dismissed EB-2 NIW Case: Medical Research

(b)(6)
DATE: MAR 2 It 2014 OFFICE: TEXAS SERVICE CENTER 
IN RE : 
U.S. Department of Homeland Security 
U.S. Citi zenship and Imm igration Services 
Ad ministra tive Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Immigrant Petition for Alien Worke r as a Member of the Professions Holding an Adv anced 
Degr ee or an Alien of Exceptional Ability Pursuant to Section 203( b )(2) of the Immi gration 
and Nationality Act, 8 U.S.C. § 1153(b)(2) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
Enclosed please find the decisi on of the Administrative Appeals Offic e (AAO) in your case. 
This is 
a non-preced ent deci sio n. The AAO does not an noun ce new constructions of law nor establish age ncy 
policy through non -prece dent decisions . If you believe the AAO incorrectly applied curr ent law or policy to 
your case or if you seek to pres ent new facts fo r consideration, you may file a moti on to reconsider or a 
motion to reope n, respe ctively. Any motion must be filed on a Notice of Appeal or Mo tion (Form I-290B) 
within 33 days of the date of this deci sion. Please review the Form I-290B instructions at 
http: //www.u scis.gov/form s for the latest information on fee, filing location, and other requirements. 
See also 8 C.F .R. § 103.5. Do not file a motion directly with the AAO. 
Ron Rose nberg 
Chief , Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the AAO on appeal. The AAO will dismiss the appeal. 
The 
petitioner seeks classification under 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 physician 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 has not established that an exemption from the 
requirement of a job offer would be in the national interest of the United States. 
On appeal, the petitioner submits a new statement and copies of previously submitted exhibits. The 
petitioner also requests oral argument. The regulations required the requesting party to explain in 
writing why oral argument is necessary. Furthermore, U.S. Citizenship and Immigration Services 
(USCIS) has the sole authority to grant or deny a request for oral argument and will grant argument 
only in cases involving unique factors or issues of law that cannot be adequately addressed in writing. 
See 8 C.F.R. § 103.3(b ). In this instance, the petitioner identified no unique factors or issues of law to 
be resolved . He stated: "It seems the approval hinges on technicalities , which I cannot explain as a non 
attorney applicant," and that users had not been sufficient "clear as to precisely what is the single 
required document to issue an approval." The petitioner's lack of legal representation is not grounds for 
granting oral argument, and there is no "single required document" that would have changed the 
outcome of the proceeding. The written record of proceedings fully represents the facts and issues in 
this matter. Consequently, the request for oral argument is denied . 
Section 203(b) of the Act states, in pertinent part: 
(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. 
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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, lOlst Cong., 1st Sess., 11 (1989). 
Supplementary information to regulations implementing the Immigration Act of 1990, P.L. 101-649, 
104 Stat. 4978 (Nov. 29, 1990), published at 56 Fed. Reg. 60897, 60900 (Nov. 29, 1991), states: 
The Service [now USCIS] 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. 
In reNew York State Dep 't of Transportation, 22 I&N Dec. 215, 217-18 (Act. Assoc. Comm'r 1998) 
(NYSDOT), has set forth several factors which must be considered when evaluating a request for a 
national interest waiver. First, a petitioner must establish that the alien seeks employment in an area of 
substantial intrinsic merit. !d. at 217. Next, a petitioner must establish that the proposed benefit will be 
national in scope. ld. 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. !d. at 217-18. 
While the national interest waiver hinges on prospective national benefit , the petitioner must establish 
that the alien's past record justifies projections of future benefit to the national interest. Id. at 219. The 
petitioner's assurance that the alien will, in the future , serve the national interest cannot suffice to 
establish prospective national benefit. The term "prospective" is included 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. Jd. 
