dismissed EB-2 NIW Case: Genetics

U.S. Department of Homeland Security 
20 Mass. Avc.. N.W.. Km. A3042 
Washington. DC 20529 
U. S. Citizenship 
and Immigration 
FILE: Office: NEBRASKA SERVICE CENTER Date: 
JWJ 2 8 2005 
IN RE: Petitioner: 
Beneficiary: 
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. 
C&Robe.rt-P. W-iemann, Director 
Adm~n~strat~ve 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 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. $ 1 153(b)(2), as an alien of exceptional ability in the sciences. The petitioner seeks employment as a 
visiting research associate at the Indiana University School of Dentistry (IUSD). 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 the classification sought, 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 copies of previously submitted documents and a new statement. There is no 
evidence that counsel participated in the preparation or filing of the appeal. Absent affirmative evidence of 
withdrawal, however, counsel remains on record as the petitioner's attorney. 
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. 
The petitioner readily qualifies as a member of the professions holding an advanced degree. An additional 
finding of exceptional ability woutd be of no further benefit to the petitioner, and therefore we need not discuss 
that issue here. 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, 
I01 st Cong., I st Sess., 1 1 (1989). 
Supplementary information to regulations implementing the Immigration Act of 1990 (IMMACT), published at 
56 Fed. Reg. 60897,60900 (November 29, 19911, states: 
The Service [now 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. 
 utter of jvew York Smte ~q. of Trlmspor/ulion, 22 I&N Dec. 2 15 (Comm. 1 998), 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. 
Counsel describes the petitioner's work: 
[The petitioner] is a plant and mammalian geneticist of exceptional ability specializing in the 
discovery of new genes for improved understanding of the underlying mechanisms and 
causes of various plant and human diseases. , . . [The petitioner's] breakthrough discovery of 
a new cleft palate gene in mice is the first time in the world a scientist identified [a] 
previously unknown single gene responsible for cleft palate. . . . 
[The petitioner] is at the forefront of genetic studies leading to new diagnoses and affordable 
treatment strategies specific to prevention and elimination of craniofacial disorders. Her 
discoveries have provided effective information for identifying individuals who are at high 
risk. She is also the first scientist to discover effective selectable gene markers for a fungus 
which causes disastrous yield loss to citrus fruits. At USDA, [the petitioner] helped develop 
beneficial bacteria to control plant diseases caused by soil fungus. 
The petitioner submits several witness letters in support of the petition. 
-logist at the Agricultural Research Service, supervised the 
states: 
[The petitioner] worked in my laboratory as a microbiologist on a project directed at 
developing environmentally sound alternatives to the soil fumigant, methyl bromide. We are 
using non-pathogenic, plant-beneficial microorganisms to suppress plant pathogens for 
disease control. 
[The petitioner] played a highly important role on a variety of projects that are critical to my 
laboratories [sic] goal of developing beneficial bacteria to control soil fungi that cause plant 
diseases. [The petitioner's] substantial contributions to these projects allowed them to 
progress very rapidly. . . . [the petitioner] performed the experiments for antagonist screening 
in the lab and greenhouse, and helped discover promising biocontrol agents for suppression 
of wheat root rot and root rots of vegetables. She also participated in molecular studies 
concerning mechanisms by which antagonists suppress plant diseases. 
Her efforts have culminated in the identification of a gene that causes a birth defect involving 
the mouth called non-syndromic cleft palate. CleFt palate is a relatively common birth defect 
affecting approximately 1 out of 2,500 American babies. Prior to her work, the genetic 
causes for the form of cteft palate [the petitioner] is studying were not known. In fact, many 
scientists in this country and around the world have been working for years on similar 
projects to find these genes. . . . 
[The petitioner] was the first one in the world to discover the connection of this gene and 
. non-syndromic cleft palate, a significant breakthrough for science and for the America[n] 
people. [The petitioner] is continuing her work in discovering the expression of the gene in 
the mouse model system and how this gene works. 
irector of Ph.D. Dental Science and Student Research Programs at IUSD, 
regarding the cleft palate gene "was highly regarded by other scientists as a 
breakthrough in the field. . . . The successful identification of the susceptibility gene for cleft palate in mouse 
will stand out as a key piece to the puzzle of cleft disorders in human." 
senior staff scientist and director of the Neurophysiology Laboratory at St. Joseph Hospital and 
Phoenix, Arizona, states: "The discoveries by [the petitioner] of the cleft palate disorder gene 
and its expression in the model system are milestones in the field of cleft palate research. [The petitioner's] 
work has answered many critical questions that scientists have been asking for many years." 
The director issued a request for evidence, instructing the petitioner to submit additional evidence to meet the 
guide1 ines set forth in Mu,ter of nrew York ~~~l, Trwor~ution The director asked whether any 
other researchers had cited the petitioner's published work regarding cleft palate. which witnesses had 
described as "breakthrough" and "milestones." 
4 
In response, the petitioner submits new evidence and explanatory notes from counsel. Counsel acknowledges 
that the petitioner's cleft palate work had not yet been published, but counsel maintains that "the scientists 
who previously provided the letters of reference serve as an indicator of the notoriety [the petitioner] has 
received as a result of this accomplishment." 
