dismissed EB-2 NIW Case: Medical Research

U.S. Department of Homeland Security 
20 Mass. Ave., N.W.; Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
prn~~P j-v 
" kGpk 
$, *a, 
1 
*&P 
FILE: - Office: NEBRASKA SERVICE CENTER Date: Aua 3 1 ZoD5 
LIN 03 226 50202 
PETITION: lmmigrant 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. 5 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. 
#+ 
u 7 Robert P. Wiemann, Director 
Administrative Appeals Office 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa petition. 
The matter is now before the Administrative Appeals Office 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. 5 1153(b)(2), as a member of the professions holding an advanced degree. The petitioner seeks 
employment as a research scientist at the Medical College of Ohio. 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 from the requirement of a job offer would be 
in the national interest of the United States. 
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) . . . 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, 
10lst Cong., 1st Sess., 1 1 (1989). 
Supplement information to regulations implementing the Immigration Act of 1990 (IMMACT), published at 
56 Fed. Reg- -. ovember 29, 1991), states: 
The Service [now 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. 
Page 3 
Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Comm. 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 hture, 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. 
The petitioner states: "In the past I I years, I have made very significant contributions to the fields of heart 
failure and cancer research." The petitioner asserts that she has "made substantially greater contributions than 
most . . . other researchers working in my field of endeavor." The petitioner describes her past and present 
research efforts. For instance, the petitioner states: "I also found tea could prevent oral cancer in a double- 
blind intervention trial in fifty-nine patients with oral mucosa leukoplakia using a mixed tea product 
developed by me. After the 6-month trial, the size of oral lesion was significantly decreased in the treatment 
group." The petitioner asserts that she was also "the first to discover the role of caveolae in signal- 
transducing function of cardiac NaJK-ATPase" and "that the caveolae of the blood vessels respond to digitalis 
drugs in a manner similar to those of the heart cells." 
The petitioner submits several witness letters to support her petition, examples of which we discuss here. 
Four of the eight initial witnesses are on the faculty of the Medical College of Ohio; three 0th 
supervised or collaborated with the petitioner. The most independent witness appears to be Professor 
of Texas Tech University. Prof.states: 
Although I do not know [the petitioner] well on a personal level, I have followed her work 
professionally for a number of years and worked closely with her colleagues. . . . 
[The petitioner] has performed seminal investigations on the molecular mechanisms that 
underlie the actions of digitalis and its derivatives, critical drugs used to treat congestive heart 
failure. It has been known for decades that the pharmacological target of these drugs is the 
Na,K-ATPase, an enzyme complex within the cell membrane that is essential for salt balance. 
The classical explanation for the actions of digitalis has been that it inhibits the Na,K- 
ATPase, and the resulting changes in salt homeostasis increase the strength of contraction in 
diseased heart muscle. [The petitioner's] work, however, has called into question that 
explanation, and it suggests instead that the role of the Na,K-ATPase may be far more 
complicated. Indeed, her research provides evidence that this enzyme complex plays a role in 
intracellular signaling, providing a means by which drugs such as digitalis can influence 
directly the expression of a variety of proteins. The implications of these studies for the 
treatment of heart failure are profound, and her results will almost certainly influence the 
manner in which we use existing drugs, as well as the logic employed in the development of 
new drugs. 
Professor Julius C. Allen of Baylor University states: 
[I]t was a common research interest that brought me in contact with [the petitioner], as she 
and her colleagues at the Medical College of Ohio had been doing exemplary work on a new 
exciting effect of cardiac glycosides in the heart. 
[The petitioner] has already made extraordinary contributions since her arrival in Toledo. 
She has clarified the mechanism by which the very commonly used digitalis drugs send 
messages from the surface of the heart cells to the heart genes in the cell nucleus. . . . 
[The petitioner] has also succeeded in proving that many of the above noted digitalis effects 
observed in isolated cardiac cells also occur in the intact heart[s] of experimental animals. . . . 
Lastly, and most importantly she has provided the first solid scientific evidence that digitalis- 
induced events in the heart cells begin in small and specialized segments of the cell surface 
membrane called caveolae. . . . She has in fact shown that the caveolae of blood vessels 
responded to digitalis in a manner quite similar to those of cardiac cells. These important 
discoveries are in the process of being published. 
