dismissed EB-2 NIW Case: Medical And Nutritional Research

identifying data deleted to 
prevent clearly unwammted 
. in~:~;600~rivac) 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 . 
Washington, DC 20529-2090 
U. S. Citizenshi p .' 
·and·Immigration 
Services 
FILE: Office: NEBRASKA SERVICE CENTER Date: 
fEB 2 4 2011 
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: 
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 
thatany 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 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 1-290B, Notice of Appeal or 
Motion, with a fee of$630. Please be aware that 8 C.F.R.§ 103.5(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, 
.• 
'PerryRhew 
.Chief, 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 (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. § 1153(b )(2), as an alien of exceptional ability or a member of the professions 
holding an advanced degree. The petitioner seeks to employ the beneficiary as a research scientist. The 
petitioner asserts that an exemption from the requirement of a job offer, and thus of an alien 
employment certification, i~ 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. 
I 
On appeal, counsel submits a brief and additional evidence. For the reasons discussed below, we 
uphold the director's determination that the petitioner has not established her eligibility for the benefit 
sought. The petitioner is the author of a single minimally cited published journal article who is 
currently working pursuant to a two-year mentoring program. The area in which she claims she will 
benefit the national interest is notably different from the research discussed in her cited article. While 
the petitioner submitted letters from independent experts, the evidence submitted in support of ¢e 
f(;:ference letters does not support the claims set forth in those letters. Finally, the petitioner is currently 
in the United States pursuant to a nonimmigrant visa and has never explained why the benefits she 
claims will accrue from her two-year project require an iinmigrant visa. 
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 iwho are 
members of the professions holding advanced degrees or their equivalent or who 
because of their exceptional ability in the sciences, arts, or business, will substantially 
benefit prospectively the national economy, cultural or educational interests, or welfare 
of the United States, and whose services in the sciences, arts, professions, or business 
.are sought by an employer in the United States. 
\ 
(B) Waiver of job offer. 
(i) ... the Attorney General may, when the Attorney General deems it to 
be in the national interest, waive the requirements of subparagraph (A) 
that an alien's services in the sciences, arts, professions, or business be 
sought by an employer in the United States. 
Page 3 
The petitioner The petitioner's 
occupation falls pertment 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. 
Neither the statute nor pertinent regulations defme the term "national interest." Additionally, Congress 
did not provide a specific defmition 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, 101st Cong., 1st Sess., 11 (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 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 '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. ld at 217. Next, the petitioner must show that the proposed benefit will be 
national in scope. ld 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 minjmum qualifications. ld 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. ld. 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. ld 
We concur with the director that the petitioner works in an area of intrinsic merit, medical and 
nutritional research, and that the proposed benefits of her work, proper "regulation of dietary 
supplements, would be IJational in scope. We note, however, that the petitioner is currently working 
for the evaluating dietary supplements through a two­
t 
Page 4 
year -'research participation program. As the petitioner has not explained how she will benefit the 
national interest after the completion of this mentoring program, it appears that her nonimmigrani, 
visa is sufficient to serve the national interest. 
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. 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 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 . 
. tted evidence that she is a member of the and 
memberships are one type of evidence that a petitioner may submit to establish 
exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(E). Because exceptional ability, by itself, does not 
justify a waiver of the alien employment certification requirement, arguments hinging on professional 
memberships, while relevant, are not dispositive to the matter at hand. NYSDOT, 22 I&N Dec. at 222. 
notes that the journal is one of . 
the highest-ranked journals in chemistry and asserts that he invited the petitioner to review articles for 
the journal based on her "exceptional expertise.',' The record contains no evidence to support the 
implication that peer-review for Chemical Reviews is notable in the petitioner's field, such as evidence 
that the journal utilizes a relatively small number of peer reviewers. 
The petitioner submitted evidence that she has authored a single published article. The article 
addresses molecular motors. She also submitted two PowerPoint presentations and information that 
purportedly derives from "SciFinder Scholar" providing the abstracts for four presentations allegedly 
presented at ACS national and regional meetings. The petitioner provided no evidence that these 
abstracts are available in conference proceedings and did not provide the programs for these 
conferences listing the petitioner'S presentation. Thus, the petitioner has not provided sufficient 
Page 5 
evidence that she presented this work and, if she did, whether they constituted poster presentations or 
oral presentations. 