The initial submission included five witness letters. One of the letters concerned the petitioner's work with 
plants. This leaves four letters about the petitioner's firfdings regardin cleft alate. Three of these four 
witnesses are on the faculty of IUSD. The remaining letter is from a a neurophysiologist whose 
"research concerns . . . brain function," which is an area of expertise 
causes of cleft palate. claims no particular expertise in the 
identify any particular connection between his own work and that 
the petitioner's work, with no indication of how he learned about this work. 
"research has . . . contributed greatly to the cleft palate research communities" does not cotnpel the conclusion 
tha-s a member of such a community. 
Page 5 
Thus, the initial letters, cited by counsel as "an indicator of the notoriety [the petitioner] has received," do not 
show that any geneticists or cleft palate specialists outside of IUSD have taken particular notice of the 
petitioner's work. New evidence continues this trend. In-house publications and press releases from Indiana 
University mention the petitioner's work, but the record offers no indication that other institutions have taken 
of events" at Indiana University focuses not on the work itself, but 
ceived two years of grant funding. A November 2003 "calendar of events" 
relates to fluorosis, a topic never mentioned in the petitioner's initial filing. 
The November 2003 document never mentions the petitioner, and therefore cannot possibly be interpreted as 
a sign of the significance of the petitioner's work (as opposed to the general importance bf the as a 
whole). 
A new letter is, likewise, from an lUSD faculty member. The aforementioned an assistant 
professor at the university's Oral Facial Genetics Division, states that the petitioner was selected from "a 
number of highly qualified a licants" because, unlike other applicants, she possesses expertise in more fields 
than the other applicants. epeats the assertion that the petitioner's discovery of a particular 
mouse gene is of "tremendous7' significance, but he offers no evidence that any cleft alate researcher outside 
of IUSD shares this assessment or is even aware of the petitioner's work. does not specify 
whether or not the university has any intention of retaining the petitioner's services afier the conclusion of her 
temporary appointment as a visiting research associate or the end of the two-year grant period. The assertion 
that holding the petitioner to the labor certification requirement would delay or halt progress in cleft palate 
research, and eliminate U.S. jobs, is speculative and conjectural. 
The director asked whether the petitioner's work has affected laboratories outside of Indiana University. In 
response, counsel identifies individuals outside of Indiana University who are collaborating with the 
petitioner. Such collaborations beg the question of the degree of influence that the petitioner has had on non- 
collaborators. 
With regard to citation of the petitioner's past published work, the petitioner submits documentation showing 
that four articles cited one of the petitioner's plant biology articles from the journal crop Pra~ec*ion. One of 
the four citing articles is "The effect of amplitude-dependent damping on wind-induced vibrations of a super 
tall building," which appeared in the Journal of Wind Engineering and Industrial Aerodynamics. The relation 
of molecular plant genetics to the wind dynamics of a skyscraper is not readily apparent, and it appears 
(absent a copy of the citing article itself) that this reference reflects an error in the citation database. 
The petitioner has submitted information from the Chinese Science Citation Database. The information 
shows eleven citations of the petitioner's work, one of which is a self-citation. In all, five 
articles have been cited. Three of those articles were cited only once, all in the same place 
"The proceedings in biotechnology research on citrus in China," p,,,~,, Science, v. 16, n 
most-frequently cited article has four independent citations (including th&ame po,,/,m Science article) and 
the petitioner's self-citation. This does not appear to be a remarkable citation rate, and it pertains to the 
petitioner's apparently abandoned work in agricultural science. 
The director denied the petition, noting that the record contains minimal evidence of reaction to the 
petitioner's current work outside of IUSD, work which "even today . . . has yet to be formally disseminated 
beyond the petitioner's campus." The director concluded that, if the witnesses are correct with regard to the 
importance of the petitioner's work, then independent evidence to confirm this will soon be available in 
abundance and can then form the basis of a new petition. 
"I have been an established scientist [who] specialized in plant science 
an internationally prominent scientist in the field, cited my four papers as 
article 'The Research on Citrus in 
China."' The record already documented these citations b submits nothing new 
to show thcited the etitioner's work as in denying the 
petition, speculated that drticle may simply list articles that deal with the topic at hand; the 
petitioner, on appeal, submits nothing to contradict that assessment. Because the petitioner has not submitted 
the article itself, any comment about its content is unsubstantiated. 
More to the point, there is no indication that the beneficiary has resumed, or intends to resume, her past 
research in plant science. Therefore, the beneficiary's prior work in that area (which constitutes most of her 
professional history) carries substantially diminished weight. 
Regarding her current biomedical work the petitioner repeats prior claims regarding the significance of her 
discovery of the mouse gene, and broad range of qualifications for the position she now holds. There is still 
no independent corroboration from within the specialty of cleft palate research: the petitioner indicates that 
she is working on two manuscripts "that will soon be submitted for publication," which is essentially what 
was claimed several months earlier in response to the request for evidence. This is consistent with the 
director's finding that it is too early to judge the impact of the petitioner's work regarding the genetic basis of 
cleft palate. The same can be said of the petitioner's even more recent work involving dental fluorosis, which 
may not even have commenced until after the petition's filing date (judging from its absence from the original 
finding). 
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. tj 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.