dismissed EB-2 NIW Case: Immunology

identifying data deleted to 
revent clearly unwarr~nled 
kvasion of personal pnvacy 
PUBLTCCOPY 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office a/Administrative Appeals MS 2090 
Washington. DC 20529·2090 
US. Citizenship 
and Immigration 
Services 
Office: TEXAS SERVICE CENTER Date: DEC 1 5 2010 
PETITION: Immigrant Petition for Alien Worker as a Member ofthe 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: 
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 tiling such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the oHice that originally decided your case by filing a Form 1-290B, Notice of Appeal or 
Motion, with a fee of$630. Please be aware that 8 C.F.R. § 103.5(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, 
'}-1>erry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Otlice (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner seeks classitication pursuant to section 203(b )(2) of the Immigration and Nationality Act 
(the Act). 8 U.S.c. § 11S3(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 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 ofthe United States. 
On appeal, counsel submits a brief and additional evidence. For the reasons discussed below, we 
withdraw any inference that the petitioner must demonstrate "extraordinary ability" for the benefit 
sought. We also withdraw the director's concern that the proposed benefits of the beneficiary's 
research would not be national in scope. Nevertheless, we uphold the director's ultimate conclusion 
that the petitioner has not demonstrated why a waiver of the alien employment certification process 
would be 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. 
(8) 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 holds a Ph.D. in Immunology from the Tokyo Women's Medical 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 
Page 3 
whether the petitioner has established that a waiver of the job offer requirement, and thus an alien 
employment certitication, 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 benetit the United States 
economically and otherwise .... " S. Rep. No. 55, 101 st Cong., 1st Sess., II (1989). 
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 quality 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'f. ofTransp., 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, the petitioner must show that the alien seeks employment in an area of 
substantial intrinsic merit. Jd at 217. Next, the petitioner must show that the proposed benefit will be 
national in scope. Jd 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. Jd 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. Jd. 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. Jd 
We concur with the director that the petitioner works in an area of intrinsic merit, immunology. The 
director then concluded that the petitioner had not established that the proposed benefits of his 
research would extend beyond his employer. The proposed benefits of the petitioner's research 
include enhancement of immune therapy of cancer and a decrease of organ transplant rejections. We 
are satisfied that these proposed benefits 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. 
Page 4 
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. 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 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. 
submitted evidence of his membership in the American Association of Immunologists. 
the membership coordinator, asserts that regular membership requires possession of a 
medical or doctoral degree, being "an established scientist with substantial achievement in a related 
discipline," andlor being an author of one article in immunology in a reputable peer-reviewed English 
language journal. • does not specifY whether a member must meet all of these requirements.] 
Professional memberships are merely one of the categories of evidence that can be used to demonstrate 
exceptional ability, a classification that normally requires an approved alien employment certification. 
Section 203(b)(2) of the Act; 8 C.F.R. § 204.S(k)(3)(ii)(E). The petitioner also submitted evidence that 
the China Association of Science and Technology issued the beneficiary a dissertation award. While 
the petitioner did not submit a complete certified translation of the accompanying material about this 
award as required under 8 C.F.R. § 103.3, it appears from the foreign language document and partial 
translation that the association issued several of these awards. Once again, recognition for 
achievements and significant contributions are another category of evidence that can be used to 
establish eligibility as an alien of exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(F). 
Meeting two of the criteria for exceptional ability, or even the requisite three criteria for that 
classification, is not determinative of the matter before the AAO. By statute, "exceptional ability" is 
not, by itself, sunicient cause for a national interest waiver. NYSDOT, 22 I&N Dec. at 218. Thus, 
] According to the association's website, http://aai.orglmembership/regular.htm (accessed December 2, 20 I 0 
and incorporated into the record of proceeding), the associate requires a medical or doctoral degree and 
authorship of one publication. These requirements can be waived under exceptional circumstances if the 
candidate shows a substantial research accomplishment. As the petitioner has a medical and doctoral degree 
and has authored more than one article, it is clear that the petitioner's membership did not depend on 
demonstrating a substantial research accomplishment. 
Page 5 
the benefit which the alien presents to his field of endeavor must greatly exceed the "achievements 
and significant contributions" contemplated for that classification. Jd; see also id. at 222. 
The petitioner also submitted evidence that he was invited to review 14 programs for the Chinese 
National Natural Sciences Foundation Committee. The record does not contirm that he actually 
performed this review. On appeal, the petitioner submitted evidence that the committee employs 
"experts that have a fairly high academic level and good professional ethics in the same field to 
evaluate the applications for timded projects." While the request may be indicative of the committee's 
recognition of the petitioner's academic credentials and professional ethics, the request does not 
establish that the petitioner has already influenced the field as a whole. 
The record confirms that the petitioner was the program head of a research project funded by the 
Chinese National Natural Sciences Foundation Committee. The vast majority of research, if not all 
research, receives funding from some source. We are not persuaded that every researcher who has 
worked with a government grant inherently serves the national interest to an extent that justifies a 
waiver of the alien employment certification requirement. 
