dismissed EB-2 NIW Case: Medical Research

U.S. Department of Homeland Security 
20 Mass Ave , N W , Rm A3042 
Washmgton, DC 20529 
U. S. Citizenship 
and Immigration 
PUBLIC COPY 
FILE: EAC 03 008 5 1544 Office: VERMONT SERVICE CENTER Date: &L 1 8 
IN RE: Petitioner: 
Beneficiary: 
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. 4 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 
ecided your case. Any further inquiry must be made to that office. 
k 1) Robert P. Wiemann, Director 
, Administrative Appeals Office 
\ 
EAC 03 008 51544 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Vermont Service 
Center, and 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. 9 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 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 found that the petitioner qualifies for classification as a member of the professions holding an 
advanced degree, but that the petitioner had not established that an exemption from the requirement of a job 
offer would be in the national interest of the United States. 
On appeal, counsel expresses concern that the director denied the petition, pending for two years, without 
issuing a request for additional evidence. We will consider the new evidence submitted on appeal. We note, 
however, that, according to the regulation at 8 C.F.R. fj 103.2(b)(12), evidence submitted in response to a 
request for additional evidence must relate to the alien's eligibility as of the date ofjiling. See also Matter of 
Katigbak; 14 I&N Dec. 45, 49 (Comm. 1971). The evidence of the petitioner's achievements after that date, 
including her manuscripts published after that date, cannot be considered evidence of the petitioner's eligibility 
as of the date of filing. If the petitioner believes that this evidence demonstrates her eligibility, it should form 
the basis of a new petition with a new priority date. 
For the reasons discussed below, we find that the director erred in concluding that the proposed benefits of the 
petitioner's work would not be national in scope; however, we uphold the director's remaining basis of denial. 
The petitioner's record as a researcher as of the date of filing did not warrant a waiver of the labor certification 
process in the national interest. 
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. 
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The petitioner holds a Medical Degree from Shahid Beheshti University in Tehran. 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. 
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 who would benefit the United States economically and otherwise. . . ." 
S. Rep. No. 55, lOlst Cong., 1st 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 prove the "prospective national benefit" [required of aliens 
seeking to qualify as "exceptional."] The burden will rest with the alien to establish that 
exemption from, or waiver of, the job offer will be in the national interest. Each case is to be 
judged on its own merits. 
Matter of New York State Dep't. of Transp., 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 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 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. The 
director concluded, with little discussion, that the proposed benefits of the petitioner's work, improved 
understanding and treatment of Polycistic Ovary Syndrome (PCOS), would not be national in scope. This 
prong looks at the proposed benefits of the petitioner's work, not her personal qualifications. We find that 
improved understanding and treatment of PCOS 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. Unlike the previous two prongs, however, 
our analysis now turns to the alien's own qualifications rather than with the position sought. The director 
concluded that the petition was initially supported by letters from the petitioner's immediate circle of colleagues 
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who discussed the importance of the petitioner's area of research more than her past achievements. The director 
also noted the lack of objective evidence of the petitioner's influence in the field, such as frequent citation. 
On appeal, counsel asserts that the director erroneously discounted the distinguished reputation of the 
petitioner's employer, Yale University, and the institution funding the petitioner's work. Counsel notes that this 
office has accepted the significance of team medals. Counsel's analogy is not persuasive. A team medal is a 
medal won by an entire team; every member receives recognition. Acknowledgement of that fact does not 
logically lead to the conclusion that every researcher for Yale deserves credit for every accomplishment of that 
university. In fact, counsel concedes that employment for Yale does not create a presumption of eligibility. We 
will credit the petitioner for joint research projects on which she participates and is listed as a coauthor in the 
resulting published results. We note, however, that any research, in order to be accepted for funding, must 
offer new and useful information to the pool of knowledge. Yet this office repeatedly refuses to find that 
working with a government grant inherently in and of itself serves the national interest to an extent that 
justifies a waiver of the job offer requirement. 
Counsel further asserts that the labor certification process would hurt Yale University, as it would be forced to 
hire minimally qualified researchers. Yet, counsel then states that he is not asserting that "biomedical 
researchers should be exempted from testing the U.S. labor market." Counsel concludes: 
We agree that in most instances, the core value of the law should be to establish the availability 
(or unavailability of fully qualified U.S. applicants for a given position. However, the Congress 
has specifically identified that individuals such as [the petitioner] who are contributing 
substantially to U.S. national interests should be exempted from testing of the US. Labor 
market, presumably because such individuals have essentially been pre-certified as in short 
supply. [Citizenship and Immigration Services (CIS)] does not have the right to override 
Congressional directive as appearing in the statute if the alien has carried histher burden of 
showing that hisher contributions and services will benefit U.S. national interests. 
