dismissed EB-2 NIW Case: Computational Biology

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, D.C. 20529-2090 
U.S. Citizenship 
and Immigration 
FILE: LIN 06 073 52596 Office: NEBRASKA SERVICE CENTER Date: DEC 0 2 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. § 1153(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 firther 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. § 103.5(a)(l)(i). 
7 lohn F. ~risss ~ctin~ Chief 
Administrative Appeals Office 
LIN 06 073 52596 
t 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@)(2), as a member of the professions holding an advanced degree. At the time she filed the 
petition, the petitioner was a postdoctoral research associate at Washington University in St. Louis, Missouri. 
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 
I 
exemption from the requirement of a job offer would be in the national interest of the United States. 
Section 203@) 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 Iabor 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: 
LIN 06 073 52596 
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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. 215 (Cornmr. 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. 9 204.5(k)(2) defrnes "exceptional ability7' 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. 
In a statement accompanying the initial filing, counsel referred to the petitioner as "a computational 
biologist," although all of the petitioner's degrees relate to chemistry rather than biology. The record contains 
no evidence that the petitioner's work related directly to biology or medicine before September 2004, roughly 
16 months before she filed the present petition. 
The petitioner's initial submission included seven letters, each from a past or present collaborator, professor 
or superior. We shall discuss examples of these letters here. Several of the letters focus on the petitioner's 
past work in polymer physics that had little to do, directly, with biology, medicine, or drug design. - 
of Syracuse University, taught a course to the petitioner while the petitioner was a 
doctoral student at the State University of New York College of Environmental Science and Forestry (which 
operates in cooperation with Syracuse University). stated: 
I first came to know [the petitioner's] dedication to her field and her brilliant theoretical 
expertise when I had her as a student in my course, '"Thermodynamics and Statistics." . . . A 
LIN 06 073 52596 
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few years later I was also a member of her Ph.D. exam and thesis defense committees. On 
both occasions I was extremely impressed with [the petitioner's] ability and motivation. 
[The petitioner's] Ph.D. research was related to both theoretical and applied aspects of 
physical chemistry. She focused on understanding the structure and thermodynamics of 
polymeric materials by observing two phenomena: percolation and shear flow. . . . 
Percolation can be observed in the common phenomenon of forest fires. Objects or small 
clusters, in this case a small brushfire, can be connected and eventually expand to form 
infinitely extended clusters, as in the way a forest fire spreads. In materials science terms, 
percolation significantly affects the mechanical properties of composite materials. Polymer 
solutions and blends are also subject to shear flow in many industrial applications where 
polymers are processed. [The petitioner] analyzed these phenomena using highly theoretical 
computational methods, then devised advanced her own [sic] modeling methods that can be 
applied to these and related topics. 
Currently, at Washington University in St. Louis, [the petitioner] has used her impressive 
background in computational science to study the causes of Huntington's disease. . . . [The 
petitioner] has analyzed deformations in the structure of the protein, huntingtin, that is 
suspected of causing the onset of Huntington's disease and other neurodegenerative 
disorders. . . . In the past year, she has already made significant discoveries that are potential 
therapeutic targets for these diseases. The foundations that support her work clearly see in 
[the petitioner] a scientist who is capable of making a profound impact on the understanding a 
treatment [sic] of Huntington's disease. 
The petitioner did not submit statements from "[tlhe foundations that support her work," such as the Mar 
Dimes Foundation, to corroborate last statement. Therefore, it is not clear whether EePf 
assessment is based on statements from foundation officials, or merely on the assumption that, 
because the petitioner's work is grant-funded, the funding entities must therefore foresee "a profound impact" 
from the petitioner's work. - a physics professor whose "research is in theoretical condensed 
matter physics, spanning superconductivity, vortex matter in superconductors, nonequilibrium statistical 
physics and polymer physics," claimed no particular expertise in chemistry, biology or medicine. 
