dismissed EB-2 NIW Case: Cytogenetics

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: Office: NEBRASKA SERVICE CENTER Date: 0 3 2005 
LIN 03 092 505 10 
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 1 53 (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 dec'ided your case. Any further inquiry must be made to that office. 
V 
F;'dr Robert P. Wiemann, Director 
Administrative Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Nebraska Service 
Center, and is now before the Administrative Appeals Ofice 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. § 1153(b)(2), as a member of the professions holding an advanced degree. 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 had 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 that: 
(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. 
@) Waiver of Job Offer. 
(i) . . . the Attorney General may, when the Attorney General deems it to be in 
the national interest, waive the requirement 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 holds a Ph.D. in a field related to her occupation from the University of Delhi. The petitioner's 
occupation falls within the pertinent regulatory definition of a profession. The petitioner thus qualifies as a 
member of the professions holding an advanced degree. The remaining issue 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 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, 1 Olst Cong., 1st Sess., 1 1 (1989). 
Supplementary information to the regulations implementing the Immigration Act of 1990 (IMMACT), published 
at 56 Fed. Reg. 60897,60900 (November 29, 1991), states: 
The Service 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 Dep 't. of Transp., 22 I&N Dec. 215 (Comm. 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 onprospective 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 hture, 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 concur with the director that the petitioner works in an area of intrinsic merit, cytogenetics, and that the 
proposed benefits of her work, linking chromosome abnormalities with the resulting condition (such as 
infertility and cancer), would be national in scope. It remains, then, to determine whether the petitioner will 
benefit the national interest to a greater extent than an available U.S. worker with the same minimum 
qualifications. 
Eligibility for the waiver must rest with the alien's own qualifications rather than with the position sought. In 
other words, we generally do not accept the argument that a given project is so important that any alien 
qualified to work on this project must also qualify for a national interest waiver. At issue is whether this 
petitioner's contributions in the field are of such unusual significance that the petitioner merits the special 
benefit of a national interest waiver, over and above the visa classification she seeks. By seeking an extra 
benefit, the petitioner assumes an extra burden of proof. A petitioner must demonstrate a past history of 
achievement with some degree of influence on the field as a whole. Id. at 219, n. 6. 
As stated above, the petitioner obtained her Ph.D. from the University of New Delhi in 1989. While her 
evaluation from Foreign Credential Evaluations, Inc. indicates that the degree was awarded in the field of 
anthropology, her degree indicates that her thesis investigated the ecogenetics of congenital craniofacial 
malformations, an area of research consistent with her current work. The petitioner performed postdoctoral 
research at that institution until 199 1. In that year, the petitioner spent two months as a research fellow at the 
University of Pittsburgh before accepting a position as a visiting scientist at the University of Zurich for two 
years. From 1994 to 1995, the petitioner was a visiting scientist at the Swiss Federal Institute of Technology. -- 
The petitioner returned to 1ndia in 1996 to work as the Associate Director of Research at Symbolic S 
Inc. From 1998 to 2000, the petitioner worked as a research scientist at th 
Center. At the time of fili ientist at Case Western Reserve 
University in the laboratory 
Dr. Hassold asserts that his laboratory uses cytogenetics to study chromosome abnormalities that lead to 
spontaneous abortions and male infertility. He explains that the laboratory's technique of combining 
irnmunofluorescence with fluorescence to investigate recombination in the human male "is being used to 
characterize the distribution of crossing-over in the human male, and to investigate the role of recombination 
abnormalities in male infertility."   he aragraph with this information, however, does not mention the 
petitioner and it is not clear that claiming that the petitioner has developed a technique that has 
been adopted for us? at other laboratories investigating crossing-over and male infertility. 
Regarding the petitioner specifically, erts that she has ana e preparations and 
DNA from, males suffering from Oligozoospermia. concludes that the 
petitioner's research "can be utilized in the detection and mana ement of those cases of male infertility 
which &re cuh-e;rently unexplained as male factor infertility*hdoes not indicate that fertility clinics 
have expresbed an interest in applying the petitioner's work. 
n 
iscusses ,the importance of cytogenetics research. The intrinsic merit of this field has been 
recognize above.-serts that the petitioner has presented the research she has been doing at 
Case ~esteh Reserve University and that she "has been able to contribute tremendously to a field that has 
become incleasingly relevant to- society." He does not, however, identify any specific contributions and 
explain ho they+ave influenced the field. Rather, he notes the importance of her training and years of 
experience. Ten yqars of experience in the field is one of the requirements for aliens of exceptional ability, a 1 classification that normally requires a labor certification. We cannot conclude that meeting one criterion, or 
even the re uisite tQee criteria, warrants a waiver of that requirement. Moreover, it cannot suffice to state 
i that the alie possesses useful skills, or a "unique background." Special or unusual knowledge or training 
does not inhbrently meet the national interest threshold. 
