the petitioner from others who, like him, 
engage in the business of selling chemicals to laboratories. Counsel asserts that "[rlesearch 
laboratories around the country have benefited from [the petitioner's] work," but the petitioner does 
not demonstrate that these clients had no other source for the materials they purchased from 
Macrocyclics. 
Counsel quotes earlier observation that the petitioner "has produced several 
PARACEST chelates for research evaluation. A major chemical company working on the same 
project only produced one chelate over two years." This anecdotal assertion about an unnamed 
chemical company, with no discussion of potential complicating factors, is not sufficient to qualify 
the petitioner for the special benefit of the national interest waiver. 
Counsel quoted another witness's assertion that the petitioner has written "several well received 
technical papers." That witness, - is the co-author of many of those papers. 
He did not specify in what sense these minimally-cited papers were "well received." 
Counsel cites an unpublished appellate decision in which the AAO reversed the denial of a petition 
in which "the number of citations has been relatively small" but "the letters and evidence of record 
demonstrate recognition among the community of experts in the field." While 8 C.F.R. 5 103.3(c) 
provides that AAO precedent decisions are binding on all USCIS employees in the administration of 
the Act, unpublished decisions are not similarly binding. Furthermore, there is a difference between 
"recognition among the community of experts" and client satisfaction. 
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. 5 1361. 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.