dismissed EB-2 NIW Case: Medical Research

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U.S. Department of Homeland Security
20 Mass, Ave"N,W" Rm, 3000
Washington, DC 20529 '
Office: NEBRASKA SERVICE CENTER OCT 242006Date:
u.S. Citizenship
'and Immigration
Services
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FILE:
INRE: 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, 8U.S.C. § 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'iilquiryrriust be made to that office. "
.1
~Ro1Jert P; Wiemann, Chief"
Administ~ative Appeals Office
www.uscis.gov
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,,DISCUSSION: 'Tile Director, Nebraska Service Center, denied the employment-based iinmigrant visa petition.
The-matteris now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act),
,8 U,S.c. § 1153(b)(2), as a member of the professions holding an advanced degree. The petitioner seeks ,
.employment as a research assistant at Washington University School of Medicine (WUSM) in 51. Louis,
Missouri: The petitioner asserts that an exemption from the requirementof 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 fromthe 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:
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(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or' Aliens of Exceptional
Ability. --
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(A) InGeneral. --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 uriited States, and whose services iIi
the sciences, arts, professions, or business are sought by an employer in the ynited 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 businessbe 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 definitionof "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,
1000stCong., 1st Sess.,11 (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 Citizenship and Immigration Services (CIS)] 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 "exceptiona1."] The
burden will rest with the alien to establish that exemption from, or waiver of, thejob offer will be
in the national interest. Each case is to be judged on its own merits.
Matter ojNew York State Dept. ojTransportation, 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.
Counsel states that the petitioner "is- an exceptionally outstanding researcher with recognized
accomplishments in the field of medical research with a current focus on organ transplantation, include lung,
heart, liver and islet. ... [The petitioner] has very rare microsurgery skill with which can complete most
animal transplantation model for medicine and clinical [sic]." Counsel states that the petitioner "has made
remarkable and breakthrough contributions, which have significant impact in his research community," and
that the petitioner has "authored or co-authored ten (10) research papers ... made five (5) conference
presentations," and "received one (1) highly competitive scholarship from Japan Ministry of Education for his
excellent academic and. research achievements in the field." Counsel states that these "research
accomplishments represent the top level of the research advance and knowledge in the field today, which
obviously places him well above his fellow research scientists in the field."
The petitioner's initial submission includes copies of his published articles and unpublished manuscripts.:
This evidence establishes that the petitioner has been an active researcher in his field, but the articles do not,
by themselves, establish the significance of the findings set forth therein. The petitioner also submits a
translated copy of a letter dated July 29, 1992, from Dean of Student Affairs at Niigata
University in Japan. Dean I states: "It is my pleasure to inform you that_ (Ministry of
Education, Culture and Science, Government of Japan) has decided to offer you the Japanese Government
••••• 1 Scholarship, based on recommendation by Niigata University." After studying under this
scholarship, the petitioner received his doctorate in 1998. The record does not reveal the criteria for this
scholarship, or otherwise support counsel's assertion that the petitioner received the scholarship "for his
excellent academic and research achievements in the field." The assertions of counsel do not constitute
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evidence. Matter ofLaureano, 19 I&N Dec. 1, 2, 4 (BIA 1983); Matter of Obaigbena, 19 I&N Dec. 533, 534
(BIA 1988);Matter ofRamirez-Sanchez, 17 I&N Dec. 503, 506(BIA 1980).
A note included with the initial submission reads, in part: "Strong testimonial letters from high-ranking
experts and/or government officials in the field will be submitted promptly upon request."
On October 26,2005, the director issued a request for evidence, instructing the petitioner to "submit copies of
any published articles by other researchers citing or otherwise recognizing [the petitioner's] research," as well
as copies of other articles that the petitioner himself had written. The director also advised the petitioner that
he "must demonstrate to some degree [his] influence on [his] field of employment as a whole."
In response, the petitioner submits copies of additional articles and conference presentations by the petitioner,
as well as four witness letters. Counsel states: "All the four authors of testimonial letters are top leaders,
authorities, and first-class. experts with nationally/internationally recognized research achievements in the
field of the beneficiary's work." Most of these witnesses have personally taught the petitioner or participated
in his postdoctoral training. Two witnesses are on the faculty of WUSM, and a third served on the faculty of
Niigata University while the petitioner was a student there.
Dr.
Niigata, states:
Professor Emeritus at Niigata University and, now, President of the of
[The petitioner] has successfully completed two projects independently including
"Significance of abdominal aortic aneurysm surgery in patients more than seventy years," and
"High intensity transient signals (HITS) during open-heart surgery 'relations~ip .between
HITS frequency and micro-bubbles." This was a big challenge for him. Not only would it
provide the high-throughput appro~~ to accelerate the study on life science, but also we
would gain a worldwide advantage in this research area.
The petitioner does not explain the specific relevance, if any, of the above graduate school projects to the
petitioner's current work in transplantation research.
