dismissed EB-2 NIW Case: Dentistry / Biomedical Research

U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
identifjing dm delered 
 Office ofAdmrnrstratrve Appeals MS 2090 
Washington, DC 20529-2090 
prevent clearly mwmnted 
invasion of personal pkivacy 
 U. S. Citizenship and Immigration 
FILE: 
 Office: NEBRASKA SERVICE CENTER Date: 
LIN 07 248 53573 
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. 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 
ehief, Administrative Appeals Office 
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 
prior to the denial of the petition. The tern "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. 5 1153(b)(2), as a member of the professions holding an advanced degree. At the 
time she filed the petition, the petitioner was a doctoral candidate and research assistant at the 
University of Southern California (USC) School of Dentistry. 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 
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 and additional exhibits. 
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). 
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 (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. 5 204.5(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 27, 2007. 
 Several letters accompanied the initial filing. 
, who has supervised the petitioner's work at USC since 
2002, stated: 
Page 4 
The significance of [the petitioner's] original work is that researchers could visualize the 
changes of size, shape, and aggregation pattern of protein molecules from the nano-scale 
during degradation. . . . [The petitioner's] research created an advanced understanding of 
the fundamental mechanisms of proteolytic activities involved in the formation of dental 
enamel at nano-scale. These findings will provide the fundamental knowledge required 
for the design and development of novel biomaterials, which would potentially be 
applied in clinical dentistry and other areas of biomedical and biomaterial technology, 
such as implants and prosthetics. 
, a member of the petitioner's dissertation committee, stated: 
[The petitioner] has developed a digest and binding assay, which represents an important 
methodological advance in the biomineralization field. The significance of this novel 
technique is that it provides an in vitro system which mimics the dynamic process of 
enamel formation in vivo. This technique has been a major breakthrough in our 
understanding of the control of enamel protein degradation and biomineralization. 
Based on this methodology, [the petitioner] has developed a model of protein-mineral 
interaction, leading to consequent biomineralization. This model is also a reliable 
reference for bone formation and has provided a novel approach for studying the 
maintenance of the mineralized tissue, providing valuable insight for the treatment and 
prevention of the pain and suffering from bone diseases such as osteoporosis. 
petitioner began her studies there. He stated that the petitioner's work "is of special importance for oral- 
facial clefts research" because the protein degradation process that the petitioner studies is also involved 
in the fusion of facial bones. 
-1 of the University of California, San Francisco, who knows of the 
petitioner "through her mentor - as well as through presentations that she has 
made at international meetings," stated that the petitioner "has been instrumental in advancing the work 
on MMP-20, a proteinase that is critical for enamel formation, and its effect on amelogenin assembly 
and mineral binding. This work is very important for our understanding of tooth mineralization." 
of the University of Maryland, who took notice of one of the petitioner's 
published articles, stated that the petitioner's "research will significantly improve the efficiency of bone 
grafting and greatly reduced [sic] the dan er of immune reactions and cross contaminations of host 
diseases in clinical applications." & speculated about what "will," "should" or "could" 
eventually result from the petitioner's work. 
On September 24, 2008, the director instructed the petitioner to submit documentary evidence to show 
that other researchers have cited the petitioner's published work. In response, the petitioner submitted 
copies of six articles and a book chapter, all containing citations to the petitioner's work. - 
is an author of four of the articles and the book chapter. Thus, five of the seven documented 
citations are self-citations by 
 citing her own prior work with the petitioner. 
The petitioner submits printouts from the web site of Seikagaku Corporation in Japan (http://www. 
seikagaku.co.jp), referring to one of the petitioner's articles in relation to Emdogain, "a Medical 
device used in dentistry to induce regeneration of periodontiurn." Prior counsel claimed: 
"Petitioner's paper was the third one [out of 231 the corporation relied on to develop this product." 
The assertions of counsel do not constitute evidence. 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). Beyond this general principle, the record contradicts prior counsel's 
claim that Seikagaku "relied on [the petitioner's work] to develop" Emdogain. 
The petitioner's paper is listed third simply because it appeared in Biomaterials and the research papers 
are listed alphabetically by journal title. More importantly, the list does not corroborate prior counsel's 
claim that Seikagaku "relied on [the petitioner's] article to develop" Emdogain. One article in the same 
list has the title "Influence of enamel matrix derivative (Emdogain) and sodium fluoride on the healing 
process in delayed tooth replantation; histologic and histometric analysis in rats." Another article is 
entitled "The application of an enamel matrix protein derivative (Emdogain) in regenerative periodontal 
therapy: a review." The use of the registered trademark "Emdogain" in the titles of these articles proves 
that Emdogain already existed, and was in use, when those articles were published in 2007.' Therefore, 
the evident purpose of the list is to highlight researchers' use of Emdogain, rather than to identify source 
materials that led to the development of Emdogain. 
