dismissed EB-2 NIW Case: Medical Research

US. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
COPY 
FILE: . Office: NEBRASKA SERVICE CENTER Date: JAN 14 20a 
" LIN 03 195 25878 
PETITION: Immigrant Petition for Alien ~ork'er as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203@)(2) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 153(b)(2) 
$ 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
th cided your case. Any further inquiry must be made to that office. 
5 1 
1" Robert P. Wiemann, Director 
Administrative Appeals Office. 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Nebraska 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 a member of the professions holding an advanced degree. 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. 
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. 
In response to the director's request for additional evidence, prior counsel asserts that the petitioner is an alien of 
exceptional ability. This issue is moot, however, because the record establishes that the petitioner holds a 
medical degree from Harbin Medical 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. 
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., 11 (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 necessq to prove the "prospective national benefit" [required of aliens 
seeking to qualify as ccexceptional."] 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, and that 
the proposed benefits of his work, improved treatment of hepatitis C, 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's unique experience could be articulated on an application for 
labor certification and that the petitioper's publication and citation record did not suggest a track record 
justifying projections of future benefit. On appeal, counsel asserts that Matter of New York State Dep't. of 
Transp., 22 I&N Dec. at 215 "is somewhat vague and difficult to apply" but that it allows a waiver of the 
labor certification process where the process is inapplicable. In addition, counsel asserts that the petitioner's 
current employer is unable to seek a labor certification in behalf of the petitioner because of its own internal 
rules. Counsel further asserts that the director misinterpreted the frequent attestations of the petitioner's 
"unique" skills as arguing for a waiver based on a shortage of qualified workers instead of affirming his 
status as irreplaceable. 
First, we do not agree with counsel's characterization of Matter of New York State Dep 't. of Transp. While 
the decision acknowledges that there are situations where the labor certification process is not applicable, it 
finds that "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. The 
decision then states that "it clearly must be established that the alien's past record justifies projections of 
future benefit to the national interest." Id. at 219. Thus, the director used the correct standard; the 
employer's decision not to utilize the labor certification process does not obligate Citizenship and 
Immigration Services (CIS) to grant a waiver of that process to its employees. 
Counsel asserts that Matter of New YorkState Dep't. of Transp., 22 I&N Dec. at 221-222, in its discussion of 
"unique skills," was articulating the proposition that a shortage of a certain type of engineer is not a 
persuasive argument for waiving the labor certification process in the national interest. That decision 
provides: 
It cannot suffice to state that the alien possesses useful skills, or a "unique background." As 
noted above, regardless of the alien's particular experience or skills, even assuming they are 
unique, the benefit the alien's skills or background will provide to the United States must 
also considerably outweigh the inherent national interest in protecting U.S. workers through 
the labor certification process. 
Simple exposure to advanced technology constitutes, essentially, occupational training which 
can be articulated on an application for a labor certification. Special or unusual knowledge 
or training, while perhaps attractive to the prospective U.S. employer, does not inherently 
meet the national interest threshold. 
The Service also does not dispute the advantage to the petitioner of retaining qualified staff 
rather than training inexperienced, newly hired workers. . . . Because exceptional ability, by 
itself, does not justify a waiver of the job offertlabor certification requirement, arguments 
hinging on the degree of experience required for the profession, while relevant, are not 
dispositive to the matter at hand. 
Id. Thus, Matter of New York State Dep 't. of Transp., goes beyond stating that a shortage of a particular type 
of engineer is insufficient. Rather, as stated by the director, it rejects any contention that unique skills or 
knowledge warrant a waiver of the labor certification process in the national interest. This position would 
not, as implied by counsel, belittle D- uniqueness as the discoverer of the theory of relativity. 
The theory of relativity is not remarkable because it was unique, but because of the easily demonstrated 
impact it has had on nearly every area of physics. Counsel's remaining arguments regarding the evidence of 
the petitioner's specific accomplishments in the field will be discussed below. 
Eligib.ility 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 qualifL for a national interest waiver. See generally id at 223. 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 he 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. 
At the time of filing, June 2003, the petitioner had been working as a research assistant in the laboratory of Dr. 
the University of Iowa since 2001. It is claimed that the petitioner's work at this university 
is sufficient to establish his eligibility. 
Dr. Schmidt asserts that the petitioner's most important achievement is "the creation of the unique cell system 
for studying the hepatitis C virus [(HCV)]." Dr.-further asserts that, unlike the only other cell system 
for HCV, the petitioner's cell system can express powerful enzymes in addition to HCV proteins. ~r.- 
explains that this cell system "allows researchers to study the pathological mechanism of HCV proteins and the 
chemicals that metabolite by p450 enzymes." These enzymes, which increase with the ingestion of alcohol, 
acetaminophen, and a drug used to treat tuberculosis, are related to liver damage. According to Drthe 
petitioner's cell system "provides the first effective tool to combat this critical problem." The petitioner 
subsequently used his cell system to discover that HCV proteins increase oxidative stress, filling "an important 
hole in the HCV research area." 
Dr.an associate professor at the Mount Sinai School of Medicine, explains that the petitioner 
used recombinant DNA techniques to introduce DNA versions of viral genes into living cells in culture and then 
used resistance markers to select cells expressing the viral genes at high levels. The resu 
can be used to determine the impact proteins have on cell finction and physiology. Dr 
her group "is very interested in [the petitioner's] cell system because these cells have the potential to express - - 
boththe-conventional core protein and the new rote& that was discovered in my laboratory." The record 
contains a January 29, 2003 letter from Dr.Dr. expressing an interest in a "continuing 
collaboration" to determine the effects of alternative reading frame proteins on oxidative stress. 