I can honestly say that the work I have described above, performed by [the petitioner] has 
changed the way scientists view both cardiac cells and vascular smooth muscle cells. She has 
moved the biology of these important cardiovascular tissues into a new and exciting 
direction. 
The petitioner states "~r.has never worked with me before," but the record contains proof of 
collaboration in the form of a published article which names both of them as authors. 
Several other witnesses discuss this same work. The petitioner's supervisor, Professor-states 
that the petitioner's "unprecedented discoveries in our laboratory signify that almost no one else has her 
special and vital knowledge in this area, and no other researchers in this field possess such a highly skilled 
background." Some witnesses also cite the petitioner's earlier work on the use of tea extracts to prevent 
cancer. Professor- who supervised the petitioner's work at the Chinese Academy of Preventive 
Medicine, states that the petitioner's "data provided important proof that black tea can prevent cancer. This 
breakthrough finding has been recognized by the scientific community." 
The director found that the record does not support witnesses' claims regarding the importance of the 
petitioner's work and her standing in the field. For instance, the director noted that the record does not 
support Dr. assertion that the petitioner's work "provided important proof that black tea can prevent 
cancer." The director cited another article in the record which indicates that the studies "have not yielded 
clear conclusions concerning the protective effects of tea consumption against cancer formation in humans." 
The petitioner's initial submission includes copies of the petitioner's published articles, but no citation 
records to establish the impact of those articles. 
The director issued a detailed request for evidence. The director noted that the petitioner apparently had not 
performed cancer research since 1999, and asked whether the petitioner planned to resume this research. The 
director requested documentation of independent citations of the petitioner's published work, and additional 
evidence that would verify witnesses' claims that the petitioner's work has been influential in the field. The 
director also requested background information to put some of the petitioner's initial evidence in perspective. 
In response, the petitioner submits new letters and evidence, as well as arguments from counsel. 
The petitioner had initially stated: "It is estimated that about 70% of cancer is preventable by diet and 
nutrition related lifestyle changes." The petitioner did not specify by whom "it is estimated." The director 
requested a "documentary basis for this 70% figure from reputable cancer research organizations." In 
response, the petitioner submits materials relating to a report issued by the American Institute for Cancer 
Research and the World Cancer Research Fund. Counsel states: "Please note that this expert report states that 
diet may prevent 66-75% of cases of stomach cancer and may decrease the incidence of colorectal cancer by 
66-75%." The petitioner's claim, however, referred not to "stomach cancer" or "colorectal cancer," but 
simply "cancer." The materials submitted in response to the notice state: "The panel estimates that 
recommended diets, together with maintenance of physical activity and appropriate body mass, can in time 
reduce cancer incidence by 30 - 40%." While this shows a link between diet and cancer in general, the 
percentage is only about half of what the petitioner had claimed "is estimated by unknown sources (and even 
then this smaller percentage is not the result of diet alone). The report recommends "vegetables and fruits" to 
reduce cancer risk, but does not mention green tea or black tea (the objects of the petitioner's inquiry). We 
note that the petitioner's own cancer studies involved neither stomach cancer nor colorectal cancer; where the 
type of cancer is specified, the petitioner's work involved certain oral cancers and smoking-induced lung 
cancer. 
Research involving tea and cancer prevention attracted some attention in the popular media in 1998; a CNN 
report identified the petitioner's supervisor but not the petitioner. As noted above, the petitioner had claimed: 
For instance, the petitioner states: "I also found tea could prevent oral cancer in a double-blind intervention 
trial in fifty-nine patients with oral mucosa leukoplakia using a mixed tea product developed by me. After the 
6-month trial, the size of oral lesion was significantly decreased in the treatment group." Documents 
submitted in response to the director's notice confirm what the petitioner's wording implies: cancer was 
delayed, but not prevented, in the treatment group; the petitioner has not demonstrated that decreased lesion 
size equates to the absence or outright prevention of cancer. 
