dismissed EB-2 NIW Case: Hiv Research

u.s.Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
PUBUCCoP'l
LIN 06 003 50298
Date: JJN 13 2007
INRE:
PETITION:
Petitioner:
Beneficiary:
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. § 1153(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.
/{!(lllY(lOW0C/c
L: Robert P. Wiemann, Chief
'1t· Administrative Appeals Office
www.uscis.gov
Page 2
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa
petition, which 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. § 1153(b)(2), as an alien of exceptional ability or a member of the professions
holding an advanced degree. The petitioner seeks employment as a research scientist. 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 petitioner
qualifies for the classification sought, 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 submits a brief and additional evidence. For the reasons discussed below, we
uphold the director's ultimate decision denying the petition.
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 requirement 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 regulation at 8 C.F.R. § 204.5(k)(2) provides that a United States baccalaureate degree or a
foreign equivalent degree followed by at least five years of progressive experience in the specialty
shall be considered the equivalent of a master's degree. The petitioner holds a Bachelor of Veterinary
Medicine from Yunnan Agricultural University. The petitioner submitted an evaluation from Eurasia
Diploma Evaluators equating this degree to a baccalaureate degree awarded by an accredited college in
the United States. The petitioner has documented more than five years of progressive experience in the
field. The petitioner's occupation falls within the pertinent regulatory definition of a profession. The
petitioner thus qualifies as a member of the professions holding the equivalent of an advanced degree.
- .:.-
The remaining issue 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 "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, 101st Cong., 1st Sess., 11 (1989).
Supplementary information to the regulations implementing the Immigration Act of 1990 (IMMACT),
published at 56 Fed. Reg. 60897, 60900 (November 29, 1991), states:
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. ofTransp., 22 I&N Dec. 215 (Comm. 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 concur with the director that the petitioner works in an area of intrinsic merit, HIV research, and
that the proposed benefits of his work, prevention and treatment of HIV, would be national in scope.
It remains, then, to determine whether the petitioner will benefit the national interest to a greater
extent than an available U.S. worker with the same minimum qualifications.
Several references stress HIV's toll on the world and the importance of preventing and treating this
disease. 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
Page4
important that any alien qualified to work on this project must also qualify for a national interest
waiver. Matter ofNew York State Dep 't ofTransp., 22 I&N Dec. at 218.
In addition, several references stress the petitioner's experience and laboratory skills. It cannot
suffice, however, 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. Id. at 221. Moreover, with regard to experience, the regulations indicate
that ten years of progressive experience is one possible criterion that may be used to establish
exceptional ability. Because exceptional ability, by itself, does not justify a waiverof the job offer/alien
employment certification requirement, arguments hinging on the degree of experience required, while
relevant, are not dispositive to the matter at hand. Id. at 222.
At issue is whether this petitioner'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 he seeks. By seeking an extra benefit, the petitioner assumes an extra burden of proof.
A petitioner must demonstrate a 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. Id. at 221, n. 7.
In China, the petitioner worked as a clinical veterinarian and then served as Chief Veterinarian and
Administrator at the Kunming Institute of Zoology. Director of the Primate
Cognition Neural Science Laboratory at the Kunming Institute of Zoology, asserts that the etitioner
set up a standardized team for animal research and was a skilled vet neurosurgeon.
lists several research articles on animal nutrition, diseases and breeding, some of which received
provincial or national awards. The vast majority of this work, however, appears unrelated to the
prevention and treatment of HIV/AIDS. Rather, the petitioner authored a single article on SAIDS
diagnosis in the macaque monkey while in China. While the petitioner submitted lists of articles that
purportedly cite his Chinese articles and book chapters, the petitioner never claims that his article on
diagnosing SAIDS has been cited. While the petitioner may have acquired technical skills that are
relevant to his current work before coming to the United States, it does not appear that his work in
China represents a track record of success preventing and treating HIV/AIDS. This conclusion is
reinforced by the petitioner's supervisor at the University of Washington, who asserts that the
petitioner spent 1998 through 2001 "working and training in laboratory techniques and assays for in
vitro efficacy and cytotoxicity of potential anti-HIV compounds." Thus, this decision will focus on
the petitioner's work in the United States.
~ber 1998 through March 2001, the petitioner worked in the laboratory Of_
~t the Washington National Primate Research Center (WaNPRC) at the University of
Washington. The petitioner then joined Pharmacor, Inc., co-founded by The
petitioner then rejoined the laboratory of _inMay 2004. The petitioner has submitted two
~ett~ ~om _ and three from., none of which appear on the official letterhead of any
mstitution.
Citizenship and Immigration Services (CIS) may, in its discretion, use as advisory opinions
statements submitted as expert testimony. See Matter ofCaron International, 19 I&N Dec. 791, 795
(Comm. 1988). However, CIS 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; CIS may evaluate the content of those letters as to
whether they support the alien's eligibility. See id. at 795-796. CIS 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. 1998) (citing Matter of Treasure
Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972)).
In evaluating the reference letters, we note that letters containing mere assertions of industry interest
and positive response in the field are less persuasive than letters that provide specific examples of
how the petitioner has influenced the field. In addition, letters from independent references who
were previously aware of the petitioner through his reputation and who have applied his work are far
more persuasive than letters from independent references who were not previously aware of the
petitioner and are merely responding to a solicitation to review the petitioner's curriculum vitae and
work and provide an opinion based solely on this review.
explains that as a virologist at the Armand-Frapier Institute (AFI), she and_
investigated small molecules as potential drugs for HIV/AIDS. Their "chemist stude~
several hundred compounds that they then tested. _ then co-founded Pharmacor to identify
promising compounds for clinical development as potential HIV IAIDS drugs. The petitioner "took
control of the compounds' evaluation process on HIV in cell cultures" and produced reproducible
results. The petitioner "evaluated several hundred new compounds against HIV in cell culture, some
of which proved highly potent." Most significantly, the petitioner characterized P-1946 and
compared the features of PL-l 00 with those of current drugs. His work with PL-l 00 included testing
PL-IOOagainst resistant strains ofHIV. The petitioner presented this work at conferences.