Professor , Chief of the Section of at WUSM, states:
[The petitioner] has been currently playing a very important role in our two main research
projects: Liver-mediated multi-system injury and steatotic liver ischemic injury....
There were over 17,000 American patients on the ... waiting list for liver transplantation, but
with only about 5,000 donor organs being available in 2002. This situation is further
complicated by the prevalence of steatosis in about 13%-50% of donor livers, which is
associated with a high risk of dysfunction and primary non function because steatotic livers
tolerate ischemia-reperfusion injury poorly.
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Ischemia-reperfusion injury is a complex pathophysiology, the most promising protective
strategy is preconditioning which increases the tolerance of fatty and normal liver, NF-kB
may activate the immediate early phase of ischemia-reperfusion injury and stimulate the
upregulation of proinflammatory cytokines. The aim of this study is to test whether ischemic
preconditioning protects the steatotic liver against a prolonged periodof ischemia.
As indicated above, the significance of [the petitioner's] studies as well as his
accomplishments within the scientific and medical communities cannot be overemphasized.
The. study described above was, apparently, still ongoing at the time Prof. _wrote the letter; he
describes "[t]he aim of this study" but reports no findings. Prof. 1 explains that the petitioner
possesses skills in certain surgical techniques that are rare among researchers at WUSM, but this in itself is
notan argument for a national interest waiver. IfWUSM has a permanent opening for a position that requires
knowledge of the techniques, then that skill could presumably be listed on an application for labor
certification. If the position is only temporary (as the petitioner himself specified on the petition form), then
the beneficiary's existing nonimmigrant status already permits his short-term participation in the study.
Professor ••••••••••• , Director of
Core Facility at WUSM, states:
and of the Islet
[The petitioner] joined my laboratory as a postdoctoral research fellow in 1999. Since one Of
my research interest]s] is in the area of organ transplantation, I needed a microsurgical
scientist who was proficient in cardiovascular and hepatobiliary surgery in murine transplant
models. The goal of these studies is to understand the immunobiology of organ rejection in
order to develop new strategies to prevent acute and chronic rejection of the transplanted
organs in humans. I was very lucky to recruit [the petitioner] since he already had expertise
in murine cardiac transplantation. . . . He has avery rare and unique skill in performing
microsurgery of heart, liver and tracheal transplantation in murine models that only a very
limited number of scientists can carry out successfully within our medical school as well as
outside. He is also an integral member of our transplant research group for microsurgical
experiments and contributes significantly with other members of our transplant team.
Without the specialized skills of [the petitioner], several research projects ... would be
seriously hindered and could not be completed.
Dr. thus emphasizes not any pattern of past achievement on the petitioner's part, but rather on
the petitioner's mastery of valuable surgical techniques and his concomitant value to ongoing studies at
WUSM. Dr. states that the petitioner's departure would jeopardize "several research projects"
at WUSM, but he does not specify what steps WUSM has taken to keep the petitioner on staff following the
completion of his temporary assignment. Countless research institutions in the United States rely on the
temporary efforts of postdoctoral researchers; we cannot create a situation in which a nonimmigrant
researcher's assignment to an important project is a defacto entitlement to a national interest waiver. While
we must consider each petition on its own merits, ongoing participation in a particular project of limited
duration is not generally a powerful argument for approval of the waiver.
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' The'only witness who do~s not appear to have worked directly with the petitioner i ~Dr. .
who is a Professor at School and Director 'of the Transplantation Research Center ,at
Brigham and Women 's Hospital in Boston, Massachu setts, as well as Past President ofthe American Society
ofT~anspla~tation. Dr:' _ state~ : . ' . ., '. . , " . ' : ' ,' , ..' , ' ' , " " '
I know Professo'~nd he said [the petitioner] 'did a very great work contributing t~ the
organ transplantation and islet transplantation . As very few scientists have the extensive and '
outstanding skills in Molecular and Cell biology specially microsurgery .as he performed.
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[The petitioner] is an outstanding re~earch scientist with unusual :imowledge and research
talent in the field : He has been .playing an irreplaceable and critical role in the ongoing
projects 'in Kumaf's lab. .... His research potential is significantly above most of the
researchers in the :fi eld. I would like to rate him among the JoP ones. Without doubt , the
breakthrough he made would be impossible and the futureprogresswill be.adversely delayed
in absence of [thepetiti~ner]. , . '. . '
Like other witnesses, Dr. focuses on the difficulty of replacing the petitioner in his current position ,'
rather than 0'0 any ' history of specific achievement~ 'that have demonstrably influenced the field 'to a ' ,
substantial degree. , It is clear from the wording of the statute and regulation 's that exceptional ability in the
sciences is not, by itseif, ;grounds for a waiver; aliens of exceptional ability 'in the sciences are generally
'subj ect to the job offer/labor certification requirement. . Therefore, the general assertion that the' petitioner
possesses above-average 'surgical' and research skills cannot suffice to qualify him for the waiver , which is a
, special immigration benefit over and above the underlying' immigrant classificat ion. Also, the petitioner ,
canriot establish the relative significance of his'work simply by describing it. '
The ' ;director denied the petition, stating: "the tecorddoes not establish that the petitioner's research
accomplishments distingu ish him from thosein the field who have long since completed their education and
postdoctoral training." The director discussed .the witness letters and enumerated the evidence of record, and
stated: "Frequent citationb y independent researchers . . . demonstrates more widespread interest 'in,. and
reliance on, the petitioner's work. . . . [T]he record is devoid of evidence that other scientists have cited the
, petitioner 's work in scholarly works ."
