dismissed EB-2 NIW Case: Immunology

identifying data deleted to 
prevent clearly unw~nted 
invasion of personal pnvacy 
PUBLlCCOPY 
DATE: Office: NEBRASKA SERVICE CENTER 
APR 21 2011 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Securit~: 
U.S. Citizenship and Immigration Service:. 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
SRC 09 017 50780 
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. § 1 I 53(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. Plcase be advised 
that any funher 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.F.R. § 103.5. 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.F.R. § 100.S(a)(l)(i) requires that any motion must be 
filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
))JJ&.dn~ 
(l Perry Rhew 
r Chief, Administrative Appeals Office 
l\'Ww.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 (AAO) 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. * I I 53(b)(2}, as 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 celtification, is in the national interest of 
the United States. The director found that the petitioner 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 asserts that the director failed to consider the nature of the citations of the 
petitioner's atticle and the reference letters. We will consider this evidence below. For the reasons 
discussed in this decision, we uphold the director's ultimate determination that the petitioner has not 
established her eligibility for the benefit sought. Beyond the decision of the director, wc further find 
that the petitioner has not submitted sufficient evidence of her advanced degree. 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by the AAO even if the Service Center does not identify all of the grounds for denial in the 
initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. 
Cal. 2001), off'd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DO}, 381 F.3d 143, 145 (3d Cir. 
2004) (noting that the AAO conducts appellate review on a de novo basis). 
Section 203(b} of the Act states in pertinent part that: 
(2) Alicns who are members of the professions holding advanced degrees or aliens of 
exceptional ability. --
(A) In gencral. -- 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 
bencfit 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. 
Page 3 
An advanced degree is a United States academic or professional degree or a foreign equivalent 
degree above the baccalaureate level. 8 C.F.R. § 204.5(k)(2). The regulation further states: "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. If a 
doctoral degree is customarily required by the specialty, the alien must have a United States 
doctorate or a foreign equivalent degree." /d. 
The regulation at 8 C.F.R. § 204.5(3)(i) states that evidence of an advanced degree consists of an 
"official academic record showing that the alien has a United States advanced degree or a foreign 
equivalent degree" or an official academic record for a U.S. baccalaureate or foreign equivalent 
degree plus five years of post-baccalaureate experience. 
The petitioner claims to hold a medical degree from "China Medical" and a Master of Science degree 
in infection immunology from Peking Union Medical College on the Form ETA 750B. The petitioner 
did not submit her medical degree. She submitted an entirely English-language "PostGraduate 
Certificate for Master Degree" in internal medicine purportedly from Peking Union Medical College in 
China. The petitioner did not submit a transcript or a copy of the official Chinese language document. 
The English-language certificate, while bearing some type of seal, does not appear to be an official 
academic record. The petitioner also failed to submit an evaluation explaining the U.S. equivalence of 
this postgraduate certificate. As the petitioner has not submitted sufficient evidence of her education, 
we withdraw the director's finding that the petitioner has established that she is a member of the 
professions holding 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 pel1inent 
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, 101 st Cong., 1st Sess., 11 (1989). 
A supplementary notice regarding the regulations implementing the Immigration Act of 1990 
(lMMACT), 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. 
Malter o(New York State Dep't. (~lTransp., 22 I&N Dec. 215, 217-18 (Comm'r. 1998) (hereinafter 
"NYSDOT'), has set forth several factors that U.S. Citizenship and Immigration Services (USClS) 
must consider whcn evaluating a request for a national interest waiver. First, the petitioner must show 
that the alien seeks employment in an area of substantial intrinsic merit. Id. at 217. Next, the petitioner 
must show that the proposed benefit will be national in scope. Id. 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. Id. at 217-18. 
It must be noted that, while the national interest waiver hinges on prospective national benefit, the 
petitioner must establish that the alien's past record justifies projections of future benefit to the national 
interest. 1£1. 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. We include the term 
"prospective" 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. Id. 
We concur with the director that the petitioner works in an area of intrinsic merit, immunology, and 
that the proposed benefits of her work, improved treatment of transplant patients, cancer patients and 
those with autoimmune diseases, 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. 
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. 
NYS{)OT, 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. ld. at 221. 
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 she 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. 1£1. 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. 
At the time of filing, the petitioner was working in the laboratory 
Columbia University Medical Center. The petitioner submitted three reetuests 
review manuscripts for Human ImmunoloRY, of which 
ignore that scientific journals are peer reviewed and rely on many scientists 
to 
We cannot 
to review submitted 
Page 5 
articles. Requests to participate in the widespread peer review process, especially from the petitioner's 
own supervisor, are not evidence of the petitioner's influence in the field. 
The petitioner submitted two published foreign language articles, one published article in Immunity and 
a pending article that was in press for Human Immunology. While the three published articles 
demonstrate that the petitioner had disseminated her work, at issue is the ultimate influence of this 
work in the field once disseminated. 
