dismissed EB-2 NIW Case: Medical Research

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privac) 
PUBLIC COpy 
DATE: JUN II 2011 Office: TEXAS SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
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. Citizenship 
and Immigration 
Services 
FILE: 
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: 
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 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)(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, 
~
f)lj({jt}ttv 
'Perry 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 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 a member of the professions holding an advanced degree. The 
petitioner seeks employment as a lead research specialist. 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 of the United States. 
On appeal, counsel submits a brief and resubmits previously submitted evidence. The petitioner must 
demonstrate eligibility as of the date of filing. I See 8 C.F .R. § § 103 .2(b)(1), (12); Matter of Katigbak, 
14 I&N Dec. 45, 49 (Reg'l. Comm'r. 1971). At the time of filing, the petitioner, while possessing what 
purports to be a foreign medical degree, was pursuing a Master's degree in Health Policy and 
Management at Also as of that date, the petitioner had two published abstracts and 
no published articles. Even as of the date of appeal, the petitioner's publication record is minimal. 
Significantly, all of the letters are from individuals currently or previously affiliated with _ 
_ . Moreover, these references merely discuss the importance of the petitioner's area of 
research and his value to his ongoing project without identifYing any past accomplishments and 
explaining their influence in the field. For these reasons, discussed in more detail below, the record 
contains no persuasive evidence demonstrating that a waiver of the alien employment certification 
process would serve the national interest in this matter. 
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 "Prior counsel" refers to the the attorney who represented the petitioner initially and in response to the 
request for additional evidence while "counsel" refers to the attorney who represents the petitioner on appeal. 
Page 3 
(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 accepted that the petitioner was a member of the professions holding an advanced 
degree. The AAO, however, conducts appellate review on a de novo basis. The AAO's de novo 
authority is well recognized by the federal courts. See Solfane v. DOJ, 381 F.3d 143, 145 (3d Cir. 
2004). 
An advanced degree is a United States academic or professional degree or a foreign equivalent 
degree above the baccalaureate level. 8 C.F.R. § 204.5(k)(2). The regulation further states: "A 
United States baccalaureate degree or a foreign equivalent degree followed by at least five years of 
progressive experience in the specialty shall be considered the equivalent of a master's degree. If a 
doctoral degree is customarily required by the specialty, the alien must have a United States 
doctorate or a foreign equivalent degree." Id. 
The petitioner submitted two diplomas, neither of which states the length of the programs the petitioner 
completed. The petitioner received a conferring a Bachelor of Art qualifYing him as an expert 
of antiquity from the . The diploma indicates the petitioner completed 
the program in 1999. The second diploma, from the states that, three 
years later in 2002, the petitioner completed a course in general medicine qualifYing him as a 
. "physician." The petitioner did not submit an evaluation of either diploma. Thus, the petitioner has not 
established that his 2002 diploma is a foreign equivalent degree to a U.S. medical degree as claimed. 
As the petitioner has not documented that he has a U.S. academic or professional degree or a foreign 
equivalent degree above the baccalaureate level, he has not established his eligibility for classification 
as a member of the professions holding an advanced degree. The petitioner has never claimed to be an 
alien of exceptional ability or submitted evidence relating to the regulatory criteria set forth at 8 C.F .R. 
§ 204.5(k)(3)(ii). Thus, the petitioner has not established his eligibility for the classification sought. 
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 define the term "national interest." Additionally, Congress 
did not provide a specific definition of the phrase, "in the national interest." The Committee on the 
Judiciary merely noted in its report to the Senate that the committee had "focused on national interest 
by increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise .... " S. Rep. No. 55, WIst 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: 
Page 4 
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't. ofTransp., 22 I&N Dec. 215, 217-18 (Comm'r. 1998) (hereinafter 
"NYSDOT"), has set forth several factors that U.S. Citizenship and Immigration Services (USCIS) 
must consider 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. Id. at 217. Next, the petitioner 
must show that the proposed benefit will be national in scope. Id. Finally, the petitioner seeking the 
waiver must establish that the alien will serve the national interest to a substantially greater degree than 
would an available U.S. worker having the same minimum qualifications. Id. at 217 -18. 
It must be noted that, while the national interest waiver hinges on prospective national benefit, the 
petitioner must establish that the alien's past record justifies projections of future benefit to the national 
interest. Id. 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 use of the term 
"prospective" requires future contributions by the alien, rather than to facilitate the entry of an alien 
with no demonstrable prior achievements, and whose benefit to the national interest would thus be 
entirely speculative. Id. 
The AAO concurs with the director that the petitioner works in an area of intrinsic merit, medical 
research, and that the proposed benefits of his work, improved understanding and treatment of adults 
and premature children with lung failure due to chronic exposure to alcohol, 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. 
Prior counsel initially focused on the importance of the petitioner's area of research and submitted 
multiple articles addressing Acute Respiratory Distress Syndrome (ARDS). Prior counsel then 
asserted that the petitioner's "record of past scientific discoveries" warranted a waiver of the alien 
employment certification. On appeal, counsel asserts that the temporary nature of the petitioner's 
position precludes Emory University from seeking an employment certification on behalf of the 
petitioner. 
