dismissed EB-2 NIW Case: Medical Research

U.S. Citizenship ;@ an 4 Immigration 
@teaD $*G 
O Ser ices 
PUBLIC COPY 
Office: NEBRASKA SERVICE CENTE* Date: JUL 1 8 2005 
IN RE: Petitioner: 
Beneficiary 
PETITION: Immigrant Petition for Alien Worker as a Member of the s Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to of the Immigration 
and Nationality Act, 8 U.S.C. 4 1 153(b)(2) 
,ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All have been returned to 
office that originally decided your case. Any further inquiry must be 
'J 
Robert P. Wiemann, Director 
Administrative Appeals Office 
1 
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Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by th Director, Nebraska Service 
Center, and is now before the Administrative Appeals Office on appeal. The appea 1 will be dismissed. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigrat' n and Nationality Act (the 
Act), 8 U.S.C. $ 1153(b)(2), as a member of the professions holding an advanced egree. The petitioner seeks 
employment as a postdoctoral research scholar. The petitioner asserts that an exe ption from the requirement 
of a job offer, and thus of a labor certification, is in the national interest of the Unit States. The director found 
that the petitioner qualifies for classification as a member of the professions hold ng an advanced degree, but 
that the petitioner had not established that an exemption from the requirement of a iob offer would be in the 
national interest of the United States. 
i 
On appeal, the petitioner challenges the director's factual conclusions. While we c ncur with the petitioner that 
the director erred in concluding that the proposed benefits of the petitioner's wo k would not be national in 
scope, the petitioner has not overcome the director's remaining concerns. 
t 
Section 203(b) of the Act states in pertinent part that: 
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees Aliens of Exceptional 
Ability. -- 
(A) In General. -- Visas shall be made available . . . to qualified who are members 
of the professions holding advanced degrees or their because of their 
exceptional ability in the sciences, arts, or business, will 
national economy, culturaI or educational interests, or 
services in the sciences, arts, professions, or business 
States. 
(B) Waiver of Job Offer. 
(i) . . . the Attorney General may, when the Attorney General deem it to be in 
the national interest, waive the requirement of subparagraph (A) tha an alien's 
services in the sciences, arts, professions, or business be sou t by an 
employer in the United States. 
t 
The petitioner holds a medical degree from the University of Medicine and Pharm in Timisoara, Romania. 
The petitioner's occupation falls within the pertinent regulatory definition of a The petitioner thus 
qualifies as a member of the professions holding an advanced degree. The issue is whether the , 
petitioner has established that a waiver of the job offer requirement, and is in the 
national 'interest. , 
Neither the statute nor pertinent regulations define the term "national interest." Ad Congress did not 
provide a specific definition of "in the national interest." The Committee on the J noted in its 
report to the Senate that the committee had "focused on national interest by 
proportion of visas for immigrants who would benefit the United States 
S. Rep. No. 55, I Ol st Cong., 1st Sess., 1 1 (1989). 
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Supplementary information to the regulations implementing the Immigration Act o 1990 (IMMACT), published 
at 56 Fed. Reg. 60897,60900 (November 29, 1991), states: 
d 
' The Service believes it appropriate to leave the application of this test as possible, 
although clearly an alien seeking to meet the [national 
significantly above that necessary to prove the "prospective 
seeking to qualify as "exceptional."] The burden will 
exemption from, or waiver of, the job offer will be in the 
judged on its own merits. 
Matter, of New York State Dep 7. of Transp., 22 I&N Dec. 2 1 5 (Comm. 1 998)' set forth several factors 
which must be considered when evaluating a request for a national interest waiver. it must be shown that 
the alien seeks employment in an area of substantial intrinsic merit. Next, it that the proposed 
benefit will be national in scope. Finally, the petitioner seeking the waiver that the alien will 
serve tp national interest to a substantially greater degree than would an having the same 
minimum qualifications. 
