dismissed EB-2 NIW Case: Dna Repair And Development

identifying data deleted to 
prevent clearly u!m!srrmted 
invasion ofpersonal privacy 
PUBLIC COPY 
U.S. Departnlent of flomeland Security 
U.S. Citizenship and Immigration Services 
Ojjice o/'/?dtninistrcriive Appeals MS 2090 
Washington. DC 20529-2090 
U S. Citizenship 
and Immigration 
Services 
LIN 07 101 53130 
I'ETITLON: 
 Imrnigrarlt Petition for Alien Wucker as a Member of the Professions Holding a11 Aciva~~ced 
Degree 3r an Alien of Ercep!ionsl Abiliry Pl~rsuanr ro Section 2fl3(b)(2) of the Inlnligr%tion 
and Sationnlity Al:i, 8 IJ.5 C. 6 I I!;(b)(?), 
This is the decisioii of the t\dministrati\~e Appeals Office ~tl your case. All docurnet~ts 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 inzppr:,priateIy applied ot you have aclditional information that you wi~h to have 
considered, you may file a motion to reconsider or a rnotion to reopen. Please refer to 8 C.F.R. $ 103.5 fcl 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form 1-290B, Notice ~f 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)(I)(i). 
w 
ohn F. Grisso 
zcting chief~ppeals (Iffice 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (MO) 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. 6 1153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner is a postdoctoral fellow at Northeastern University, Boston, Massachusetts. 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 meniber of the professions holding an advanced degree, but that the petitioner has not established that 
an exemption fi-om 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) Ill General. -- Visas shall be made available . . . to qualified inmigrants 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). 
Supplementary information to regulations implementing the Immigration Act of 1990 (IMMACT), 
published at 56 Fed. Reg. 60897, 60900 Vovember 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. 
M~ltter ofNt?w York State Llept. of Transportation, 22 I&N Dec. 21 5 (Cornrnr. 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 rrlust be noted that, while the national interest waivcr hinges on prospective national benefit, it clearly 
mast be established that the alien's past record justifies projections of future benefit to the national 
interest. The petitioner's slibjective assurance that the alien will, in the future, serve the national interest 
cannot suffice to establish prospective national benefit. The inclusion of the tern1 "prospective" is used 
here to require future corltributions by the alien. rather than to facilitate the entry of an alien whose 
benefit to the national interest would 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 offerllribor certification requirement; 
they are not exempt by virtue of their exceptional ability. Therefore, whether a giver1 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 an introductory statement, counsel stated that the petitioner "is a well-known researcher and a 
major contributor in the field of DNA repair and development," and that the petitioner's work "could 
lead to novel therapies in repairing fetal heart defects." Referring to the impact of the petitioner's 
work, counsel stated: "One of the most compelling, independently verifiable measures of a 
scientist's contributions to their field is his or her publication and citation record. . . . [The 
petitioner's] papers have been heavily cited by researchers around the world." The unsupported 
assertions of counsel do not constitute evidence. See Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 
(RIA 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). We must, therefore, examine the evidence offered in support of 
counsel's claims. 
The petitioner submitted copies of twelve of his journal articles and meeting abstracts published 
between 1999 and 2006. The evidence submitted with the initial petition offers meager support for 
Page 4 
counsel's claim that the petitioner's "papers have been heavily cited by researchers around the world." 
That evidence consists of a printout from htt~://scholar.goo~le.com, listing citation data for only one 
article (rather than the plural "papers" claimed by counsel), written by the petitioner and others while 
the petitioner was a student in China. The printout identified 14 citations of this article, 13 of which 
appear to be from Chinese research groups. Citation data for eleven of the articles is provided in 
Chinese characters without the translation required by 8 C.F.R. 9 103.2(b)(3). Of the three articles 
identified in English, two were written by some of the same article's co-authors in China; the third 
citation appeared in the Scandinavian Journal of Immunology (the same journal in which the 
petitioner's article appeared) in 2002. Without a translation or transliteration, it is not clear how many 
of the 11 Chinese-language citations are also self-citations. The citation list, therefore, does not provide 
clear evidence of more than one independent citation of one of the petitioner's articles. Thus, the init~al 
submission does not support counsel's claim of worldwide citation of multiple papers by the petitioner. 
