dismissed EB-2 NIW Case: Medical Research

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, D.C. 20529-2090 
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Office: TEXAS SERVICE CENTER Date: 
MAR 1 1 2009 
SRC 07 800 2 1476 
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. § 1 153(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. 3 103.5(a)(l)(i). 
V 
f ~ohn F. Gnssom, Acting Chief 
Administrative Appeals Office 
DISCUSSION: 
 The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The matter 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 research associate at the University of Texas Southwestern Medical 
Center (UTSMC) in Dallas. The petitioner asserts that an exemption fiom 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 fiom counsel, a statement from the petitioner, and other 
exhbits. 
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, 101 st Cong., I 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] 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 Dept. of Transportation, 22 I&N Dec. 215 (Commr. 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 achevements, and whose benefit to the national interest would thus be entirely 
speculative. 
We also note that the regulation at 8 C.F.R. 5 204.5(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 offer/labor 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's initial submission included five witness letters. Counsel identified three of these letters 
as "independent advisory opinions," but four of the witnesses are on the faculty of either UTSMC or the 
University of Texas Medical School-affiliated Texas Heart Institute in Houston, where the petitioner 
worked from August 2003 to December 2006. 
Both witnesses at the Texas Heart Institute wrote their letters while the petitioner was still worlung 
Among the beneficiaries of [the petitioner's] gene therapy research would be individuals 
who suffer from cardiovascular disease. . . . During the last years, novel insights into the 
processes responsible for vascular repair ha[ve] raised the potential for therapeutic 
applications, namely the transplantation of endothelial progenitor cells (EPC) for the 
improvement of vascularization. Gene therapy could supplement stenting with more 
widespread protection. . . . 
[The petitioner's] work in our Gene Therapy Department focuses on a couple of target 
genes. . . . [The petitioner's] research with atherosclerotic rabbits for the first time 
showed that by injecting these genes via catheter into the rabbits' damaged arterial 
walls, or by transferring them into vein grafts used for bypasses, we can improve blood 
flow and reduce scarring and narrowing of the arteries. This procedure has direct 
applications for the prevention of atherosclerosis and blockage of arteries for 
cardiovascular patients who have undergone a catheter-based intervention of a bypass to 
restore blood flow. There is also potential for regional therapy to improve blood flow in 
entire areas, for example, in the lower limbs of a diabetic who has circulation problems. 
Earlier work to deliver the genes has been done in animal models with a common 
adenovirus. However, I feel that there is a need for an even longer-tem expression of 
the transgenes which could be achieved only by using an adeno-associated virus (AAV) 
vector or a lentivirus vector. 
[The petitioner's] expertise enables our lab to employ gene therapy with AAV vectors. 
AAV have a number of features that make them unique as gene delivery vehicles. They 
have the ability to integrate into the host genome, ensuring stable, long-term expression 
of the delivered transgene. In contrast to adenovirus, AAV are native to humans and 
other primates and have no known pathogenic potential for causing clinical sequelae. . . . 
[The petitioner] has made several original discoveries to the field of AAV-based gene 
transfer of atherosclerotic vessels during his research in our Gene Therapy Department. 
[The petitioner] has demonstrated recombinant AAV vectors predominantly transducer 
the media smooth muscle layer of the atherosclerotic artery, eliciting transgene 
expression in a longer period up to 3 months in the disease vessels. [The petitioner] was 
the first to discover that AAV-mediated gene therapy functions not only on injured, but 
also on uninjured atherosclerotic arteries. [The petitioner] also developed and validated 
an assay system to evaluate transduction efficacy of AAV-based gene transfer of blood 
vessels with great sensitivity, reliability and convenience. Those original findings from 
[the petitioner's] research works have been prepared for publication. 
[The petitioner] is currently a Principal Investigator for a pre-clinical study project . . . 
[that] focuses on the development of a novel gene therapeutic approach for the treatment 
of Hemodialysis Vascular Access Dysfunction. 
