dismissed EB-2 NIW Case: Gene Therapy

identifying data deleted to 
prevent clearly lnwarranted 
invasion of personal privacy 
'PuBUCCOpy 
DATE: JUL 0 '1 21m 
INRE: Petitioner: 
Beneficiary: 
u.s. Department of Homeland Security 
u.s. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W .• MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
Office: TEXAS SERVICE CENTER FILE: 
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. § IlS3(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.P.R. § \03.5. 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 $630. Please be aware that 8 C.P.R. § \03.S(a)(I)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The Administrative Appeals Office (AAO) dismissed a subsequent appeal. The matter is now 
before the AAO on motion to reopen and reconsider. The motion will be granted, the previous decision 
of the AAO will be affirmed and the petition will be denied. 
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. § 1153(b)(2), as an alien of exceptional ability or a member of the 
professions holding an advanced degree. The petitioner seeks to employ the beneficiary as a lead senior 
researcher. The petitioner asserts that an exemption from the requirement of a job offer, and thus of an 
alien employment 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 had not established that an exemption from the requirement of a job offer would be 
in the national interest of the United States. 
On appeal, counsel submitted a statement and additional evidence. The AAO withdrew the director's 
conclusions that the beneficiary does not work in an area of substantial intrinsic merit and that the 
proposed benefits of his work would not be national in scope. The AAO, however, concurred with the 
director that the request for a waiver of the alien employment certification process, based primarily on 
the claim that there is a shortage of available U.S. workers with the beneficiary's training and skills, is 
not warranted in the national interest. The AAO stressed that a shortage of workers with the al ien' s 
training and skills is exactly the situation the alien employment certification process was designed to 
address. 
On motion, counsel submits the beneficiary's personal statement and a new reference letter. The 
beneficiary summarizes the basis of the motion as follows: 
As will be elaborated in subsequent paragraphs, it is the beneficiary's original 
contributions and intricate knowledge of the technology that makes him indispensible 
and unique, both qualifying him for the international recognition and making him far 
superior to colleagues, as he holds specialized expertise that has been decisive in 
developing strategies for gene therapy-based clinical application not only for 
treating hemophilia A but also cancer. 
(Emphasis added.) The beneficiary goes on to assert that the AAO failed to give sufficient weight to the 
reference letters in the record. The beneficiary cites Xiao Ji Chen v. U.S. Dep't. of Justice, 434 F.3d 144, 
163 (2nd Cir. 2006) for the proposition that the AAO must consider al of the evidence in the record that 
has probative value. 
According to 8 c.F.R. § 103.5(a)(2). a motion to reopen must state the new facts to be provided and be 
supported by affidavits or other documentary evidence. According to 8 C.F.R. § 103.5(a)(3), a motion to 
reconsider must state the reasons for reconsideration and be supported by any pertinent precedent 
decisions to establish that the decision was based on an incorrect application of law or Service policy. 
Page 3 
The AAO accepts that the current motion constitutes a motion to reconsider. For the reasons discussed 
below, the AAO reaffirms its finding that the general assertions of outstanding ability, international 
recognition and influence in the field are not supported by the specifics in the letters or the remainder of 
the record. After the adjudication of the instant motion, the AAO will have reviewed the letters and other 
evidence on two occasions. Therefore, any subsequent motion that merely requests that the AAO review 
the evidence again will not meet the requirements for a motion, set forth above. 
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. 
(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. 
As stated in the AAO's decision, the petitioner holds two Master's degrees, one in 
Environmental in India in 1999 and the other 
in Biology from Pennsylvania in 2002. The petitioner's occupation falls 
within the pertinent a profession. The petitioner thus qualifies as a member of 
the professions holding an advanced degree. The only issue in contention is whether the petitioner has 
established that a waiver of the job offer requirement, and thus an alien employment 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 the phrase, "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, 10Ist Cong., 1st Sess., 11 (1989). 
Page 4 
A supplementary notice regarding the regulations implementing the Immigration Act of 1990 
(IMMACT), published at 56 Fed, Reg. 60897, 60900 (Nov. 29, 1991), states, in pertinent part: 
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, 217-18 (Comm'r. 1998) (hereinafter 
"NYSDOT"), 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. [d. at 217. Next, it must be shown that the proposed benefit will be national in scope. 
[d. 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. [d. at 217-18. 