The petitioner also submitted letters fiom, in counsel's words, "top authorities in the field of DNA 
repair and development as well as molecular medicine, each with acclaimed contributions to the 
academia and the industry." Most of the initial witnesses have worked with the petitioner in some 
capacity, and all but one are based in New England. Professor - of Massachusetts 
Institute of 'Technology provided one of the most concise descriptions of the  petitioner'^ work at 
Northeastern. Prof. stated: 
[Tlle petitioner] has made a very important discovery [regarding] an enzyme (AP endo) 
that repairs one of the most common lesions (AP site) that occurs in DNA. A common 
genetic strategy to determine the biological impo~tance of a human DNA repair enzyme 
is to genetically "knock-out" the corresponding gene in a laboratory mouse and observe 
what happens. This approach has been unproductive in the case of AP endo since its 
function is required so early in mouse development that the embryo does not develop 
and turn into a mouse that can be studied. [The petitioner] had made a major 
breakthrough in our understanding of the role of AP endo by using a different vertebrate 
model system - zebrafish, a small fish that can be genetically manipulated in the lab and 
is also transparent so its organs can easily be viewed. [The petitioner] discovered that 
AP endo is also critically important for zebrafish development. . . . [The petitioner] 
discovered that a partial deficiency in AP endo resulted in a set of problems - heart 
defects, poorly developed brains, small eyes, etc. -that we would normally think of a[s] 
birth defects. Thus, [the petitioner] has concluded that AP endo plays roles both in 
repairing DNA repair [sic] and in regulating early stages of embryonic development. 
This work will have a major impact on both the DNA repair field and on the 
developmental biology field as its striking implications become fully appreciated. 
[The petitioner] has truly become a pioneering researcher in the field of DNA repair in 
development. . . . 
In all likelihood he has identified a new regulatory pathway in embryological 
dexielo2ment or tied two very disparate ones together. The loss of his services to the 
current research work would be devastating. These discoveries mean that his work will 
have a major impact on our understanding [ofl the underlying causes of birth defects. 
of Flcricla, Gainesville. who met the ~etitioner through her "long; lime friend and collea~ue" Prof. 
" 
The bulk of ~ecember 1,2006 her is copi'ed almost word-for-vmrd from Prof. 
PlosietnSer 10, 2006 letter; at one point,-used the first- erson pronoun "we" in 
discussing the work of 
 laboratory, directly quoting dement: "We focus on 
human apuiilliciapyrimidinic endo~zuclease (AP endo)." 
I have come to know [the petitioner] as a professional associate via our joint 
participation ill the Greater Boston DNA repair and mutagenesis research meetings and 
havc followed his research since shortly after hig arrival at Northeastern University. 
[The petitioner] . . . has taken on the very difficult project of understanding the role of a 
9NA repair emymc called AP-endonuclease in ernbryo~ic development. . . . At przsent 
evidence is mounting, in part due to [the pctitioner'sj eciitributions, that the 
developmental requirement for AP-endonuclease is due to a requirement for AP- 
cndonuclease mediated DNA repair, rather than the alternative, that t.he enzyme plays 
sGme critical additional, unrelated rcle in development. . . . [The petitioner] 
demonstrated that loss of AP-endonuclease activity results in embryonic lethality [in 
zebrafish], thereby duplicating the results shown in mice and demonstrating that the 
developmental role crosses species lines and is intrinsic to this class of enzymes. He has 
also shown that the developmental defects of the AP-endonuclease deficient zebra fish 
can be partially reversed by introducing the human AP-endonuclease gene into zebra 
fish. . . . [These] results . . . will be directly applicable to higher organisms. 
- of Yale LJniversity. New Haven, C'onficcticut, stated: 
['The petitioner] recently was the first author on whai I consider to be a seminal paper in 
the field of DNA repair. . . . [The petitioner] has made the important discovery that a key 
DNA repair enzyme is necessary for embryonic development. This discovery is the first 
of its kind and has a great deal of novelty and significance for the field of DNA repair. 
[The petitioner] is the principal research scientist working on this project, and his Iong- 
tern involvement in it is absolutely essential in understanding the role of DNA repair in 
embryonic development. 
Page 6 
Although I have never met [the petitioner], it is clear that his research is already making 
a major impact on the DNA repair field and science in general. . . . To my knowledge 
there is no one that has the skills or is as well qualified to study the relationship between 
DNA repair and embryological development. 
Certainly, the witness letters contain emphatic endorsements of the petitioner's contributions to his 
field, but the significance of the wording of those letters diminishes in the face of proof that at least one 
of these witnesses did not write her own letter (as shown by the virtually identical passages in the letters 
o-an-. The initial letters do not establish that the petitioner has earned a 
significant reputation outside of New England. Furthermore, the work generally described as the 
petitioner's rnost significant had not yet appeared in print when the petition was filed. Witnesses 
indicated that the petitioner's 'article had been submitted for publication and was still forthcoming. 