Counsel provides no reference to legislative history or the language of the statute itself that supports his pre- 
certification analysis. As stated above, Congress did not define the phrase "in the national interest." Our 
standard for evaluating waiver requests is set forth in Matter of New York State Dep't of Transp. 22 I&N 
Dec. at 215, discussed above. That decision provides the following principles that bind us. First, it is the 
position of CIS to grant national interest waivers on a case-by-case basis, rather than to establish blanket waivers 
for entire fields of specialization. Id. at 217. Second, while the inapplicability of the labor certification 
process will be given due consideration in appropriate cases, it 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. Finally, 
special or unusual knowledge or training, while perhaps attractive to the prospective U.S. employer, does not 
inherently meet the national interest threshold. Id. at 221. 
As stated by the director, 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 
EAC 03 008 5 1544 
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history of achievement with some of influence on thefield as a whole. Id. at 219, n. 6. Moreover, this 
track record must be apparent at t of filing. See 8 C.F.R. tj 103.2(b)(12); Matter of Katigbak; 14 I&N 
Dec. at 49. 
At the time of filing, the petition had been working for Dr. for one and a 
half years. The petitioner had her work at the 
ome, an article in Endocrinology, an article in press for the American 
Journal of ObGyn, and an poster presentation. Thus, none of her work had been 
disseminated beyond Yale 
Dr. asserts that the pet' ioner plays a key role in D laboratory, "probably the most 
advanced laboratory," which "has 1 received major funding from the federal government/National Institutes of 
Health (NIH) in direct recogniti of the importance of our work and its relevance to national concerns." 
Specifically, the petitioner "has highly sophisticated procedures of immense scientific importance 
to extract and isolate ovarian ovarian specimens which then enables her to extract DNA and 
test the scientific (i.e. programmed cell death). Using Yale's "unique system of 
seoarating theca other cells." the wetitioner "develowed and tested several u 
techniques to assess ffirms that these techniques "are extremely 
technically the petitioner "is the only person capable 
of carrying these experiments." 
I 
~rsserts that the Amer can Society for Reproductive Medicine has "reviewed and criti ued" the 
petitioner's work "for its importa ce in advanced studies of various ovarian conditions." 
I DrmnIy elaboration of this claim is to as rt that the petitioner's techniques for extracting and isola ing t eca cells 
"was recently accepted for a at the forth-coming meeting of the widely acclaimed American 
Society for Reproductive reflects that this work was accepted as a poster presentation 
to appear at a The record does not establish the significance of poster 
For example, the record lacks evidence regarding the 
versus oral presentations. 
~rotes the petitioner's n years of clinical obstetrics and gynecology experience in Iran. As noted 
in Matter of New York Dep't Transp., 22 I&N Dec. at 222, the regulations indicate that ten years of 
progressive experience is one criterion that may be used to establish exceptional ability. The decision 
then reasons that because ability, by itself, does not justify a waiver of the job offerllabor 
certification requirement, on the degree of experience required for the profession, while 
relevant, are not in this matter. Id. 
sserts that the petitio is essential to the laboratory and that without the petitioner's familiarity 
the advanced techniques developed for the research as well as her 
expert knowledge of the physioloky and pathophysiology of the ovary, the investigation "will be halted and 
the project will simply not progress." 
clinician and has come to the 
ability to contribute as a researcter. 
demonstrate her abilities as a 
In a situation like the one before us, where the petitioner is a former 
United States to begin research, we will not speculate as to the petitioner's 
Rather, the nonimmigrant visa period allows the petitioner years to 
researcher through publication. As stated above, as of the date of filing, the 
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petitioner's work had not yet been disseminated in a peer-reviewed journal or presented at a national 
conference. 
Dr. Director of the Center for Research in Reproductive Biology at Yale University, 
asserts that he has collaborated with the petitioner. He reiterates the prestige of being hired by Yale 
University, the importance of the petitioner's project, and concludes: 
[The petitioner] is the only member of this research team who can (i) conduct the 
microsurgical procedures required to obtained [sic] the necessary ovarian theca cells; (ii) 
study the effects of antioxidants on apoptosis (programmed cell death); and (iii) examine the - proliferation of the ovarian theca cells. 
Dr.formerly the Director of the Residency Training Program in Obstetrics at Yale 
Universrty, asserts that the petitioner also collaborated with his research on using prenatal ultrasound to 
detect fetal Down syndrome, the assessment of blood flow to fetal organs and the development of ultrasound 
markers for the prediction and detection of congenital heart defects in the fetus. The petitioner's coauthored 
article on this subject was in press at the time of filing. 
!, 
Chief of the Vincent Obstetrics and Gynecology Service at Massachusetts General Hospital, 
asse Dr. !R!m s e petitioner is a "world authority" on PCOS cells and "has had to develop novel protocols in 
order to conduct this advanced research." Dr -iterates the claims made above, but does not explain 
how he became aware of the petitioner's work or assert that he himself has been influenced by it. 