The USCIS regulation at 8 C.F.R. § 204 .5(k)(2) defines "exceptional ability" as "a degree of 
expertise significantly above that ordinarily encountered" in a given area of endeavor. By statute, 
aliens of exceptional ability are generally subject to the job offer/labor certification requirement; 
they are not exempt by virtue of their exceptional ability. Therefore, whether a given alien seeks 
classification as an alien of exceptional ability, or as a member of the professions holding an 
advanced degree, that alien cannot qualify for a waiver just by demonstrating a degree of expertise 
significantly above that ordinarily encountered in his or her field of expertise. 
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The petitioner filed the Form I-140, Immigrant Petition for Alien Worker, on February 2, 2012. On 
that form, the petitioner described himself as a "Physician Scientist with extraordinary abilities in 
investigating special types of brain cells and channels and proteins which mediate cell-cell 
communication and interactions and are targets for developing new treatments for neurological 
diseases. The petitioner did not identify a particular employer on Form I-140, but he evidently had a 
specific position in mind because he specified that he sought a temporary position that paid $50,418 
per year. Since December 2011, he has been a research associate at the 
, where he was previously a postdoctoral researcher beginning in October 
2006. 
The petitioner had filed two previous immigrant petitions seeking the same classification with the 
national interest waiver. The director had denied one of those petitions in March 2010; the other was 
still pending when the petitioner filed his third petition. The petitioner appealed the denial, and the 
appeal was pending when he filed the latest petition. (The AAO subsequently dismissed the appeal 
in March 2012.) 
The initial filing of the present petition included "[c]omments on a prior application and decision ." 
The petitioner stated: "I respectfully disagree with the decision and I need to further clarify the 
following." The petitioner then presented 24 numbered paragraphs, disputing elements of the earlier 
decision. The filing of a new petition initiates a new proceeding ; it is not a forum to dispute the 
outcome of an earlier decision on a different petition, or to supplement a pending appeal. 
To support his latest petition, the petitioner stated: 
My research is focused on understanding the pathology and developing new treatment 
for demyelinating neurological diseases, which affects millions in the United States 
and worldwide. 
To do so, I use [an] exceptional and advanced electrophysiological procedure called 
whole cell patch clamp synchronized with neuroimaging procedures to investigate a 
special group of brain Glial cells, known as Oligodendrocytes .... Changes in these 
cells and their interactions account for the pathology seen in Multiple Sclerosis and 
demyelinating neurological diseases. 
I was the first to show ... that these oligodendrocytes ... are connected with each 
other through special channels called gap junctions forming a brain network that was · 
not described before. I further confirmed the existence of this network with electron 
microscopy. I was also the first to specify . . . the proteins forming these gap 
junctions and contributing to cell-cell communication between these cells and other 
types of brain cells. And I was the first to show how exactly changes in these 
proteins and channels cause the brain pathology seen in Multiple Sclerosis and 
demyelinating neurological diseases Charcot-Marie-Tooth disease and 
leukodystrophies which also affect millions around the world .... 
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My prior contributions and extraordinary abilities are now the foundations for a new 
research to further understand the pathology and develop new treatment for this 
disorder and other demyelinating neurological diseases . 
The petitioner submitted a copy of a November 1, 2010 letter from 
, who stated: 
[The petitioner] has been working as a post-doctoral researcher in my laboratory since 
2006 to investig ate how [a] special group of brain cells called astrocytes and 
oligodentrocytes are connected with each other through special channels. . . . By 
understanding how these cells interact, we hope to provide a treatment for [various 
neurological] diseases. To do so, [the petitioner] has been examining these cells with 
an exceptional complex electrophysiological approach called whole cell patch clamp 
and dual patch clamp studies; this requires exceptional abilities and expertise to 
perform .... The atch clamp technique .. . was developed by 
or their work in 1991. 
To study these cells [the petitioner] also used additional research approaches such as 
fluorescence imaging from living cells in brain tissue , and electron microscopy. His 
expertise and exceptional abilities in performing many procedures are definitely 
significantly above the [sic] ordinarily encountered in science, and his abilities in 
performing whol e cell electrophysiology and dual patch clamp to study these cells are 
exceptional. 
