dismissed EB-2 NIW Case: Medical Research

U.S. Department of Homeland Security 
- 20 Mass. Ave , N.W., Rrn. 3000 
Wash~ngton, DC 20529 
J 
U. S. Citizenship 
and Immigration 
- 
Office: TEXAS SERVICE CENTER Date: 1 6 2006 
PETITION: 
 Iqmigrant Petit~on for Alien Worker as a Member of the Professions Holdlng an Advanced 
Degree or an Allen of Exceptional Ability Pursuant to ~ectibn 203(b)(2) of the Immigration 
and Nationality Act, 8 U.S.C. 9 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. 
Lww 
7 Robert P. W~emann, Chief 
Administrative Appeals Office 
DISCUSSION: 
 The Director, Texas Service Center, denied the employment-based immigrant visa 
petition, which 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 an alien of exceptional ability or a member of the professions 
holding an advanced degree. The petitioner seeks employment as a research scientist. 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 did not contest that the petitioner qualifies for the 
classification sought, but ,concluded 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 two briefs and additional evidence. For the reasons discussed below, the 
petitioner has not overcome the director's valid concerns with evidence of the petitioner's 
accomplishments as of the date of filing. Specifically, the petitioner's publication record consisting of 
a single minimally cited published article and two poster presentations, reference letters and other 
evidence of record fail to establish the petitioner's influence in the field as of the date of filing. 
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 requirement 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 petitioner holds a Ph.D. degree in Neurology from Peking University. The petitioner's occupation 
falls within the pertinent regulatory definition of a profession. The petitioner thus qualifies as a 
member of the professions holding an advanced degree. The remaining issue is whether the petitioner 
has established that a waiver of the job offer requirement, and thus a labor certification, is in the 
national interest. 
Page 3 
Neither the statute nor 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 w'ho would benefit the United States 
economically and otherwise. . . ." S. Rep. No. 55, 1 Olst Cong., 1 st Sess., 1 1 (1989). 
Supplementary information to the regulations implementing the Immigration Act of 1990 (IMMACT), 
published at 56 Fed. Reg. 60897,60900 (November 29, 1991), states: 
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 provk the "prospective national 
benefit" [required of aliens seeking to qualifL 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. of Transp., 22 I&N Dec. 2 15 (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 onprospective 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 fbture 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 concur with the director that the petitioner works in an area of intrinsic merit, medical research, 
and that the proposed benefits of her work, improved treatment for Amyotrophic Lateral Sclerosis 
(ALS) also known as Lou Gehrig7s Disease, 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. 
The director concluded that the petitioner had not demonstrated a past history of achievement with 
some degree of influence on the field as a whole as she had not established that her work is well 
cited. On appeal, counsel asserts that Matter of New York State Dep 't of Transp., 22 I&N Dec. at 
2 15 does not require evidence of citations, but notes that the petitioner's published articles have been 
= Page 4 
minimally cited. Counsel asserts that the petitioner's qualifications and experience would be deemed 
unduly restrictive by the Department of Labor, rendering the labor certification process impractical. 
Counsel further asserts that the petitioner submitted letters from independent researchers applying 
her work. Counsel concludes that the petitioner's first-authored published paper, which has now 
been cited three times, justifies projections of future benefit to the national interest. Counsel notes 
that the alien in Matter of New York State Dep't of Transp., 22 I&N Dec. at 215 had no such 
accomplishments. Counsel further relies on the submission of the petitioner's work to the 
Proceedings of the National Academy of Sciences and e-mail messages requesting advice as evidence 
of the significance of the petitioner's work. Counsel further notes that the petitioner is a member of 
the honor society Sigma ,Xi. Finally, counsel asserts that the petitioner qualifies for classification as 
an Outstanding Researcher pursuant to Section 203(b)(l)(B) of the Act, which does not require labor 
certification, and, thus, should also qualify for a waiver of the labor certification process in the 
national interest. 
