dismissed EB-2 NIW Case: Medical Research

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PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services b2' 
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 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 
theoffice that originally decided your case. Any further inquiry must be made to that office. 
0 
Administrative Appeals Office 
DISCUSSION: 
 The Director, Texas Service Center, denied the employment-based immigrant visa petition. 
The matter 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. § 1153(b)(2), as a member of the professions holding an advanced degree. The petitioner seeks 
employment as a research instructor at the Medical University of South Carolina (MUSC). The petitioner 
asserts that an exemption fkom 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 defme 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 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] 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 fiom, 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 Dept. of Transportation, 22 I&N Dec. 21 5 (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 "pro~pective'~ 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 note that 8 C.F.R. 4 204.5(k)(4)(ii) states that, to apply for the exemption, the petitioner must submit 
Form ETA-750B, Statement of Qualifications of Alien, in duplicate. The record does not contain this 
required document, and therefore the petitioner has not properly applied for the national interest waiver. The 
director, however, did not note this omission in the denial notice or in the request for evidence to allow the 
petitioner to remedy the omission. We will, therefore, review the matter on the merits. 
Along with copies of the petitioner's academic credentials and published and presented work, the petitioner 
submits numerous witness letters. We shall consider examples of these letters here. Most of the letters are 
from individuals who have taught, supervised, or collaborated with the petitioner; half of the letters are from 
MUSC faculty members. 
who does not claim or show close ties to the petitioner or her 
an assistant professor at the University of Michigan Medical School. 
Over the past 2-3 years, I came to know of [the petitioner's] work through her publications. 
In addition, I had the opportunity to meet her and hear her present her work at an 
international meeting. . . . 
[A]t the Medical University of South Carolina . . . [the petitioner] began a highly productive 
research program to study the biological mechanisms by which a group of cells known as 
fibroblasts mediate scarring of tissues/organs in patients suffering from scleroderma, an 
immune-mediated disease that typically afflicts young women. Therapeutic options for thls 
Page 4 
disease are limited at the present time and novel therapeutic strategies are desperately needed. 
[The petitioner] was the first to show that aberrant signaling in scleroderma fibroblasts 
involving transforming growth factor-p (TGF-P) receptors expression may underlie the 
constitutive activation of these cells in disease states. Specifically, she showed that 
expression of the type I TGF-P receptor was increased relative to the type I1 receptor in 
scleroderma fibroblasts and this was associated with higher basal levels of collagen (matrix) 
production by these cells, an effect that was insensitive to blockade of signaling from the type 
I1 TGF-P receptor. This study has important implications in the future design of treatment 
strategies that target the activation of specific receptors at the cell membrane. Moreover, [the 
petitioner's] research presentation at the international Keystone symposium in Colorado 
earlier this year demonstrated that TGF-P may mediate its fibrotic effects via pathways that 
are independent of the canonical/established pathways involving Smad proteins. These new 
insights will allow us to design more specific and less toxic therapies for scleroderma and 
other fibrotic diseases in humans that are, almost universally, linked to exaggerated TGF-P 
signaling. 
Professo- who has supervised the petitioner's work at MUSC, states: 
[The petitioner] joined my laboratory in 2000 to conduct research on the abnormal regulation 
of the extracellular matrix (ECM) protein synthesis in scleroderma. . . . Excessive ECM 
deposition is the hallmark of scleroderma occurring in all target organs, and there is no 
available cure to stop the progression of the disease. Better understanding of the dysregulated 
ECM deposition should lead to the design of new therapeutic approaches. [The petitioner] 
has made several novel, important observations that may not only help to explain the 
mechanism of abnormal ECM production by scleroderma fibroblasts, but also lead to future 
therapeutic intervention. . . .Specifically, [the petitioner] has demonstrated that fibroblasts 
derived from scleroderma patients have augmented responses to a factor termed connective 
tissue growth factor (CTGF), which is abundant in scleroderma lesions. Furthermore, her 
work has shown that this response requires costimulatory signal from the insulin pathway. . . . 