First, eligibility for the waiver must rest with the alien's own qualifications rather than with the 
position sought. In other words, U.S. Citizenship and Immigration Services (USCIS) generally does 
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. 
Second, prior counsel failed to identify the petitioner's "past discoveries." Instead, prior counsel 
asserted that the petitioner's alleged "record of past scientific discoveries" is evident from his 
development of "extensive expertise" in various procedures. Counsel advances a similar assertion 
on appeal. Job-related training in an important new method, however, cannot be considered to be an 
achievement or contribution comparable to the innovation of that new method. Id. at 221, n. 7. 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 
ofthe 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, the AAO notes 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. 
Finally, prior counsel fails to explain why unwillingness to offer the petitioner a 
permanent job suggests that waiving the alien employment certification process is in the national 
interest.~ current nonimmigrant status allows him to complete his temporary position. 
Should ~ subsequently decide to offer the petitioner a permanent position to continue 
working on this project, it can seek alien employment certification at that time. USCIS does not dispute 
the advantage to an employer of retaining qualified staff rather than training inexperienced, newly hired 
workers. Id. at 222. The contention that no other experienced workers are available, however, should 
be tested on an application for alien employment certification. Id. 
On appeal, counsel asserts that the petitioner "is the best candidate for this position because of his 
expertise and skills in the field - training a new US worker will be technically difficult and a set back in 
the Petitioner's research efforts." Counsel apparently means when using the term 
"Petitioner." This presumes that the alien employment process would require 
hire a U.S. worker that requires training and, thus, is not qualified for the position. 
An application for alien employment certification, however, allows an employer to list the required 
amount of education, experience, training and other skills required for the position. Simple exposure to 
advanced technology constitutes, essentially, occupational training which can be articulated on an 
application for alien employment certification. Id. at 221. As stated above, the issue of whether 
similarly-trained workers are available in the United States is an issue under the jurisdiction of the 
Department of Labor. Id. 
The cover letter to the original petition lists two published articles in Medical View of XXI Century. 
The petitioner did not submit these articles. The unsupported assertions of counsel do not constitute 
evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988); Matter of Laureano, 19 I&N 
Dec. 1, 3 n.2 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Moreover, 
Page 6 
going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. 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)). Regardless, they 
relate to leukemia and antihypertensive treatments, areas in which the petitioner is no longer working. 
The petitioner also submitted two unpublished manuscripts. In response to the director's request for 
additional evidence, the petitioner submitted two additional articles published after the filing of the 
petition. As stated above, the petitioner must demonstrate his eligibility as of the filing date. See 
8 C.F.R. §§ 103.2(b)(1), (12); Matter of Katigbak, 14I&N Dec. 45, 49 (Reg'l. Comm'r. 1971). In 
this matter, that means that he must demonstrate his track record of success with some degree of 
influence on the field as a whole as of that date. All of the case law on this issue focuses on the 
policy of preventing petitioners from securing a priority date in the hope that they will subsequently 
be able to demonstrate eligibility. Matter of Wing's Tea House, 16 I&N Dec. 158, 160 (Reg'l. 
Comm'r. 1977); Matter of Katigbak, 14 I&N Dec. at 49; see also Matter of Izummi, 22 I&N Dec. 169, 
175-76 (Comm'r. 1998) (citing Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981) for the 
proposition that USCIS cannot "consider facts that come into being only subsequent to the filing of a 
petition.") Consistent with these decisions, a petitioner cannot secure a priority date in the hope that 
his as of yet unpublished research will subsequently prove influential. Ultimately, in order to be 
meritorious in fact, a petition must meet the statutory and regulatory requirements for approval as of 
the date it was filed. Ogundipe v. Mukasey, 541 F.3d 257, 261 (4th Cir. 2008). 
Regardless, the record contains no evidence, even on appeal, that these articles have been cited at a 
level consistent with any influence in the field. In fact, the evidence that appears to have been 
submitted to document citations actually documents two articles by the petitioner's supervisor in 
the petitioner himself has cited. A lack of 
CItatIOns not a petl has influenced the field. Nevertheless, it is 
the petitioner's burden to provide some type of evidence demonstrating such an influence. 
The petitioner submitted two presentations with no evidence as to where the petitioner or a coauthor 
presented this work. The petitioner also submitted evidence of two abstracts for work the petitioner or 
a coauthor presented at two While conference 
presentations demonstrate . must demonstrate the 
influence of those presentations once disseminated. The petitioner did not submit citations or other 
evidence of independent researchers using the petitioner's work in their own work. 
The petitioner submitted a September 2002 article in _reporting on a visit to the newly 
opened English language. medical school where ~ "one of the best students in his 
class" who has published comprehensive research. The record contains no evidence regarding the 
distribution of this publication. Regardless, the article characterizes the petitioner as an "extremely 
perspective [sic] medical specialist" with a "great future" rather than someone who has already 
influenced the field. Academic performance, measured by such criteria as grade point average, 
cannot alone satisfY the national interest threshold or assure substantial prospective national benefit. 