We concur with the director that the petitioner works in an area of intrinsic medical research. The 
director then questioned whether the proposed benefits of her work, of genetic 
defects relating to facial deformities, would be national in scope. 
petitioner's research had yet to have a national impact. The issue 
benefits of the petitioner's work would be national in scope. 
petitioner's occupation itself. We find that the proposed benefits 
do have the potential for a national impact. Thus, the 
concerns regarding the petitioner's track record are better 
It remains, then, to determine whether the petitioner will benefit the national inte to a greater extent than 
an available U.S. worker with the same minimum qualifications. The concerns regarding the 
speculative opinions provided and the lack of evidence regarding how the impacting the research 
community, while expressed under the wrong prong, are valid concerns ability to meet 
this final prong. 
Initially, the petitioner submitted letters from her immediate circle of collea ues at the University of 
Louisiana Health Sciences Center and the University of Iowa. In response to the director's request for 
additional evidence, the petitioner submitted several independent letters. The su mission of such letters in 
and of itself, however, is insufficient; the content of those letters must be e luated. For the reasons 
discussed below, the letters submitted in this matter are not persuasive. 1 
~r.- a professor of pediatrics at the University of Louisiana Health S iences Center, asserts that 
the petitioner participated in a 25-day exchange program where she "trained" t that center. While Dr. 
praises her skills and predicts success for the petitioner, he doe not identify a specific 
accomplishment made by the petitioner. 1 
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~r. a professor of pediatrics at the University of Iowa, discusses e petitioner's assistance in 
editing the Iowa Neonatology Handbook and her translation of this material i o Romanian for use in the 
university's "well established education exchange program with neonatologist from Romania." Dr.- 
further asserts that this handbook is updated annually and the petitioner is the o ly person in Iowa, possibly 
the United States, capable of revising the Romanian edition. While other claim of eligibility are advanced 
and will be discussed below, this claim is clearly based on a shortage of availab e workers and relies on the 
purported unique abilities of the petitioner. The issue of whether similarly-trai ed workers are available in 
the U.S. is an issue under the jurisdiction of the Department of Labor. Matter f New York State Dep 't. of 
Transp., 22 I&N Dec. at 221. Moreover, it cannot suffice to state that the alien ossesses useful skills, or a 
"unique background." Special or unusual knowledge or training does not i herently meet the national 
interest threshold. Id. 1 
Dr. an associate professor at the University of Iowa, discusses the betrtioner's work on a study 
of the genotypes relating to cleft lips and palates. Dr. N_op@os states: 
We coordinated the collection of samples that [the petitioner] was t en responsible for 
performing the genetic analysis on. She was able to do this work n an efficient and 
organized fashion. The results of this analysis were very interesting and ave been presented 
orally at several meetings in both the department of psychiatry and pe iatrics here at the 
University. I 
Dr. professor at the University of Iowa, asserts that the peti worked on a project 
investigating the genetic causes of preeclampsia, where she managed the DNA from mothers who 
developed preeclampsia. The petitioner presented this work at a conference i 2001. Also in 2001, the 
petitioner presented a poster presentation relating to her work on developing co t effective assays valuable 
for studies of birth defects. The petitioner then began work on a project to "look for candidate genes 
involved in the etiology of orofacial clefts and to find the role of environmental actors, particular[ly] in the 
presence or absence of the vitamin intake during pregnancy, acting as a covariate ith the candidate gene risk 
factors." This project involved analysis of DNA from the National Birth Defec s Prevention Study by the 
Centers for Disease Control (CDC). The petitioner presented this work at a confe ! nce in 2002. 
Dr. ~aay concludes that the petitioner "has already made substantial and ique contributions to the 
scientific and medical literature in this field." The petitioner's field, like is research-driven, 
and there would be little point in presenting research that did not add to the knowledge in the 
field. There is no evidence that the national interest waiver was intended for researchers 
who present or publish their work. Dr.oes not identify the 
explain how it is significant. 
In a subsequent letter, ~rsserts that the temporary nature of the petitio er's postdoctoral position 
makes labor certification impossible. The inapplicability or unavailability of a 1 r certification cannot be 
viewed as suficient 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 o others in the same field. 