Even accepting that the petitioner presented her research four times, the publication and presentation of 
research demonstrates only that the petitioner disseminated the research. The dissemination of research 
is not, by itself, evidence that the research was ultimately influential. _ notes that the journal 
that published the petitioner's article, is "an international journal of high-impact." 
We will not presume the influence an journal in which it appeared. Rather, the 
petitioner must demonstrate the impact of the individual article. 
The petitioner initially submitted evidence that seven articles have cited the petitioner's article. One,of 
those articles is a self-citation by the petitioner's coauthor, which cannot demonstrate her influence 
beyond her immediate circle of colleagues. On appeal, counsel asserts that the challenging nature of 
the petitioner's area of research and the small number of researchers pursuing this research are relevant 
considerations when evaluating the petitioner's citation record. As will be discussed below, however, 
the citations themselves are not indicative of the petitioner's influence and do not support the claims 
that they represent researchers applying the petitioner's work. Regardless, the petitioner' has not 
explained how a single article that has garnered some attention among those investigating molecular 
motors is representative of a track record of success with some degree of influence in a field that 
includes dietary supplement research. 
the petitioner worked . 
research group. a letter in support of the petition discussing the petitioner's 
Master of Science research (performed at the same institution) and her doctoral research. Specifically, 
asserts that the petitioner's Master of Science research involved "the theory apd 
simulations of structure and dynamics of cqmplex fluids, synthetic molecular motors, and the 
characterization of ion-selective binding agents." explains the areas in which the 
petitioner "showed her exceptional ability" during this work but does not explain how her results have 
influenced the field. Special or unusual knowledge or training, while perhaps attractive to the 
prospective U.S. employer, does not inherently meet the national interest threshold. Id. at 221. 
next discusses the petitioner's doctoral research, once again providing the areas in 
which the petitioner received "rigorous training" and developed knowledge. We reiterate that special 
or unusual knowledge or training does not inherently meet the national interest threshold. Id._ 
•••• explains that the petitioner's doctoral research focused on molecular motors and that she 
"played a critical role in creating synthetic non-biological molecular motors with a specific focus on 
rotary motors." concludes that this work "was a groundbreaking one using energy­
driven diasteroselective reactions to drive directional bond rotation in molecular motor molecules." 
U.S Citizenship and Immigration Services (USCIS) need not accept primarily conclusory assertions. 1 
1 1756, Inc. v. The Attorney General o.fthe United States, 745 F. Supp. 9, 15 (D.C. Dist. 1990). 
Page 6 
In support of the above notes that the 
and the funded the petitioner's research. Any Ph.D. thesis or postdoctoral 
research, in order to be accepted for funding, must offer new and useful inforination to the pool of 
knowledge. It does not follow that every researcher who is working with a government grant 
inherently serves the national interest to an extent that justifies a waiver of the alien employment 
certification requirement. further asserts that the petitioner's "publications have been 
cited worldwide, including in several review articles and important citations in international top-tier 
journals." 
First, while uses the plural, the petitioner has authored only a single cited article. 
Second, while references "several" review articles, the citations include only two 
review articles, one of which is 119 pages long and cites 640 articles in addition to the petitioner's 
article. The 'second review article cites the petitioner's article as one of 18 articles within a single 
footnote. ' 
After receiving her Ph.D., the petitioner began working as a research associate under the direction of 
also provides a letter supporting the 
petition. aSserts that the petitioner joined "the most challenging project: target directed 
alkylation of DNA." _ asserts that Chemical and Engineering News has reported on his 
group's approach in this area. That article is not part of the record. Thus, we cannot determine whether 
this article reports on work in general or the petitioner's contributions to that work 
specifically. According to the petitioner's curriculum vitae, as of the date of filing, the petitioner had a 
manuscript in preparation for this work and had presented it locally at the 
Thus, it does not appear that this work could have influenced the field as of the date of filing of the 
petition, the date as of which the petitioner must establish her eligibility. See 8 C.F.R. §§ 103.2(b)(1), 
(12); Matter ofKatigbak, 14 I&N Dec. 45, 49 (Reg'l. Comm'r. 1971). ' 
As noted by counsel, the remaining letters are from independent experts in the field. While we will 
carefully consider these letters, for the reasons discussed below, the record does not support the 
assertions in these letters. ' 
The record contains three letters from the 
is a member of three editorial boards, a fellow of the 
and claims 4,106 citations on his curriculum vitae. ' We do not question his expertise or 
sincerity. That said, we cannot ignore that the record fails to support several significant assertions in 
his letters. 