On March 20,2008, the director issued a request for evidence (WE), instructing the petitioner to submit 
additional evidence of the petitioner's influence on his field, including evidence of citation of his work. 
The director also noted that a certified trmslation must accompany any foreign-language document. 
In response, counsel stated: "O11e of [the petitioner's] rrlost significant contributions in the area ot DNA 
repair is his construction of adeno-associated virus ieector and long-term expression of two gerles in 
EBV [Epstein-B~T virus1 transformed cells for the first Gme." This work was the subject of the onc 
cited article that the petitioner had pretiously documented. We note that counsel barely mentioned this 
work in the 29-page memorandum accompanying the initial submission, and none of the initial 
witnesses discussed it at all. It is peculiar, therefore, that counsel subsequently called this "[ojne of [the 
petitioner's] most significant contributions." Similarly, vihile the petitioner's "study 104 the structure, 
expression and function of novel human leukocyte differentiation angtigens 5D4 and 5C5(gp42)" 
received little attention previously, atter the WE counsel called ths work "pioneering." 
'The petitioner submitted documentation showing three citations, including one self-citation, of his 
article "DNA repair protein involved in heart and blood development," published in print shortly after 
the petition's filing date (but available electronically before that date). The petitioner also submitted an 
updated version of the citation printout diqcussed earlier. The updated printout indicated that the 
number of citations had increased by one, from fourteen to fifteen. The printout showed information in 
English for ten of the fifteen citations. Of these ten citing articles, seven were written by the petitioner 
or his collaborators. Thus, the petitioner has documented five independent citations of his work at the 
time of the WE. 
Four new letters accompanied the petitioner's response to the RFE. Three of the four witnesses are 
current or former Boston University (BU) faculty members, and their publication records, as shown in 
their curricula vitne, establish collaborative ties between them. Former - 
now Director of the Center for Chcology and Cell Biology at the Feinstein Institute for 
Medical Research, stated: 
In ?ny estimation, [the petitioner] is among the most talented investigators that I have 
had in my laboratory or have observed in the laboratories of colleagues and 
collaborators. His noteworthy findings and unique combinatiol~ of scientific creativity, 
techriical experhe, and rigorous experimental -/ision have led to paradigm-shifting 
insights. His noteworthy achievements have been widely acclaimed . . . and I consider it 
likelj. that there are very few people with his singular level of expertise. 
. . . [The petitioner] has unique and extensive knowledge that can and will further the 
understanding of how lymphocytes of the immune system become activated, which 
pertains to their normal function during vaccination against infectious diseases and their 
abnormal function in autoi~nmune dyscrasias such as Rheumatoid Arthritis and Systemic 
Lupus Erythematosi s. 
is the only witness to discuss the petitioner's work regarding "how lymphocytes of the 
immune system become activated." ~r. also discussed the petitioner's well-documented 
work with zebrafish, but he ambiguo~lsly indicated that the petitioner "has completed" that work. 
I hive never collaborated wirln [the petitioner]. neither have I ever been a colteague, 
professor, employer or colleague [sic] of' his. However, ! am well aware of his 
reputation in the field and familiar with his work through his jownal and conference 
publications. . . 
[The petitioner's] research breakthrcugh gives new insights illto how normal 
development of [blood, heart and brain] likel5. takes place in human, and has a great 
impact on our understanding of abnormal developmental processes that lead to birth 
defects in babies. 
BU Assistant professor 
 co-author of two papers with stated: 
"Based on his publjcation record and widely acclaimed research c~r~tributions to various important 
research areas such as cancer md cardiovascular research, [the petitioner] is clearly an invaluable asset 
to the United States." Dr. called the petibioner "a top expert in DNA repair." 
The final witness. is now an Assistant Professor at the University of Kentucky, 
Lexington, was a student at Peking Union Medical College, Beijing, China, at the same time as the 
petitioner in the late 1990s. Dr.= and the petitioner co-authored several research papers. Dr.= 
stated: 
I have collaborated with [the petitioner] for several years, and l'm very familiar with his 
work. Based on my knowledge of [the petitioner's] contributions, I can confirm that he 
is one of the most innovative and talented researchers in this field. . . . 
