dismissed EB-2 NIW Case: Medical Research

identiQing dat2 deleted to 
US. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office ofAdminisbative Appeals MS 2090 
Washington, DC 20529-2090 
prevent clearly ui~wananted 
invasion of personal privacy 
 U. S. Citizenship 
and Immigration 
PUBLIC copy 
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: 
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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. $ 103.5 for 
the specific requirements. 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 $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. $ 103.5(a)(l)(i). 
Appeals Office 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will 
dismiss the appeal. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Lmmigration and Nationality Act 
(the Act), 8 U.S.C. 5 1153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as a postdoctoral research fellow at Louisiana State University, Baton 
Rouge. The petitioner asserts that an exemption from the requirement of a job offer, and thus of a labor 
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 has not established that an exemption fiom the requirement of a job offer would be in the 
national interest of the United States. 
On appeal, the petitioner submits a brief from counsel. 
Section 203(b) of the Act states, in pertinent part: 
(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 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 director did not dispute that the petitioner qualifies as a member of the professions holding an 
advanced degree. The sole issue in contention is whether the petitioner has established that a waiver of 
the job offer requirement, and thus a labor certification, is in the national interest. 
Neither the statute nor the 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, 10 1 st Cong., 1 st Sess., 1 1 (1 989). 
Supplementary information to regulations implementing the Immigration Act of 1990 (IMMACT), 
published at 56 Fed. Reg. 60897, 60900 (November 29, 1991), states: 
The Service [now U.S. Citizenship and Immigration Services (USCIS)] 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 fiom, 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 Dept. of Transportation, 22 I&N Dec. 215 (Cornmr. 1998), has set forth 
several factors which must be considered when evaluating a request for a national interest waiver. First, 
it must be shown that the alien seeks employment in an area of substantial intrinsic merit. Next, it must 
be shown that the proposed benefit will be national in scope. Finally, the petitioner seeking the waiver 
must establish that the alien will serve the national interest to a substantially greater degree than would 
an available U.S. worker having the same minimum qualifications. 
It must be noted that, while the national interest waiver hinges on prospective national benefit, it clearly 
must be established that the alien's past record justifies projections of future benefit to the national 
interest. The petitioner's subjective assurance that the alien will, in the future, serve the national interest 
cannot suffice to establish prospective national benefit. The inclusion of the term "prospective" is used 
here to require future contributions by the alien, rather than to facilitate the entry of an alien with no 
demonstrable prior achievements, and whose benefit to the national interest would thus be entirely 
speculative. 
We also note that the regulation at 8 C.F.R. 
 204.5(k)(2) defines "exceptional ability" as "a degree 
of expertise significantly above that ordinarily encountered" in a given area of endeavor. By statute, 
aliens of exceptional ability are generally subject to the job offerllabor certification requirement; 
they are not exempt by virtue of their exceptional ability. Therefore, whether a given alien seeks 
classification as an alien of exceptional ability, or as a member of the professions holding an 
advanced degree, that alien cannot qualify for a waiver just by demonstrating a degree of expertise 
significantly above that ordinarily encountered in his or her field of expertise. 
The petitioner filed the petition on May 30, 2007. In a statement accompanying the initial submission, 
counsel stated: 
[The petitioner] is a leading scholar in leprosy (Hansen's Disease) research at the 
only lab in the world capable of differentiating Mycobacterium leprae live bacteria 
from dead bacteria. . . . 
Page 4 
[The petitioner's] expertise is also evidenced by his close collaborations with the 
National Hansen's Disease Program (NHDP) (a federal program and division 
under the US Department of Health and Human Services) which is respected 
worldwide as the best leprosy research facility in the world. NHDP has adopted 
[the petitioner's] methods for Mycobacteriurn leprae to improve the quality of the 
harvested bacteria for research purposes. This is particularly illustrative of [the 
petitioner's] expertise as NHDP is the sole supplier of Mycobacterium leprae for 
research purposes worldwide. 
. . . [The petitioner] is one of the few people in the world who can grow and maintain 
live Mycobacterium leprae. He is also working to develop skin tests as an early 
diagnostic test. 
(Counsel's emphasis.) Counsel asserted that a waiver would be in the national interest because the 
petitioner's employer would likely be unable to list many of the petitioner's specific qualifications on an 
application for labor certification, whereas it is important to the United States for the petitioner to 
remain at LSU performing nationally significant work for NHDP: 
Certainly, an employer who is engaged in research requiring a unique skill set that is 
only found in a handful of scientists worldwide has the right to demand one of those few 
specialists and should not be compelled to employ persons who are "minimally 
qualified." This was the whole purpose of creating the National Interest Waiver. 