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. [d. at 219. 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. [d 
In the AAO's previous decision, the AAO noted that the beneficiary works as a "lead senior 
researcher." The AAO noted that at the petitioning 
institution, explains that in this position, the beneficiary oversees "other The AAO further 
noted the beneficiary's duties, which include developing assays, transplanting 
bone marrow in laboratory animals and caring for the animals. Thus, the AAO concluded that the 
beneficiary is essentially a laboratory technician. On appeal, counsel challenges this conclusion, noting 
that characterizes the petitioner as an "outstanding researcher." _ letter in 
which he so characterizes the beneficiary is requesting classification pursuant to section 203(b)(1 )(B) of 
the Act as an outstanding ~esearcher. I Thus, he used the phrase "outstanding researcher" in 
that context. On motion_ only characterizes the petitioner as a "scientist." Regardless, 
however _ characterizes the beneficiary, it remains that the duties he lists are consistent with a 
laboratory technician. 
I The petitioner has filed two petitions in behalf of the beneficiary, the one at issue in this decision and a 
second petition seeking classification pursuant to section 203(b)(I )(B) of the Act. 
-Page 5 
As stated in the AAO's previous decision, the laboratory in which the beneficiary works is dedicated to 
developing gene therapy for hemophilia A. The AAO concluded that this work has substantial intrinsic 
merit. The AAO next concluded that it is readily apparent that gene therapy for hemophilia A, a 
disease that affects one in 5,000 males worldwide, would be national in scope.2 As noted in the 
AAO's previous decision, however, the petitioner cannot establish the beneficiary's eligibility for a 
waiver of the alien employment certification process based on the importance of the area of employment 
alone. Rather, it is necessary, to determine whether the beneficiary will benefit the national interest to 
a greater extent than an available U.S. worker with the same minimum qualifications. The AAO 
stresses once again that the modifier "minimum" does not nullify the word "qualifications" or suggest 
an unskilled worker. In other words, an available U.S. worker with the requisite "minimum 
qualifications" for the job is one who, by definition, is qualified for the job. The "minimum 
qualifications" for a given job may, in fact, be quite stringent. 
Ultimately, 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. NYSDOT, 22 I&N Dec. at 218. Moreover, it cannot suffice to state that the alien possesses 
useful skills, or a "unique background." Special or unusual knowledge or training does not inherently 
meet the national interest threshold. The issue of whether similarly-trained workers are available in 
the United States is an issue under the jurisdiction of the Department of Labor. /d. at 221. 
At issue is whether this beneficiary'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 sought. By seeking an extra benefit, the petitioner assumes an extra burden of proof. 
The petitioner must demonstrate the beneficiary's past history of achievement with some degree of 
influence on the field as a whole. Id. at 219, n. 6. In evaluating the petitioner'S achievements, we 
note that original innovation, such as demonstrated by a patent, is insufficient by itself. Whether the 
specific innovation serves the national interest must be decided on a case-by-case basis. /d. at 221, n. 7. 
The beneficiary does not challenge the AAO' s conclusion that the article in the 
1!JlI!!1II!!I!1II!!I!1I! a local newspaper, stating that the beneficiary'S research team won a _Iilililililii 
award from an unidentified entity and naming several of the team's researchers 
but not the beneficiary, has little evidentiary value. The AAO reiterates that the article postdates the 
filing of the petition and, thus, cannot establish the beneficiary's eligibility as of that date. See 8 C.F.R. 
§§ 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'\. Comm'r. 1971). 
~bmitted evidence that the beneficiary is a member of the 111111111 ••••••• 
__ and the Counsel also 
provides 
these statistics in his letter in support of the petition. 
previously referenced the American Society of Hematology (ASH). The petitioner, however, did not 
document the beneficiary's membership in that society. On motion, the beneficiary does not address 
ASH. Rather, the beneficiary asserts that both ASGT and ESGCT "require outstanding achievements of 
their members." Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 
(Comm'r. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l. Comm'r. 
1972)). The record does not contain the bylaws or constitutions of ASGT or ESGCT establishing their 
membership criteria. 
Professional memberships are one type of evidence that a petitioner may submit to establish exceptional 
ability. 8 C.F.R. § 204.5(k)(3)(ii)(E). Because exceptional ability, by itself, does not justify a waiver of 
the alien employment certification requirement, arguments hinging on professional memberships, while 
relevant, are not dispositive to the matter at hand. Id. at 222. The record contains no evidence that either 
ASGT or ESGCT membership is indicative of an influence in the field as a whole rather than simply 
employment in that field and an adherence to ethical standards. 