On appeal , counsel contends that the director "only took into consideration partial evidence of the petitioner 's
conference presentations and publications " because the director did not list all of those materials in the
decision, The denial did not rest on the quantity of the petitioner 's publications and presentations, so much as
on .the absence of objective evidence that the petitioner 's work has had asignificant impact outside of his own
,circle of collaborators and mentors. ' ' ,
Regarding the impact of that work, counsel.states 'that the appeal incl~des "evidence that his research res~lts
have been cited ten (10) time s nationally and internationally. " We note that , in the request for evidence, the
director had specifically instructed the petitioner ,to "submit copies ,of any published articles by other
rese~rchers citing~r otherwise recognizing [the petitioner's] -research." : In response to that notice , the ,
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petitioner did not submit any such materials or explain his failure to do so. . The director was, therefore ,
entirely justified in finding that the petitioner had submitted no such evidence '. Counsel, on appeal, does not
explain why the petitioner waited until the appellate stage to submit evidence that the director had 'very
specifically requested earlier. .,'
The' regulation states that the petitioner shall submit additional evidence as the director, in his or her
discretion, may deem necessary.' The purpose of the request for evidence is to ·elicit furtherinformationthat
. clarifies whether eligibility for the benefit sought has been established, as of the time the petition is filed. See
8 C.F.R. §§ 103.2(b)(8) and (12). The failure to submit'requested evidence that precludes a material line of
inquiry shall be grounds for denying the petition. 8 C .F.R.·§ 103.2(b)(14).
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Where, as here, a petitioner has been put onnotic~ 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 (BIA 1988) ; see also Matt er of Obaigbena, 19 I&N Dec.
533 (BIA 1988). If the petitioner had wanted the .submitted evidence to be consideredhe should have
subInitted the documents in response to the director's request for evidence. .Id. Under the circumstances, the
AAO need not discuss this.evidence in detail. The AAO finds no error in the director's handling of this issue.
We .note counsel'sassertio~ that, "[cjompared with numerous approved NIW [national interest waiver]
petitions this law office has filed with useIS to date, the petitioner's qualifications are well aboveaverage, "
CIS:maintains no comprehensive database of the specific evidence included in every approved petition, and
theAaO rarely reviews the records of approved petitions (except on certification) , so there is no objective
way for the MO to determine whether counsel's assertions are accurate , or whether the 'AAO would ha~e
concurred with. the findings of eligibility in those instances. 'In terms 'of-the quantity o{the petitioner 's
published output Ofa dozen or so articles, the record indicates that three . of the petitioner's 'four witnesses
each claim to have written over 200 published articles. Thus, the only objective means of comparison that the
petitioner has made available does not readily demonstrate.that the petitioner stands out among researchers to
the extent claimed.
The only exhibit accompanying the appeal that is not either redundant or untimely is a new letter from Prof.
Much of thisletter is taken word-for-word from the .professor's earlier letter, including the
assertion that research at WUSM cannot continue in the petitioner's absence.'. As we have alreadynoted , the
petitioner's employment at WUSM is inherently temporary , and as such will come to an end regardless of .
. whether or not the petitioner receives a waiver. The record does not object ively establish the petitioner's
track record ~s a particularly influential researcher.
A new passage in theletter reads: "labor certification is not appropriatein his case."Because his expertise is
relatively unique , there is no conflict between him and comparable U.S. workers in seeking employment in
organ transplant research .' ill fact, the United States 'is 'in ' great 'need of such talented ' organ transplant
researchers:" The absen ce or shortage of other qualified workers , does not make labor certification '
inapplicable or inappropriate; to the contrary, such an absence or shortage creates the very conditions that are
conducive to approval of ~n application for labor certification. Labor certification is predicated on the claim
that qualified U.S. workers are.unavailable; Prof. appears to stipulate this very point on: appeal.
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As is c1earfroni a plain reading of the statute , it was not the intent of Congressthat 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"ove~ll 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 w~iver of the requirement
of an approved labor certification will be in the national interest of the United States.
The burden ofproof in these proceedings rests solely ,with the petitioner. Section 291 of the Ad, 8 U.S.c. §' 1361.
The petitioner has not sustahIed 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, appropriatesupporting evidence and fee. .
.:ORDER:
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The appeal is dismissed.
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