Prior counsel's demonstrably false claim that Seikagaku Corporation "relied on [the petitioner's work] to 
develop this product" is not, by itself, grounds for denial of the petition, but it is a reason to be skeptical 
of any claim of fact for which an attorney acting on the petitioner's behalf fails to provide supporting 
evidence. 
The petitioner submitted three new letters, all from witnesses who know the petitioner primarily from 
contact at professional conferences. , of ~aylor college of ~entistr~ 
stated that the petitioner "was the first researcher to apply the nanotechnology [to] dental research." 
also stated: "We applied her methods to a few projects of dentin research in our lab and got very 
good results. We plan to publish our data in the future." Alluding to the low citation rate of the 
petitioner's work, 
 stated: "it takes [a] long time for a result of research to be published [in] peer 
reviewed journals. It takes [a] much longer time for a published research result to be digested by peers 
and referenced in such peers' later publications." 
With respect to the time lag between publication and appearance of citations, we turn to the petitioner's 
own published work. Disregarding self-citations by the petitioner or her collaborators, the record shows 
that, in 2004, the petitioner cited an article published in 2002. In 2006, she cited an article from 2005. 
1 
According to the Trademark Electronic Search System (htt~://www.us~to.aov/ebc/tess/index.html), the U.S. Patent and 
Trademark Office registered "Emdogain" as a trademark on August 6, 1996. Bioventures N.V. Corporation, Netherlands 
Antilles, filed the trademark application. (Printout added to record September 22,2009.) 
Page 6 
Most of the cited works were older, but clearly nothing prevented the petitioner from citing the work of 
others a year or two after publication. 
of Harvard School of Dental Medicine stated; "I believe [the petitioner] has 
made outstanding contributions to the exploration of molecular mechanisms of protease function on 
normal dental enamel formation." stated that he first became aware of the petitioner's 
work "when I read her breakthrough on research about one major enamel protease, MMP20." 
- of the University of Michigan credited the petitioner with "a significant 
breakthrough in revealing the mechanisms of enamel formation." asserted that the 
petitioner developed a "new biocompatible material [that] is a promising alternative to traditional 
restorative materials for the treatment of teeth damaged by dental caries" id "will also successfully 
prevent caries in these areas of high susceptibility." did not state to what extent, if any, 
this material is already in clinical use. 
The director denied the petition on December 17, 2008, stating that the petitioner's minimal citation 
record consisted mostly of self-citations by herself or a co-author. The director acknowledged the 
petitioner's submission of witness letters, but found that those letters presented subjective opinions 
rather than verifiable evidence of the petitioner's wider influence on her field. 
On appeal, counsel argues: "The evidence presented shows that PetitionerIAppellant has made 
considerable contributions in the field of dental science." The petitioner submits copies of recent 
manuscripts and four new witness letters. 
All of the new witnesses met the petitioner at the same conference in 2004. One letter is a follow-up 
letter from who states that the petitioner's "research findings . . . helped my laboratory 
in redirecting research projects on these two proteins, which are crucial for the formation of healthy 
teeth." 
of the University of California, San Francisco, states that the 
petitioner "has made very important contributions in the field of dental research" concerning the 
development of natural tooth-enamel and "new ideas and concepts for the synthesis of artificial 
enamel." asserts that he had "great success" using "a similar method as [the petitioner's]" 
in an attempt to synthesize enamel in vitro. 
University of Pennsylvania Professor states: "I also began to apply enamel protease 
techniques following in the path laid down by [the petitioner]." 
McGill University Assistant Professor 
 stated that, after learning of the petitioner's use of 
Dynamic Light Scattering to study tooth proteins, "we began to use this technique to study bone 
proteins." 
The director did not conclude that the petitioner's work has been entirely without influence. Indeed, 
the fundamental purpose of published scientific research is to make one's findings available to 
others. At issue is the extent of the petitioner's impact, not whether she has had any impact at all. 
Individual researchers have attested that the petitioner's work has affected the direction of their own 
research, but the available evidence does not allow us to conclude that the petitioner was an 
especially influential figure in her field, even before she completed her Ph.D. studies. Between the 
low independent citation rate of her published work, and the assertions by several witnesses that the 
petitioner's work "will" or "could" eventually result in important future developments, at best we 
must conclude that the petition was filed prematurely, before these expectations could be realized. It 
may be that the petitioner's work will one day prove to have significantly influenced the general 
direction of research in her specialty, but this is not yet evident. As we know from prior counsel's 
claims about the petitioner's role in the invention of Emdogain, the question is not whether the 
record contains exaggerated claims - it surely does - but rather the extent of those exaggerations. 
Given the speculative nature of many witness letters and the demonstrable exaggeration regarding 
the petitioner's influence, we see little basis for giving the petitioner the benefit of the doubt in this 
regard. 
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.