Counsel did not cite legislative history or any other source to support counsel's interpretation of "the 
whole purpose of creating the National Interest Waiver." In the very next paragraph of the introductory 
statement, counsel stated: 
[Tlhe limitations imposed by the labor certification process will place an unreasonable 
constraint on [the petitioner's] ability to conduct research in his field. . . . As the 
beneficiary of an employer-sponsored petition, [the petitioner] would have no options 
for changes in employment during this period, and thus would not be able to pursue 
other research opportunities. In this, he is effectively deterred from pursuing promising 
opportunities to conduct important research in his field. 
Thus, in the same brief, counsel has put forth two contradictory arguments: (I) the waiver will ensure 
that the petitioner's employer will not have to replace him; and (2) the waiver will allow the petitioner 
to seek other employment instead of force him to stay with his present employer. Counsel did not 
explain why it would be in the national interest for the petitioner "to pursue other research 
opportunities" if it is supposedly a matter of critical national importance for him to continue working for 
his current employer. 
Several letters accompanied the initial filing of the petition. Louisiana State University Professor 
stated: 
Page 5 
Leprosy is an ancient disease and the causative agent has been known for some time. 
Drugs are currently available to treat the condition. However, the mode of transmission 
continues to be a mystery and new cases continue to be reported throughout the world, 
including in the US. . . . [Tlhere is as yet no vaccine available for this important disease. 
The obvious and easy studies have been done and more difficult in depth work is 
required. . . . 
In his studies, [the petitioner] is one of the few people who can culture the agent of this 
disease and distinguish between living and dead organisms. . . .Without these agents and 
[the petitioner's] efforts this progress will cease. 
From 1994 - 2005 I was Chief of the NHDP's Laboratory Research Branch located at 
Louisiana State University overseeing the largest, multidisciplinary and most 
comprehensive leprosy research group in the world. . . . In 2002 it was my good fortune 
to recruit [the petitioner] into my own research group. . . . 
There are 2 other labs in the U.S. with leprosy research interests and one can count the 
total number of U.S. leprosy researchers outside our lab on one hand. [The petitioner's] 
unique experience that makes him so valuable to our lab and thus the world of leprosy 
research stems from his experience and knowledge in Cell Biology. . . . 
130 years after its discovery as the causative agent of leprosy, Mycobacterium leprae has 
yet to be cultured in the laboratory and thus these organisms have not been readily 
available for study. . . . [The petitioner] has developed a method of growing and 
purifying [an] enormous number of highly viable M. leprae in a unique strain of 
immunosuppressed mice and for the past 3 years we have served as the sole source of 
live leprosy bacilli shipping suspensions around the world on a weekly basis. He is 
currently working with me in developing an objective diagnostic test for detecting 
preclinical leprosy and testing an effective, combined vaccine for both leprosy and 
tuberculosis. 
Chief of the NHDP's Laboratory Research Branch, stated: 
[The petitioner] has achieved success utilizing a special technique to monitor bacterial 
growth in the foot pads of specially bred mice. He has developed and validated a 
method for differentiating live bacteria from dead bacteria. His findings have been 
published in the scientific literature and form the basis for redefining optimal conditions 
for studying M. leprae, thereby, impacting almost all laboratories in the world engaged 
in leprosy research. 
Page 6 
. . . [The petitioner's] methods for monitoring the viability of M leprae have been 
adopted by the NHDP to improve the quality of harvested bacteria for research 
purposes. This is particularly exemplary for [the petitioner] as the NHDP is the sole 
supplier of this unique resource worldwide. The NHDP has also adopted [the 
petitioner's] published mouse foot pad classification system. 
In addition to [the petitioner's] important work in leprosy, his work is also gaining 
notice in the tuberculosis field. He has recently published work exploring the 
mechanism of action of a new compound active against dormant and active forms of 
tuberculosis. 
There remain three letters: (1) a September 18, 2006 letter signed by 
Colorado State University, Fort Collins; (2) a January 24, 2007 
and (3) a January 30, 2007 letter signed by 
Director of the Institute for Tuberculosis Research at the University of Illinois at Chicago, 
of the Rockefeller 
University, New York, New York. These three letters share several identically- or similarly-worded 
passages in common. All three letters, for instance, contain the following passage, sometimes with 
minor variations: 
[The petitioner] is one of very few people in the world that can grow and maintain live 
Mycobacterium leprae, which is critical to leprosy research and drug screening. He has 
achieved success utilizing a special technique to grow the bacteria in specially bred 
mouse foot pads. In addition, he has developed and validated a method for 
differentiating live bacteria from dead bacteria. 
The use of common language belies the supposedly independent origin of the letters. We grant that the 
witnesses essentially endorsed the letters by signing them, but they have diminished weight as 
independent evidence. 