Page 8 
During his Ph.D. studies from September 1997 to November 2002, [the petitioner] 
initiated two projects to explore the functions of newly-isolated human differentiation 
antigens, 5C5 and 5D4, encoded by two novel cDNAs. . . . Since these cDNAs were not 
homologous to any known genes, [the petitioner] made great efforts to characterize their 
biological features, and his work implicated them as being involved in B cell function. 
As a result, he published 6 important research articles as first author in leading journals, 
and published several more in collaboration with others. . . . 
[The petitioner] has conducted pioneered [sic] research to explore novel genes that 
contribute to DNA and base excision repair in response to oxidative stress-induced 
damage. 
The director denied the petition on June 17, 2008, stating that the petitioner's "achievements do not 
establish the petitioner has reached a degree of accomplishment that is substantially greater than his 
colleagues." The director also concluded that the witness letters in the record "fall short of 
demonstrating the petitioner's influence on the field beyond his past and present educational institutions 
and circle of colleagues." Noting that the record documents very few independent citations of the 
petitioner's articles, the director found that the record lacked "objective documentary e~idence" to 
corroborate witnesses' claims regarding the imp01 tance of the petitioner's work. 
On appeal, counsel argues that the director's "selectjve and truncated use of the evidence . . . is highly 
prejudicial to the petitioner's claim." Counsel asserts that the "Director failed to give due consideration 
to [the petitioner's] pioneering work in DNA repair enzyme on embryonic development and novel 
vertebrate model system using zebrafish, and his impressive publication and citation record." The 
petitioner's record does not speak for itself; the petitioner must establish the importance and impact of 
his work. 
Counsel states that the petitioner's "total number of publications is highly impressive and well exceeds 
the number of publications expected of a postdoctoral researcher." This may be so, but the petitioner's 
published articles do not become more important or significant simply because there are more of them. 
Initially, counsel had stated that citations are "[olne of the most compelling, independently verifiable 
measures of a scientist's contributions," and even in the appellate brief counsel refers to the petitioner's 
"impressive . . . citation record." Responding to the director's finding that the petitioner's work has 
been minimally cited, counsel claims that the petitioner's "research efforts revolve around a brand-new 
area of molecular research," and that because "the petitioner has technically started a brand new area of 
research through his groundbreaking discoveries," it is to be expected that there are, as yet, few other 
research papers citing the petitioner's work. 
By the above argument, counsel, on the one hand, emphasizes the quantity of the petitioner's published 
articles, while on the other hand attempting to explain away the paucity of independent citations of 
those articles. Counsel's argument does not survive scrutiny. The petitioner's work is "a brand new 
area of research" only if we define "area of research" so narrowly as to exclude every scientist whose 
work does not exactly match the petitioner's work. The petitioner was not the first to research DNA 
repair, and he was no1 the first to use zebrafish in genetic research. At best, he was the first to perform 
specific studies on zebrafish with regard to one particular enzyme. This is not an "area of research," it 
is an individual research project. Furthermore, most of the petitioner's published articles appeared 
before he began working at Northeastern University, and have nothing to do with his "brand new area 
of research" with zebrafish. Therefore, the asserted novelty of his recent research is utterly irrelevant to 
the citation history of his earlier work. 
C~i~nsel ihen dissects what there is of the petitioner's citation history, and every identified citing 
researcl~er is "internationally recognized" or -'world-renowned," just as counsel had previously 
identified ihc authors of the witness letters as "top authorities" in the petitioner's field. Counsel's 
habitual use of such hyperbolic language does not appear to be anchored in objective reality. It appears, 
rather, to be d calculated effort to infl2te the irnportance of everyone and everything that somehow 
relates to the petitioner and his work. As stated above, the assertions of counsel are not evidence, and 
counsel's reflexive praise casts a dim light on the inherent credibility of counsel's claims. 
Counssl discusses the letters and other exhibits previously submitted in support of the petition. but upon 
consideration of these marcrials, the AAO affirms the director's finding that these niatelials do not 
gersuasi~ely establish the petitioner's eligibility for the benefit sought. We acknowledge that many of 
the witnesses have attested to the signiiicance of the petitioner's work, but we agree with the director 
that the record lacks objective evidence to sh~w that the witnesses' asserticjns are anything more than 
subjective opinions, or that the witnesses' statements represent anything like the consensus within the 
Geld. The witnesses (all of them either based in New England or having demonstrable ties to the 
petitior~er) may sincerely believe that the petitioner's work will revolutionize some aspects of genetic 
research, but the record does not show that the petitioner's past history has garnered wide notice or 
produced practical results of a caliber that would justify those beliefs. 
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 fiom 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 pr~fession, 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. fj 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.