dismissed EB-2 NIW Case: Medical Research

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U.S. Department of Homeland Security 
20 Mass. Ave., N.W.. Rm. A3042 
Washington. DC 20529 
U. S. Citizenship 
and Immigration 
FILE: - Office: NEBRASKA SERVICE CENTER Date: DEC 2 2 2005 
LIN 03 266 50841 
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. lj 1 153(b)(2) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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. 
hobert P. Wiemann, Director 
Administrative Appeals Office 
DISCUSSION: The Director, Nebraska 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 lmmigration and Nationality Act (the Act), 
8 U.S.C. 5 1153(b)(2), as a member of the professions holding an advanced degree. At the time he filed the 
petition, the petitioner was a research associate at the 
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 (1989). 
Supplementary information to regulations implementing the Immigration Act of 1990 (IMMACT), published at 
56 Fed. Reg. 60897,60900 (November 29, 1991). states: 
Page 3 
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. 
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 "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. 
The petitioner describes his work: 
My research life began in 1985 when I enrolled in Xian Medical University as a postgraduate 
student. I have been in the academic field for 17 years. During my research career in China, 
I published 20 scientific papers. 
My present research includes two projects. One of the projects is the regulation of T-cell 
growth and function. T-cells are important immune cells and play a critical role in many 
diseases, especially cancer and allergic diseases (including asthma). The purpose of this 
project is to elucidate the mechanism controlling T-cell growth and function. I am a key 
investigator in this project. I use the Tet-on system to establish Jurkat Tet-on cell line and 
perform my research. . . . My research found that ~57"" is one of the important Proteins 
which controls T-cell growth and function. Our results have provided fundamental evidence 
which will lead to the further understanding of T-cell growth and function. . . . 
The other project. I am involved in is the signal transduction of mast cells. Mast cells play an 
important role in the development of asthma. . . . The purpose of this project is to further 
understand the process of mast cell transduction and develop new medicines for asthma and 
other allergic disease and to discover means of administering gene therapy. In this project we 
employ cutting-edge techniques such as siRNA to perform experiments. My initial results 
showed that CsA (immunosuppressant) can inhibit PKC activity by reducing the intracellular 
~a" level. 
- - - - - --- 
Page 4 
Three witness letters accompany the initial filing of the petition.chairman of the 
Department of Pediatrics at NJMRC and a professor at the University of Colorado, states: 
In view of his unique experiences and extraordinary skills as a researcher, [the petitioner] is 
critically important to the success of our ongoing research projects. He will certainly 
contribute to a greater extent than any other U.S. worker with minimum qualifications. . . . 
He has designed and initiated a number of experiments furthering our understanding of the 
molecular mechanisms of T-cell growth and function. Abnormal control of T-cell growth, for 
example, results in childhood and adult forms of leukemia. We know that T cells are 
important immune cells and play a critical role in many diseases. . . . His research results 
have provided novel and fundamental contributions to our understanding of the mechanisms 
controlling T-cell growth and function. . . . 
Another of [the petitioner's] projects involves definition of the regulatory signal transduction 
pathways in mast cells. Allergic diseases affect about 20% of the population. Mast cells are 
the primary effectors of immediate type allergic reactions and play a role in sustaining 
allergic inflammation, including asthma. The targeting of mast cells or mast cell-derived 
mediators is an important aspect of therapy. Binding of IgE to high affinity receptors on the 
mast cell surface initiates signal transduction cascades that control degranulation and 
cytokine gene transcription which result in allergic inflammation. Though many efforts have 
been made to elucidate these mechanisms, detailed descriptions are still lacking. [The 
petitioner] has systematically been dissecting and analyzing these pathways, revealing new 
therapeutic possibilities. . . . 
[The petitioner's] multidisciplinary expertise and skills in these areas make him uniquely 
qualified to conduct the complex, highly specialized research required in these projects. It 
would be virtually impossible to replace him with other than a group of scientists. . . . 
He is indispensable to the success of our research project. 
now an assistant professor at Baylor College of Medicine, held a similar position at 
NJMRC from 1998 to 2000. mates: 
[The petitioner] worked in my laboratory for only 6 months from June to November in 2000 
because [of] my relocation to Baylor College of Medicine at the end of that year. . . . 
Although the time [the petitioner] spent in my lab was brief, I was impressed by his 
'intellectual ability and strong technical skills. He was given the project to study the cell cycle 
regulation during the formation of skeletal muscles. . . . In a short period of time, he was able 
to produce high quality data which contributed significantly to the overall research conducted 
in my lab. 
Page 5 
likis a professor at- and at the University of Colorado. Dr. 
s also the president of the American Academy of Allergy, Asthma and Immunology. Dr. 
tates: 
I am quite familiar with [the petitioner's] research. He is working on the mechanism of 
signal transduction of mast cells. . . . [The petitioner's] recent experiments involve trying to 
elucidate this mechanism. His experiments found that FcERI crosslinking can activate PKC 
activity and that cyclosporin A can inhibit PKC activity by reducing intracellular calT 
concentration. . . . These findings are critically important to prevent and treat asthma and 
other allergic diseases, also to discover new drugs for treatment of these diseases. . . . 
