dismissed EB-2 NIW Case: Medical Research

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
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FILE: LIN 03 087 50802 Office: NEBRASKA SERVICE CENTER Date: 2 3 2005 
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 1 153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
U 
5 Robert P. Wiemann, Director 
Administrative Appeals Office 
LIN 03 087 50802 
Page 2 
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. 8 1153(b)(2), as a member of the professions holding an advanced degree. The petitioner is a 
postdoctoral fellow at Indiana UniversityIPurdue University School of Medicine. The petitioner asserts that an 
exemption from the requirement of a job offer, and thus of a labor certification, is in the national interest of the 
United States. The director found that the petitioner qualifies for classification as a member of the professions 
holding an advanced degree, but that the petitioner has not established that an exemption from the requirement of 
a job offer would be in the national interest of the United States. 
Section 203(b) of the Act states in pertinent part that: 
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of Exceptional 
Ability. -- 
(A) In General. -- Visas shall be made available . . . to qualified immigrants who are members of 
the professions holding advanced degrees or their equivalent or who because of their exceptional 
ability in the sciences, arts, or business, will substantially benefit prospectively the national 
economy, cultural or educational interests, or welfare of the United States, and whose services in 
the sciences, arts, professions, or business are sought by an employer in the United States. 
(B) Waiver of Job Offer. 
(i) . . . the Attorney General may, when the Attorney General deems it to be in the 
national interest, waive the requirements of subparagraph (A) that an alien's services in 
the sciences, arts, professions, or business be sought by an employer in the United 
States. 
The director did not dispute that the petitioner qualifies as a member of the professions holding an advanced 
degree. The sole issue in contention is whether the petitioner has established that a waiver of the job offer 
requirement, and thus a labor certification, is in the national interest. 
Neither the statute nor the pertinent regulations define the term "national interest." Additionally, Congress did 
not provide a specific definition of "in the national interest." The Committee on the Judiciary merely noted in its 
report to the Senate that the committee had "focused on national interest by increasing the number and proportion 
of visas for immigrants who would benefit the United States economically and otherwise. . . ." S. Rep. No. 55, 
10 1 st Cong., 1 st Sess., 1 1 (1 989). 
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 "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. 
LIN 03 087 50802 
Page 3 
Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Comm. 1998), has set forth several factors 
which must be considered when evaluating a request for a national interest waiver. First, it must be shown that 
the alien seeks employment in an area of substantial intrinsic merit. Next, it must be shown that the proposed 
benefit will be national in scope. Finally, the petitioner seeking the waiver must establish that the alien will serve 
the national interest to a substantially greater degree than would an available U.S. worker having the same 
minimum qualifications. 
It must be noted that, while the national interest waiver hinges on prospective national benefit, it clearly must be 
established that the alien's past record justifies projections of fbture benefit to the national interest. The 
petitioner's subjective assurance that the alien will, in the hture, serve the national interest cannot suffice to 
establish prospective national benefit. The inclusion of the term "prospective" is used here to require future 
contributions by the alien, rather than to facilitate the entry of an alien with no demonstrable prior achievements, 
and whose benefit to the national interest would thus be entirely speculative. 
Counsel states: 
[The petitioner] is playing a key role in investigating the cellular mechanisms underlying pain 
because once it is better understood, better treatment modalities can be developed. One 
important aspect of his research involves determining which prostaglandin receptor subtypes 
mediate prostaglandin-induced sensitization of sensory neurons. His current work is an 
extension of his previous research at Indiana University, in that both research endeavors 
concern how neurons are excited, either in a diseased state or during memory formation. In 
fact . . . at Indiana University, [the petitioner] specifically investigated the processes of 
memory formation in an invertebrate species, Hermissenda, at the molecular and cellular 
level. His cutting-edge research revealed that inhibition of protein phosphatase leads to 
increased excitability in photoreceptors, which is due to over-phosphorylation of potassium 
channels. This finding not only shed light on the memory formation process, but also may 
[be] related to pathological changes in Alzheimer's disease (AD). Importantly, it has been 
observed that in the brains of AD patients there is over-phosphorylation of Tau protein that 
has been suggested to be due to a dysfunction in phosphatase activity. 
To explain why a natioilal interest waiver is in order, counsel states: 
The labor certification process is a sterile procedure, which . . . works well for a machinist or 
even tax accountant for instance, where the minimal job qualifications are in fact quantifiable. 
However, in the instant case, [the petitioner's] cutting edge research involves employing and 
developing highly sophisticated, cutting-edge techniques in a creative and innovative manner 
that cannot be readily described under labor certification application forms. 
Congress made research scientists subject to the job offer requirement, and in its original form (prior to a 
technical amendment), the national interest waiver was not available to members of the professions holding 
advanced degrees. Therefore, we are not persuaded by the general argument that the technical sophistication 
of their work should exempt scientists as a class from the job offerllabor certification requirement. We also 
note that other classifications exist, that do not require labor certification, for scientists with national acclaim 
or who are internationally recognized as outstanding. See sections 203(b)(l)(A) and (B) of the Act. 
