dismissed EB-2 NIW Case: Medical Research

U.S. Department of Homeland Security 
U.S. Citizenshiv and Immimtion Services 
Ofice of Administrative ~ieals MS 2090 
idertifji3g 43t.a deleted to 
 Washington, DC 20529-2090 
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 U. S. Citizenship 
bvsion of pErs~nai privacy 
 and Immigration 
Services 
IN RE: 
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. 5 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. 3 103.5(a)(l)(i). 
Acting Chief, Administrative Appeals Office 
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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 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@)(2), as a member of the professions holding an advanced degree. The 
petitioner is a postdoctoral research associate at the University of Pittsburgh (UP), Pennsylvania. 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. 
On appeal, the petitioner submits a brief fiom counsel, printouts from a citation database, and a copy of 
a 2008 job offer letter. 
Section 203@) 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 
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increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise. . . ." S. Rep. No. 55,l Olst Cong., 1 st Sess., 1 1 (1989). 
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 tenn "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. 8 204.5(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 January 3, 2007. The initial submission included seven witness 
letters. The first two witnesses were the petitioner's classmates at Norman Bethune University of 
Medical Science in China; all three graduated in 1983. now Senior Manager of 
Surgical Training and Technical Services at Charles River Laboratories, Raleigh, North Carolina, 
stated: 
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[The petitioner's] research findings have received great response from the scientific 
community and have facilitated the work of many other scientists. . . . 
During her Ph.D. study [at Nippon Medical School, Tokyo, Japan], she learned a great 
number of theories and techniques of gene therapy. . . . Her modified retroviral vector is 
very useful for gene therapy of the most promising target disease. In drug resistance 
study, she found two candidate mechanisms of drug resistance in doxorubicin-resistance 
cells and demonstrated that the specific inhibitor might overcome drug resistance in 
resistant cells. Her discovery made a great contribution to increasing survival for 
chemo-resistant cancer patients. Furthermore, she successfully produced . . . fusion 
partner cells for production of human monoclonal antibodies. It has been used to 
produce human antibody. There has not been any human monoclonal antibody in the 
world so far. So it will benefit all the people in the world. 
of the University of Miami, Florida, used wording that was very 
similar, sometimes identical, to 
 s language, including the assertion that, prior to the petitioner's 
Ph.D. research, "[tlhere had not been any human monoclonal antibody in the world so far. So it will 
benefit all the people in the world." 
letter, such as the following passage: "she found two candidate mechanisms of drug resistance in 
doxorubicin-resistance cells and demonstrated that the specific inhibitor might overcome drug 
resistance in resistant cells. Her discovery also made a great contribution to increasing survival for 
cherno-resistant cancer patients." Th~s letter also marks yet another occurrence of the claim "[tlhere has 
not been any human monoclonal antibodies in the world so far. So it will benefit all the people in the 
world." 
[The petitioner] joined my research team as a postdoctoral Research Associate at the 
University of Pittsburgh in May, 2005. At present, she is working on two projects. Both 
of them are preclinical in utero gene treatment targeting neuromuscular diseases such as 
Duchenne muscular dystrophy (DMD). . . . [The petitioner] is pursuing in utero gene 
delivery that could offer the advantage of treatment at an early stage for MD. 
[The petitioner's] other project is oligonucleotide-mediated gene repair for the treatment 
of DMD in utero using the mouse model of DMD. Currently among the gene therapy 
strategies for DMD, a gene repair approach using oligonucleotides has yielded 
encouraging results. . . . 
With in utero gene delivery, two technical problems have emerged that were addressed 
by [the petitioner]. One is that [genetically modified] mdx mothers cannibalize almost 
all the pups post-delivery. The other one is the difficulty in identification of positive 
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pups after delivery. [The petitioner] has solved both of these problems by modifying 
post-surgical analgesia and using fluorescent beads to mark treated pups in utero. 
stated that the petitioner's doctoral research at NMU "was the first demonstration of the 
generation of human monoclonal antibodies with the possibility of a large impact on medical care," a 
somewhat narrower claim than other witnesses' assertion that the petitioner produced the first "human 
monoclonal antibody in the world." The text of' letter alternates between two distinct 
type fonts, sometimes in the middle of a sentence. 
proiect both technically and intellectually. . . . [The petitioner's] presence in her laboratory is essential 
A " 4 A 
to [the] gene treatme& in utero 
 repeated the claim that, prior to thd petitioner's 
doctoral studies in 2000-2004, "[t]h&e had not been any human monoclonal antibody in the world. So 
it will benefit all the people in the world." 