Regarding the director's observation that the petitioner's recent work does not appear to have involved cancer 
research, counsel concedes that the petitioner "has not conducted cancer research since 1999." Counsel 
contends, however, that "[clancer and cardiovascular diseases are closely related. Both are age-related and 
share similar etiology." Counsel states: "~r. has asked [the petitioner] to continue the research 
on the relationship between Na/K-ATPase and human breast cancer," but a new letter from Dr.oes 
not support this assertion. 
Counsel states: "Even though [the petitioner] has published only 3 papers, it must be pointed out that these 3 
papers [appeared in] top-rated international scientific journals." Counsel cites the high impact factors of the 
journals that have carried the petitioner's work. Impact factors are calculated from the number of citations an 
average article in the journal receives; thus, the impact of individual articles determines the impact factor of a 
journal, rather than vice versa. Therefore, the impact factor of a journal does not show that any one given 
article from that journal has been heavily cited. For the impact of a particular article (rather than the overall 
impact of the journal in which it appears), we must look at the citation history of the article in question. If the 
individual article has few citations, then it is disingenuous to emphasize the impact factor of the journal; in 
such a case, the journal's impact factor is high in spite of, rather than because of, the article under discussion. 
Several new the petitioner's response to the director's request for evidence. For 
example, Professo of Washington University, St. Louis, Missouri, states: "I have not 
Page 6 
worked with the petitioner or know her on a personal level." Prof. Mercer asserts that the petitioner's 
"elucidation of this important role for the Na,K-ATPase . . . has redirected researchers in the field (myself 
included) to investigate the role of the Na,K-ATPase as a receptor for cellular signaling." Prof. is one 
of several witnesses who claim to have no close ties to the petitioner. 
The director denied the petition, stating: "The evidence submitted does not distinguish the petitioner from 
other research associates to a substantial degree." The director noted the inaccuracies (discussed above) in the 
descriptions of research involving tea and cancer prevention, and stated that the record contains no objective 
evidence to support the claim that the petitioner's work has significantly affected the treatment of heart 
failure. The director also concluded that the petitioner had documented only two independent citations of her 
work as of the petition's filing date. 
On appeal, counsel states: "We believe that the evidences submitted show that there are four (4) citations by 
other independent research groups . . . in U.S., Australia, Denmark, and Japan. This evidence demonstrates 
that the impact of the Petitioner's research work is not limited to the U.S. We believe that this evidence also 
distinguish[es] the Petitioner from other research associates to a substantial degree." Because there exist 
citation indices and databases that track citations of published work, it is not a matter of "belief' as to whether 
or not an alien's citation record separates that alien from others in the field. The petitioner has not shown that 
it is a relatively little-seen accomplishment for a researcher to have accumulated four independent citations 
more than five years after publishing her first article. 
Counsel correctly asserts: "Whether a researcher has made significant impact in his/her field is not totally 
dependent on the number of citations. The number of citations is simply one of many indicators of a 
research[erI7s contributions to his/her field of endeavor." This is a reasonable assertion, although we note it is 
counsel who claims, on appeal, that "four (4) citations . . . distinguish the Petitioner from other research 
associates to a substantial degree." We place high value on independent citations because they provide 
objective documentation of other researchers' reliance on a researcher's work, and because they exist entirely 
independently of any immigration proceeding. Researchers cite the work of others because it is relevant to 
their work, not because an alien seeking benefits asked them to cite it. If the petitioner's work has truly had a 
significant impact on the treatment of heart failure, it is not unreasonable to expect there to exist some kind of 
documentary evidence to that effect. Conspicuously absent from the record is evidence from hospitals or 
other medical centers, showing that the petitioner's work has had an observable effect on the treatment of 
actual patients. 
