dismissed EB-2 NIW Case: Forensic Science

identieing data de!eted to 
 U.S. Department of Homeland Security 
prevent ciezriy ~lnwamnted 
 U.S. Citizenship and Immigration Services 
OfJice of Admtnistrative Appeals MS 2090 
invasiw of personal privacy 
 Washington, DC 20529-2090 
PUBLICCOP 
 U. S. Citizenship 
and Immigration 
FILE: - Office: NEBRASKA SERVICE CENTER Date:MN 0 1 2009 
LIN 07 143 51374 
IN RE: 
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. 3 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. 3 103.5 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). 
Acting Chief, Administrative Appeals Office 
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 AAO will 
dismiss the appeal. 
The petitioner seeks to classify the beneficiary 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. The petitioner is a public university that seeks to employ the beneficiary as a assistant professor 
of forensic sciences. 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 
beneficiary 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 fkom counsel, a witness letter, and other 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 beneficiary 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. 55,101 st Cong., 1 st Sess., 1 1 (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] 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 bbprospective 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 (Commr. 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 April 16, 2007. 
 the petitioner's Interim Vice 
President for Academic Affairs, set forth the petitioner's waiver claim in a letter accompanying the 
initial filing of the petition: 
[The beneficiary] is responsible for the development of an accredited Forensic Science 
program which will complement the new Homeland Security degree program. [The 
beneficiary] will also teach [six named courses in forensic science and chemistry]. . . . 
Page 4 
[The petitioner] will be the first HBCU [historically black college/university] in the 
country and the first institution in the state of Georgia, public or private, to offer the 
Bachelor of Arts degree in Homeland Security and Emergency Management in fall 
2007. [The beneficiary] is in charge of the development of the Forensic Science 
Program. . . . 
The collaboration between the Criminal Justice, Homeland Security and Forensic 
Science Programs is significant. Often times, individuals entering the field of forensic 
science have limited knowledge of how crime scenes are processed, or how crime events 
are reconstructed, resulting in ill prepared interface with the legal community or present 
evidence in a court of law. With these key programs in place, [the petitioner] is poised 
to address this issue by constructing a strong bridge between the laboratory, the crime 
scene and the legal system. . . . 
[The beneficiary] has initiated a research project for the Synthesis of 
Methamphetamine Abuse Rehabilitation Treatment Agents. [The beneficiary] is in 
the process of synthesizing medicinal agents which are expected to be selective for the 
doparnine (D3) receptor . . . in order to improve cognitive skills, reverse impairment, as 
well as, address the resultant psychosis associated with methamphetamine abuse. . . . 
[The beneficiary] submitted an initial white-paper application for the research cluster 
program to the UNCF [United Negro College Fund] Special Programs Office, via its 
NASA [National Aeronautics and Space Administration] Science and Technology 
Institute for Minority Institutions. Upon review of her initial research proposal NASA 
has now extended to [the beneficiary] an official invitation to submit a full proposal. 
The mission of the UNCFSP NSTI-MI program is to create a consortium of Minority 
Institutions (MIS) that will participate in cutting edge research in collaboration with 
NASA, other government agencies, private organizations, majority institutions, as well 
as, research and technical organizations through the establishment of Research and 
Development (R&D) partnerships. . . . This program is very important because it will 
allow the University to further strengthen our research infra-structure. 
(Emphasis in original.) 
 added that the beneficiary is an advisor on various programs and 
projects intended to improve minority education in the sciences. Some of the items listed above appear 
to have intrinsic merit but not nefessarily national scope. 
 For instance, the UNCFSP NSTI-MI 
program, as a whole, benefits the United States, but the petitioner has not shown how the participation 
of one particular institution in that program is a national interest issue. Similarly, the petitioner's being 
the first university in Georgia to offer a Homeland Security degree appears to be of regional rather than 
national concern. 
Four other witness letters accompanied the petition. 1 of Clemson 
(South Carolina) University stated: 
Page 5 
[The beneficiary] worked with me as a Postdoctoral Research Associate from June 2002 
until early 2006. . . . [The beneficiary] and I are currently in the final stages of writing a 
review papa on "Recent Advances in the Development of Selective Ligands for the 
Cannabinoid CB2 Receptor" for publication in the review journal Current Topics in 
Medicinal Chemistry. 