A passage unique to 
 letter reads: 
[Llong-term infection within the peripheral nerve, particularly Schwann cells, the 
accessory neural cells of the peripheral nerves, is crucial for the spread of the disease 
and clinical manifestation of nerve injury in leprosy. For this, leprosy bacterium needs 
to maintain its viability within the Schwann cells. [The petitioner] is currently 
collaborating with my group to determine an important aspect of this nerve pathology 
and that is how Schwann cells provide the support to maintain the viability of leprosy 
bacteria and what critical host cell factors [are] involved in maintaining such viability 
inside Schwann cells. . . . [The petitioner] has performed an excellent job and fulfilled 
the goal of this proposed project with his skillful and meticulous planning of the 
experiments. 
A passage found only in 
 letter indicates that the petitioner "is also working very closely 
with our laboratory to develop skin tests as an early diagnostic test." 
The passa es uni ue to letter tend to be general in nature, except for portions that 
focus on g own credentials. 
The petitioner submitted copies of his articles that had appeared in various journals, but no evidence 
(such as citation data) to establish the impact of his published work. 
On August 18, 2008, the director issued a request for evidence, instructing the petitioner to submit 
documentary impact of the impact and influence of his work. The director specifically requested 
documentary evidence of independent citation of the petitioner's work. 
In response, counsel stated: 
[The petitioner's] field of research is a small and slow-moving field. . . . In 2005, there 
were a total of 108 publications in the field of leprosy; those publications had a mean of 
1.5 citations per article. [The petitioner] had over five citations to his work that year, 
thus placing him in the 9oth percentile of citations for that year. 
Printouts from the Scopus database appear to corroborate counsel's assertions, although not all the 
terms in the printed table are explained.' The petitioner documented six citations of one article from 
2005 and two citations of an article from 2006. The petitioner submitted copies of eight citing articles. 
was a co-author of three of these articles, citing his own prior work with the petitioner, 
leaving five independent citations of the petitioner's work. 
 Most of those independent citations 
appeared well after the petition's May 2007 filing date. 
The petitioner submitted three new witness letters, all from prior witnesses. 
 in his 
second letter, repeated portions of his first letter and stated: 
[The petitioner's] contributions have had a major impact on our own basic 
research goals of understanding the pathogenesis of the disease. . . . 
It is no exaggeration to state that because of [the petitioner's] efforts enormous 
numbers of purified leprosy bacilli, lOOx more viable than previously available, can 
now be routinely supplied to investigators around the world. . . . Because of his 
efforts our lab is the sole source of this unique leprosy research reagent. 
(Emphasis in original.) 
 also stated that the NHDP had shipped samples "to 17 different 
workers in 10 cities in the U.S.," notwithstanding his earlier claim that there are no more than five 
leprosy researchers in the United States outside of the NHDP's laboratory in Louisiana. 
Page 8 
A new letter from 
 consists mostly of lan uage from his previous letter, with the order of the 
paragraphs rearranged. In one new passage, 
 asserted that "there are only three laboratories 
in the United States engaged in leprosy research" (emphasis in original). This seems to contradict 
assertion that the NHDP has distributed samples to "10 cities in the U.S." 
in his new letter, stated: 
[Tlhere are now only two major laboratories devoted to leprosy research within the 
USA, the one under the auspices of the National Hansen's Disease Program, and our 
own program at Colorado State University. . . . 
The obstacles in conducting modem day immunological research towards immune- 
based diagnosis, the goal of [the petitioner's] research, are near insurmountable, due to 
inability to grow the organism outside a living mammalian host, the extraordinarily long 
incubation period, the complex clinico-immunological picture, severe nerve damage and 
disabilities, utter confusion over the epidemiological picture, etc. In partial answer to 
some of these problems [the petitioner] and colleagues developed the mouse foot-pad 
model for producing large numbers of viable Mycobacterium leprae. In fact the NHDP 
is now the only source of viable M leprae world-wide and [the petitioner's] research 
contribution has led to development of this precious facility into an almost production- 
line top quality facility to support laboratories throughout the world-wide leprosy 
research community. 
One passage from 
 letter is of particular interest: 
[The petitioner,] in conjunction with 
 has had a major breakthrough in 
achieving a dream of leprosy research for over a century, in vitro/laboratory-grown M 
-. 
leprae; the simple act of including glycerol in a synthetic medium will allow the 
organism to survive for several generations. 
Because of 
 ambiguous wording, it is not clear whether the petitioner actually grew M 
leprae "in a synthetic medium . . . for several generations," or simply demonstrated that it is 
theoretically possible for the bacteria to survive under such conditions. 