Several letters accompany the petition. Indiana University Professor Joseph Farley states: 
LIN 03 087 50802 
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[The petitioner] was a graduate student in my laboratory until December 2000 when he 
received his Ph.D. and moved to the medical school at Indiana UniversityPurdue University 
at Indianapolis. . . . 
[The petitioner's] research in my laboratory concerned the regulation of potassium ion 
channel activity in photoreceptors of a marine snail (Hermissenda) by protein phosphatases. 
Potassium ion channels are cell membrane proteins that directly contribute to the electrical 
excitability of many cell types. . . . Modulation of potassium channel activity . . . is a well- 
established principle that underlies communication between cells, and the biochemical 
processes of phosphorylation/dephosphorylation have been implicated as key contributors to 
this modulation. . . . Thus, potassium (K') channels and their modulation by protein kinases 
and phosphatases are of immediate medical importance. 
Through their effects on neuronal excitability, K' channels have also been implicated as 
mediators of learning and both short- and long-term forms of memory storage in the brain. 
And it is in this area where [the petitioner] has made important contributions. In my 
laboratory, [the petitioner's] main area of research centered on the involvement of serinel 
threonine protein phosphatases (PPs) in regulating K' channels in Hermissenda Type B 
photoreceptors, and the possible involvement of phosphatases in the production of learning- 
related excitability changes in these cells. The Hermissenda system he has worked on has . . . 
made major contributions to contemporary understanding of the cellular and molecular bases 
of learning and memory. . . . 
[The petitioner's] dissertation research represents a very important contribution to the field, 
and one that is already receiving much attention. . . . 
During his six years in my laboratory, he made pivotal contributions to phosphatase- 
modulation of K+ channel research. These accomplishments are already being widely 
recognized in the field and will continue to be recognized as further articles . . . are published. 
Since entering my laboratory, [the petitioner] has been focusing his efforts on the critically 
important area of pain research. . . . His combined knowledge of multiple approaches to 
address important and clinically relevant scientific questions makes me confident that he will 
continue to grow as a scientist and make important contributions that will help advance our 
understanding of the etiology of pain. . . . 
[The petitioner] already is making significant contributions to science in understanding the 
modulation of sensory input. He has published on the fundamental question of the cellular 
mechanism mediating excitability of photoreceptors. In my laboratory, he has developed a 
unique model to study the role of the IP receptor for prostacyclin in chronic pain. By 
understanding this, it could be possible to ascertain the mechanisms that modulate sensory 
input and the potential mechanisms for sensory transduction. 
Several other witnesses offer highly complimentary assessments of the petitioner's skills and 
accomplishments. All but one of these witnesses are on the faculty of Indiana University. The remaining 
LIN 03 087 50802 
Page 5 
witness, ~rf ~harmacia Corporation, studied alongside the petitioner at Indiana University. Thus, 
the witness letters are not prima facie evidence that the petitioner's work has had significant impact or 
attracted demonstrable notice outside of the faculty and students at Indian ity. Some witnesses claim 
that the petitioner's work has attracted wider recognition, for instance Pro tates that the beneficiary's 
work "is already receiving much attention," and D-tates that the s published articles "have 
been cited by many other researchers in their publications." Nevertheless, these general assertions represent 
claims rather than evidence, and reliable evidence that the petitioner's work is recognized outside of Indiana 
University must originate from outside of Indiana University. 
The director issued a request for evidence (RFE), stating that the petitioner had not adequately established 
eligibility for the national interest waiver. In response, counsel argues that the director has attempted to 
impose too high a standard. It is true that, to qualify for a national interest waiver, the petitioner need not 
meet the level required for classification as an alien of extraordinary ability under section 203(b)(l)(A) of the 
Act, or as an outstanding researcher under section 203(b)(l)(B) of the Act, and many of the specific points 
contained in the RFE adhere to too high a standard. At the same time, the petitioner must do more than 
simply show that he qualifies for classification under 203(b)(2) and that his prospective employer cannot, or 
does not wish to obtain a labor certification on his behalf. The RFE contains more reasonable requests, for 
instance the director's assertion that the petitioner should substantiate the vague claims of wide recognition of 
the petitioner's work. 
Counsel states: 
[Plroof of citation of [the petitioner's] work is included. However, a full citation search was 
not undertaken because the RFE clearly stated that "the mere reference to the beneficiary and 
his work within an article or in a footnote or bibliography is insufficient." However, the 
enclosed AAO decision . . . specifically indicates that "evidence of citation of his work, 
which would have been very helpful in establishing eligibility." Thus, an incorrect standard 
for review of evidence appears to be involved in [the petitioner's] case. 
By arguing that the director applied "an incorrect standard for review of evidence," counsel indicates that the 
director should rely more heavily on citation of the petitioner's work. Nevertheless, having argued as such, 
counsel states "a full citation search was not undertaken." Counsel does not specify the extent of the "proof 
of citation" submitted; we have been able to locate in the record one document showing three citations of one 
of the petitioner's articles, over the course of about two years. This citation record is minimal. Counsel 
seems to imply that a more thorough search would yield more citations of the petitioner's work, but that the 
petitioner has elected not to submit evidence of those citations. It is the petitioner's responsibility to submit 
evidence in support of his claim. The three citations documented in the record are not sufficient to show that 
the petitioner's work has attracted "much attention" or that "many other researchers" have cited the 
petitioner's work. 