In his first letter asserts: 
[The petitioner's] paper is significant as it has been accepted and recognized 
internationally, which can be evidenced by important citations by other independent 
-Page 7 
experts in their papers published in many international top-ranking or high profile 
journals. I am one of them who ever relied on her work by citing some of her fmdings. 
We'reiterate that there are not "many" independent citations. Rather, there were six citations as of the 
date of filing, two of which are review articles by_ Moreover, his citation of the petitioner in 
review articles does not support _ implication that he has relied on the petitioner's work in 
his own original work. As stated above, in his first article, cites the benefieiary's work as one 
of 641 citations in a 119-page review. In his.second 'the petitioner's work as 
one of 18 articles (other than the primary article in support of the following 
assertion: "The behaviors of all four 'Gedankenmaschienen' were considered without an external 
energy sources (other than a heat reservoir at the same temperature as the Gedankenmaschine system) -
their purpose was to test the nature of the Second Law of Thermodynamics, not to see how a working 
Brownian machine could be achieved (that was probably first discussed by_," 
In his second letter, asserts: 
[The petitioner's] system solves many core problems of the field: First is the 
repeatability. 180
0 
rotation has been experimentally realized and explanations have 
been made on how the system could be extended to achieve 360
0 
repeatable rotation. 
The then followed [the petitioner's] approach and forwarded the system 
to rotatIOn. Second is the rotation time. Because her approach only needs 
two steps for a half-turn rotation and one of them is fast planarization, the motor system 
[the petitioner] reported is the least time-consuming motor up to date. By using similar 
motor framework and the same of reactions (chiral substitution and planarization), 
recently reported a potential nanosecond 
timescale molecular rotor, which could advance the filed [sic] form [sic] hours to 
nanoseconds in the future. 
does not explicitly suggest that _ relied 
upon the petitioner's work. states that effort~endent 
extension of the same strategy. More significantly, own citations do not suggest any 
reliance on the petitioner's work. The record contains two 2008 articles by _ In his first 
¥ticle, _ cites the petitioner's article as one of five articles that have "reported" synthetic 
rotary molecular motors powered by chemical energy. In a separate reference letter in the ~",",V~''''. 
misquotes 
next sentence in 
article is: "One of the most proIll1smg designs of a rotary molecular motor is based on chiral 
overcrowded alkenes, exemplified structure 1 (Fig. 1)." The citation for this sentence is "4a." The 
article in "4a" is a 2002 article by which precedes the petitioner's published article by three 
years. In his second article, CItes the petitioner's artic!e as one of 23 articles in support of 
the following proposition: "In an effort to gain control over motion at the molecular scale, several 
designs of linear and rotary molecular motors have been reported." While we. do not profess scientific 
Page 8 
expertise in reading these technical articles, there seemS no reasonable way to interpret these citations 
as demonstrating any reliance on the petitioner's work. 
cites the petitioner's article as one of 16 articles for the proposition: "A potentially 
interesting building block for nanotechnology is the molecular motor." The article contains highlighted 
sentences relating to Figures 1, 4 and 5, ,but the article does not credit these figures (or the sentences 
referencing these figures) to the petitioner's work. Once again, this artiCle simply does not suppo..tlrl--
_implication thai relied on the petitioner's work to any significant degree. 
In his third' letter,_ states: 
[The petitioner's] significant impact to our field can alsd be seen by [the] Wildpedia 
explanation of the term "synthetic'molecular motor." Wildpedia is the most v~sited 
internet media for definitions and concepts. The approach [the petitioner] designed and 
developed is highlighted in Wiidpedia as a milestone for chemically \driven molecular 
motors. It is her approach, which opened a new window in the field and solved the 
hardcore problem, which hindered the field from any progress since its start in 1999. 
The record contains the Wildpedia entry for . Molecular Motors. The article cites the 
, ~er's article and states that, after watching talk on the petitioner's work, _ 
_ "used this approach in their deSign of a molecule that can repeatably perform 3600 rotation." 