In his October 30, 2006 letter, 
 of Molecular Biology and 
Proteomics at the Texas Heart Institute, described the same projects discussed above, but in greater 
technical detail. 
the UTSMC's Division of Renal Pathology, provided an 
overview of the petitioner's work: 
Over the past 15 years, [the petitioner] has made several important contributions and 
discoveries in the following areas: 
1). Pathogenesis and novel therapy of atherosclerosis associated with heart 
transplantation: [The petitioner's] novel findings provided not only the insight into the 
molecular mechanism of atherosclerosis in heart transplant but also of revealing new 
therapeutic strategies for this condition at the molecular level. In addition, he discovered 
a novel anti-fibrosis drug. . . . 
2). Gene therapy for cardiovascular disease: While working at the Texas Heart 
Institute, [the petitioner] showed for the first time that gene transfer . . . can improve 
blood flow and reduce scarring and narrowing of the vessels in atherosclerotic rabbits. 
This procedure has direct applications for the prevention of atherosclerosis and blockage 
of arteries for cardiovascular patients who have undergone a catheter-based intervention 
or a bypass to restore blood flow. . . . 
3). Role of oxidative stress in the pathogenesis of hypertension: Since joining the 
Department of Pathology at UT Southwestern [Mledical Center, [the petitioner] has 
taken a key role in an important long-term project - to investigate the role of oxidative 
stress and nitric oxide in the pathogenesis of hypertension. . . . Recently, we have 
created a new model of ROS [reactive oxygen species]-induced hypertension and 
provided irrehtable evidence that oxidative stress can cause hypertension. In order to 
discover how ROS cause hypertension, [the petitioner] is now using this new model of 
hypertension as a study tool. He has extended our earlier findings by demonstrating that 
rennin-angiotensin system is upregulated in this model. He is actively working on using 
a variety of antioxidants to treat high blood pressure. . . . 
4). Genetic dissection of cardiovascular disorders in systemic lupus erythematosus: 
In collaborating with, a leading immunologist in the world, [the 
petitioner] had made seminal discoveries in the genetic dissection of cardiovascular 
diseases associated with lupus with far-reaching implications for our understanding and 
clinical management of this disease. . . . He is currently leading the efforts to elucidate 
Page 6 
the pathogenesis of cardiovascular diseases associated with lupus that, in turn, will lead 
to the development of new therapeutic strategies for these disorders. 
(Emphasis in original.) 
 An exhibit list submitted 
letter as an "independent advisory opinion," 
stated that I' is the petitioner's collaborator at 
 stated: 
[The petitioner] is presently collaborating with my group to explore the genetic 
contributions to the development of CVD [cardiovascular disease] found in systemic 
lupus erythematosus (SLE) patients, and genetic influences on conventional CVD 
therapeutics for SLE. . . . [The petitioner] is studying (1) the effects of lupus 
susceptibility loci of Slel, Sle3 and yaa, and their interplay on cardiovascular 
phenotypes by using recombinant congenic lupus susceptibility animals and (2) the 
therapeutic potentials of SOD [superoxide dismutase] in preventing lupus-prone mice 
from developing cardiovascular complications, and the influences of lupus susceptibility 
loci on SOD'S therapeutic effects. Susceptibility to SLE is believed to be mediated by 
complex genetic and environmental interactions. Exploring genetic contributions to the 
development of cardiovascular complications found in SLE patients is of great 
significance not only for fully understanding the initiation and progression of these 
lesions, but also for the development of unique diagnostic approaches and novel 
personalized therapeutic strategies. [The petitioner's] work is essential for such 
purposes. 
The only initial witness outside of the University of Texas system is of Cardiff 
University School of Medicine in the United Kingdom. Prof stated: 
I have met [the petitioner] a few times in my occasions when attending scientific 
conferences in the US for the past few years. The [most] recent meeting that I had with 
[the petitioner] was in December 2006 in Houston, weeks before [the petitioner] took his 
current post. . . .[The petitioner's] recent appointment in Dallas . . . will further 
strengthen our potential collaborations. . . . 
It is his expertise in the viral vector for gene therapy and in endothelial biology that has 
made us to collaborate. He is unique and has international standing in these areas of 
vital medical research. . . . 
[The petitioner] is currently working at Texas Heart Institute. . . . In his current work, 
[the petitioner] is studying adeno-associated virus (AAV)-mediated gene transfer in 
atherosclerotic vessels. 