On appeal, _ reiterates that the petitioner evaluated the anti-HIV activity of hundreds of
compounds SYnthesizedby the company's chemists. _speculates that the usefulness of P­
1946 "would probably have been missed without the expert work of [the petitioner]." _
notes that the petitioner's characterization of P-1946 was presented at a conference in 2003 and has
now been published. As the publication occurred after the date of filing, we cannot consider its
impact as evidence of the petitioner's eligibility as of that date. See 8 C.F.R. § 103.2(b)(12); Matter
ofKatigbak, 14 I&N Dec. 45, 49 (Reg. Comm. 1971). ~rther asserts that PL-I00 is now
in clinical phase I trials. The petitioner submitted what~e Internet news reports about P­
1946. The reports, however, are not simply downloaded from the Internet but incorporated into a
single document that has been altered to include a heading referencing the petitioner and a number
-.~ ..
for each article. The petitioner also submitted portions of the alleged patent applications for P-1946
and PL-100. The portions submitted do not identify the petitioner as one of the inventors.
Upon his return to _ laboratory, the petitioner investigated in vitro and animal models of
topical microbicide~itioner "validated" a new evaluation system for screening compounds
in vitro and performed a search of the literature to discover several new potent inhibitors of HIV-1.
According to Director of the University of South Alabama Cancer Research
Institute and a collaborator with _ the petitioner confirmed that cyanovirin-N (CV-N),
invented by _ can be used as a topical microbicide in a macaque model for preventing HIV
transmission.
On appeal, Rserts that the petitioner is humble and "always asked to put his name toward
the end." ctive, however, to review the petitioner's role as described in materials not
prepared for this petition. In the Technical Proposal for the petitioner's research under ..
submitted in response to the director's request for additional evidence, the petitioner's
responsibilities are listed as "ensuring consistency in drug administrations and virus inoculations and
conducting thorough clinical evaluations to detect and monitor drug (and virus infection) side
effects." These responsibilities are consistent with the petitioner's training as a veterinarian. While
the petitioner is clearly involved in important research and his references credit him with
contributing to the success of this research, it appears that his responsibilities are limited to
inoculating and monitoring the health of the research subjects. The references do not satisfactorily
explain why the skills required to inoculate and monitor primate research subjects, skills that we do
not deny are important, cannot be easily articulated on an application for alien employment
certification.
Moreover, while the petitioner submitted evidence on appeal documenting that his article on CV-N
has been cited, it does not appear that his research team was the first team to report on the
microbicide effects of CV-N. The petitioner submitted several Internet news reports on CV-N,
including one that notes the petitioner's results. Nevertheless, many of the news reports, including
those that report on CV-N as a potent microbicide, predate the petitioner's 2003 article on this
subject. For example, a Reuters Health Information article entitled "Cynanovirin-N Shows Potential
to Block HIV Transmission," published in May 2000, reports that a research team led by
_concluded that CV-N "could be used to prevent HIV during sex." In 2002, Biosyn, Inc.
received a $10 million grant for the development of CV-N as a microbicide. The November 2002
article reporting this grant indicates that studies had already demonstrated CV- N' s potential use as a
microbicide and noted positive outcomes of this research including "a primate model in which CV-N
was shown to prevent vaginal and rectal transmission of simian-human immunodeficiency virus
(SHIV), an HIV-like virus that infec~s." While the petitioner's participation in this area of
research is noted, it remains that _invented CV-N, it was described as a microbicide
candidate at least three years prior to the petitioner's article and it had been shown to be effective as
a microbicide several months before the petitioner's article was published.
Page?
In response to the director's request for additional evidence, the petitioner submitted what is
purported to be a letter from an independent expert. While , an assistant professor at
McGill University, may not have worked directly with the petitioner, he received his Ph.D. from the
University of Washington in 2003. This letter does not establish that the petitioner is known beyond
the institutions where he has been employed.
On the job training is not comparable to innovation of a new method. Matter of New York State
Dep 't of Transp., 22 I&N Dec. at 221, n. 7. Specifically, in that case the AAO found insufficient the
training the alien had had with the "world famous Freyssinet System of Post-tensioning" and his
involvement with "innovative projects such as segmental arch structures patented by the French
company 'Matiere. '" Similarly, confirmation of HIV treatments developed by others may
demonstrate the petitioner's training and technical skills, but is not comparable to the innovation of
the treatment itself. While the petitioner has demonstrated his involvement with important projects,
he has not demonstrated that he is responsible for the innovative aspects of these projects. Rather, by
inoculating and monitoring the health of animals through his training as a primate veterinarian, he
has confirmed the medical efficacy of compounds developed by others.
We do not question the need for someone with the petitioner's training on these important primate
studies. The petitioner's skills, however, would appear amenable to enumeration on an application
for alien employment certification. 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. at 223.
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.
This denial is without prejudice to the filing of a new petition by a United States employer
accompanied by an alien employment certification certified by the Department of Labor, appropriate
supporting evidence and fee.
ORDER: The appeal is dismissed.