The AAO acknowledged that, as of the date of filing, the beneficiary had coauthored six articles. The 
AAO concluded, however, that while the publication of articles may demonstrate national exposure, it 
cannot, by itself, demonstrate the beneficiary's impact on the field as a whole. As noted in the AAO' s 
prevIous decision, as of the date of filing, three of the beneficiary's articles had garnered minimal 
citation. 
On motion, the beneficiary asserts that the purpose of citation is "intellectual honesty" that acknowledges 
"relevance" but only "shows the interest in the field and not necessarily establishes whether your work 
moves a field ahead." The beneficiary then lists and summarizes his articles, including those published 
after the date of filing, and concludes "the above publications clearly demonstrate that the importance of 
the [beneficiary's] continuing contributions to be of national interest and the potential to expand 
internationally for treating patients born with this debilitating disease." 
As noted by the AAO in its previous decision, the articles that postdate the filing of the petition cannot 
establish the beneficiary's eligibility as of that date. See 8 C.F.R. §§ 103.2(b)(1), (12); Matter of 
Katigbak, 14 I&N Dec. at 49. All of the case law on this issue focuses on the policy of preventing 
petitioners from securing a priority date in the hope that they will subsequently be able to demonstrate 
eligibility. Matter of Wing's Tea House, 16 I&N Dec. 158, 160 (Reg'!. Comm'r. 1977); Matter of 
Katigbak, 14 I&N Dec. at 49; see also Matter of Izummi, 22 I&N Dec. 169, 175-76 (Comm'r. 1998) 
(citing Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981) for the proposition that we cannot 
"consider facts that come into being only subsequent to the filing of a petition.") Consistent with 
these decisions, a petitioner cannot secure a priority date in the hope that his recently published 
research will subsequently prove influential. Ultimately, in order to be meritorious in fact, a petition 
must meet the statutory and regulatory requirements for approval as of the date it was filed. Ogundipe 
v. Mukasey, 541 F.3d 257, 261 (4th Cir. 2008). 
Page 7 
The AAO is not persuaded that publication alone is evidence of the authors' influence in the field. 
The beneficiary's citation record as of the date of filing is not indicative of an influence on the field as 
a whole. While the beneficiary's minimal citation record does not preclude eligibility, it is the 
petitioner's burden to provide some type of evidence establishing the actual impact of the 
beneficiary's articles once disseminated in the field. 
Significantly, the AAO analyzed the citations submitted. Specifically, the AAO acknowledged that 
the record contained two commentaries that discuss the beneficiary's work. As noted by the AAO, the 
first commentary appears in the same issue of Blood that carried the beneficiary's article and is a 
synopsis of that work. While the commentary confirms the promising nature of that work, as it was 
issued contemporaneously with the article it cannot establish that the work ultimately had a 
degree of influence in the field as a whole. the author of the commentary, 
affirms that commentaries are reserved for the best papers that are accepted for publication. 
Nevertheless, her commentary notes the risks involved in the solutions proposed in the beneficiary'S 
article that would need to be addressed. The second commentary is merely a review of recent 
developments. Thus, the AAO reaffirms its conclusion that the commentary and review cannot 
establish that the beneficiary's work ultimately influenced the field. 
The AAO continued: 
Of the remaining citations, one by et. al. is extremely favorable, 
concluding that it is "exciting" that the on reducing large solid 
tumors, in addition to two other studies, provide "the basis for promising clinical 
trials." The remaining citations do not single out the beneficiary'S work from the 100 
or more other articles cited. In fact, two of the .. about his work 
on programmed drug resistance. Specifically, et. al. discusses 
several different strategies to programmed drug resistance, one of which is the 
beneficiary's work. The article then notes that concerns with these strategies include a 
"lack of effectiveness in selecting hematopoietic stem cells (HSCs) in vivo," "potential 
development of multiple-drug resistant leukemia," and "the use of highly genotoxic, 
carcinogenic drugs for selection." Finally et. al. notes the 
beneficiary's study on the hemoprotective approach using induced resistance to 
cladribine and 5-FU but points out that the doses needed for the selection induce severe 
myelosupression and "therefore it seems that this system is not suitable for in vivo 
selection of hematopoietic stem cells." 
The AAO then concluded that the beneficiary's citation history is not, by itself, indicative of a degree 
of influence on the field as a whole. On motion, the beneficiary asserts that it was his objective to 
"bring forth the inadequacies of using high amounts of chemotherapy for hematopoietic stem cell 
collection" and notes that he concluded in his own article that cN-l "is likely too toxic to consider." 