In the body of Matter of New York State Dep 't of Transp., 22 I&N Dec. at 219, it states that the 
petitioner must establish "that the alien's past record justifies projections of future benefit to the 
national interest." In an explanatory footnote of this concept that is noteworthy despite its placement 
as a footnote, the decision states that the alien must have "a past history of demonstrable 
achievement with some degree of influence on the field as a whole." While the decision does not 
discuss publication records and citation histories, the case involved a civil engineer, not an 
occupation likely to produce a highly cited publication record. More relevant to a civil engineer, the 
decision states: 
While innovation of a new method is of greater importance than mere training in that 
method, it must be stressed that such innovation is not always sufficient to meet the 
national interest threshold. For example, an alien cannot secure a national interest 
waiver simply by demonstrating that he or she holds a patent. Whether the specific 
innovation serves the national interest must be decided on a case by case basis. 
Id. at 221, n.7. 
 We find that publication by medical researchers is comparable to patented 
innovations in civil engineering. We will not presume the influence of the findings in a given article 
solely from its publication. Rather, the significance of the original findings will be considered on a 
case by case basis as with patented innovations. While not the only possible basis of demonstrating 
the significance of published research, citations can serve as a useful means of evaluating the 
research community's reaction to a published article. Thus, we reject counsel's implication that the 
petitioner's citation record is not relevant. 
Regarding concerns that the petitioner's experience is not conducive to the labor certification process, 
the inapplicability or unavailability of a labor certification cannot be viewed as sufficient cause for a 
national interest waiver; the petitioner still must demonstrate that the self-employed alien will serve the 
national interest to a substantially greater degree than do others in the same field. Id. at 218, n. 5. 
Nothing in the legislative history suggests that the national interest waiver was intended simply as a 
 , 
Page 5 
means for employers (or self-petitioning aliens) to avoid the inconvenience of the labor certification 
process. Id. at 223. It is, the position of Citizenship and Immigration Services (CIS) to grant national 
interest waivers on a case-by-case basis, rather than to establish blanket waivers for entire fields of 
specialization, such as medical researchers. Id. at 217. 
Eligibility for the waiver: must rest with the alien's own qualifications rather than with the position 
sought. In other words, we generally do 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. 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 she 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. 
Dr. , Chairman of the - at the Baylor 
College of Medicine, asserts that the petitioner has worked in his laboratory since December 2001. 
The petitioner has focused on ALS, investigating whether the motor neuron injury seen in that 
disease is "dictated solely by intracellular events (such as cell-autonomous), or whether the process is 
non-cell autonomous and other cellular events are required." This work involved culturing a motor 
neuron, a difficult procedure that only the petitioner is able to perform in Dr. laboratory. 
The petitioner "demonstrated that the activated microglia contribute to motor neuron injury and 
death by the release of three free radicals, nitric oxide and superoxide, which combine to form the 
potent toxin, peroxynitrke." This work was published in the Journal of Neuropathology and 
Experimental Neurology. 
The petitioner also investigated VP025, "a new phospholipids agent that is the lead product 
candidate from a new class of structurally related drugs that is designed to interact with the immune 
cells, leading to the modulation of cytokines, which are potent chemical messengers that regulate and 
control inflammation." In collaboration with an assistant professor, the petitioner demonstrated that 
VP025 "has the ability to protect the motor neuron from injury 'in vitro and significantly delay the 
onset of disease and increase the chance for survival in an animal model of &s." The petitioner 
presented this research at a conference in 2004. The petitioner also investigated two other agents, the 
anti-inflammatory cytokines interleukin-4 (IL-4) and interleukin-10 (IL-10). These agents "struck 
the appropriate target to rescue the motor neuron from injury." The petitioner presented this work at 
a conference in 2005 and, as of the date of filing, had submitted a manuscript for publication. Both 
presentations appear to have been poster presentations rather than oral presentations. Dr. 
explains that the petitioner's work has implications for Alzheimer's and Parkinson's Diseases as , 
well. 
Dr. 
 another collaborator at Baylor College, asserts that the petitioner provided the first 
results demonstrating a beneficial effect from IL-4 and IL-10. Dr. 
 hrther asserts that the petitioner 
compared spinal cord extracts'from wild-type and mutant mice and demonstrated that the level of IL-4 
Page 6 
"increased during the onset of the diseases and significantly decreased at the end stage" for the mutant 
mice. These results provide "some promising approaches for developing an effective treatment for 
ALS." 