. . . I can certify that [the beneficiary] has the potential to be an outstanding scientist and 
educator in the fields of organic and medicinal chemistry. She combines this ability 
with experience working in the Government of Jamaica Forensic Laboratory and 
currently teaches forensic science. This is an unusual and in my experience unique 
interdisciplinary combination. 
deemed the beneficiary's present research at the petitioning university ''very promising." 
I was introduced to [the beneficiary] in 2004, when she visited the Department of 
Chemistry and Biochemistry at Kennesaw State University . . . [and] gave a very 
informative seminar on the synthesis of medicinal compounds for the development of 
anti-cancer and anti-inflammatory drugs. . . . Since then, I have remained in contact with 
[the beneficiary] and am aware of her continued contributions to the scientific 
community. 
. . . During her research fellowship at Clemson University, she successfully synthesized 
compounds which have resulted in publications and the filing of patent applications. In 
her current position . . . , in a very short period of time, [the beneficiary] has initiated 
two (2) new undergraduate research projects, from which her research student has 
presented results at national meetings in 2006. [The beneficiary] is a very active 
participant and research advisor in the Minority Access to Graduate Education in 
Science, Technology, Engineering, and Mathematics (MAGEC-STEM) program and is 
very committed to mentoring undergraduate minority students in research. 
[The beneficiary's] research project, the synthesis of methamphetamine abuse 
rehabilitation treatment agents is of particular interest and definitely in the best interest 
of our nation. She has recently submitted a proposal to the National Institute[s] of 
Health (NIH) for support of this project. . . . She expects to produce medicinal agents 
with minimum side effects to alleviate the psychosis experienced by methamphetamine 
abusers, and therefore decreasing the possibility of relapse during therapy. 
now Vice President of Research - Regenerative Cell Technologies at Cytori 
Therapeutics, San Diego, California, stated: 
I became familiar with [the beneficiary] while I was the Vice President of Biology at 
Novasite Pharmaceuticals, San Diego, CA. . . . I was responsible for development and 
hnctional validation of a novel system uniquely suited for discovering drug candidates 
targeting the highly preferred molecular targets referred to as G protein-coupled 
receptors (GPCR). It was in this capacity that I interacted with [the beneficiary] and 
directly witnessed and benefited fiom her talents as a synthetic chemist. . . . 
I worked with [the beneficiary] to discover small novel molecule drug candidate 
compounds that selectively interact with two of the novel cannabinoid (CB) receptor 
class of GPCR, CB 1 R and CB2R. . . . 
[The beneficiary] expertly and efficiently performed the necessary chemical syntheses 
that allowed us to pursue increasingly selective and effective drug candidates at each of 
the CB1 and CB2 receptors. . . . 
In just the first year of [her] faculty position she has engaged a student to work with her 
to develop protease enzyme inhibitors, which may result in improved medications to 
combat several diseases including pulmonary emphysema, rheumatoid arthritis, cystic 
fibrosis, adult respiratory distress syndrome, chronic bronchitis and pancreatitis. 
-1 of Virginia Commonwealth University, Richmond, stated: "I currently have 
many ongoing collaborations with [the beneficiary] and have for many years." 
 provided 
technical-details regarding the ben&ficiary7s various research projects,- airedy discussed above. = 
stated that the beneficiary "distinguishes herself' through her "extensive experience in the area 
of Synthetic Organic Chemistry coupled with her training in Crime Scene Investigation and Forensic 
Science." 
The initial witnesses tended to focus on the beneficiary's research in chemistry. While they described 
the beneficiary's various projects, they offered little objective information to establish the larger impact 
that the beneficiary has had in her research specialty. 
On April 23, 2008, the director issued a request for evidence, instructing the petitioner to explain how 
the beneficiary's work will "impact the United States beyond Georgia." The director also asked why it 
is in the national interest for the beneficiary, rather than a qualified U.S. worker, to participate in the 
various projects and proposals described in the initial filing. The director requested citation 
documentation to establish the impact of the beneficiary's published research work. 