[The petitioner's] research efforts are focused on understanding the mechanisms of 
polyglutarnine domain aggregation - an issue which has important implications for a variety 
of neurodegenerative disorders, including Huntington's disease. This is highly challenging 
work due to the difficulties in obtaining atomic-level information regarding events that 
nucleate the formation of deleterious protein aggregates. [The petitioner's] training in 
polymer physics and her growing expertise in the area of molecular simulations make her 
ideally-suited for the challenges of this research project. [The petitioner] has obtained 
intriguing results that will have a major impact on our mechanistic understanding of 
LIN 06 073 52596 
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polyglutamine aggregation. 
 These insights are particularly relevant in identifying and 
targeting the molecular players responsible for neurodegeneration. 
at that university: 
Huntington's disease together with nine other neurodegenerative disorders are known 
collectively as polyglutamine expansion diseases, science [sic] they are caused by the 
mutational expansion of polyglutamine domain in certain protein. . . . The proposed 
mechanism by which these diseases occur is the self-association of expanded polyglutamine 
domains. These domains undergo self-association, resulting in aggregates known as 
amyloids that are deposited within neurons, triggering the onset of neuronal dysfunction and 
leading to neurodegeneration. [The petitioner] has tirelessly worked to understand on an 
atomic level the self-association process of expanded polyglutamine domains. . . . 
Specifically, her goal is to quantifL the structure of the nuclei for aggregates and the 
aggregation propensity as a function of polyglutamine chain length. She has already 
discovered that the conformational topology of polyglutamine is consistent with antiparallel 
P-sheet structure. [The petitioner] has used this remarkable discovery to propose the 
antiparallel P-sheet as a candidate for the nucleus of the aggregates, an advancement that 
could lead to potential targets for therapeutics. 
At the time she filed the petition, the petitioner indicated that she had published six articles and one book 
chapter, with an additional article in press. The petitioner demonstrated that her articles had been cited a total 
of 14 times, including six self-citations by the petitioner andlor her doctoral advisor, - 
The petitioner's initial submission therefore documented only six independent citations of her work. 
On March 23, 2006, the director issued a request for evidence (RFE), instructing the petitioner to submit 
evidence to "establish . . . a past record of specific prior achievement which justifies projections of future 
benefit to the national interest." In response, the petitioner submitted three additional witness letters. 
of Washington University repeated the prior claim that the petitioner "has 
proposed the antiparallel P-sheet as a candidate for nucleus of the aggregates, an important advance as 
knowledge of the structure of the nucleus will provide targets for therapeutics.' asserts that 
the petitioner's "skills and expertise" are "critical to her post-doctoral research at Washington University." 
The question is not whether the petitioner possesses useful skills for her post-doctoral work, but whether it is 
in the national interest to exempt the petitioner from the job offerllabor certification process. Possessing 
necessary skills does not establish eligibility for the waiver. 
I am aware of [the petitioner's] outstanding research from being in the same research field as 
she. I have never collaborated with her, and therefore, I am able to provide an independent 
evaluation of her research. . . . 
LLN 06 073 52596 
Page 6 
[The petitioner] has proven herself an exceptionally talented and innovative research scientist 
in the emerging field of biothermodynamics. Her efforts are clearly at the threshold of the 
field of computational biology, and her published [articles] . . . shows [sic] that her 
continuing scientific research is vital to the health research priorities of the United States. 
be a new talent in her field" whose work has "led to an increasing record of published research." 
The new letters offered additional details about the nature of the petitioner's work, but shed no further light 
about why the petitioner's work is of greater significance than the work being conducted by others in the 
specialty. General assertions about Huntington's disease and other neurodegenerative disorders speak to the 
intrinsic merit of the petitioner's work, but do not distinguish the petitioner from others in the field. 
The petitioner also submitted updated citation information, showing 20 citations of the petitioner's work. 
Subtracting seven self-citations leaves a net total of 13 independent citations of the petitioner's work. A 
number of these citations are "group" citations, in which the petitioner's work is cited alongside other, earlier 
articles containing similar information. Other citations do not appear to highlight the petitioner's work as 
being particularly significant or even correct. One of these citations appears in conjunction with this 
observation: "Our results are somewhat at variance with predictions from recent calculations [by the 
petitioner and her colleagues]. . . . The low PPII and high P-propensity of S and T are not reproduced at all by 
their calculations."' Another citing article seems to indicate that confirmation of the petitioner's predictions 
"remains elusive from a quantitative and experimental point of view."2 A third article indicated that the 
petitioner's work "leads to only modest improvement" compared to a previous model.3 
The director denied the petition on April 16, 2007. The director acknowledged the intrinsic merit and 
national scope of the petitioner's work, but found that the petitioner had failed to distinguish herself 
significantly from others working in the same specialty. 