Thus, the beneficiary concludes that the criticisms "do not correlate with the beneficiary's work" and, 
therefore, "the beneficiary's work was in the forefront of research in developing gene therapy based 
-Page 8 
based strategies." Regardless, the minimal citations as of the date of filing do not support a finding 
that the beneficiary's work has already produced results that have influenced the field. The 
beneficiary subsequently characterizes the citations as "Published material in professional publications 
written by others about the alien's work in the academic field." With the exception of the 
commentary summarizing the beneficiary's work in the issue in which it appeared, it cannot be 
credibly asserted that the above articles, primarily about the authors' own work or recent 
developments in the field, are "about" the beneficiary's work. 
The AAO referenced the conference presentations of the beneficiary work, noting that the record does 
not establish that the beneficiary personally presented the work. On motion, the beneficiary does not 
challenge the AAO's conclusion that the record lacks evidence of the influence of these presentations. 
Rather, the beneficiary simply lists the presentations. 
The AAO acknowledged that the beneficiary's research is funded but noted that all research must receive 
funding from somewhere. The AAO concluded that it does not follow that every researcher who is 
working with a government grant inherently serves the national interest to an extent that justifies a 
waiver of the alien employment certification requirement. On motion, the beneficiary reiterates that 
the National Institutes of Health (NIH) funds the beneficiary's research and notes that he is the "lead 
scientist." The beneficiary does not explain how government funding distinguishes the beneficiary'S 
research from all other research. While funding may demonstrate NIH's determination that the work 
has potential, it does not establish that the results have already influenced the field or even that they 
will definitely do so. Regardless of how the petitioner defines the beneficiary'S role on this research, 
there is no evidence that he is the principal investigator listed on the grant. 
As acknowledged by the AAO, at an 
independent laboratory addressed at the petitioning 
institution and the beneficiary's use . treated 
mice. The AAO accepted that this request demonstrates one laboratory's interest in these mice, but the 
AAO noted that the petitioner did not submit a letter from anyone at this laboratory explaining whether 
the mice were used successfully. As further noted the AAO, none of the citations provided were 
articles by raising the concern have yet to 
warrant publication. On motion, the . as they appear in the 
original): 
It was our understanding that he wanted to use our mouse model that we corrected with 
Gene therapy to see, if they can enhance generation of porcine fetal tissues given that our 
mice express significant levels of porcine tvIII. However, his current publication clearly 
has moved away from his original hypothesis and is entitled "Enhancement of pig 
embryonic implants in factor VIII KO mice: a novel role for the coagulation cascade in 
organ size control. " KO means Knockout or mice without any JVIlI. As the title is self­
explanatory, this clearly a point out that research is full of surprises and one has to evolve 
Page 9 
has to evolve with the changes. 
Regardless, it remains that the record does not establish 
petitioner's work in his own research. 
ultimately applied the 
The remaining evidence consists of reference letters. The AAO addressed the letters in depth, 
concluding that they did not explain how the beneficiary's contributions were already influencing the 
field. On motion, the beneficiary suggests that the AAO failed to consider the broad generalizations in 
the letters and, apparently, took the references' specific comments out of context. The AAO will review 
the letters again. The AAO stresses, however, that merely repeating the language of the legal 
requirements does not satisfy the petitioner's burden of proor.J Similarly, USCIS need not accept 
primarily conclusory assertions.4 
As stated in the AAO's previous decision, __ describes the beneficiary's experience with the 
petitioner as follows: 
IThe beneficiary] initiates experiments with limited or no supervision, he oversees the 
work of other technicians within the group, and he directly interacts with graduate and 
undergraduate studies who are working on their Bachelor's and Doctoral degrees. He is, 
without question, a vital part of our research group. His essential importance is 
evidenced by the laboratory skills that he possesses, which includes i) the development of 
immunological assays directed at measuring the concentrations of specific retrovirally 
expressed proteins, ii) the development of functional assays directed at measuring the 
activity of specific blood clotting proteins, iii) the ability to transplant bone marrow cells 
in small animals that have been preconditioned with a variety of chemotherapy and 
radiation treatments, iv) the ability to care for animals after receiving bone marrow 
transplants and v) his molecular biology knowledge that enables our laboratory to quickly 
clone cDNA sequences encoding genetically-engineered proteins involved in blood 
coagulation. These skills, and others that were not mentioned, make him a vital part of 
our group and necessitates the approval off this petition. [The beneficiary's] skill set has 
taken him years to master. Because he is unique in his ability to understand and implant 
assay development, it will be impossible to replace his role within our program. 
