dismissed EB-2 NIW Case: Immunology And Cancer Research

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PUBLIC COpy
u.s.Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
FILE: LIN 06 117 53879 Office: NEBRASKA SERVICE CENTER Date: JUL 2 3 2001
INRE: 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. § 1153(b)(2)
ON BEHALF OF PETITIONER:
SELF-REPRESENTED
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.
r-. ~/t(a{li/{{)li(dt-'7 tk__
~ Robert P. Wiemann, Chief
. :1./ Administrative Appeals Office
www.uscis.gov
LIN 06 117 53879
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 was employed as a postdoctoral fellow as of the date of
filing. 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, the petitioner submits a statement. For the reasons discussed below, while the petitioner is a
prolific author whose scientific articles are beginning to gain limited recognition, we uphold the
director's conclusion that the petitioner has not demonstrated her influence in the field such that a
waiver of the alien employment certification is warranted in the national interest.
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 petitioner holds a Ph.D. in Medicine from Xi'an Jiaotong University. The petitioner's occupation
falls within the pertinent regulatory definition of a profession. The petitioner thus qualifies as 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.
LIN 06 11753879
Page 3
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 ofNew York State Dep't. of Transp., 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 onprospective 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, immunology and
cancer research, and that the proposed benefits of her work, improved tumor vaccines, 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.
Matter ofNew York State Dep 't of Transp., 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-
LIN 06 117 53879
Page 4
trained workers are available in the United States is an issue under the jurisdiction of the Department
of Labor. Id. 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. 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.
As stated above, the petitioner received her Ph.D. from Xi'an Jiaotong University in 2001 under the
direction of Professor She then accepted a postdoctoral fellowship with the Medical
College of Wisconsin where she remained as of the date .cal College of
Wisconsin, she collaborated with and The director
questioned the significance of the petitioner's postdoctoral wor e IS not a program director or
principal investigator. We note that both and have attested to the
petitioner's role in research at the Medical College of Wisconsin. Their assertions are consistent
with the petitioner's listing as first author on her most recent articles and the fact that she is the only
postdoctoral or student researcher listed on the grant. The only other members of the team are Dr.
and technicians. Thus, we are persuaded that the petitioner can share the credit
for the results of this team.
The petitioner has submitted evidence of her active membership in the American Association for
Cancer Research (AACR), her membership in the American Association for the Advancement of
Science (AAAS) and her trainee membership in the American Association of Immunologists (AAI).
While some of the petitioner's references ascribe significance to these memberships, the letters from
the associations themselves do not suggest that the categories of membership the petitioner has
attained are particularly exclusive. We acknowledge that AACR requires two years of research
resulting in peer-reviewed publications related to cancer and nomination by two members; however,
we are not persuaded that the average cancer researcher would be unable to meet these requirements.
Regardless, professional memberships fall under one of the regulatory criteria for aliens of
exceptional ability, a classification that normally requires an alien employment certification certified
by the Department of Labor. We cannot conclude that meeting one criterion, or even the requisite
three criteria, warrants a waiver of that requirement in the national interest. See Matter ofNew York
State Dep 't ofTransp., 22 I&N Dec. at 222.
The petitioner relies primarily on her publications and reference letters. The letters are from her
colleagues and professionals who have not directly worked with her, although ~ore
independent professionals are former coauthors or colleagues of or_We
note that the letter purportedly from of the University of Nevada is unsigned
and, thus, has no evidentiary value.
LIN 06 117 53879
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Citizenship and Immigration Services (CIS) may, in its discretion, use as advisory opimons
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 her reputation and who have applied her 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.
Professor II asserts that while working towards her Ph.D., the petitioner "identified that IgV
fragment of B7.2, which is [a] costimulatory molecule for T cell activation, can elicit the similar T
cell activation function to the whole B7.2 molecule." Professor .~sserts generally that this work
provided insight into the role of costimulatory molecules in provoking an immune response but does
not provide examples of this work being applied in the field. In addition, Professor'" asserts that the
petitioner authored a book on tumor genes that is an important guide for students and scientists. The
record, however, contains no evidence regarding how well this book sold or that it is assigned
reading in courses at major Chinese universities.