In a different study, [the petitioner] has observed that fibroblasts from scleroderma patients 
have a higher abundance of TGF-beta receptor type I. . . . This finding is highly significant as 
it may provide the explanation for the abnormal behavior of scleroderma fibroblasts with 
respect to ECM production. [The petitioner] is currently dissecting this mechanism. . . . 
[The petitioner] has made unique contributions to the field of scleroderma. Furthermore, her 
discoveries form a basis for future therapies [for] . . .rheumatoid arthritis, lupus, as well as 
cancer. 
MUSC Professostates that the petitioner "has made landmark contributions to the field of 
scleroderma. I believe that her work is among the most important findings in scleroderma research today." 
an associate professor at MUSC, states that the petitioner "is indispensable on a national scale 
in the fight against rheumatoid and fibrotic diseases." Others who have worked with the petitioner describe 
her work in varying degrees of detail and assert that the petitioner has performed important research. 
Page 5 
On June 28, 2005, the director issued a request for evidence, instructing the petitioner to submit 
documentation to show that the petitioner meets the guidelines set forth in Matter of New York State Dept. of 
Transportation. The director specifically requested "evidence of the extensive citation record of the 
beneficiary's research" and "evidence from independent researchers stating to [sic] the beneficiary's 
contributions and the impact on the field." 
The petitioner's response includes documentation of citation of her work. 
 Counsel states: "Since her 
publications were from 2003 and 2004, there has not been much opportunity for researchers to cite to her 
work, since these publications are usually several years in the making. However, considering the recent 
release of [the petitioner's] own articles, it is significant that she has been cited several times to date." 
Counsel adds: "This year will also see extensive citation to her research in new publications," but this 
statement appears to be nothing more than speculation; there is no evidence that counsel has surveyed other 
researchers to confirm that such citations are, in fact, known to be forthcoming. 
Two documents that counsel lists among the petitioner's claimed citations are databases of articles. Inclusion 
in listings of ths kind is not "citation" in the usual sense of the term; the listings are not, themselves, 
presentations of original research findings, and appearance in such listings does not demonstrate influence 
upon other researchers. 
Apart from the two lists, the petitioner submits copies of ten articles that cite the petitioner's work. Four of 
these articles were co-authored by the petitioner herself or her acknowledged collaborators, leaving six 
independent citations. Printouts from http:ilscholar.aoogle= show ten citations of the petitioner's work, 
including four self-citations. The copies and printouts overlap somewhat, resulting in a total of ten 
documented independent citations of the petitioner's work. 
One citing article, from Cztrrent Opinion in Nephrology and Hypertension, ends with a list of 82 "References 
and recommended reading." This section begins: "Papers of particular interest, published within the annual 
period of review, have been highlighted as: of special interest / 0. of outstanding interest." The 
petitioner's article is not highlighted. 
Regarding the director's request 
 counsel asserts "two of the previously 
submitted letters, fromnd 
 from independent reviewers - neither 
researcher collaborated with" the ' in question is an associate 
professor at MUSC who states "I have known [the petitioner1 since August 2000 when she ioined the 
- 
iaboratory of my collaborator. . . I therefore have first-hand knowledge of [the 
petitioner's] excellence as a research scientist." It is clear that liarity with the petitioner's work 
is not based on reputation alone. 
The petitioner submits several new witness letters. Professorhairman of the Department of 
Dermatology and Plastic and Reconstructive Surgery at Kumamoto University, 
be "one of the outstanding researchers in the field of Scleroderma research." 
Page 6 
associate professor at the University of Texas Health Science Center at Houston, deems the petitioner to be "a 
rising star in the sclerodem research community" who "has already made important contributions." 
Other witnesses show somewhat less enthusiasm. 
 section head of Signal Transduction 
and Aging at Leiden Universit Medical Center, the Netherlands, describes the petitioner's work but does not 
go as far as Prof. nstead asserts that "given the right opportunity, [the petitioner] has the 
capacity to mature into an ind endent scientist who will contribute immensely to the understanding of 
Scleroderma." a senior scientist at Scios, Inc., deems the petitioner to be "one of the 
most promising individuals among the young investigators in the field of SclerodermaITGF-beta research 
and states that "with the proper support . . . she has the potential to be come a highly successful scientist." 