The record contains no documentary evidence (such as a published article attributed to the petitioner 
and or a published bulletin, either in print or online) to corroborate assertion 
that the petitioner either grew M leprae in vitro, or at least made a major step toward doing so. Also, 
the other witness letters submitted in response to the RFE do not contain any mention of what Dr. 
called the petitioner's "major breakthrough." 
The director denied the petition on November 4, 2008, stating that the petitioner's citation was minimal 
and did not indicate significant influence in his field. The director added that the witness "letters fall 
short of demonstrating the petitioner's influence in the field beyond his past or present academic 
Page 9 
institutions and circle of colleagues or work acquaintances. . . . [tlhere is no evidence that independent 
researchers view the petitioner's individual work as particularly significant or influential." The director 
also stated that, if the petitioner had made particularly significant or noteworthy contributions in his 
field, these achievements "ought to be verifiable by objective documentary evidence." 
We note that, on appeal, counsel asserts: "Mycobacterium leprae, the cause of leprosy, cannot be 
- 
cultured." Counsel does not mention 
 claims about the petitioner's progress in this area. 
This is not the only apparent inconsistency in the record. Counsel also quotes - 
assertion that "[tlhere are 2 other labs in the U.S. with leprosy research interests and one can count the 
total number of U.S. leprosy researchers outside our lab on one hand." Later in the same brief, counsel 
quotes the same witness as stating that his laboratory provided M leprae samples "to 17 different 
workers in 10 cities in the U.S." These two sets of figures seem to contradict each other. Doubt cast on 
any aspect of the petitioner's proof may lead to a reevaluation of the reliability and sufficiency of the 
remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 
1988). 
The inconsistencies and shared language in the letters illustrate the limitations of relying on witness 
letters as primary evidence of key claims, rather than as secondary tools to illustrate and explain 
objective documentary evidence. 
Counsel states: 
The Service places undue emphasis on an arbitrary number of citations to [the 
petitioner's] work and disregards the specific examples of reliance upon his work. If 
citations were the only acceptable evidence of impact on a field or in some way a 
barometer for approval for a national interest waiver, then the engineer in NYSDOT 
would never qualify for a national interest waiver. 
The engineer in Matter of New York State Dept. of Transportation did not, in fact, qualify for a national 
interest waiver; the precedent decision was a dismissal of his appeal. Leaving aside counsel's poor 
choice of an example, it has never been the position of USCIS that published citations are the only 
acceptable "barometer for approval for a national interest waiver." The waiver is available to aliens in a 
broad range of occupations, many of whom (such as civil engineers) may not produce scholarly articles 
at all. For researchers, however, citations offer one objective way of measuring the extent to which one 
researcher's work has influenced the work of other researchers. 
There are other means of objectively showing the petitioner's impact. For instance, a press release from 
a prominent third party such as the Centers for Disease Control or the World Health Organization, 
crediting the petitioner with significant advances in M leprae research, would carry significant weight. 
The petitioner, however, has not provided such evidence. Also, the AAO has never denied that witness 
letters can have significant evidentiary value, but factors already discussed have compromised the value 
of the letters submitted in support of the present petition. Counsel's arguments, too, have been 
inconsistent, as shown by counsel's simultaneous assertion that the petitioner must remain at the NHDP, 
but also must be free to leave the NHDP. 
Counsel argues that the director relied on "a vague indeterminate standard of exceptional ability 
confused with extraordinary ability." Counsel identifies nothing in the director's decision that 
improperly required evidence of extraordinary ability, as set forth at 8 C.F.R. $ 204.5(h) and its 
constituent sections. Counsel correctly notes that an alien need not qualify as an alien of exceptional 
ability to qualify for the waiver. The director, however, did not state that the petitioner must meet the 
specific requirements of exceptional ability at 8 C.F.R. $ 204.5(k)(3)(ii). Rather, the director, following 
Matter of New York State Dept. of Transportation, noted that an alien cannot qualify for the waiver 
simply by showing substantial prospective benefit to the United States. This is so because, by the plain 
wording of the statute, substantial prospective benefit is not automatic grounds for the waiver. 
Counsel claims that the petitioner's "advancements in the field of leprosy research have already had a 
significant impact on our nation's well being." Counsel does not explain this assertion. Counsel 
provides no documented statistics showing that the petitioner's work has reduced the incidence or 
transmission of leprosy in the United States, and the petitioner's work appears to be unrelated to the 
actual treatment of the disease. 
Witnesses have credited the petitioner with significant advances in leprosy research, and it may be 
that they are correct in their assertions. The current state of the record of proceeding, however, does 
not persuade us that the petitioner has made his case. 
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 labor 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 a labor certification issued by the Department of Labor, appropriate supporting evidence and fee. 
ORDER: The appeal is dismissed.