[The petitioner] has built a n ew electrophysiology rig equipped with neuroimaging 
tools, and performed medical research experiments using his experience in studying 
living cells in brain tissue. He is the first author of two different publications 
describing his findings, submitted to top journal [sic] in the field of Neuroscience .... 
[O]ne of these publications ... is easily one of the most import ant publications of my 
30 year career as a physician-scientist , and will change how neuroscientists think 
about glia .... 
These important findings added to our understanding of how mutations m gap 
junctions causes [sic] neurological diseases. 
Mastering the use of advanced technology developed by others is not an achievement or contribution 
comparable to the creation of that technology. See NYSDOT at 221 n.7. . · deemed the 
petitioner to be "exceptional" in his field, and also virtually repeated the regulatory definition of 
"except ional ability" from 8 C.F.R. § 204.5(k)(2) , "a degree of expertise significantly above that 
ordinarily encountered." By statute, aliens of exceptional ability are ordinarily subject to the job 
offer requirement. Therefore , the assertion that the petitioner meets the definition of exceptional 
ability does not show eligibility for the waiver. 
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The petitioner documented various conference presentations, and submitted copies of two articles, 
both published in 2011, that he co-wrote. The petitioner documented three citations of his article 
published in Neurobiology of Diseas e, including a self-citation by his co-author, Prof. Scherer. The 
petitioner did not document any citations of his article published in Neuron Glia Biology in 2011. 
The petitioner submitted partial copie s of two grant application s. One application appears to be a 
revision of the other one; it repeats langu age from that application but also expands upon that 
language , and addresses comments from two reviewers. The applications described what Dr. 
· laboratory achieved "[i]n the last cycle of this grant," and what the laboratory hoped to 
accomplish with the next round of funding. 
The director issued a request for evidence on October 10, 2012 . The director stated: "The petitioner 
must establish that the benefici ary has a past record of specific prior achievement with some degree 
of influence on the field as a whole. The beneficiary's previous influence on the field as a whole 
must justify projections of future benefit to the national interest. " 
In response , the petitioner stated that the evidence, in the form of "publications , presentations , 
citations and approved grants," confirms that he "established a past record" of influential 
achievement in his field, and that "new manuscripts and posters " show that he continues to make 
contributions in his area of expertise. 
The petitioner submitted copies of grant applications, some of them approved and others under 
review. Grant funding does not establish the impact and influence of the petitioner ' s research, 
because the petitioner secured that funding at the beginning of a given project. Furth ermore , the 
petitioner did not establish that grant funding is reserved for the most import ant research, rather than 
a routine means of funding research throughout the petitioner 's field. 
The petitioner submitted a copy of an August 29, 2011 letter , co-signed by and another 
professor, offering the petitioner a one-ye ar renewable appointment as a research associate, 
beginning November l , 2011. The petitioner asserted that this appointment indicates that he "was 
promoted to faculty position from postdoctoral researcher," and that such a promotion amounts to 
"[a]n award for the work in the field ." Employment is not an award for past work (although past 
experience can demonstrate that one qualifies for employment). 
The petitioner submitted a rintout from November 27 2012 , showing nine citations 
of his article from ~ . The 
petitioner also submitted partial copies of two textbook chapters that cited the article. One chapter is 
on the list of citations; the other shows · as one of its authors, thus 
amounting to another self-citation. The evidence shows an increase in citation of the petitioner 's 
work, but not that there was a pattern of frequent citation already in place as of the petition's filing 
date; the petitioner documented only two independent citations as of the filing date. An applicant or 
petitioner must establish that he or she is eligible for the requested benefit at the time of filing the 
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benefit request. 8 C.F.R. § 103.2(b)(l). USCIS cannot properly approve the petition at a future date 
after the petitioner or beneficiary becomes eligible under a new set of facts. See Matter of Katigbak, 
14 I&N Dec. 45,49 (Reg '! Comm 'r 1971). 
The petitioner submitted a manuscript copy of a third article, and stated that it has been accepted for 
public ation in There has been no dispute that the petitioner continues to produce published 
work while employed in Prof. Scherer 's laborator y, which is where he wrote his two prior published 
articles. 