Counsel states that the director failed to give due consideration to grant documentation that identifies the 
petitioner as "key personnel" on a project funded by the National Institutes of Health. The director had 
observed that the petitioner was not named as "key personnel" until after the petition's filing date. Counsel 
appears to dispute this finding, but then appears to concur with it, stating that the Grant Progress Report was 
filed "approximately 5 months" after the petition's filing date, and that "[ilt normally takes a couple of 
months to prepare such [a] Grant Progress Report." This does not show that the petitioner was already ranked 
as "key personnel" as of the filing date. Apart from all of this, the National Institute of Health funds tens of 
thousands of research projects each year,' each of which has its own "key personnel." We are not persuaded 
According to the NIH web site at ht@:!/www.~rants.nih.~ov/~ants!awardltnd9404.htm (accessed August 18, 
2005), NIH awarded 47,464 research grants in fiscal year 2004, worth over $19.6 billion. According to 
http://~vww.grants.nih.~ov!yrants/award/awad.htmc, NIH provided hnding to 3,181 different entities in fiscal year 
2004. Over a hundred institutions received over 100 awards each. Johns Hopkins University alone received 1,304 
that being one of perhaps a hundred thousand "key personnel" on NIH-funded projects (and one of dozens at 
the Medical College of Ohio) is primafacie grounds for a national interest waiver. If the waiver request is 
based on the petitioner's status as "key personnel" on a project, the burden is on the petitioner to establish that 
the project is particularly important in comparison to other projects. Receipt of federal grant funding is not 
sufficient to establish that importance. 
Counsel asserts that the director also "erred in failing to consider the Petitioner's Awards, Peer Review work, 
and Professional Membership." The petitioner received a "Science and Technology Achievement Award 
(Third Place)" in 1999. Counsel cites previously submitted statistics, and claims that these statistics show that 
only 103 out of "17,676 biomedical researchers in China" received that award in 1999. The 17,676 figure 
refers to "Health Researchers & Technicians," with no differentiation between "researchers" and 
"technicians." The record does not indicate whether all researchers were considered for the award, or if a 
smaller number applied for it. Furthermore, the "103 researchers" statistic refers to the "Research Awards of 
Ministry of Health," "Grade 111." Nothing in the record indicates that these "Research Awards" and the 
"Science and Technology Achievement Award" are one and the same. The petitioner submits no statistics 
about the "Science and Technology Achievement Award (Third Place), and therefore our only clue to the 
rarity of the petitioner's award is the certificate's eight-digit serial number When discussing the 
failure of the evidence to correlate to claims regarding that evidence, we note that, on appeal, counsel does 
not address the director's observation that the petitioner had not been "careful in making accurate 
presentations of the facts." 
Regarding the petitioner's peer review and professional memberships, peer review appears to be an expected 
duty of competent researchers rather than a privilege extended to a relative few; and the petitioner's 
membership in an organization with 65,000 members does not persuasively set her apart from others in the 
field. 
Counsel is correct that a "major breakthrough" is not necessary for an alien to qualify for a national interest 
waiver, but at the same time it must be recognized that, by law, exceptional ability in the sciences is not 
sufficient grounds for the waiver. Therefore, it cannot suffice simply to show that the petitioner is productive, 
that her work has yielded useful results, or that she is exceptional. The national interest waiver is an added 
benefit above and beyond the visa classification sought, and therefore the alien must, in some way, 
persuasively demonstrate that she stands above professionals with advanced degrees and aliens of exceptional 
ability. Given the lack of statutory and regulatory guidelines, the evidence in each record must be considered 
on a case-by-case record rather than against any kind of fixed checklist or rigidly defined standards. 
The record demonstrates that the petitioner has been a productive researcher, whose work has yielded 
worthwhile findings. Given the presence in the record of exaggerations and inaccuracies such as those 
already noted by the director, however, we cannot ignore that the objective, documentary evidence in the 
record does not fully support subjective assessments of the petitioner's work. The petitioner is apparently no 
longer performing cancer research, and her more recent work involving digitalis drugs appears to have been at 
such an early stage at the time of filing that no definitive evidence exists to show its importance. As far as the 
petitioner's discoveries being "unprecedented," the lack of precedent appears to be intrinsic to the definition 
of "discovery." Scientific researchers do not endeavor to discover that which is already known. 
awards, totaling almost $600 million. 1,132 of these awards were research grants, worth nearly $541 million. The 
Medical College of Ohio, where the petitioner works, received 4 1 research grants, worth nearly $13.5 million. 
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 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. 5 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.