Matter of New York Dep 'r of Transp. 22 I&N Dec. at 2 1 8, n. 5. 1 
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Page 5. 
On appeal, ~r.serts that the director erred in concluding that not corroborate claims 
that the CDC will utilize the petitioner's methods in the future. Dr. notes that some of the 
petitioner's coauthors work for the CDC now; thus, the CDC is 
The record does not su ort this statement. While two references 
and Dr- neither of these individuals is a 
listed as a contributor to the design on a proposal that 
that the CDC oversees is not evidence that the CDC 
use. As will be discussed below, the letters from 
examples of specific influential findings made by the petitioner. 
~rrther asserts on appeal that the waiver is warranted to allow the etitioner to pursue federal 
funding as a permanent resident. The conclusion that allowing the petitioner compete is in the national 
interest is only possible if the petitioner establishes a track record of success wi some degree of influence 
on the field as a whole. While several references attest to the petitioner's such general assertions 
without examples of successful results and an explanation of their influence are insufficient. 
a research coordinator at the University of Iowa, asserts 
greatly to the success we enjoy in Dr. lab in making scientific to the body of 
knowledge on maternal and child health." MS.-does not contribution to 
the field. She also asserts that the petitioner is a coauthor on a 
of filing, had yet to be disseminated in the field does not relate 
Dr. a former professor at the University of Iowa, indicates that h has met the petitioner and 
reviewed her work. He discusses the importance of the problem the petitioner' 4 research "addresses," but 
fails to identify specific and notable improvements the has made to thi problem. He asserts that 
the petitioner has "already established a record through publications and present tions," noting the prestige 
of the journal that accepted the petitioner's work. We will not presume the influ ce of a given article from 
the publication in which it appears; rather we look for evidence of the influence o the individual article, such 
as evidence that it has been widely cited. ~r.oncludes that the petitio er "has already gone well 
beyond ihe typical expectations of her peers." i 
The petitioner also submitted the purported attachment to an e-mail message fro a project 
manager for the Centers for Disease Control. The e-mail 
suggesting that ~r.is a colleague of 
petitioner's area of research, which we do not contest. He 
established a record through publications and presentations," but does not identi results published and 
presented or explain their significance and impact in the field. We reiterate that in the law suggests 
that the waiver was designed as a blanket waiver for every researcher who presents her work. 
We note that more than one million peer-reviewed articles are published medical and 
technical journals.' He concludes that the petitioner "has gone well 
peers." 
I According to www.elsevier.com. 
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Dr. a lead researcher at Children's Hospital Research in Oakland, California, 
exp ains that he has met the petitioner on his visits to the University of Iowa. that the petitioner's 
work "holds great promis&" that she has "already established a recorr' '+L-ough publications and 
presentations," and that she "exceeds the promise of most of her peers." 
The remaining letters, some of which do not appear on the letterhead of the institutions the references 
represent, are from individuals who have not collaborated with the petitioner. hese references imply that 
their letters are in response to a request to review the petitioner's work and prov e a letter in support of the 
petition. They do not indicate that they had ever heard of the petitioner prior to t is request or that they have 
applied her work in their own endeavors. 
h 
Dr.~edical Director of the New York State Congenital Registry, asserts 
that the petitioner's work "holds great promise for providing new insights might prevent or 
better treat" children born with cleft lips or palates. In support of this 
asserts that the petitioner, has "already established a record through 
has also published in a leading journal. As 
from the publication in which it appears. 
usual expectations." 
Dr. Director for the Arkansas Center for Birth Defects Research na Prevention, asserts that 
the petitioner's work "holds promise for important insights for prevention and trea 1 ment of this defect." 
Dr. an epidemiologist with the National Center on Birth fects and Developmental 
Disa I 1 les WI t e enters for Disease Control, asserts that she is the lead of an eight-site 
study in which the petitioner has participated. She concludes that the petit oner's work "holds great 
promise," that she "has already established a record through publications and p esentations," and that she 
L 
"has gone beyond the typical expectations of her peers." 