The petitioner submitted copies of 26 articles he has authored and several presentations. While this 
evidence reflects that the petitioner is a prolific author, at issue is his influence in the field. The director 
and counsel both addressed the number of citations of the petitioner's work in the aggregate. Given the 
number of articles the petitioner has authored, however, it is much more instructive to look at the 
number of citations individual articles have garnered. Most of the petitioner's articles have garnered 
only a handful of citations. Two of the petitioner's articles have moderate citations. A review 
of the articles that cite the s moderately cited 
however, reveals that three of the citing articles have 
garnered 84, 96 and 137 citations each. Thus, it is clear that the petitioner works in a field that can 
generate large numbers of citations. 
Finally, the petitioner submitted reference letters in support of the petition. a 
at Fudan University, indicates that he supervised the petitioner's research at that institution. 
first discusses the petitioner's doctoral research at the Tokyo Women's Medical University. 
Specifically, asserts: 
[The petitioner 1 discovered that the large parts of T cell populations in mice can 
recognize the bacterial Superantigen, Staphylococcal Enterotoxin A (SEA), in vivo 
stimulation, and that SEA-reactive distinct T cells' expansion depends on the T cell 
receptor V~ chain. 
While_ asserts that this discovery is important to the treatment of patients with Staphylococcal 
infection in clinic therapy, he does not identifY any independent clinic or hospital that has changed its 
treatment strategy for this infection based on the petitioner's work. 
Page 6 
_further asserts that the petitioner found that the fimction development stage of naive cord blood 
CD4+ T cells was between that of thymic and peripheral T cells. During the same study, the petitioner 
found that the phenotype of cord blood CD4+ T cells was at the transition stage from thymocyte to 
adult naive CD4+ T cell of peripheral blood. _asserts that the petitioner published and 
presented this work, which demonstrated that post-thymic maturation is necessary for T cell maturation 
and development. _ does not explain, however, how this work has impacted the field. 
_ then discusses the petitioner's work at Fudan University. Specifically, _explains that 
the petitioner continued to study thymus development, discovering that an "extracellular matrix, alpha­
dystroglucan, is expressed on fetal thymocytes, especially on double positive T cells, and is also 
involved in [the 1 positive selection of thymocytes by participating in the immunologic synapse 
formation." _ asserts that the results of this work are novel and have shed new light on 
thymocyte development but, once again, does not explain how this work is being applied in the field. 
Next,_ discusses the petitioner's work with the receptors involved in lymphocyte activation .• 
_ explains that overactive immune responses account for autoimmune diseases and graft rejection 
while a T cell deficiency results in tumor formation and microorganism invasiveness. Thus, concludes 
•••• the petitioner's findings regarding the role of matrix molecules in T lymphocytes activation 
improved the field's understanding of interaction and recognition between immunocytes and "could 
contribute to diseases prevention and treatment." _ speculation as to the future impact of this 
work is insufficient evidence that the petitioner has already had an influence in the field. 
Finally, _ discusses the petitioner's work with organ transplantation immunology by 
investigation the role of the B7 antisense peptide in blocking a relevant pathway and inhibiting the 
transplantation rejection. _concludes that the petitioner's demonstration of the success of 
synthetic B7 antisense "provides a practical method that improves the survival of patients who received 
organ transplantation." _ provides no statistics reflecting that hospitals are using synthetic B7 
based on the petitioner's work or that transplant rejections have decreased because of the petitioner's 
work. 
On one of the petitioner's former collaborators at Fudan University, discusses 
the petitioner's role in their collaborative projects and asserts that "co-authorship should not diminish 
one's contributions to a given research project." At issue, however, is whether this work has influenced 
the field. 
an assistant professor at the Mount Sinai School of Medicine, discusses the 
petitioner's initial and current work at that institution. Initially, the petitioner focused on inflammatory 
signal transduction pathways in kidney disease. _ explains that the petitioner discovered that 
mice have increased susceptibility to acute Endoplasmic reticulum (ER) stress injury in the kidney 
when they are in a status comparable to chronic inflammation or aging. _further asserts that 
the beneficiary's study showed that TNFa increased cell death caused by the drug Tunicamycin by two­
fold and that "elevated TNFa may playa role in increasing the susceptibility to ER stress injury in 
Page 7 
kidneys of old mice. While _asserts that this work is novel and appeared in print, he does not 
explain how this work is being applied in the field. 
Next, _ asserts that the beneficiary's current research "focuses on intervention of immune 
tolerance induced by small molecule to enhance immune therapy of cancer." _explains the 
background of this research, which suggests that tumors spread by suppressing the immunity of the 
patient through an increase in myeloid-derived suppressor cells (MDSC). _ continues: 
[The petitioner] was the first to discover that cytokines can induce MDSe production 
and that small compounds can regulate the suppressive functions of MDse to facilitate 
immune tolerance. This work has practical applications in clinic medicine. For 
example, [the petitioner's] finding shows that in order to utilize [the] immune 
suppressive function of MDSe, doctors can induce MDSe in autoimmune disease and 
organ transplantation patients using these small compounds to treat autoimmune disease 
and improve the survival of the transplanted organ. 