The petitioner submitted evidence that other researchers have cited the m1icle in ilnmllllitr. 
Specifically, the petitioner originally submitted three articles that cite the article in Immunity, two of 
which are review articles. As noted by counsel, one of the reviews designated the petitioner's article as 
being "of special interest." The article also designated some articles as having "outstanding interest." 
In response to the director's request for additional evidence, the petitioner submitted evidence that her 
article in Immunity had actually garnered eight citations, all of which predate the filing of the petition 
and, thus, may be considered. See 8 C.F.R. §§ 103.2(b)(1), (12); Matter ()f"Katifibak, 14 I&N Dec. 45. 
49 (Reg'!. Comm'r. 1971). One of the citations is a self-citation by one of the petitioner's coauthors. 
which, while normal in the field, does not demonstrate the petitioner's influence beyond her coworkers. 
The petitioner has not documented a consistent record of publication and citation indicative of "'specific 
prior achievements" that can establish the petitioner's ability to benefit the national interest. Sec 
NYSDOT, 22 I&N Dec. at 219, n.6 (using the plural "achievements"). 
Moreover, we cannot ignore the fact that the petitioner was one of several authors for the article in 
Immunity. We acknowledge that collaboration is routine in the sciences and the existence of coauthors 
does not, by itself, diminish the individual contributions of each coauthor. That said, in this case, it is 
clear that the authors are listed or order of their contributions to the research. Specifically. footnote 
four indicates that the first three authors contributed equally to the article. The petitioner is listed as the 
seventh of nine authors, the ninth author being the senior author to whom correspondence should be 
addressed. This information does not preclude a finding that the petitioner made a significant 
contribution to this project. Nevertheless, given the number of authors and information in footnote 
four, it is incumbent upon the petitioner to document her role on this particular project. The petitioner 
failed to submit letters from any of her coauthors of the article in Immltnity that might rcsol ve the nature 
of her role on this research. 
The remaining evidence consists of letters. The petitioner submitted two letters from 
In her first letter asserts that the petitioner has "very good training" and "a very strong 
research background in three areas: organ transplantation, autoimmune diseases and 
cancer." More specifically, that the petitioner "has unique techniques in 
cloning suppressive T cells," a "challenging and technically difficult procedure." 
affirms that "there are only a few scientists" in the United States who can perform these procedures. 
Simple exposure to advanced technology constitutes, essentially, occupational training which can be 
articulated on an application for an alien employment certification. NYSDOT. 22 I&N Dec. at 221. 
Page 6 
Special or unusual knowledge or training, while perhaps attractive to the prospective U.S. employer. 
does not inherently meet the national interest threshold. Id. As stated above, 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. 
lains the petitioner's work with the inhibitory receptor immunoglobulin-like 
trans~The only mention of ILT3 in the petitioner's articles is in the at1icle coauthored 
with __ that, as of the date of filing, was unpublished. Thus, the petitioner had yet to 
disseminate this work. As such, the petitioner cannot demonstrate the influence of this work. 
In her second letter, . that the petitioner's "finding that Cbl and Cbl-b genes play 
an important role in autoimmunity has received considerable international attention." USCIS need not 
accept primarily conclusory assertions. I While this article, published in Immunity. had garnered 
some citations as of the date of filing, we reiterate that the record lacks letters from the coauthors 
explaining the nature of the petitioner's contribution to this work. Moreover, a single article docs 
not constitute the type of specific prior achievements that could demonstrate the petitioner's ahility 
to benefit the national interest. 
a professor at the Columbia University Medical Center and a coauthor of the 
petitioner's pending article, provides similar information to that contained in letter. 
Specifically, he notes the petitioner's expertise in cloning suppressor T cells. We reiterate that 
special or unusual knowledge or training, while perhaps attractive to the U.S. employer, 
does not inherently meet the national interest threshold. Id. also notes the petitioner's 
discovery "that Casitas B cell lymphoma (cbl) proteins in establishing the MHC-
dependent CD 4 and CD8 T cell development programs and playa role in autoimmunity." We 
acknowledge that this work garnered a small number of citations, but reiterate that it is a single aJ1icle 
and that no one with first hand knowledge of the petitioner'S role on this project has explained her role 
on this project. Finally asserts that the petitioner "demonstrated the potential usefulness 
of soluhle immunoglobulin-like tratlscript 3 (sILT3) for immunosuppressive treatment of patients with 
autoimmune diseases like multiple sclerosis." As discussed above, the petitioner had not yet 
disseminated this research in the field as of the date of filing. As such, we cannot gauge the inlluence 
of this work in the field. 