In response, the petitioner submitted additional letters. , Dean of the 
petitioner's College of Science and Technology, stated: 
Since her application for the NIW [national interest waiver] in April, 2007, [the 
beneficiary] has been awarded a three (3) year $240,000 research grant fiom [NASA- 
UNCFSP]. . . . [The beneficiary] is the Principal Investigator (P.I.) for this research 
project titled "Synthesis of CB2 Receptor Selective Immunomodulatory Ligands." 
. . . These investigations are part of her long term research goals which are focused on 
the synthesis of agents for the evaluation of the pathological and psychological function 
of cannabinoid (CB2) receptors in irnmune system disorders. Long-term space flight is 
suspected of exerting deleterious effects on the body's irnmune system leading to the 
development of autoimmune diseases in astronauts. . . . 
Her research will specifically address the future of immunomodulatory therapies 
involving agents lacking side effects . . . currently associated with standard immune 
disorder treatment therapies. 
The research project described above did not begin until after the petition's filing date. 
 The 
beneficiary of an immigrant visa petition must be eligible under the circumstances in effect at the 
time of filing. See Matter of Katigbak, 14 I&N Dec. 45, 49 (Regl. Commr. 1971). At the time of 
filing, the petitioner indicated only that the beneficiary had received "an official invitation to submit 
a full proposal" to NASA. We will take the project into consideration insofar as it demonstrates the 
beneficiary's continued involvement in research, but we cannot find that the beneficiary was already 
eligible for the waiver in April 2007 because, at that time, she was attempting to obtain NASA 
funding to allow her to begn a new research project. We must consider what the beneficiary had 
achieved as of the filing date, rather than what the beneficiary hoped to accomplish after that date. 
exceeded our expectations . . . I anticipate she is about to make major contributions" in the area of 
methamphetamine abuse treatment. claims that the beneficiary's "work is well recognized 
internationally and nationally." Evidence ought to be available to support such a claim; otherwise, no 
basis would exist to justify that claim. 
Regarding citation of the beneficiary's published work, 
 stated that the beneficiary's 
"scientific citations are approximately in the range of 20-25" (emphasis in original). The petitioner, 
however, identified and submitted copies of only two published articles that contain citations to the 
beneficiary's work. One of those two articles was co-authored by 
 who self-cited an 
earlier paper he had written with the beneficiary. 
 Because the petitioner documented only one 
independent citation, the record contains no evidence to substantiate the petitioner's figure of "20-25" 
citations. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Commr. 
1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Regl. Commr. 1972)). 
The petitioner submitted copies of electronic mail messages that the beneficiary has received, as 
evidence of interest in the beneficiary's work outside of Georgia. The beneficiary received these 
messages in early 2008, well after the petition's April 2007 filing date. Several of these messages 
discussed ongoing or proposed collaborations with other researchers in Georgia. A researcher in 
California requested a copy of a recent article by the beneficiary, stating that "the publisher pricing is 
outside the scope of my departmental budget." It is clear fi-om the context that the researcher had not 
yet read the article in question. We note that the requested article was published in 2008, after the filing 
date. 
The director denied the petition on August 21, 2008, stating that while the beneficiary appeared to have 
potential for important contributions, the record contains "little evidence of the beneficiary's influence 
on her field as of April 16, 2007." The director noted that the petitioner's submission "only established 
two . . . citations" of the beneficiary's work, and that the record contained no evidence to support the 
claim "that other citations existed." 
On appeal, counsel asserts that "the average age for receipt of a Ph.D. in Chemistry is 29.6 years. [The 
beneficiary] received her Ph.D. in Organic Chemistry at the vay young age of 26 and is a female in a 
male dominated field of science. It can then be stated that [the beneficiary] is included in a very small 
percentage of young female Ph.D. holders in Chemistry. She also has 4 more years of experience than 
the average Ph.D. recipient of the same age." Counsel did not explain why this is relevant. Eligibility 
for the national interest waiver is not weighted by age or sex. If the beneficiary's receipt of a doctorate 
at age 26 is indicative of special abilities or aptitude, then these should become manifest in the work she 
produces. Therefore, it is entirely appropriate to judge the petition based on the beneficiary's 
accomplishments, rather than her age at the time of those accomplishments. 