Although 
 mentioned the petitioner's ''recent appointment in Dallas," he repeatedly indicated 
that the petitioner's "current work" took place at the Texas Heart Institute and involved AAV-mediated 
gene transfer. The record shows that the Texas Heart Institute is in Houston, and that the petitioner's 
Page 7 
work with AAV-mediated gene transfer ended when, as stated, the petitioner "took hs 
current post . . . in Dallas." ~rof.mdid not mention the petitioner's later work at UTSMC. It 
appears that initially wrote the letter while the petitioner was still in Houston, and later 
revised the letter to acknowledge the petitioner's relocation to Dallas. 
The petitioner submitted copies of some of his scholarly writings, all under his original name, rather 
than the Japanese name he adopted in 2003. The copies consist of a book chapter published in China in 
1993, 15 scholarly articles published in Japan fiom 1996 to 2003, and a 2007 article that had been 
submitted for publication but not yet published as of the filing date. 
Documentation submitted with the petition established 50 citations of the petitioner's published work. 
A document of unspecified origin indicated that there had been 71 citations, but this document is not 
direct evidence of those citation. While the figure of 50 citations is impressive, the record shows that 
the petitioner's output has been inconsistent. 
A "total publications list" showed 27 articles and the book chapter. This list did not indicate that the 
petitioner had produced any published work during the nearly four years between his August 2003 
arrival in the United States and the petition's July 2007 filing date. All of the articles that the petitioner 
had published as of the filing date had been published or submitted for publication while the petitioner 
was in Japan. Furthermore, the publication dates show a very uneven rate of publication, with nearly 
two thirds of his published articles appearing in a two-year period fiom 1998 to 1999: 
Year Articles Year Articles Year Articles 
1996 1 1999 10 2002 4 
1997 2 2000 1 2003 0 
1998 7 2001 1 2004 1 
The article published in 2004 was submitted for publication in April 2003, while the petitioner was in 
Japan. The petitioner did not claim that any of his articles had been published in 2005,2006 or 2007, or 
that he had submitted any articles for publication in 2004,2005 or 2006. 
On December 31, 2007, the director instructed the petitioner to "[slubmit further evidence that 
demonstrates the beneficiary's specific prior achievements which would justify the projected future 
benefit of her [sic] work to the United States." The petitioner submitted three new letters, all fiom 
witnesses within the University of Texas. , of the university of Texas 
Medical Branch, Galveston, stated: 
I have known [the petitioner] for over twenty-eight years since we both enrolled as 
medical students in Beijing University School of Medicine. In the past four years, I had 
the opportunity to interact again with [the petitioner] frequently and exchange 
information particularly on adeno-associated viral vector (AAV)-mediated gene delivery 
and gene therapy. . . . 
Page 8 
The unique combination of both in-depth clinical and basic research expertise in 
cardiovascular disorders made [the petitioner] an extraordinary scientist to creatively 
and productively tackle critical problems in the cardiovascular research field. This is 
evidenced by his original findings . . . that: 1) preconditioning showed protective effects 
on long-term cardiac preservation after heart transplantation; 2) profiling globe gene 
expression pattern and validating targeted molecular mediators in cardiac transplant- 
derived arteriosclerosis animal models provided important insights into developing new 
therapeutic approaches; 3) recombinant AAV predominantly transduced the media 
smooth muscles of the atherosclerotic artery, and AAV-mediate gene transfer were 
stable and [sic] both for injured and un-injured atherosclerotic arteries. . . . 
Based on his superb scientific performance, there is no doubt that [the petitioner] will 
continue to make seminal contributions in the field of cardiovascular research. 
The remaining two witnesses, 
 and are both assistant professors at 
UTSMC. Portions of their respective letters are nearly identical to one another. For instance, 
letter contains the following passage: 
The other research theme that [the petitioner] is presently conducting at UTSW aims to 
explore genetic contributions to the development of CVD associated with systemic 
lupus erythematosus (SLE) patients. SLE is the prototypical autoimmune disorder 
affecting as high as 1 in 2000 in certain populations with a 10: 1 female predominance. 