The director denied the petition, acknowledging the petitioner's academic credentials and published work, but 
finding that these qualifications do not significantly distinguish the petitioner from other qualified 
professionals in his field. The director also acknowledged the witness letters submitted in support of the 
petition, but found that these letters do not establish eligibility. 
The director, in denying the petition, concluded that the petitioner has not shown that his work is national in 
scope. Medical and scientific research at major institutions is inherently national in scope, however, because 
the results are disseminated nationally (and internationally) through publications and conferences and because 
LIN 03 087 50802 
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the findings of such research tend to apply universally rather than only locally. We therefore withdraw the 
director's finding that the petitioner's work lacks national scope. 
On appeal, counsel cites some ambiguously worded passages from the director's decision, and correctly 
argues that an applicant for a national interest waiver need not "be the most exceptional in his or her field of . 
endeavor or better than everyone else in the field." The director's denial notice, however, did not indicate 
that the petitioner had to be the single best person in his field. Therefore, counsel here rebuts a finding that 
does not appear in the denial notice. The director had, in fact, stated "it would appear that an alien's 
qualifications must, in fact, lie somewhere between 'exceptional' and 'extraordinary' to qualify for a national 
interest [waiver]." This is not an unreasonable stance, given that an alien of exceptional ability must 
(typically) meet the job offer requirement, and therefore one cannot reasonably hold that exceptional ability, 
per se, is prima facie grounds for a waiver. 
Counsel states that the director essentially conceded the petitioner's eligibility by stating: "The Service will 
concede that the petitioner offers a significant benefit to his field of endeavor." Counsel, however, has taken 
this passage our of context. The paragraph in which it appears reads, in full: 
The Service will concede that the petitioner offers a significant benefit to his field of 
endeavor. But again, the evidence of record does not demonstrate that the petitioner's 
qualifications significantly exceed the "prospective national benefit" that is required of all 
aliens who seek to qualify as "aliens of exceptional ability" under the auspices of the labor 
certification program. 
The plain wording of section 203(b)(2)(A) of the Act makes it clear that aliens "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" must also demonstrate that their "services . . . are 
sought by an employer in the United States." Substantial prospective national benefit is obviously not a sufficient 
basis for a national interest waiver, or the wording of the statute (requiring substantial prospective benefit and a 
job offer) would simply make no sense. Nothing at all in the statute or regulations indicates that, with regard to 
the national interest waiver, one standard applies to aliens of exceptional ability, and a different, lower standard 
applies to members of the professions holding advanced degrees.' The inescapable conclusion is that a showing 
of prospective national benefit is necessary, but not suflcient, for a national interest waiver, whether the alien 
seeking that waiver is an alien of exceptional ability or a member of the professions holding an advanced degree 
(or both). Counsel fails to demonstrate that the petitioner rises to the standard correctly set forth by the director. 
Counsel correctly states that the director has made unfounded assumptions about the labor certification 
process, but at the same time, counsel has made the equally unfounded claim that labor certification is 
inherently unsuitable for highly technical research positions. General arguments about the real or perceived 
shortcomings of the labor certification process do not translate into arguments in favor of granting a waiver in 
specific instances. Every alien seeking benefits under section 203(b)(2) of the Act is presumed to be subject 
to the job offerllabor certification requirement until the evidence warrants an exemption from that 
requirement. Counsel's argument, that some positions are inherently too complex and specialized for labor 
certification, presumes the opposite of the statute and seeks to place the burden on CIS to show that labor 
certification would be appropriate. 
- - --- 
1 We do not consider, here, the provisions of section 203(b)(2)(B)(ii) of the Act, which apply only to certain physicians. 
These provisions are not relevant to the matter at hand because the petitioner is not a physician. 
LIN 03 087 50802 
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Much of counsel's appellate brief is devoted to a critique of the director's admittedly flawed RFE, rather than 
to the director's more defensible basic findings. Counsel has submitted copies of two unpublished appellate 
decisions as examples of the AAO's reasoning in national interest waiver decisions. Both of these cited 
decisions discuss the importance of citations; one of the decisions states that "documentation of heavy citation 
of the petitioner's published work" greatly strengthens a petition. Counsel has asked that these unpublished, 
non-precedent decisions be taken into consideration, but counsel does not explain why such consideration 
would be favorable to the petitioner. The petitioner has documented only three citations. One of the cited 
decisions also discusses the importance of independent evaluations of an alien's work, to show that the impact 
of that work extends beyond the alien's own immediate circle of professors and collaborators. In this 
instance, the witness base consists entirely of faculty and alumni of Indiana University. Counsel, on appeal, 
has not addressed these deficiencies (despite being in possession of AAO decisions that stress these factors), 
instead basing the appeal largely on complaints about the request for evidence. 
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. $ 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.