dismissed EB-2 NIW Case: Medical Research

identifying data deleted to 
prevent clearly unwarranted 
hasion of personal privacy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
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. $ 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 
the office that originally decided your case. Any further inquiry must be made to that office. 
Administrative Appeals Office 
DISCUSSION: The Director, Vermont Service Center, denied the employment-based immigrant visa 
petition, which 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 scientist. 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. 
On appeal, counsel addresses some of the director's concerns. For the reasons discussed below, 
however, the petitioner has not overcome the director's basis of denial. Specifically, as of the date of 
filing, the petitioner had yet to publish his work. The record lacks evidence that the petitioner had 
otherwise influenced the field. At best, the petition was filed prematurely, before the scientific 
community's reaction to the petitioner's work could be gauged. 
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. 
The petitioner holds a Ph.D. in microbiology from the University of Vermont. 
 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, 101 st Cong., 1 st Sess., 1 1 (1 989). 
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 necessary to prove the "prospective national 
benefit" [required of aliens seeking to qualifL as "exceptional."] The burden will rest 
with the alien to establish that exemption fkom, 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. 2 15 (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 fiture 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 understanding of Spinal Muscular Atrophy 
(SMA), 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 reference letters were mostly from the petitioner's local colleagues 
and that the record lacked evidence of the petitioner's impact in the field through citations. The 
director rejected counsel's comparison of the number of articles on cancer or AIDS with the 
considerably smaller number of articles on the "smn protein complex" as demonstrating that SMA 
research is such a small area of expertise that it is difficult to demonstrate a wide impact. The 
director concluded that counsel was comparing a very specific research focus with extremely broad 
 w 
research areas. On appeal, the petitioner submits the number of articles on SMA altogether and a 
new letter from a professor at the University of Vermont. 
Lnitially, counsel asserted that a waiver of the labor certification process in the national interest is 
warranted because the process does not lend itself to the petitioner's area of research; specifically, a 
minimally qualified person would not be expected to carry out and perform to the same degree as a 
superbly qualified individual. Counsel does not sufficiently distinguish the petitioner's area of 
research from medical research in general. It is the position of Citizenship and Immigration Services 
(CIS) to grant national interest waivers on a case-by-case basis, rather than to establish blanket waivers 
for entire fields of specialization, such as medical researchers. Id. at 2 17. 
Eligibility 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 qualify for a national interest waiver. 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. 
After obtaining his Ph.D. from the University of Vermont, the petitioner began working for Dr. 
t the University of Pennsylvania under the auspices of the 
(HHMI). ~rsserts that the petitioner's "extensive backgroun WMedica1 in nuc eic acids, biochemistry 
& molecular biology contributes to our ongoing research of which is at the center of 
the childhood disease: Spinal Muscular Atrophy continues that the petitioner's 
analysis of the SMN and complete is important for 
understanding SMN. Dr. oncludes that the petitioner's research "potentially" will have a 
national and international ng to a better understanding of the chemicals involved in SMA 
and possibly leading to a test or cure. 
Dr. 
 an adjunct professor at the University of Pennsylvania and former Research Vice 
President at Merck Research Laboratories, asserts that he met the petitioner when he joined Dr. 
laboratory. He finds the petitioner's "expertise in molecular biology and nucleic acids to be 
extremely important in our search for a viable compound to aid those with Spinal Muscular Atrophy 
(SMA)." ~r. characterizes the petitioner as "well-trained and dedicated" and asserts that his 
work "will" lead to an improved understanding of SMN. 
The petitioner resubmitted a letter from a senior visa specialist with 
originally submitted in support of HHM17s nonm-unlgrant petitlon in behalf of the petitioner. Ms. 
asserts that the petitioner is "uniquely qualified for his position based on his education and 
Page 5 
skills. Special or unusual knowledge or training, while perhaps attractive to the prospective U.S. 
employer, does not inherently meet the national interest threshold. Id. at 221. 
None of the references discussing the petitioner's work with ~rssert that this work has been 
peer-reviewed and published. 
At the University of Vermont, the petitioner worked in the laboratory of Dr . ~r.= 
explains that the petitioner's doctoral research "focused on determining the mo ecu ar mechanism of 
the inhibition of viral replication by engineered hairpin ribozymes." In carrying out this research, the 
with the laboratory's expression system and initiated a collaboration with 
at Washington University to develop a new e 
the collaboration, asserting that Dr. 
petitioner through "professional communications, specifically email exchanges, scientific manuscripts 
. . 
and publis 
 pers. They have never met or even conversed on the telephone." As of the 
first letter, however, the petitioner had not published any scientific papers. 
Dr. datm=e petitioner's doctoral results confirmed that "the antiviral effect is due to the 
action of the ribozyme at the intended target and indicate that the full inhibition observed is a 
consequence of both ribozyme-catalyzed RNA cleavage and antisense activity, working in an additive 
fashion." ~r.oncedes, however, that the results had only been accepted for publication and had 
yet to be disseminated in a peer-reviewed journal as of the date of his letter, November 9,2004. 
Dr. fasserts that the remaining letters imm faculty at the University of Vermont reflect the 
opinions o faculty with only professional interactions with the petitioner and no interest in his career. 
While this assertion may be true, the letters merely praise the petitioner's experience and skills. They 
fail 
 ex 1 i how the petitioner's results have impacted the field beyond his collaborators. Similarly, 
Dr. asserts generally that the petitioner's work "involves important and essential 
contributions to the advancement of the profession" but fails to identifjr specific contributions and how 
they have influenced the field. 
In response to the director's request for additional evidence, the petitioner submitted the results fiom 
three PubMed searches reflecting 1,673,897 articles that mention "cancer," 94,4 19 articles that mention 
"AIDS and HW7 and only 136 Gicles that mention "SMB protein complex." On appeal, 
submits a PubMed search for "Spinal Muscular Atrophy" resulting in 2,477 articles. Dr. 
a research assistant professor at the University of Vermont asserts that the 
in March 2005 and, thus, it is too early to expect citations. 
While the petitioner lists presentations on his curriculum vitae and a submitted article, the record 
contains no evidence that, as of the date of filing, the petitioner had authored any published article in a 
peer-reviewed publication. The petitioner must demonstrate his eligibility as of the filing date, in this 
matter December 6, 2004. As of that date, the petitioner's work had yet to be published in a peer- 
reviewed journal and disseminated within the field. Thus, without evidence that the petitioner was 
otherwise able to influence the field prior to being published, we cannot evaluate the significance of his 
work as perceived in the field beyond his local colleagues. 
As stated above, the petitioner must demonstrate a past history of achievement with some degree of 
influence on the field as a whole. Id. at 219, n. 6. 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 grant inherently serves the 
national interest to an extent that justifies a waiver of the job offer requirement. Without evidence 
that the petitioner had even published his results as of the date of filing or comparable evidence that 
his work has been disseminated beyond his local colleagues, the petitioner cannot establish the 
necessary past history. 
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. 9 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.