On appeal, ounsel notes that the director acknowledged a shortage of technicians trained in the petitioner's 
area of rese rch and concludes that a shortage in an area of intrinsic merit where a "probability" of national 
benefit exis is sufficient to establish eligibility. Whether or not the director made a determination relating 
to the exist i nce of a shortage in the petitioner's field, the issue of whether similarly-trained workers are 
U.S. is an issue under the jurisdiction of the Department of Labor. Id. at 221. The petitioner 
a past record that justifies projections of future benefit to the national interest. Id. at 219. 
an assistant professor at Case Western Reserve University, asserts that the petitioner 
of spontaneously aborted fetuses to determine the origin of trisom 16 a common 
that prevents fetuses from surviving past the fist trimester. asserts that 
but does not identify any specific result obtained by the petitioner in performing 
this work. sserts that his laboratory discovered a correlate between trisomies 16 and 21 but 
with this work and does not explain its significance. In response to the 
for additional documentation, the petitioner asserts that, based on this work, "this protocol 
performed throughout the United States as symptoms warrant." The record lacks letters 
obstetric associations confirming that obstetricians use the petitioner's "protocol" to test 
after miscarriages in order to counsel their patients regarding the risk for future 
ector of the Laboratory of Epithelial Cancer Biolo at the Memorial Sloan 
discusses the petitioner's work at that cent xplains that the petitioner 
arative Genomic Hybridization and S ectra aryotyping to her study of non- 
Hodgkin's Lymphoma, achieving "excellent results.' P PI 
xplains that "very few researchers have 
been able to master the sensitive conditions and protocols that are required in order to obtain reliable results." 
According he petitioner used these techniques to ideke "novel breakpoints, translocations, 
and sites of amplification in B- and T-cell Lymphomas." concludes that these results "can be 
further utilized by other scientists to identify genes perturbed at these sites." 
former collaborator at the Memorial Sloan Kettering Cancer Center, provides similar 
information; focusing on the importance of Lymphoma research and the petitioner's skills in mastering the 
techniques used to analyze human chromosomes. 
ssistant staff at the Cleveland Clinic Foundation, asserts, in response to the director's 
documentation, that the petitioner has been hired by that foundation to study the 
genetics of breast cancer. He further asserts that the petitioner's work with ~ym~homa has been 
and cited by, top researchers. 
he petitioner's collaborator at the University of Zurich, asserts that the petitioner used 
Reaction (PCR) molecular genetic techniaue to detect sex chromosomal aneuuloidies. 
L, 
sserts that this work was published and is clinically useful, but provides no examples of the 
the petitioner's former professor at the University of New Delhi, asserts that the 
petitioner's thesis is the only study on Asian Indian populations linking HLA antigens to craniofacial 
ialformatiohs such as cleft lips andpalates. As noted by the petitioner in response to the director's request 
for additiondl documentation, this work was published and has been cited four times. 
The ~etitionbr also submitted letters from indeuendent researchers. all of whom discuss the ~etitioner's skills 
with'cytogedetic techniques. a senior staff scientist at the National Institute of Allergy and 
Infectious Oiseases (NIA1D)- petitioner's protocols "are used and relied upon by both 
clinicians add researchers in infectious diseases; cancers, congenital conditions, liver diseases-and others." 
ilurther asserts that protocols are routine1 shared in the field without c 
Y asserts that the director should not have rejecte informed stateme 
however, assert that NIAID has adopted the petitioner s protocols or provide any e 
researchers TiVho have. Statements from clinicians and researchers who have actually adopted the petitioner's 
protocols w uld be more persuasive. 0 
a group leader at the Department of Molecular Pathology at Walter Reed Hospital, asserts that 
and validation of 'protocols' is not a work that is typically published in scientific journals, but 
by clinicians and researchers by direct contact and communication." Once again, 
however the petitioner's protocols or provide any examples of 
asserts that the petitioner "is enrolled in the Human 
Clinical Cytogenetics fellowship and is now board- 
in Clinical Cytogenetics." 
In addition td the letters, the petitioner has submitted evidence of four published articles, including her thesis, 
and evidenc' of oral and poster presentations. The petitioner's thesis was published in 1991 and three '7 independent research teams have cited it four times, two of which were after the date of filing. One 
independent ksearch team cited the petitioner's 1998 article on myeloma. Finally, after the date of filing, six 
research teams cited the petitioner's 2002 article on non-Hodgkin's Lymphoma. The director noted that most 
of the citdions are in articles dated after the date of filing and concluded that without copies of the citing 
articles, "the degree of reliance" could not be determined. 
On appeal, the petitioner submits the articles that cite her work. Counsel argues that the limited number of 
publications produced by the petitioner should not preclude eligibility. While we acknowledge that there are 
factors in the medical field that can limit a researcher's ability to publish, such as intellectual property rights, 
we cannot conclude that a mere explanation for a minimal publication history is sufficient. Rather, the 
petitioner must meet her burden with other types of evidence, such as evidence of patents and an interest in 
purchasing or licensing the technology. In the petitioner's case, given the claims made by the petitioner, it 
can be expected that the petitioner would be able to produce letters from clinicians and researchers applying 
her protocols. The record does not include such letters. 
On appeal, the petitioner submitted evidence that her 2002 article on non-Hodgkin's Lymphoma has now 
been cited 10 times. One article receiving moderate attention after the date of filing, in the absence of letters 
that more clearly identify specific contributions and examples of how those contributions are already 
influential in the field, is insufficient to establish a consistent track record of success as of the date of filing. 
Finally, on appeal, counsel asserts that the labor certification process is too lengthy. Nothing in the 
legislative history suggests that the national interest waiver was intended simply as a means for employers (or 
self-petitioning aliens) to avoid the inconvenience of the labor certification process. Id. at 223. Even if we 
were to accept that the labor certification process is somehow inapplicable to the petitioner's field, and 
counsel has not demonstrated that the national interest waiver was intended as a blanket waiver for all 
researchers, 'that finding is not by itself sufficient to warrant a waiver. Id. at 218, n.5. 
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 onythe 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 approked 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. § 
136 1. 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.