The record does contain evidence that the petitioner was a prolific author while in China and that she
received academic and provincial awards. The petitioner, however, has not demonstrated that her
Chinese articles have been widely cited, she submitted a single independent citation of her article on
B7.2, and the record contains no letters from independent researchers in China who have been
influenced by her. We note that formal government recognition is one of the regulatory criteria for
aliens of exceptional ability, a classification that normally requires an alien employment certification
certified by the Department of Labor. As stated above, we cannot conclude that meeting one
criterion, or even the requisite three criteria, for that classification warrants a waiver of the alien
employment certification in the national interest. See Matter ofNew York State Dep 'to ofTransp., 22
I&N Dec. at 222.
••••• asserts that the petitioner has the necessary skills to contribute to his laboratory. Simple
training in advanced technology or unusual knowledge, while perhaps attractive to the prospective
u.S. employer, does not inherently meet the national interest threshold. Id. at 221. He further
LIN 06 117 53879
Page 6
... .
asserts that
modifying
responses.
Specificall
her work has focused on creating novel cell-based cancer vaccines by genetically
o that they express particular molecules important for generating immune
concludes that the petitioner's work validates the potential of this approach.
states:
During these studies, [the petitioner] found that the cancer vaccines induced a unique
population of CDS+T lymphocytes that co-expressed the cell surface marker DXS
(also known as CD49b or VLA-2). This CDS+DXS+cell population appears to playa
crucial role in the anti-tumor effects against neuroblastoma both in vitro and in vivo.
These interesting findings are leading to the development of a new project that will
further investigate the role of DXS in cancer immunity.
, an associate professor at the John Hopkins School of Medicine who was also at
that institution during time as a postdoctoral fellow there, asserts that this work'
generated a "potential" vaccme against neuroblastoma, a childhood cancer. He explains that the
petitioner was able to clone and efficiently transduce costimulatory molecules such as B7 and 4­
1BBL into neuroblastoma cells, crucial for activating an adaptive immune system.
continues:
[The petitioner] is the first investigator to link 4-1BBL expression to a unique T cell
subpopulation, which express both CDS and DXS (VLA-2) markers. Having been
identified by [the petitioner], this population was found to be responsible for the
significant protective effect of this new vaccine. This breakthrough by [the petitioner]
demonstrates clearly her cutting-edge research abilities and that she is a major
contributor to the field of cancer immunology.
Similarly_, an associate professor at BaY.lrColle e of Medicine whose postdoctoral
. training at Johns Hopkins overlapped with that of al~etitioner
generated new vaccines that have prevented tumor grow In anImals. _ Chief of
the Laboratory of Cancer Immunobiology at the Oregon Health and Science University, asserts that
he learned of the petitioner's work through her presentation at a conference. He asserts that the
petitioner's vaccine is superior to other reported vaccines because "her vaccine was engineered to
express two immune co-stimulatory molecules on the cancer cells that had not been previously tested
by other researchers in this model."
The petitioner's 2003 article in Cellular Immunology and her 2004 article in Immunology both
involved in vivo studies of potential vaccines. The record contains no evidence, however, that the
petitioner is listed as an inventor on a patent application for a vaccine. Moreover, it can be expected
that the development of a workable cancer vaccine would generate considerable media coverage.
The record contains no media coverage and minimal citation of the petitioner's work. As of the date
of filing, two independent research teams had cited the petitioner's 2003 article on the dual
expression of CDSO and CDS6. The article by researchers at the Universite Paul Sabatier in
LIN 06 117 53879
Page?
Toulouse merely cites the petitioner's work as one of three articles for the proposition that the
induction of costimulatory molecule expression on tumor cells promotes antitumor immunity and the
antigenicity of the melanoma cells varies with the level of their expression. The other independent
citation is in Chinese.