UP Research Assistant professor stated: 
[The petitioner's] past work . . . has resulted in an appreciable improvement nationally 
or internationally in the fields of immunology, molecular biology, cellular biology and 
public health care. [The petitioner's] current research projects . . . are very challenging 
and intrinsically important. And [the petitioner] is playing a critical role in all two 
projects both technically and intellectually by performing in utero gene transfer and gene 
correction. 
letter contains passages that resemble portions of letter, such as the following 
passage: "In the study of the drug resistance mechanisms of human leukemia cell line, she found two 
- 
candidate mechanisnk of drug resistance in doxorubicin-resistance cells. Her discovery also made a 
great contribution to increasing survival for cancer patients." did not credit the petitioner 
with the first synthesis of human monoclonal antibodies, but did state that the petitioner's work "will 
benefit all the people in the world," a phrase found in almost every letter submitted. 
Associate of Stanford (California) University described the etitioner's 
work at UP. wording is very similar, at times identical, to the wording in h 
letter, although it lacks the shared language found in the majority of the petitioner's initial letters. 
We note that the witnesses did not claim that the petitioner was the first to produce one particular 
variety of human monoclonal antibody. Rather, witnesses asserted, without Mer clarification or 
qualification: "There had not been any human monoclonal antibody in the world so far." The record 
contains no documentary evidence to support the claim that the petitioner produced the first "human 
monoclonal antibody in the world." The repetition of this claim by several witnesses, in wording that is 
identical or nearly so, does not enhance the claim's inherent credibility. 
The petitioner submitted copies of her research articles, along with documentation of citation of those 
works. The initial submission showed that citations of the petitioner's work appeared in nine published 
articles and a doctoral dissertation. 
On April 17, 2008, the director issued a request for evidence, stating that the petitioner "must 
demonstrate [the] ability to serve the national interest to a substantially greater extent than the majority 
of others in [her] field." In response, the petitioner submitted copies of additional articles and materials 
relating to various projects. 
The petitioner documented a total of 17 citations of articles that she had published between 1998 and 
2004. The petitioner did not claim any citation of work she produced after her 2005 entry into the 
United States. The petitioner's most-cited works (with five citations each) are a 1998 article which the 
record shows only in Chnese, and a 2003 article fiom Pediatrics International, which was not a 
research paper but rather a case study regarding a child with a pancreatic tumor. 
The petitioner also submitted two new letters. Of the two witnesses, counsel stated: 
One of them has watched [the petitioner's] work closely and the other has gotten to 
know her accomplishments primarily through her publications and conference 
presentations as well as through cooperation. As they come fiom different geographical 
regions of the United States (e.g. California and Massachusetts), with extensive 
experience as leader and expert judge of others' work . . . , their words carry special 
weight as they represent the scientific establishment in the field nationwide. 
Neither of the new witness letters is in Massachusetts. One is from the petitioner's mentor at UP, and 
the other is fiom one of the petitioner's collaborators. The geographic distance between Pennsylvania 
and California does not imply that these two witnesses speak on behalf of scientists across the United 
States. 
in her second letter, stated that the petitioner "had made a great progress [sic] in her 
- - 
project" and described the petitioner's two research projects at UP, sometimes repeating language fiom 
her previous letter. added: "Presently, she is collaborating with - at 
UCLA, Los Angeles and - at Stanford University to further study gene correction 
at the genornic DNA level." 
, Assistant Professor at the David Geffen School of Medicine, University of California, Los 
Angeles, stated: 
Currently among the gene therapy strategies for DMD, a gene repair approach using 
oligonucleotides has yielded encouraging results. . . . Gene correction strategies are 
attractive because of their ongoing benefit to all progeny of the corrected cells. In this 
study, [the petitioner] is using single strand oligodeoxynucleotides (ssODN) gene 
correction technology to fetal skeletal muscle in utero, with a goal of gene correction in 
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muscle progenitor cells. Her data demonstrate that gene correction of muscle cells in 
utero is feasible. The temporal increase in the number of dystrophin-positive fibers 
following a single injection of a targeting ssODN and multiple clusters of dystrophin 
positive fibers supported that muscle precursor cells underwent gene correction in utero. 
These data are incredibly important and have opened a reali[s]tic possibility for the 
treatment of the disease in thousands of patients in the US and world wide affected by 
the disease. 
The director denied the petition on July 3 1, 2008, stating that the available evidence did not establish 
that the petitioner was eligible for the waiver when she filed the petition in January 2007. The director 
found the petitioner's citation record to be minimal, and that the record does not support what appear to 
be identical exaggerated claims in various witness letters. 
On appeal, counsel asserts that the petitioner had submitted "a large amount of information" 'Yo support 
[the petitioner's] classification as a member of a profession with advanced degrees and alien with 
exceptional ability in the field of biomedical sciences." The director did not dispute that the petitioner 
is a member of the professions holding an advanced degree. Indeed, counsel quoted the director's 
assertion that "[tlhe record establishes that the alien petitioner qualifies as a member of the professions 
holding an advanced degree." At issue is whether the petitioner qualifies for the national interest 
waiver, which is an additional benefit over and above the underlying immigrant classification. 