Dr. ~edical Director at the Muscular Dystrophy Association in 
 asserts that she 
became aware of the petitioner's work through Dr. and has subsequently read the petitioner's 
article and interacted with her at a conference. Dr. reiterates much of the information discussed 
above but provides no examples of independent laboratories being influenced by the petitioner's work. 
On motion, the petitioner submitted four new letters, three of which are from researchers with no 
connection to the Baylor College of Medicine. Dr. J, a professor of medicine at the 
University of Texas, asserts that he learned of the petitioner's work through her paper in the Journal of 
Neuropathology and Experimental Neurology while he was searching for other disease models to 
widen the usage of the compounds he was already studying, avicins, which are isolated from an 
Australian tree. Dr. asserts that the petitioner's work "suggests that anti-inflammation and 
cytoprotection represent two important strategies for the treatment" of ALS. Dr. then asserts 
that his own studies demonstrated that avicins have a neuroprotective effect, but that the effective range 
of doses is relatively narrow. 
 Dr. 
 then concludes, with little explanation, that the 
petitioner's work "contributed to the development of effective approaches for treating 
neurodegenerative diseases through the use of genetic and molecular factors to slow and eventually 
prevent disease progression." Dr. - however, does not identify any clinical trials of 
treatments based on the petitioner's work or pharmaceutical companies that have committed to 
pursuing treatments based on her work. 
Dr. 
 huther asserts that the petitioner's development of a unique in vitro primary culture 
system is a significant contribution to the field. Dr. 
 notes that in vitro studies are more 
efficient than in vivo studies and that motor neurons are difficult to culture. Dr.does not 
claim to have been particularly influenced by the petitioner's work and his letter cannot demonstrate the 
petitioner's influence outside of Houston, Texas, the location of both the Baylor College of Medicine 
and the University of Texas campus where Dr. teaches. 
~r., Co-chair of the Department of Clinical Neurological Sciences at the University 
of Western Ontario, asserts that he became aware of the'petitioner when Dr. recruited her to his 
laboratory. We note that this was prior to the petitioner's article in the Journal of Neuropathology and 
Experimental Neurology. Dr. reiterates the information discussed above. Dr. concludes 
that the petitioner's work is "novel, and will undoubtedly lead to significant new therapeutic 
approaches that will be focused on modifying the immunologically mediated component of this 
illness." Dr. does not identify any current studies pursuing treatments based on the petitioner's 
work. Dr. !I a professor at Columbia University, provides a similar letter. 
Finally, D a professor at the Baylor College of Medicine asserts that he "noticed" the 
petitioner's paper and will be referring to it in his own work. The petitioner has not demonstrated that 
it is notable for researchers at the same institution to influence one another. 
Citizenship and Immigration Services (CIS) may, in its discretion, use as advisory opinions 
statements submitted as expert testimony. See Matter of Caron International, 19 I&N Dec. 79 1, 795 
(Comm. 1988). However, CIS 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; CIS may evaluate the content of those letters as to 
whether they support the alien's eligibility. See id. at 795-796. CIS may even give less weight to an 
opinion that is not corroborated, in accord with other information or is in any way cpestionable. Id. 
at 795; See also Matter if ~offici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure 
Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
I 
The petitioner initially submitted an unpublished manuscript, her article published in the Journal of 
Neuropathology and Experimental Neurology, her Chinese language articles and evidence of her 
conference presentations: which appear to be poster presentations, not oral presentations. The 
petitioner also submitted what appear to be two Chinese language articles with no translation as 
required under the regulation at 8 C.F.R. tj 103.2(b)(3). The petitioner also submitted evidence of her 
associate membership in the American Academy of Neurology. 
In response to the director's request for additional evidence, the petitioner submitted evidence that her 
article in the Journal of Neuropathology and Experimental Neurology had been cited once. The 
petitioner also submitted the positive reviews of the article prepared by the anonymous referees for the 
journal. All articles published in peer-reviewed journals, however, must have been favorably reviewed 
by the peer reviewers. 