- 1 
Dr.-a professor at the University of North Carolina, concludes that the petitioner's work 
"holds great promise," that she "has already established a clear record 1 hrough publications and - - 
presentations," and that she "has gone well beyond the typical expectations of her deers." 
~rda professor st the University of California, Berkeley and an ass editor of the journal 
that accepte the petitioner's work for publication, concludes that the work "holds great 
promise," that she "has already established a record through publications and that she 
"has gone well beyond the typical expectations of her peers." 
The only reference to discuss the etitioner's results is Dr. professor at the 
Medical College of Wisconsin. Dr&xplains that the there may be a 
susceptible group of women who takin additional folic acid in early pregnancy m lower the risk of having 
a child with cleft lip and palate." ~rhonc~udes that this finding "holds promise for providing 
new insights into how we might prevent or better treat this birth malformation." 
Eligibility for the waiver must rest with the alien's own qualifications rather than w th the position sought. In 
other words, we generally do not accept the argument that a given project is so important that any alien 1 
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qualified to work on this project must also qualify for a national interest At issue is whether this 
petitioner's contributions in the field are of such unusual significance merits the special 
benefit of a national interest waiver, over and above the visa seeking an extra 
benefit, the petitioner assumes an extra burden of proof. A a past history of 
achievement with some degree of influence on the field as a 
Given the repeated assertions that the petitioner's work "holds great promise" an the failure to provide more 
specific information regarding the petitioner's past record of success, we emph size that while the national 
interest waiver hinges on prospective national benefit, it clearly must be establishe that the alien's past record 
justifies projections of future benefit to the national interest. Subjective assuran s that the alien will, in the 
future, serve the national interest cannot suffice to establish prospective national nefit. The inclusion of the 
term "prospective" is used here to require future contributions by the alien, rather an to facilitate the entry of 
an alien with no demonstrable prior achievements, and whose benefit to the nati nal interest would thus be 
entirely speculative. 
I 
We acknowledge that the petitioner has presented her work. After the date of the petitioner's work was 
accepted and published in a prestigious journal. The record, however, lacks of impact of this work, 
such as evidence that it has been widely cited in medical journals or The letters from 
independent researchers are extremely general without the general 
claims, use nearly identical language and cannot establish the 
On appeal, the petitioner submits a certificate from the Governor of the State of lo recognizing the petitioner 
for her'work on the causes of birth defects, which "has already attracted international attention." 
The petitioner failed to submit any evidence of the significance of such as the criteria used by 
the governor's office in granting requests for these types of certificates issued each year. We 
note that recognition from the government is one of the criteria for ability, a classification 
that normally requires a labor certification. We cannot conclude the requisite three, 
warrants a waiver of that requirement in the national interest. after the date of 
filing and cannot establish the petitioner's eligibility as of Matter of 
Katigbak; 14 I&N Dec. 45,49 (Comm. 197 1). 
Finally, the assertion that the lengthy labor certification process would drive the 
private practice is not persuasive. 'First, the petitioner fails to explain how the process is less 
burdensome for private practitioners. (The petitioner does not assert she 
area and, thus, qualify for a national interest waiver pursuant to section 
the legislative history suggests that the national interest waiver was 
(or self-petitioning aliens) to avoid the inconvenience of the labor 
As is clear from a plain reading of the statute, it was not the intent of Congress th every person qualified to 
engage in a profession in the United States should be exempt from the of a job offer based on 
national interest. Likewise, it does not appear to have been the intent 
waivers on the basis of the overall importance of a given profession, of the individual 
alien. On the basis of the evidence submitted, the petitioner has not the requirement 
of an approved labor certification will be in the national interest of the United States. 
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The burden of proof in these proceedings rests solely with the petitioner. ~ectibn 291 of the Act, 8 U.S.C. 
5 1361. The petitioner has not sustained that burden. 
This denial is without prejudice to the filing of a new petition by a United mpioyer accompanied by a 
labor certification issued by the Department of Labor, appropriate supporting 
ORDER: The appeal is dismissed.