The letters and citations show that the petitioner's work has begun to attract notice within the specialty. The 
divergent assessments of the petitioner's work indicate that her reputation in the field is still embryonic; some 
witnesses assert that she already stands out in the field, whereas others state only that she has the "promise" of 
becoming an excellent scientist if certain conditions are met at some future time. 
The director denied the petition, stating that the petitioner has not documented significant independent 
citation of her published work, and that many of the witness letters simply describe her work and attest to the 
petitioner's future promise. The director determined that the petitioner has documented minimal influence on 
the field as a whole. 
On appeal, counsel repeats the argument that the petitioner's articles have not existed long enough to be cited 
many times. Counsel also asserts "there is a very limited community of scientists specializing in the field of 
Scleroderrna Research." Counsel offers no figures to back up these claims. We acknowledge that smaller 
specialties will produce fewer citations, but the burden is still on the petitioner to show that her work is 
heavily cited compared to the work of other scleroderrna researchers. 
Counsel asserts that the petitioner's "work has been cited 3-4 additional times from the point the RFE reply 
was submitted, thus proving that it is only a matter of time before her citation record will be considerable." 
Counsel does not explain this logic, which fails to take into account what is known as the "half-life" of a 
given article. It is not the norm for an article, once published, to be cited at a steady rate perpetually 
thereafter; after a certain point, further progress in the field makes the information in the article outdated, and 
citation drops off. Also, when considering counsel's latest prediction, we recall counsel's earlier prediction 
that "[tlhis year will also see extensive citation to her research in new publications." Given that counsel now 
acknowledges only "3-4 additional citations," it seems safe to say that counsel's confident forecast of 
"extensive citation" "this year" has not come to pass. We note that one of these new citations is from a 
witness who has previously identified himself as one of the petitioner's collaborators. 
Counsel goes on to offer claims regarding the importance of various prior submissions. The assertions of 
counsel do not constitute evidence. Matter of Laureano, 19 I&N Dec. 1, 3 (BIA 1983); Matter of Obaigbena, 19 
I&N Dec. 533,534 (BIA 1988); Matter of Ramirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
Page 7 
An electronic mail message shows that, in October 2005, the editors of Arthritis Cave & Research invited the 
petitioner to review a manuscript submitted for publication in that journal. Nothing in the message indicates 
that participation in peer review is a rare privilege in the specialty, rather than an obligation that is generally 
expected of qualified researchers. 
Two MUSC officials, in a joint letter, assert that the petitioner is highly qualified in her field, and that if 
MUSC pursued labor certification on the petitioner's behalf, then MUSC may be forced to offer the position 
to a less-qualified worker who lacks the petitioner's specialized expertise. We are not heedless of these 
arguments, but an employer's preference for a particular job candidate is not inherently a national interest 
issue. The officials indicate that the petitioner "is poised to apply for independent research funding." 
A supplement to the appeal includes documentation showing that she was named as the principal investigator 
on a recent grant application, apparently prepared after the letter discussed above. Being the principal 
investigator on a grant-funded project is not, itself, prima facie evidence of eligibility for the waiver. Even if 
it were otherwise, there is no evidence that the petitioner was a principal investigator when she filed the 
petition in June 2005. The beneficiary of an immigrant visa petition must be eligible at the time of filing; 
approval cannot rest on new facts at a later time. See Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg. Comm. 
1971). Material changes to a petition that has already been filed cannot remedy such deficiencies. See Matter 
of Izummi, 22 I&N Dec. 169, 175 (Cornm. 1998). 
Clearly the petitioner is a productive researcher whose work has begun to attract some notice outside of her 
circle of collaborators. If counsel's predictions about the petitioner's imminent acclaim eventually come to 
pass, then any new evidence of recognition and impact could form the basis of a new petition. As it now 
stands, however, the existing petition now before us appears, at best, to have been filed prematurely. 
As is clear fi-om 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 fi-om 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.