Page 7 
NYSDOT, 22 I&N Dec. at 219, n.6. In all cases the petitioner must demonstrate specific prior 
achievements that establish the alien's ability to benefit the national interest. Id. 
Finally, the petitioner submitted several letters from his supervisor at and other 
individuals who are eith~ly affiliated with that university. ____ 
a professor of pediatrics .......... asserts that the petitioner has wor~ 
of the summer of 2003. explains that the petitioner has "developed extensive expertise in 
preparing and assessing lung injury by morphometric analysis." As stated above, 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. While _ asserts that these 
analyses are important to her study of the efficacy of antioxidant treatments and explains the potential 
reach of this study, she fails to explain how the petitioner's ability to prepare and assess lung injury has 
influenced the field to any degree. _ concludes that the petitioner's research "will make a 
great contribution in our understanding and treatment of those with chronic exposure to alcohol." .. 
_ does not, however, identify a past record of success with some degree of influence on the field 
as a whole. 
While _ discusses the value of the petitioner's skills to her 
training someone new, it remains that the petitioner is a student with no 
documented prospect of a permanent job offer laboratory. Thus, immigration matters 
aside, _does not explain how she would retain the petitioner's services in her laboratory once 
the petitioner graduates. I does not explain how the petitioner differs from other graduate 
students that a university laboratory is constantly training in laboratory techniques as part of the 
students' education. 
an associate professor explains that she collaborates with 
the study of maternal alcohol exposure and lung development in the newborn. .. 
In these studies, we have demonstrated that in utero ethanol impairs the function of the 
resident immune cell in the developing lung, and increases the risk of infection and 
systemic sepsis in the experimental animal. His work has lead to an important scientific 
advance as well as a manuscript currently in submission, where [the petitioner] is named 
a co-author. He has also been a co-author on five scientific abstracts with me that I have 
presented at international scientific meetings in this field. 
acknowledges that the petitioner's manuscript was unpublished. Thus, the petitioner 
cannot the influence of this work. While _ also references presentations, he 
does not explain how these presentations have influenced the field such that they are being applied by 
independent researchers. 
Page 8 
previously a professor at asserts that the petitioner assisted 
in his research into the functional features ofthe certain cells of the bronchial-associated 
lymphoid tissue of human fetuses "by conducting Enzyme Linked Immunosorbent assay (ELISA) and 
data processing." The petitioner's ability to provide ELISA and data p~ces are skills that 
can be listed on an application for alien employment certification. __ then goes on to 
discuss the importance of the petitioner's area of research. The issue is not whether treating ARDS is 
in the national interest but whether the petitioner, but whether the petitioner will benefit the national 
interest to a greater extent than an available U.S. worker with similar qualifications. See id. at 220. As 
stated above, the petitioner's technical skills, such as ELISA experience, are amenable to articulation 
on an application for alien employment certification. Id. at 220-21. 
a Research Specialist Supervisor at , merely asserts that the 
petitioner is proficient at "various laboratory research techniques including: cellular isolation and 
culture, cell line culture, enzymatic assays, immunofluorescent staining, and fluorescent microscopy." 
As stated above, any objective qualifications necessary for the performance of the occupation can be 
articulated in an application for alien employment certification. Id. at 220-21. Moreover, the issue 
of whether similarly-trained workers are available in the U.S. is an issue under the jurisdiction of the 
Department of Labor. Id. at 221. 
a research technical specialist at discusses the 
petitioner's assistance with a visit from a native _. None of this discussion identifies any 
innovations by the petitioner or explains how he has influenced the field. 
The Board of Immigration Appeals (the Board) has held that testimony should not be disregarded 
simply because it is "self-serving." See, e.g., 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 
evidence lacks specificity, detail, or credibility, there is a greater need for the petitioner to submit 
corroborative evidence. Matter of Y-B-, 21 I&N Dec. 1136 (BIA 1998). 
The opinions of experts in the field are not without weight and have been considered above. USCIS 
may, in its discretion, use as advisory opinions statements submitted as expert testimony. See Matter 
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 this decision has 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'l. 
Comm'r. 1972)). 
Page 9 
The letters considered above primarily contain bare assertions of valuable skills without specifically 
identifYing innovations and providing specific examples of how those innovations have influenced 
the field. Merely repeating the legal standards does not satisfY the petitioner's burden ofproof.2 The 
petitioner did not provide any letters from independent experts. More significantly, the petitioner 
also failed to submit corroborating evidence in existence prior to the preparation of the petition. 
Ultimately, the petitioner is a laboratory technician with some type of medical background who has 
learned valuable laboratory skills while pursuing his Master's degree. The record lacks evidence that 
the petitioner possesses any skills that are not amenable to articulation on an application for alien 
employment certification. 
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. 
ORDER: The appeal is dismissed. 
2 Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.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, USC[S need not accept 
primarily conclusory assertions. 1756, Inc. v. The Attorney General of the United States, 745 F. Supp. 9, 15 
(D.C. Dist. 1990).