On asserts that when he hired the beneficiary he was "the only candidate identified 
that was qualified for the position." As stated in NYSDOT, 22 I&N Dec. at 221, it cannot suffice to state 
that the alien possesses useful skills, or a "unique background." When discussing claims that the 
beneficiary in that case possessed specialized design techniques, the AAO asserted: 
J Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103,1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 1990); 
Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
4 i756, Inc. v. 7he Attorney General of the United States, 745 F. Supp. 9, 15 (D.C. Dist. 1990). 
-Page 10 
[Such experience] would appear to be a valid requirement for the petitioner to set forth 
on an application for a labor certification. [The] assertion of a labor shortage, therefore, 
should be tested through the labor certification process. . . . The issue of whether 
similarly-trained workers are available in the U.S. is an issue under the jurisdiction of the 
Department of Labor. 
[d. at 220-221. Special or unusual knowledge or training, while perhaps attracti~ospective 
U.S. employer, does not inherently meet the national interest threshold. [d. at 221. _ does not 
explain why the beneficiary's experience and skills are not amenable to enumeration on an application 
for alien employment certification. 
and an assistant professor at the petitioning institution, asserts that the hp"pf;~' 
characterize a chimeric human/porcine high expression F8 cDNA sequence that expresses up to 100-fold 
higher levels of the protein product compared to other F8 sequences that are currently in use." _ 
_ asserts that his laboratory has used this novel cDNA to cure transgenic mice with hemophilia A 
by transplanting gene-modified hematopoietic stem cells. The AAO noted that _ does not 
specify exactly how the beneficiary "helped" in the development of a novel cDNA. Rather, as noted by 
the AAO, concludes that the beneficiary is "one of only a few individuals that fully 
comprehend the use of recombinant retroviruses used in the transfer of recombinant DNA sequences that 
generate a recombinant protein that can function to replace the deficient protein in hemophilia A 
patients." The AAO reiterated that the issue of whether similarly-trained workers are available in the 
U.S. is an issue under the jurisdiction of the Department of Labor. [d. at 221. 
On motion, the beneficiary asserts that the word "helped" was used to denote the collaborative efforts 
that characterize most scientific research. The beneficiary quotes fro~ second letter as 
follows: 
Previous clinical trails were hindered and unsuccessful due to low levels of protein 
expression, which have been reviewed extensively in the scientific literature. With [the 
beneficiary] as the Lead Scientist, we have overcome this inherent problem associated 
with F8 expression. 
The position "lead scientist" is less significant than the actual duties provided by 
~oes not compare the beneficiary's duties as a "lead scientist" with the principal investigator for 
the study. 
The beneficiary then qU()tes 
_ asserts that the beneficiary 
research funding being awarded to the 
as further evidence of the beneficiary's role. Specifically,. 
.. to than $5,000,000 of extramural 
• 
_ As stated above, however, the actual duties listed by _reflect skills that could be 
enumerated on an application for alien employment certification. 
The AAO also discussed a joint letter from 
1 ' which has collaborated with the beneficiary's research team. The AAO stated: 
The joint letter confirms that the beneficiary "uses his expertise in protein expression and 
purification to successfully produce, purify and characterize large preparations of this 
hemophilia A product." While the letter affirms that the product is "novel" the 
innovative nature of the beneficiary's contribution to the product is not readily apparent. 
Regardless, original innovation, such as demonstrated by a patent, is insufficient by 
itself. Whether the specific innovation serves the national interest must be decided on a 
case-by-case basis. [d. at 221, n. 7. 
On motion, the petitioner simply quotes more of this letter and u.,,,u,,.,, 
Regardless, this letter does not establish the beneficiary's influence beyond his collaborators. 
The AAO also addressed letters from the following references: 
• another professor at the petitioning institution, who merely 
lists techniques that the beneficiary mastered that can be articulated on 
application for alien employment certification. 
• an ~ 
and a collaborator with the beneficiary's research team, confirms the beneficiary's 
skills and experience without explaining why they are not amenable to 
enumeration on an application for alien employment certification . 