D a permanent member of the Iranian Academy of Medical Sciences, indicates that he and 
the pet~t~oner worked on separate projects at an Iranian hospital but that he was sufficiently aware of her 
work to support her move to begin research at Yale University. 
~r a professor of obstetrics and gynecology at Tehran University, affirms the 
petitioner's talent as a physician in Iran, including receipt of Iran's "Best Physician" award. D- 
asserts that the petitioner was chosen for her research position at Yale based on her extended clinical and 
experimental experience related to PCOS, but does not identify any specific research contributions. 
The petitioner submitted ~r-rant proposal, but our review of the proposal revealed no reference to 
the petitioner. 
On appeal, the petitioner submitted new letters from Dr. ~r as well as several letters 
from independent experts in the field. These letters most 1 hlight t e petitioner's accomplishments 
published after the date of filing. For example, Dr.- Editor for the Society of Reproductive 
Endocrinology and Infertility, discusses the significance of a best paper award issued to the petitioner by the 
society in 2003, after the date of filing. Other references note presentations and publications that postdate the 
petition. Evidence of these recent presentations and articles is included in the record. As stated above, 
however, the petitioner must establish her eligibility as of the date of filing. See 8 C.F.R. $ 103.2(b)(12); . 
Matter of Katigbak; 14 I&N Dec. at 49. Thus, she must demonstrate that, as of that date, she already had a 
track record of success with some degree of influence on the field as a whole. It can be expected that to have 
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influenced the field, the petitioner must have already published work in peer reviewed journals disseminated - 
to the field or at least have presented her work at a national conference. . 
The petitioner also submitted evidence that her collaboration with Dr. on developing a 
sonoaram test for Down Syndrome, published after the date of filing, has been cited a single time. A single - 
citation is not significant and, for an article published after the date of filing, does not relate to the 
petitioner's eligibility as of that date. 
In his new letter, Dr. iscusses his own credentials and the prestige of the laboratory he heads. We 
will not infer the pet~t~oner's own influence from her colleagues or the laboratory in which she works. He 
professes shock that the director denied the petition without inquiring as to the petitioner's accomplishments 
after the date of filing. As ex lained above, any such accomplishments are not relevant to the adjudication of 
the instant petition. Dr further asserts that the petitioner is a "key investigator" of an NIH grant. As 
stated above, we were unable to discover any reference to the petitioner in the grant proposal submitted 
initially. ~rthen asserts that the director did not have "any grounds to discount the integrity or 
authority of individuals who have written letters on [the petitioner's] behalf." We do not question the 
credibility of the petitioner's initial references. That said, letters from one's own immediate circle of 
colleagues, while important in providing details of the petitioner's role in various research projects, are not 
evidence of the petitioner's influence beyond that circle of colleagues. 
In res onse to the director's concern regarding the lack of publication and citations as of the date of filing, 
Dr. I)otes that the petitioner presented her work on oxidative stress in theca cells and that other work 
had been "accepted for a presentation" at a conference. As stated above, the only presentation the petitioner 
had made prior to the date of filing was at the home of her supervisor. The record does not reflect that this 
was a national conference. While the petitioner's work had been accepted as a poster presentation, the 
presentation occurred after the date of filing. Moreover, as stated above, the record does not establish that a 
poster presentation is as prestigious as an oral presentation. 
~r.iscusses work published and presented in %03 and 2004, over a year after the date of filing. 
This work had not been disseminated in the field prior to the date of filing and cannot be said to have 
influenced the field as of that date. 
In a new letter, ~racknowled~es the lack of citations but notes that the petitioner's work "was only 
recently published" and that, thus, "it may take several more months or even vears before other laboratories -. 
develop comparable techniques aid produce findings related to ours." ~rfurther states that his 
laboratory is "the only laboratory in the world that is actively working on the effects of oxidative stress and - 
statins on theca-interstitial cells." Other references, however, assert that the petitioner's work has 
implications for other fields of medicine, including cardiology and endocrinology. Not all citations are by 
researchers performing the same research. In fact, such an article would not be original and would be 
unlikely to be published. Moreover, medical and biology journals often include review articles on recent 
breakthroughs in the field and commentaries, which serve as excellent objective evidence of a study's 
significance in the field. The general media also covers truly significant work. The record contains no 
evidence of any review articles, commentaries or articles in the general media citing the petitioner's work. 
The Internet materials on PCOS provided on appeal, including one by  make no mention of the 
work on oxidative stress ongoing at Yale University and do not suggest antioxidants as a potential modulator 
EAC 03 008 5 1544 
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of the disease. Regardless, as discussed above, the petitioner's work had not even been published as of the 
date of filing. 
The record shows that the petitioner is respected by her colleagues. The petitioner has not established, 
however, that as of the date of filing, her research had already influenced 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 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. 
9 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.