It affects multiple organs, including the kidneys, displays a broad spectrum of clinical 
and immunological manifestations and is a significant risk factor for atherosclerosis 
independent of the traditional cardiac risk factors. 
letter includes the same passage, with only scattered cosmetic changes: 
The other research theme that [the petitioner] is presently conducting at UTSW is aimed 
to explore genetic contributions to the development of CVD found in systemic lupus 
erythematosus (SLE) patients. SLE is the prototypical autoimmune disorder affecting as 
high as 1 in 2000 in certain populations with a 10:l female predominance. It affects 
multiple organs and displays a broad spectrum of clinical and immunological 
manifestations. SLE is commonly associated with renal disease. It is also a significant 
risk factor for atherosclerosis independent of the traditional cardiac risk factors. 
The evident common origin of the two letters quoted above reduces their evidentiary value and refutes 
counsel's characterization of 
 letter as an "independent and objective evaluation." 
The director denied the petition on June 2, 2008, stating that the witness letters did not "provide any 
examples of specific resources that have adopted or expressed interest in adopting [the petitioner's] 
methodologies." The director acknowledged the citation information in the record, but observed that 
"the Petitioner first authored only five out of the 26 published articles provided," accounting for only 17 
of the documented citations. 
 The director also noted "there is no evidence of the petitioner[']s 
authorship of a single article that has garnered more than 20 independent citations." 
On appeal, the petitioner asserts "most of my second-author articles were related to my research works 
at Tokyo Women's Medical University. This situation . . . directly resulted fiom an agreement which 
. . . [was] a precondition for me to commence my study and research at the university." The petitioner 
submits a translated copy of a memorandum from the Clinical Immune Laboratory at Tokyo Women's 
Medical University, indicating that "Mitsushiro Hachida is the primary (first) author of all publications 
in overseas countries other than Japan and China. [The petitioner] is entitled to publishing research 
work as the primarv (first) author should such work be published in Japan or China." The petitioner 
<. , 
also submitted a letter from 
 listed as first author of &o of the petitioner's articles, 
who stated that the petitioner was "an equal contributor to the methodology described in these papers.'' 
The AAO does not generally stress primary authorship of research articles, but the above materials 
submitted on appeal indicate that the petitioner's second-author credits do not always fully establish the 
extent of the petitioner's contributions to the articles in question. 
Printouts fiom a citation database show 70 "Total Citing Articles without self-citations." The AAO 
does not ignore this figure, or regard it as narrowly as the director did in the denial decision. 
Nevertheless, we will not ignore the context of the figures provided. The great majority of the 
documented citations relate to the petitioner's work in Japan before 2004. 
As discussed above, the record demonstrates that, while the petitioner's work in Japan has attracted 
significant attention, the petitioner's work in the United States appears to have been substantially less 
productive and influential. The petitioner went fiom producing ten articles in 1999 to a four-year span 
fiom 2003 to 2007 in which the petitioner's work in the United States produced no published work. 
Similarly, the witnesses commenting on the petitioner's recent work are almost all &om the University 
of ~exai or affiliated institutions where thd petitioner performed that work. The wording of -1 
letter, while ambiguous, seems to suggest that 
 is yet another of the petitioner's 
collaborators, rather than an independent witness whose letter shows that the petitioner's reputation 
extends to the United Kingdom. 
%le a record of past achievement and influence is an essential factor in a national interest waiver 
claim, a peak in that record does not create a permanent entitlement to the waiver. When, as here, the 
record clearly shows that the petitioner's productivity and influence has significantly tapered off over 
several years, then this decline is inextricably part of the petitioner's record of achievement and 
influence. The witnesses who provided letters in support of the petition are either UT researchers or, 
apparently, the petitioner's self-identified collaborators. The available evidence, therefore, leads us to 
conclude that the petitioner's recent work in Texas is neither as productive nor as influential as his now- 
completed work in Japan. While the AAO cannot rule out the possibility that the petitioner's work may 
eventually reclaim the status it enjoyed a decade or so ago, the documentation in the record does not 
support the conclusion that the petitioner's recent and current work is of the same caliber as his best- 
known earlier work. 
Page 10 
As is clear fi-om 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 f?om 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. 5 1 3 6 1. 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.