The AAO acknowledged the submission of additional letters but did not address them individually 
because they provide similar information to that discussed above. On motion, the beneficiary quotes 
from some of those letters. For example~.!~~!l~~!l.S~lOtes from a letter from 
affiliated with __ While the beneficiary correctly quotes_ 
as discussing the complexity of the strategy the beneficiary's team is pursuing to eventually cure 
beneficiary also quotes as stating that the beneficiary's research "was a 
therapy based treatment strategy for treating cancer." This 
appear in letter. Regardless, nothing in _ letter demonstrates 
IW'.""" beyond the institution where he works. 
discusses letters fro~ and ••••••• 
llililili asserts that the beneficiary is an int(~gr:ll 
groundbreaking work. ~ asserts: 
Page 12 
Research done by [the beneficiary] at [the] Blood Disorders 
Services has led to the identification of certain regions of fVIII that can be manipulated 
[tol increase protein advancement in the field of Hemophilia A gene therapy since it 
overcomes the primary hurdle for a successful clinical application. 
As an example of the "attention" the beneficiary's work has received, references the 
commentary by which appeared in the same issue of Blood. This commentary does not 
demonstrate any subsequent reliance on the beneficiary's work in the field after being disseminated. In 
his 2009 letter confirms tha_"recently entered into collaboration with 
to develop and advance the High Expression FVIII technology into clinical trails." While 
notable, this collaboration postdates the filing of the petition and, thus, cannot establish the petitioner's 
influence beyond the centers where he has worked as of that date. See 8 C.F.R. §§ 103.2(b)(1), (12); 
Matter of Katigbak, 14 I&N Dec. at 49. Ultimately,~oes not explain why the beneficiary's 
"ability to develop assay methods" critical to previous work on animal models is not amenable to 
enumeration on an application for alien employment certification. 
The AAO reiterates that the Board of Immigration Appeals (the Board) has held that testimony should 
not be disregarded simply because it is "self-serving." See, e.g., Matter of S-A-, 22 I&N Dec. 1328, 
1332 (BIA 2000) (citing cases). The Board also held, however: "We not only encourage, but require 
the introduction of corroborative testimonial and documentary evidence, where available." Id. If 
testimonial evidence lacks specificity, detail, or credibility, there is a greater need for the petitioner to 
submit corroborative evidence. Matter of Y-B-, 21 I&N Dec. 1136 (BIA 1998). 
The opinions of experts in the field are not without weight and have been considered above. USCIS 
may, in its discretion, use as advisory opinions statements submitted as expert testimony. See Matter 
of Caron International, 19 I&N Dec. 791, 795 (Comm'r. 1988). However, USCIS is ultimately 
responsible for making the final determination regarding an alien's eligibility for the benefit sought. 
Id. The submission of letters from experts supporting the petition is not presumptive evidence of 
eligibility; USCIS may, as the AAO has done above, evaluate the content of those letters as to whether 
they support the alien's eligibility. See id. at 795; see also Matter ofV-K-, 24 I&N Dec. 500, n.2 (BIA 
2008) (noting that expert opinion testimony does not purport to be evidence as to "fact"). USCIS may 
even give less weight to an opinion that is not corroborated, in accord with other information or is in 
any way questionable. Id. at 795; see also Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'1. Comm'r. 1972)). 
The letters considered above primarily contain bare assertions of recognition and vague claims of 
contributions without specifically providing specific examples of how those contributions have 
influenced the field. Merely repeating the language of the legal requirements does not satisfy the 
• • 
Page 13 
petitioner's burden of proof,s The petitioner also failed to submit corroborating evidence in existence 
prior to the preparation of the petition, which could have bolstered the weight of the reference letters. 
The basis for requesting a waiver of the alien employment certification is the claimed shortage of 
available U.S. workers with the beneficiary's laboratory skills and experience and the importance of the 
project on which the beneficiary is working. The AAO unequivocally rejected claims of unique skills as 
a basis for a waiver of the alien employment certification process in the national interest. NYSDOT, 22 
I&N Dec. at 221. The mere fact that the beneficiary may play an important role in the activity to be 
performed at the petitioning institution is insufficient to established eligibility for a waiver of the alien 
employment certification because qualified U.S. workers may be available to playa similar role. Id. at 
223. 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. 
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 alien employment 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. § 1361. The petitioner has not sustained that burden. Accordingly, the previous decision of the 
AAO will be affirmed, and the petition will be denied. 
ORDER: The AAO's decision of September 14, 2010 is affirmed. The petition is denied. 
5 Fedin Bros. Co., Ltd., 724 F. Supp. at 1108, affd, 905 F. 2d at 41; AvyrAssociates, Inc., 1997 WL 188942 at 
*5. Similarly, USeIS need not accept primarily conclusory assertions. 1756, Inc., 745 F. Supp. at 15.