The initial achievement [the petitioner] has made itself set him apart. Because of the 
importance and emergency of the work, it is critical that [the petitioner] continue his research 
uninterrupted. If he were required to obtain a labor certification that would require him to 
cease his work for even a short period [ofj time, much this work would be lost, as no one in 
this field has the expertise to complete these studies. 
The petitioner submits copies of his published articles, but no independent evidence to establish that these 
articles have had a particularly substantial impact in comparison to the many other articles published in the 
petitioner's specialty. On December 20, 2004, the director instructed the petitioner to "[slubmit any evidence 
that your published works have been cited by others." The director also requested, more generally, further 
evidence to establish the petitioner's eligibility for the waiver. In response, the petitioner states: 
Because my work was published in the Journal of Immunology only last August . . . , I have 
not yet seen my work cited by others (it usually takes a longer period before a paper is cited). 
However, my work has already caused interest [among] other researchers. Here I attached 
four emails which inquired about my methods and related materials. 
The article to which the beneficiary refers was submitted for publication on September 29, 2003. The petition 
was filed on September 12, 2003, several weeks before the submission of the article. The director, in the 
request for evidence, did not single out this particular article. Rather, the director referred broadly and 
generally to the beneficiary's "published works," including the "20 scientific papers" that the petitioner 
himself discussed in his own introductory letter. Many of these papers had been published several years 
earlier, in the mid-1990s. The recent publication of the petitioner's newest article has no retroactive effect on 
the citation history of articles that are six or more years older. We note that the petitioner's publications prior 
to his arrival in the United States were in the field of analytical toxicology. He does not appear to have done 
any work related to mast cells, his current focus, prior to his present research appointment at- 
With regard to the "four ema petitioner's] methods and related materials," the 
messages are all addressed to rwarded some of these messages to the petitioner, 
but he forwarded one of the messages to one who in turn forwarded the message to the 
petitioner. The messages do not comment on the impact or significance of the petitioner's research; instead, 
they present technical questions, such as: "Which [p57 antibody] did you use in your recent paper?" The 
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petitioner has not shown that such communications from one research group to another are at all unusual in 
the field. The quoted example indicates only that the petitioner's paper was not specific enough in identifying 
materials used in the experiments in question. Other correspondents request samples for use in their own 
research. 
Three new letters accompany the petitioner's response to the director's notice. escribes the 
petitioner's work at and states that if the petitioner "is unable to continue this research, I am 
concerned that our studies may come to a halt and this will be contrary to the national interest." We shall 
address, elsewhere in this decision, the assertion that it is in the national interest for the petitioner to remain at 
ithout interruption. 
As noted above, has repeatedly argued that the petitioner should receive a national interest waiver 
for the specific reason that his continued presence is urgently required at, CIS records show that 
another entity has subsequently filed d nonimmigrant visa petition on the alien's behalf. The petitioner is now 
a research fellow at the University of Texas Health Science Center, San Antonio. All arguments to the effect 
that it is in the national interest for the beneficiary to remain at are now moot. owing to the 
petitioner's departure from that facility. Considering that the petitioner's waiver request rests more or less 
entirely on his work at- this is not an insignificant point. 
The remaining two letters are from researchers who state that they have never met the ~etitioner. and who - 
offer comments on the significance of the petitioner's 2004 article in the Journal oflnzmunology. w Singh, research advisor and group leader at -and Company, states: "By delineating the role of p57 - 
Kip2 in cell growth regulation, [the petitioner's] research has provided evidence for the first time for its 
potential implications in human diseases, including cancer and heart disease." an assistant 
professor at Mount Sinai School of Medicine, states that the petitioner's article "provides fundamental 
discoveries to understand the mechanism of controlling T cell growth and function regulated by p57"p2 and 
will have great impact on future research of p57kip2 in T cells." 
The director denied the petition, stating that "the record contains minimal evidence that the petitioner's 
overall impact has exceed[ed] that of others in the same research specialty. . . . The record does not include 
any evidence that the petitioner's work has been cited in others' publications.'' The director noted that the 
letters from independent witnesses concern an article that was not published until well after the petition's 
filing date. Pursuant to Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg. Comm. 1971), the beneficiary of an 
employment-based immigrant visa petition must be eligible as of the filing date. 
On appeal, the petitioner submits copies of previously submitted materials as well as new documentation. 
The petitioner submits a fifth email message. once again addressed to -in which a researcher in 
Canada requests specimens from a cell line that the petitioner helped to develop. As noted above, the 
petitioner offers no objective means to determine that such requests are evidence the particular significance of 
a researcher's work, rather than more or less routine requests for desired materials. 
The petitioner submits Chinese-language printouts which, the petitioner claims, demonstrate that five of his 
Chinese papers were each cited between two and five times (on average, less than three times). At least two 
of these citations are self-citations by the petitioner and/or his co-authors. Two subsequent English-language 
articles have been cited once and twice, respectively. Thus, the petitioner has documented 15 independent 
citations of seven articles, averaging just over two citations per article. We cannot find that this minimal level 
of citation demonstrates that the petitioner has influenced his field to an extent that would warrant the special 
benefit of a national interest waiver, above and beyond classification as a member of the professions holding 
an advanced degree. 
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. 5 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.