Associate Director of the Cellular Immunology Laboratory at Columhia 
University. asserts that the petitioner belongs to the "elite group" of researchers "who are of the caliber 
of principal I lead researchers and who are capable of making remarkable individual 
contributions." does not explain this conclusion in the absence of evidence that the 
has a grant as a principal investigator or worked as a lead researcher on any 
notes the petitioner's skill in cloning suppressor cells. We reiterate once again 
sn<'r1:l1 or unusual knowledge or training does not inherently meet the national interest threshold. 
I /756. Inc. v. 71,e Attorney General of the United States, 745 F. Supp. 9,15 (D.C. Dis!. 1990). 
Page 7 
Id. __ then notes the significant results of the petitioner's article in Immunity. As discussed 
above, this single article by itself cannot establish that the petitioner has the necessary record of specific 
prior achievements. Finally, while __ notes that the petitioner's work on ILT3 has resulted in 
a collaboration with physicians at the Columbia University Medical Center, this work had not been 
published as of the date of filing and had yet to influence the field beyond Columbia University. 
The petitioner also submitted letters from individuals who affirm their independence of the petitioner. 
All but one of these letters are from individuals in New York City. The did not submit the 
cuniculum vitae of these individuals establishing their past affiliations. 
the New York Blood Center, asserts loner 
has orally presented her work at conferences. The record contains no evidence to support 
this assertion. 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'~ng Matter of Treasure Craf't of Calif()mia, 14 I&N Dec. 190 (Reg'!. Comm'r. 
1972». _ discusses the implications of the studies on which the pctitioner has worked. 
While the petitioner's research is no doubt of value, it can be argued that any research must he 
shown to some benefit if it is to receive funding and attention from the scientific community. 
letter does not demonstrate that the petitioner has a past record of producing work that 
the field. Rather, any determination as to the petitioner's ability to benefit the national 
interest to a greater degree than an available U.S. worker with the same minimum qualifications 
would he premature. 
a senior research scientist at the 
assel1s petitioner's cloning technique "estahlished tal foundati~hich other scientists 
can precisely identify gene profiles and markers of suppressive T cells.'_does not claim to be 
applying the petitioner's cloning technique or identify any independent resemcher who is doing so. 
an assistant professor of medicine at Harvard Medical School, discusses the importance 
of cloning T cells and attests to the petitioner'S skill in this area. Even if the petitioner's cloning skills 
are unique, the issue of whether similarly-trained workers are available in the United States is an 
issue under the jurisdiction of the Department of Labor. NYSDOT,22 I&N Dec_ at 221. 
an associate professor at the 
discusses the importance of the petitioner's 
"results may have crucial clinical implications not only for achieving tolerance in organ 
transplantation, but also for generating efficient immunogenic vaccines for immunotherapy in cancer 
and chronic viral diseases." _does not, however, explain how the petitioner is already 
influencing the field. 
The Board of Immigration Appeals (the Board) has held that testimony should not be disregarded 
simply because it is "self-serving." See, e.g., Malter of S-A-, 22 I&N Dec. 1328. 1332 (BIA 20(0) 
(citing cases). Thc Board also held, however: "We not only encourage, but require the introduction 
Page 8 
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 
or 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 we have done above, evaluate the content of those letters as to whether 
they support the alien's eligibility. See id. at 795; see also Matter or V-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 or So[rici, 22 I&N Dec. at 165 
(citing Matter of Treasure Craji of California, 14 I&N Dec. at 190). 
The letters considered above primarily contain bare assertions of unique skills without providing 
specific examples of how those innovations have influenced the field, such as examples of 
independent laboratories applying. the ~etitioner's clonin~ methods .. Merely repeating the legal 
standards does not satIsfy the petItIoner s burden of proof.- The petItIoner submitted only a smglc 
letter from outside New York City and this letter does not suggest the author has applied the 
beneficiary's work. The petitioner also failed to submit sufficient corroborating evidence in 
existence prior to tbe preparation of the petition, which could have bolstered the weight of the 
reference letters. 
Ultimately, as of the date of filing, the petitioner had authored a single article that had garnered a small 
number of citations. The record does not establish the nature of the petitioner's role in this research. 
Regardless, a single article with a small number of citations does not demonstrate the petitioner's past 
record with some degree of influence in the field. The petitioner's skill in cloning suppressor T cells 
would appear to be a valid requirement for an employer to set forth on an application for an alien 
employment certification. NYSDOT, 22 I&N Dec. at 220-21. Unique skills do not wan'ant a waiver of 
that process in the national interest. 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 
, Fcdin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2ct. Cir. 1990); 
A I'vr Associates, Inc. v. Meissner, 1997 WL 188942 at *S (S.D.N.Y.). Similarly, USCIS nccd not accept 
primarily conclusory assertions. 1756, Inc. v. The Allorney General of the United States, 745 F. Supp. 9. 15 
(D.C Dis!. 1990). 
Page 9 
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, 
S U.s.c. ~ 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.