The petitioner submitted copies of three appellate decisions in which the AAO approved national 
interest waivers for a m arine laboratory specialist and two medical researchers. The petitioner 
highlighted parts of the decisions and asserted that his petition shares these traits. While the 
regulation at 8 C.F .R. § 103.3(c) provides that AAO precedent decisions are binding on all USCIS 
employees in the administration of the Act, unpublished decision s are not similarly binding. 
Furthermore, the petition er did not demonstrate that his petition is similar enough to the approved 
petitions to warrant the same outcome. The beneficiary of one approved petition wrote part of the 
standard textbook in a particular speci alty; another developed new technology subsequently licensed 
by a major pharmaceutical corporation. The petitioner did not establish that his own achievements 
reach ed a comparable level of influence. 
The petitioner submitted excerpts from four grant proposals, including what the second (revised) 
version of the proposal submitted previously. The petitioner highlighted portions of these 
documents in order to establish the significanc e of the research. These highlighted passages, 
however, also demonstrate that the work is ongoing and that its significance rests on hypotheses with 
as-yet-unknown outcomes. One application , for instance , includes a number of "if-then " statements 
such as "If gene replacement in oligodendrocytes was feasible , then it would be an appropriate 
treatment to consider. " The same application includes the caveat: "These experiments will be 
technically challenging, but we believe that we can perform them." 
The petition er submitted three witness letters . . 
claimed that the petitioner "provided a novel and 
a new map of the cellular communication m the brain," and that the petitioner ' s work "significantly 
changed and influenced the field regarding the pathology of diseases such as multiple sclerosis. 
[The petitioner] is known in the field for these findings. I used and cited (the petitioner ' s] work in 
my research paper on . .. experiment al autoimmune encephalomyelitis." curri culum 
vitae shows that 
Professor director of the 
r ' also reported collaboration with . on his curriculum vitae. - - ~ -- - -- - 3, whose 
"research has focused on the area of gap junction biology in health and disease ," stated that the 
petitioner's "work is essential to understand how [glial] cells work, [and] how they are affected in 
neurological diseases ." stated that the petitioner "characterized the proteins required for 
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these communications [across gap junctions) , and analyzed the effect of genetic mutations on 
cellular communications." 
stated that the petitioner 
"is making major important contributions to neuroscience and neurobiology of disease." He stated 
that the petitioner "has successfully employed [patch clamping] to investigate the connections of 
oligodendrocytes, described the proteins required for their interactions, and characterized how they 
are affected in models of demyelinating neurological diseases. " 
The witnesses explained why the petitioner's area of research is important, which addresses the 
intrinsic merit of the petitioner 's occupation. They did not, however , explain how the petitioner's 
work is more significant than that of others within the same specialty. Effective new treatments for 
multiple sclerosis and related neurological diseases would have a major impact on medicine , but the 
witnesses did not explain why the petitioner's work, more than that of others studying the same 
problem, have brought those treatments closer to reality . Emphasis on the import ance of particular 
laboratory techniques does not establish eligibility, because the petitioner did not invent or 
substantially improve those techniques and there is no blanket waiver for researchers who have 
learned complicated laboratory techniques from others. 
The director denied the petition on April 24, 2013, stating that the evidence submitted showed the 
intrinsic merit and national scope of the petitioner's work, but did not establish that the petitioner has 
influenced his field to an extent that would warrant the national interest waiver. 
On appeal, the petitioner states: "The denial decision cited that I did not submit work that has been 
evaluated in independent journals despite that my findings has [sic] been cited/discussed in ... book 
chapters and in the review articles .. . that I submitted." The director's wording was as follows: 
While [the evidence] demonstrates that others are aware of the beneficiary's work, 
unevaluated listings in a subject matter index or footnote or reference to the work 
without evaluation is insufficient to establish its significance ... . Citations alone do 
not provide the evidence that the beneficiary's work has made an impact on the field 
as a whole. 