Counsel states: "very recently in July, 2008, [the beneficiary] developed what can easily be classified as 
a 'Scientific Breakthrough"' permitting more rapid synthesis of drug compounds. Counsel discusses 
other 2008 accomplishments by the beneficiary. 
The petitioner submits a letter from -I of the University of Rhode 
Island, who states: "I became familiar with [the beneficiary's] work after reading her 2006 publication 
on new CB2 receptor selective ligands in the prestigious Journal of Bio-organic and Medicinal 
Chemistry." Most of the letter, however, is devote to the beneficiary's most recent work, such as her 
"expedited microwave reaction procedure," which took place well after the filing date. We note that Dr. 
Seeram was a doctoral student at the University of the West Indies fkom 1992 to 1998, overlapping the 
beneficiary's own doctoral studies at the same university from 1996 to 2001. 
Other materials submitted on appeal, such as electronic mail messages, indicate that the beneficiary's 
most recent work has been well received, and that researchers have hgh hopes for the beneficiary's 
planned projects. 
The director had already advised the petitioner that the petition would be considered based on the 
beneficiary's accomplishments as of the April 2007 filing date. The AAO will not discuss the 
beneficiary's later achievements in detail, as they have no bearing on whether the beneficiary was 
already eligible as of the filing date. The AAO rejects the assertion that the beneficiary's latest 
accomplishments are relevant because they show that earlier witnesses were justified in predicting her 
future success. 
Page 9 
Regarding the beneficiary's citation hstory, counsel stated that the submission of two citing articles "is 
not to be misinterpreted as stating that [the beneficiary] has only 2 citations"; rather, the two articles 
contained commentary on the beneficiary's work. Counsel asserted that the total number of citations of 
the beneficiary's work is "approximately 30 citations" (counsel's emphasis). The petitioner does not 
submit any evidence on appeal, such as a printout fiom a citation database, to corroborate this figure or 
to show how the petitioner knows even the approximate number of citations of the beneficiary's work. 
With regard to the beneficiary's citation hstory, counsel states "it is difficult to obtain accurate metrics 
on a particular researcher because the scope and coverage of databases is not exhaustive." This may be 
the case, but even if a citation database is incomplete, the petitioner has not shown that such a database 
will erroneously indicate that a widely-cited researcher has few or no citations. It would be 
unreasonable to require an "exhaustive" and up-to-the-minute accounting of the beneficiary's complete 
citation history (and the director did not request evidence of that standard). Nevertheless, if the 
petitioner claims that the beneficiary's work has been cited "approximately 30" times, the petitioner 
must establish the source of that figure. 8 C.F.R. 8 103.2(b)(16)(ii) requires the director to render a 
decision based on the record of proceeding. Because the petitioner has chosen, for whatever reason, to 
include evidence of only two citations of the petitioner's work in the record of proceeding, the director 
could take only those two citations into consideration when rendering the decision. 
Counsel also makes that point that "a researcher might be frequently cited because their research is 
contentious, not because it is high quality, useful research." It is true that this is one reason, out of 
many, that a given article may be widely cited, which is one reason why we consider evidence fiom 
various sources rather than focusing exclusively on citations. If anything, this possibility should be an 
incentive for the petitioner to submit copies of all the articles that cite the beneficiary's work, in order to 
rule out the possibility that unsubmitted citations we negative or critical of the beneficiary's work. 
The petitioner has consistently presented the beneficiary as a talented and promising researcher, with 
ambitions to raise the petitioner's academic profile through research and by establishing new programs. 
The petitioner, however, has provided little evidence that the beneficiary's plans had translated into 
actual impact at the time of filing in April 2007. If it is the petitioner's contention that the beneficiary's 
achievements in late 2007 and 2008 establish her eligibility for the waiver, then the proper course of 
action would be to file a new petition, with ample supporting evidence, which would permit detailed 
consideration of the beneficiary's accomplishments after April 2007. The AAO takes no position, at 
this time, as to the likelihood that a new petition would be more successful than the last. 
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 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. 
Page 10 
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 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.