_provides no examples of the petitioner's work actually being applied by any independent 
clinic or hospital to reduce transplant organ rejection. 
_ also asserts that this work relates to cancer treatment and speculates that "the completion of 
[the petitioner's] study will result in a better understanding ofthe mechanisms of action by these small 
compounds and immune tolerance, which may lead to the discovery of novel targets for the 
intervention in tumor-associated immunosuppression." This statement is highly speculative and does 
not explain how the petitioner has already influenced the field. 
As noted by counsel on appeal, the record also contains letters from references who have not worked 
with the petitioner. We are not persuaded that the mere ability to secure letters from independent 
references warrants a waiver of the alien employment certification process. We must examine the 
content of those letters. 
provides an independent letter in support 
not one of the petitioner's collaborators, has coauthored articles with 
petitioner's work on the development, differentiation and maturation of thymus and T-cell activation. 
_ explains that this work is an important finding regarding how extracellular matrix proteins 
afTect the functions in lymphocyte development and activation. _ further explains that the 
petitioner's work "has provided new clues on the mechanism of T cell activation in T cell-mediated 
diseases." _ asserts that this work "facilitated further research on extracellular matrix proteins 
involved diseases." As an example_ references published research from Radboud University in 
the Netherlands. While the record contains evidence that this research group has cited the petitioner's 
work, the record docs not contain the actual article to establish the context of the citation and the 
petitioner did not submit a letter directly from these researchers. 
_ then discusses other research addressed in detail above but does explain how any of the 
petitioner's results are being applied in the field. For example, _ asserts that the petitioner's 
research on thymic cord blood "helps the medical research community better interpret the different 
symptoms and prognosis in children and adult infections diseases" but does not provide a single 
example of an independent medical establishment using the petitioner's research in this way. 
Finally,_ asserts that using MDSC to treat autoimmune diseases "is an extremely novel idea" 
with "broad clinical application." _ acknowledges, however, that the petitioner was only 
preparing this research for publication and does not suggest that the petitioner's work has led to the use 
of MDSC to treat autoimmune diseases even at the clinical trial level. 
scientist at Boehringer Ingelheim Pharmaceuticals, also supports the record. 
has not collaborated with the petitioner but has coauthored articles with • 
asserts that the petitioner's "findings on the immunological synapse formation during 
T cell maturation and activation have provided useful information to aid in my and others' research to 
better design and develop therapies for immunological diseases." _ does not explain how he 
utilized the petitioner's work or what results he obtained by applying the petitioner's work. 
an assistant professor at the Medical College of Georgia, also provides an 
independent letter of support. _ states that the petitioner's work "contributes substantially to 
the elucidation of the mechanisms of T cells function," "shed new light on the abnormal activation 
mechanism of T lymphocytes in autoimmune diseases" and provided "a novel method that uses B7 
antisense peptide against graft rejection to prolong the survival of [a] transplanted organ." _ 
however, provides no examples of how the petitioner's work is influencing the field and does not 
claim to have applied the petitioner's work. 
While the petitioner's research is no doubt of value and may have practical applications, 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 Ph.D. thesis or other research, in order to 
be accepted for graduation, 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. None of the references explain how the petitioner's work is 
being used in the field by independent researchers or at independent medical facilities in practice or 
through clinical trials. 
The Board of Immigration Appeals (the Board) has held that testimony should not be disregarded 
simply because it is "selt~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 
Page 9 
evidence lacks specificity, detail, or credibility, there is a greater need for the petitioner to submit 
corroborative evidence. Matter ofY-B-, 211&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 Maller 
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; USC IS 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 of 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 of SojJici, 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 that the petitioner has performed 
important research without providing specific examples of how those innovations have influenced 
the field. Merely repeating the language of the legal standard for the benefit sought does not satisfy 
the petitioner's burden ofproof 2 The petitioner's independent letters do not explain how the authors 
have applied the petitioner's work. The petitioner also failed to submit sufficient corroborating 
evidence in existence prior to the preparation of the petition, which could have bolstered the weight 
of the reference letters. 
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 
otTer 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. 
2 Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (ED.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.). Similarly, USCIS need not accept 
primarily conclusory assertions. 1756, Inc. v. The Attorney General of the United States, 745 F. Supp. 9, IS 
(D.C. Dis!. 1990). 
Page 10 
This denial is without prejudice to the filing of a new petitIOn by a United States employer 
accompanied by an alien employment certification certitied by the Department of Labor, appropriate 
supporting evidence and fee. 
ORDER: The appeal is dismissed.