The citation for this sentence is a 2005 article by_ published in Science. The record contains 
no evidence that this Science article cites the petitioner's work as would be expected if_ 
based his research on a presentation of the petitioner's work. The last modification ofthi~ 
page is listed as July 24, 2009, after the date of filing. With regard to information from Wildpedia, 
therS! are no assurances about the reliability of the content from this open, user-edited internet site.2 
See Lamilem Badasa v. Michael Mukasey, 540 F.3d 909 (8th Cir. 2008). 
2 Online content from Wikipedia is subject to the following general disclaimer: 
( 
WIKIPEDIA MAKES NO GUARANTEE OF VALIDITY. Wikipedia is an online open-content 
collaborative' encyclopedia, that is, a voluntary association of individuals and groups working to 
develop a common resource of human knowledge. The structure of the project allows anyone with 
an Internet connection to alter its content. Please be advised that nothing found here has necessarily 
been reviewed 6y people with the expertise required to provide you with complete, accurate or 
reliable information. . .. Wikipedia cannot guarantee the validity of the information found here. The 
content of any given article may recently have been changed, vandalized or altered by someone 
whose opinion does not correspond with the state of knowledge in the relevant fields. . 
See http://en.wikipedia.org!wiki/Wikipedia:General disclaimer, accessed on February 17, 2011, a copy of 
which is incorporated into the record of proce~ding. / 
Page 9 
provides similar information to that 
discussed above, asserting that the petitioner's molecular motor is the best reported and that her work 
with DNA alkylation "has significant implication for future anti-cancer drug development." As 
discussed above, the record contains little evidence that the petitioner's molecular motor has been 
influential in the field .. As also stated above, the petitioner has yet to publish or widely disseminate her 
work with DNA alkylation. 
discusses the petitioner's current research Qn nutrition and dietary supplement safety at 
_ states that the petitioner's "contributions to this field include: research and evaluate 
raw materials of the new product; investigate composition of the new product; assess manufacturing 
process; validate analytical methodology; investigate dosage upper limit; research product stability with 
proposed storage conditions; and conclude nutrition efficacy and safety concerns." This list sounds 
more like a list of job duties rather than past contributions. not explain how the 
petitioner's research at ~ has already influenced the field. 
In response to the director's request for additional evidence, the petitioner submitted a letter from 
does not' discuss the petitioner's work at the 
Rather, he discusses her molecular motor DNA alkylation work. Regarding the latter, 
_ asserts that he relies "heavily on [the petitioner's trapping] methods in'the analysis of seafood 
toxins, protein foods and cosmetics contamination." He notes that he saw the petitioner present this 
work at the This letter does not demonstrate the petitioner's influence beyond 
the or area where she has worked, Maryland. As discussed above, the 
petitioner had not widely disseminated her DNA alkylation work as of the date of filing, the date as of 
which she must establish her eligibility. See 8 C.F.R. §§ 103.2(b)(1), (12); Matter of Katigbak, 14 I&N 
Dec. at 49. 
The Board of Immigration Appeals (the Board) has held that testimony should not be disregarded 
simply because it is "self-serving." See, e.g., Matter of S-A-, 22 I&N Dec. 1328, 1332 (BIA 2000) 
(citing cases). TheBoard also held, however: "We not only encourage, but require the introduction 
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 ofY-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 
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; 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 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 
· .. ---_. ~~-.-.------ -' .--- '. .. 
Page 10 
infonnation or is in any way questionable. Id. at 795; see also Matter ofSoffici, 22 I&N Dec. 158, 
165 (Comm'r. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l. 
Comm'r. 1972)). 
Ultimately, the record establishes that the petitioner's molecular motor garnered some attention in 
the field, although not commensurate with the major influence described in the letters. The . -petitioner, however, no longer works with molecular motors. The record is not persuasive that her 
single cited article on molecular motors is evidence of a track record of success with some d~gree of 
influence on a field that includes dietary supplement safety. The petitioner had not widely 
distributed her postdoctoral research as of the date of filing and the record ctoes not establish that her 
work for the _has proven influential. Finally, as discussed above, the petitioner is 
currently working for the a two-year mentorship program. The petitioner, completing 
her temporary project for (the on a nonimmigrant visa, has not explained how the national 
interest in ensuring the safety of dietary supplements can only be served through an immigrant visa 
for this short-tenn project. 
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 <;>f 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. 
ORDER: The appeal is dismissed.