The petitioner did not document a high number of citations, and the citing articles and chapters that 
he submitted do not give special attention to the petitioner's work in relation to other cited work. 
The submitted citations refer to the petitioner 's work to support statements of fact, such as "in the 
corpus callosum, chains of oligodendrocyte somata are linked by gap junctions" and "electron 
microscopic data confirmed 0 /0 gap junctions. " The closest thing to "evaluation " in any of these 
citations aooears in an article b 
Cx47." The quoted article is a review article, providing an overv1ew of published research; its 
bibliography includes 95 entries. 
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The petitioner states that he submitted evidence that the director requested, including grant 
proposals, lists of citations , and witness letters, "yet ... [this evidence] was deemed insufficient." 
The director, in requesting those materials, did not state that their submission would ensure approval 
of the petition. Rather, the director requested evidence that would establish the nature of the 
petitioner 's work and allow the director to determine the extent of its impact on the petitioner's field. 
Regarding his grant documentation, the petitioner states: 
The grants clearly show that I described new anatomical and pathological findings 
related to demyelinating neurological diseases, and how I am using new and 
innovative ways to further examine these diseases. The grants by itself [sic] establish 
a past record of specific prior achievements that [are] of significance to the field, and 
prove unique and innovative background. 
The petitioner's grant applications are not evidence of influence on the field . By themselves, the 
applications only show that laboratory sought funding. While the text of the 
applications includes descriptions of past work, any assessment of that work within the application is 
necessarily the applicants' opinion of their own past work. The petitioner submits no evidence 
regarding the criteria for approval of grant applications. The record does not show that the approval 
of grant applications establishes the petitioner's influence on the field as a whole. 
The petitioner asserts that his influence on the field "is well stated in the letters, and grants, and the 
papers ." Those materials establish what the petitioner has done, but they do not establish that the 
petitioner's work has influenced the field to an extent that would warrant approval of the national 
interest waiver. Research scientists, as members of the professions, are generally subject to the job 
offer requirement. Performing activities that are routine within the profession , such as seeking grant 
funding and publishing or presenting the results of one's work, do not establish eligibility for a 
waiver of the job offer requirement. 
The petitioner states: "my application was denied while other applications from individuals with 
lower qualifications have been approved! Individuals, with very bad English , no training or skills, 
highly questionable degrees, and who obtained green cards with work that is of no medical 
significance and no benefit to the national interest!" The petitioner submits no evidence or 
identifying information relating to these claimed approvals, and therefore no meaningful comparison 
is possible. USCIS decides each petition on its own merits , based on its own record of proceeding; 
there is no direct comparison between different petitions. Also, the AAO does not ordinarily review 
approved petitions, and therefore the AAO has no means to determine whether the petitioner's claim 
is accurate and correct. Because the AAO cannot determine whether the unidentified other petitions 
were properly approved, their claimed approval does not establish that the director should have 
approved the present petition. 
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Furthermore, the AAO ' s authority over the service centers is comparable to the relationship between 
a court of appeals and a district court. Service center decisions are not binding on the AAO. See 
Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), aff'd, 248 F.3d 1139 (5th 
Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
The petitioner has not established a past record of achievement at a level that would justify a waiver of 
the job offer requirement. The petitioner need not demonstrate notoriety on the scale of national 
acclaim, but the national interest waiver contemplates that his influence be national in scope. NYSDOT 
at 217, n.3. More specifically, the petitioner "must clearly present a significant benefit to the field of 
endeavor." !d. at 218. See also id. at 219, n.6 (the alien must have "a past history of demonstrable 
achievement with some degree of influence on the field as a whole."). 
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 AAO will dismiss the appeal for the above stated reasons. In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the petitioner has not 
met that burden. 
ORDER: The appeal is dismissed.