Dr. edical Director of the Liver Transplant Program at the California Pacific Medical Center, 
asserts that successful completion of the petitioner's current research could lead to antioxidants as a new 
generation of therapy for HCV patients. a research fellow at the National Cancer 
Institute, National Institutes of Health, and D ssor at the University of Nebraska, provide 
similar information. Several of the references note that the petitioner's work is government finded and assert 
that the petitioner, as the developer of the cell system, is the only individual with sufficient familiarity with the 
system to assist with future research. 
Beyond the petitioner's cell system, ~masserts that the petitioner has also influenced clinical treatment 
of HCV patients nationwide. Specifically, ~rexplains that 40 percent of patients with HCV also have 
cryoglobulinemia, which contributes to increased liver disease. The petitioner "found that cryoglobulinemia 
HCV patients with more a r disease than those without cryoglobulinemia responded more favorably 
to antiviral therapy." Dr describing this finding as "groundbreaking," asserts that it is being 
implemented in clinics nationally. Several references provide similar information, including Dr. who 
asserts that the "majority" of doctors have changed their management strategy for HCV pat~ents with 
cryoglobulinemia. The record, however, does not contain a press release or letter from the American Medical 
Association (AMA), or similar entity, recommending new treatment strategies based on the petitioner's work, or 
even letters from practicing physicians nationwide affirming that they have changed their treatment of HCV 
patients based on the petitioner's findings. 
The petitioner also submitted two grant principal investigator, two co-investigators, 
and the petitioner as a research associate. one of the co-investigators on both grants, 
asserts that government grants are who are U.S. citizens or lawful permanent 
residents. 
e se to the director's request for additional evidence, the petitioner submitted a new letter from Dr. 
eiterating his previous assertions and discussing the petitioner's more recent work. The petitioner also 
submitted letters from other researchers in the field. These letters have been read and considered. As they 
reiterate assertions already discussed above, however, we need not repeat such information in our decision. 
At the time of filing, the petitioner had published three abstracts and presented his work at conferences. In 
response to the director's request for additional evidence, which did not request evidence of accomplishments 
after the date of filing, the petitioner submitted evidence of additional conference presentations, a newly 
published abstract, and an article published in the Journal of Medical Virology. In his fmal decision, the 
director found the petitioner's publication and citation record to be minimal and rejected evidence relating to the 
petitioner's accomplishments after the date of filing, citing Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg. 
Comm. 1971). 
On appeal, counsel asserts that the director wrongly compared the petitioner's publication record to researchers 
with many more years of experience. Counsel further asserts that the instant petition does not involve a labor 
certification, is based on future contributions and, thus, the adjudication should consider post-filing publications. 
Counsel notes that scientific discovery is a lengthy process that culminates in publication. Counsel asserts that 
publication after the date of filing is "proof that the qualification (i.e. benefit to the national interest) existed at 
the time the case was filed." 
Counsel is not persuasive. First, we reject counsel's implication that the peer-review process results in the 
publication of only influential innovations in the field. As stated by the director, publication is expected of 
researchers, including students. While we would not expect the petitioner to demonstrate the same number of 
publications as those who have been in the field longer than he has, it remains that three abstracts, conference 
presentations, and no citation history is not consistent with a researcher with a track record of success with some 
degree of influence on the field. 
Further, we concur with the director that the petitioner must demonstrate eligibility as of the date of filing. A 
request for additional evidence does not imply that evidence relating to accomplishments after the date of filing 
will be accepted. See 8 C.F.R. $ 103.2(b)(12). We find that Matter of Katigbak, 14 I&N Dec. at 49 is 
applicable to non-labor certification cases. Whether or not the priority date is established by the filing of the 
labor certification or the petition itself, the reasoning behind requiring eligibility as of the date of filing is to 
prevent aliens from acquiring a priority date prior to being eligible for the benefit sought. See also Matter of 
Great Wall, 16 I&N Dec. 142, 145 (Act. Reg. Comm. 1977). Matter of New York State Dep % of Transp., 22 
I&N Dec. at 219, is consistent with this position, as it clearly focuses on the petitioner's past history of 
achievement. 
The record shows that the petitioner is respected by his colleagues and has made useful contributions in his 
field of endeavor. It can be argued, however, that most research, in order to receive funding, must present 
some benefit to the general pool of scientific knowledge. It does not follow that every researcher working 
with a government grant inherently serves the national interest to an extent that justifies a waiver of the job 
offer requirement. 
At best, the instant petition was filed prematurely, prior to publication of the petitioner's most interesting work 
such that it could prove influential on the field as a whole. At the time of filing, and even on appeal, the record 
lacks evidence establishing that the petitioner has already influenced the field to any significant degree. It is 
acknowledged that the petitioner has developed a new cell system. While innovation of a new method is of 
greater importance than mere training in that method, such innovation is not always suficient to meet the 
national interest threshold. Id. at 221, n. 7. The record lacks evidence that the petitioner has patented the cell 
system. Even if he had, the petitioner would need to demonstrate that there is a wide interest in licensing the 
system. Id. Alternatively, the record also lacks evidence that the petitioner's work with this cell system has 
been widely cited or otherwise widely adopted. A single request to collaborate with the petitioner's mentor is 
insufficient. Further, as stated above, the record lacks recommendations from the AMA or physician 
testimonials confirming that the petitioner has influenced treatment strategies for HCV patients "nationwide" as 
claimed. 
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 fiom 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. 
§ 136 1. 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.