On appeal, counsel argues that the stated grounds for denial "are absolutely groundless, reflecting 
total disregard of relevant documents, unfair treatment, careless and irresponsible examination, and 
misleading and arbitrary interpretation of the evidence submitted." Counsel then proceeds to catalog 
the various exhibits in the record. Counsel asserts that the initial submission included "1 letter from 
[the petitioner's] current employer [and] 6 letters from other US and foreign experts from prestigious 
institutions." This description is misleading, as it implies a wide range of witnesses not reflected in 
the record. Three of the seven initial witnesses are on the UP faculty, and all the witnesses have 
demonstrable ties to the petitioner as classmates, mentors or collaborators. 
Counsel tallies the petitioner's published articles and conference presentations, and asserts: "Any 
one in his right mind would accept such evidence as sufficient to establish a researcher's nationwide 
and worldwide influence." The unsupported assertions of counsel do not constitute evidence. See 
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). Counsel's disparaging 
remarks are not dispositive in this proceeding and cannot take the place of evidence-based argument. 
Counsel states: "the officer reviewing the case, out of some dozen and a half publications and 
presentations, picked one case review with [the petitioner] as the third author, and made much fuss 
about it." In the director's decision, the AAO can find only one mention, in one sentence, of the "case 
review" in question. What follows is the complete paragraph containing the passage in question: 
The petitioner's response establishes that in addition to a self-citation by the principal 
author of the article, a case review published in 2003 of which she was listed as the third 
author has been cited at least four times by others. The evidence does not indicate that 
any of her other publications since 2001 have been cited more than twice, nor does it 
indicate that in total she has been cited twenty times over her twenty year career. 
Evidence of citations of her research contributions, which not non-existent, is scant and 
gives little support to her claim of having made breakthroughs of "far-reaching 
significance" with "national and international impact." It cannot be found that the 
citation record of the petitioner's work distinguishes her impact on her field fiom that of 
other research associates similarly qualified. 
Counsel does not explain how the above passage constitutes "much fuss about" the 2003 case review. 
Commenting further on the above paragraph, counsel states: "the fact is that among the supplemental 
evidence there is at least one other article cited more than twice." Counsel misreads the director's 
conclusion, by examining a sentence fiagment in isolation rather than in context. The director did not 
state that only one of the petitioner's articles had "been cited more than twice"; the director stated that 
only one of the petitioner's articles since 2001 had been cited more than twice. The other article by the 
petitioner with more than two citations appeared in 1998. The exact specifics are not as important as 
the main conclusion, which is that the petitioner has not demonstrated the impact of her more recent 
publications. 
On appeal, the petitioner submits new printouts fiom a Clunese citation database, purporting to show 91 
citations of works the petitioner published between 1996 and 2001. Counsel does not explain why this 
evidence was not provided or even mentioned earlier, when the director specifically requested 
"documentation of the total current number of citations of each of [the petitioner's] articles by others." 
Where, as here, a petitioner has been put on notice of a deficiency in the evidence and has been given an 
opportunity to respond to that deficiency, the AAO will not accept evidence offered for the first time on 
appeal. See Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 1988); see also Matter of Obaigbena, 
19 I&N Dec. 533, 537 (BIA 1988). If the petitioner had wanted the submitted evidence to be 
considered, it should have submitted the documents in response to the director's request for evidence. 
Id. Under the circumstances, the AAO need not and does not consider the sufficiency of the evidence 
submitted on appeal. We fbrther note that the petitioner provided only summary translations of the 
printouts. Because the petitioner failed to submit complete, certified translations of the documents, the 
AAO cannot determine whether the evidence supports the petitioner's claims. See 8 C.F.R. 
9 103.2(b)(3). We can, therefore, conclude little about the newly submitted printouts except that they 
show little interest in the petitioner's work outside of China. 
Also on appeal, the petitioner submits a copy of an August 13, 2008 job offer letter, offering the 
petitioner "a position as a Postdoctoral Associate in the School of Medicine, Division of Endocrinology, 
at the University of Pittsburgh for an initial term of nine months effective September 1,2008 to May 3 1, 
2009." The petitioner signed the letter, thereby accepting the job offer. ' The principal investigator in the 
project is , and the project concerns "intracellular lipid and steroid metabolism in 
systemic metabolic disease." Thus, the record shows that the petitioner has ceased to work with 
Page 9 
muscular dystrophy in 
 laboratory, although the etitioner's initial national interest claim 
focused very heavily on that work. It is unclear whether Deven attempted to extend the 
petitioner's employment in her laboratory, but if she did, the petitioner was evidently uninterested in 
remaining there. 
The new job offer serves to demonstrate that the petitioner remains essentially a trainee at UP, moving 
from one project to another largely unrelated project, with her work dependent on the research interests 
of whoever supervises her work at the time rather than her own independent initiative. 
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. 8 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.