, a professor at the Wisar Institute, has no clear connection to the petitioner but
fails to explain how he learned of the petitioner's work. asserts that the petitioner's
research with CD8+DXS+cell pop ." the way for groundbreaking research in cancer and
immunology scientific area [sic]." does not identi the research or the research team
for which the petitioner has "paved the wa ." I an assistant professor at the
University of Texas and a coauthor 0 states only that the petitioner's studies "hold
great promise" and "pave the way" for future groundbreaking research.
• - • I -
While the petitioner acknowledges that she has yet to be widely and frequently cited, she asserts that
her influence in the field is apparent from e-mail correspondence and letters from researchers who
. her work. The record contains e-mail correspondence between the petitioner and
a student at Harvard, regarding his attempt to use her cell line. The most recent
message om indicates that he had been unable to successfully utiliz~'s
cell line. The record also contains e-mail ~orr.etwee_d _,a
professor at Harvard, and then Ph.D. student ~ in Denmark re~uesting K562 cells. The
. . also submitted letters from both and now
, who received his M.D. and Ph.D. from Johns Hopkins the year after_ received
his Ph.D. at the same institution, asserts that he learned of the petitioner's work through her article,
coauthored with_, in Immunology. _ asserts that the petitioner's results "hold
great promise" and affirms that he has ''utilized~ work product of [the petitioner's] work in
my own area of research." _ does not, however, explain how his work has been aided by the
petitioner's work and the record contains no evidence that he has cited any of her articles.
asserts that the petitio_a useful scientific tool for expanding immune cells,
which was reported in Immunology continues:
She kindly provided both the actual cells for use in my laboratory as well as
additional detailed information on how to use the cells. The stimulator celllines were
used in my personal research focussed [sic] on how the immune system might be
directed against tumor cells. In this line of research, the cells provided by [the
petitioner] proved to be a very potent tool, by which I could circumvent many of the
obstacles related to use of more traditional ways to address this issue.
identifies himself as a Ph.D. student in his June 18,2004 e-mail but as a Ph.D. recipient in his
April 2006 letter.
LIN 06 117 53879
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It is clear that the petitioner's article in Immunology has generated some interest in the petitioner's
work and that she has communicated her methods with at least two other research groups. It would
appear, however, that, at best, the petitioner filed the petition prematurely, before her work was
confirmed and applied by others as reported in peer-reviewed publications.
further explains that the petitioner demonstrated that neuroblastoma produces high
levels of the cytokine macrophage migration inhibitory factor (MIF). While MIF had been
previously considered pro-inflammatory, the petitioner demonstrated that high levels of MIF
produced by neuroblastoma cells actually suppressed T cell proliferation. _ further asserts
that they~ting the biological significance of the petitioner's MIF findings in an animal
model. _ speculates that "if' these in vivo experiments demonstrate that blocking MIF
enhances anti-neuroblastoma immune responses "this strategy could be used as a way to enhance
immunity to neuroblastoma and perhaps other cancers that similarly produce high levels of MIF."
He concludes that the petitioner's work in this area has "contributed significantly to our
understanding of the potential mechanisms by which MIF may promote tumor growth." Several
references, both colleagues and more independent researchers, assert that this work will have
significance in the field. The petitioner had presented her MIF results at a conference in 2004 and
her manuscript reporting her results was published just prior to the filing of the petition. The in vivo
experiments had yet to be concluded. Thus, it appears premature to conclude that this work had
already impacted the field as of the date of filing.
While the petitioner's research is no doubt of value, it can be argued that any research must be
shown to be original and present some benefit if it is to receive funding and attention from the
scientific community. Any postdoctoral research, in order to be accepted for publication or funding,
must offer new and useful information to the pool of knowledge. It does not follow that every
researcher who performs original research that adds to the general pool of knowledge inherently
serves the national interest to an extent that justifies a waiver of the job offer requirement.
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.
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ORDER: The appeal is dismissed.