On appeal, the petitioner submits evidence that after the date of filing, Dr. 
 submitted a 
manuscript authored by the petitioner to the Journal of Neurochemistry and an e-mail notice advising 
that the manuscript was acceptable for publication. The petitioner also submits a review 
recommending publication in the Proceedings of the National Academy of Sciences of a manuscript 
listing the petitioner as the fourth author. In addition, the petitioner submits e-mail requests for 
information addressed or forwarded to the petitioner. These e-mail requests postdate the filing of the 
petition. These documents all relate to the dissemination of the petitioner's work and interest in her 
work after the date of filing and cannot be considered evidence of her eligibility as of that date. See 
8 C.F.R. tj 103.2(b)(12); Matter of Katigbak, 14 I&N ~ec. 45,49 (Reg. Cornm. 1971). 
In addition, the petitioner submits evidence that her article in the Journal of Neuropathology and 
Experimental Neurology has been cited five times. The petitioner provided the articles that cite her 
work, two of which are in English. One of the3English citations .is as one of eight articles that 
demonstrate that microglia "can act as not only, antigen-presenting cells but also effector cells to 
damage central nervous system cells directly in vitro and in vivo. The second English citation is in 
'- 
Page 8 
support of the proposition that a "variety of studies have documented the ability of macrophages and 
microglias to secrete oxidizing species following stimulation with activating ligands." 
The petitioner also submitted evidence that the petitioner was elected to membership in Sigma Xi on an 
unknown date in 2005. The petitioner filed the petition on July 8,2005. The record does not establish 
whether the petitioner was elected to membership prior to the filing date. Regardless, a professional 
membership indicative of a degree of expertise significantly beyond that ordinarily encountered in the 
field could fulfill one of the criteria for aliens of exceptional ability, a classification that normally 
requires a labor certification. We cannot conclude that meeting one of the criteria, or even the requisite 
three criteria, warrants a waiver of that requirement in thi national interest. 
Finally, as stated above, counsel asserts on appeal that the petitioner qualifies for a separate 
classification that does not require a labor certification. Specifically, counsel asserts that the petitioner 
meets two of the criteria for Outstanding Researchyrs set forth in the regulation at 8 C.F.R. 
5 204.5(i)(3)(i).' The petitioner's claimed eligibility under a separate classification is not a relevant 
consideration. Moreover, the criteria for the Outstanding Researcher or Professor classification are 
- 
 different from the waiver considerations and even if the petitioner were eligible under that 
classification, and we do not imply that she is, such eligibility is not presumptive evidence of eligibility 
under the classification sought. 
As of the date of filing, the petitioner had published a single article and displayed her work as a poster 
presentation at two conferences. Even as of the date of appeal, the petitioner's article has been 
minimally cited and the citations provided do not single out the petitioner's work as notable. The 
reference letters show that the petitioner is respected by her colleagues and has made useful 
contributions in her field of endeavor. It can be argued, however, that most research, in order to 
receive funding or be published, must present some benefit to the general pool of scientific 
knowledge. It does not follow that every researcher performing original research who has been 
published and is working with a government grant inherently serves the national interest to an extent 
that justifies a waiver of the job offer requirement. In the field of medical research, the lack of at 
least a moderate publication record makes it difficult to gauge the researcherls influence in the field. 
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 
1 
We note that submitting evidence relating to at least two of the regulatory criteria is insufficient. Outstanding 
professors and researchers should stand apart in the academic community through eminence and distinction 
based on international recognition. The regulation relating to that classification provides criteria to be used in 
evaluating whether a professor or researcher is deemed outstanding. 56 Fed. Reg. 30703, 30705 (July 5, 
199 1). 
- 
Page 9 
established that a waiver of the requirement of an approved labor certification will be in the national 
interest of the United States. 
The burden of proof in these proceedings rests solely with the petitioner. section 291 of the Act, 
8 U.S.C. 
 1361. The petitioner has not sustained that burden. 
This denial is without prejudice to the filing of a new petition by a United States employer 
accompanied by a labor certification issued by the Department of Labor, appropriate supporting 
evidence and fee. 
ORDER: The appeal is dismissed.