On appeal, counsel protests that the director did not discuss the petitioner's evidence in sufficient detail, and 
that the evidence "does show that the beneficiary's work has had the requisite degree of influence on the field 
as described by the letters of testimony of experts in the field, and the other documentation submitted.'' Space 
considerations prevent in-depth discussion of each and every piece of evidence in the record, but this does not 
mean that the evidence has not received consideration. 
Counsel argues: "publication in and of itself is a valid way to test whether the scientist[']s work is considered 
by experts in the field to be worthy of notice." There is no statute, regulation, or case law to indicate that 
i 
Hagarman A., Measey T., Doddasomayajula R.S., et al. "Confomational analysis of XA and AX dipeptides in water by 
electronic circular dichroism and 'H NMR spectroscopy." Journal of Physical Chemistry B, 110 (13): 6979-6986, April 
6,2006. 
2 
 Vigolo B., Coulon C., Maugey M., et al. "An experimental approach to the percolation of sticky nanotubes." Science 
309 (5736): 920-923, August 5,2005. 
Dua A., Cherayil B.J. "Polymer dynamics in linear mixed flow." Journal of Chemical Physics, 119 (1 1): 5696-5700, 
September 15,2003. 
LIN 06 073 52596 
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publication of one's work is presumptive evidence of eligibility for a national interest waiver. Given the 
sheer volume of articles published each year in countless scholarly journals, such a policy would be neither 
reasonable nor feasib~e.~ The petitioner has not shown that her publication record, or the citation history of 
those publications, set her apart from her peers in any significant way. 
Counsel argues that Matter of New York State Dept. of Transportation requires only "'some degree of 
influence,' which is a minimal threshold, with no need to determine 'how widely7 the alien's work has 
influenced the field." Counsel's selective quotation of the precedent decision does not capture the spirit of the 
quoted passage. Quoted more fblly, the passage reads: 
The alien . . . clearly must have established, in some capacity, the ability to serve the national 
interest to a substantially greater extent than the majority of his or her colleagues. The 
Service here does not seek a quantified threshold of experience or education, but rather a past 
history of demonstrable achievement with some degree of influence on the field as a whole. 
. . . In all cases the petitioner must demonstrate specific prior achievements which establish 
the alien's ability to benefit the national interest. 
Matter of New York State Dept. of Transportation at 219, n.6. We reject counsel's apparent contention that 
the precedent decision compels us to regard any and all evidence of even de minimis "influence" as 
presumptive evidence of eligibility. 
Disputing the director's fmding that the petitioner did not submit "evidence that the Ipetitioner's work] is 
widely cited," counsel observes "the petitioner's published research . . . has been cited." This argument 
ignores the distinction between "cited" and "widely cited." Having already addressed the quality and quantity 
of the citations, we will not revisit that issue in detail here. 
The available evidence indicates that the petitioner is a successful and productive researcher at the beginning 
of a promising career, but we reject counsel's contention that the supporting evidence of record, by its very 
existence, is prima facie evidence of the petitioner's eligibility for the special benefit of the national interest 
waiver. The unsupported assertions of counsel do not constitute evidence. See Matter of Obaigbena, 19 I&N 
Dec. 533, 534 n.2 (BIA 1988); Matter of laureano, 19 I&N Dec. 1, 3 n.2 (BIA 1983); Matter of Ramirez- 
Sanchez, 17 I&N Dec. 503,506 (BIA 1980). At best, the petition appears to have been filed prematurely. 
As is clear fi-om 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 fi-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. 
According to a 2004 report issued by the Select Committee on Science and Technology of the British Parliament's 
House of Commons, "there are 24,000 [research journals] in all, publishing 2,500,000 articles per year." Source: 
ht~:llwww.publications.~arliament.uWpa/~m200304/cmselecticmsctech/399/399wel51.htm (visited November 12, 
2008; copy incorporated into record). 
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The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 8 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.