dismissed EB-2 NIW Case: Medical Science

.. i' identifying data deleted to 
( 'prevent clearly Wlwarranted 
invasion of personal privac) 
PUBLIC COpy 
U.S. De'partment of Homeland Security 
U.S. Citizenship and Immigntion'Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
WaShington, DC 20529-2090 
U. S. Citizenship 
anq Immigration 
Services 
FILE: Office: NEBRASKA SERVICE CENTER Date: 
FEB 24 2011 
INRE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as a Member ofth! Professions Holding an Advanced 
Degree or an Alien of Exceptiqnal Ability Pursuant to Section 203(b)(2) of the Immigration 
and Nationality Act, 8 U.S.C. § 1153(b)(2) 
ON BEHALF OF PETITIONER: 
SELF -REPRESENTED 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised 
that any further inquiry that you might ~ave concerning your case !pUst be made to that office. 
If you believe the law was inappropriately applied by us iIi reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. 
The specific requirements -for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or 
Motion, with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must be 
filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
, I 
www.uscis.gov 
\' ! 
Page 2 
\ DISCUSSION: The Director,Nebraska Service Center, denied the employment-based immigrant visa 
'petition, which is now before the Administrative Appeals Office (AAO) 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 an alien of exceptional ability or a member of the professions 
. holding an advanced degree. The petitioner seeks employment as a research associate. The petitioner . 
asserts that an exemption from the requirement of a job offer, and thus of an alien employment 
certification, is in the national interest of the UnitedS1:l;ltes. The director found that the petitioner 
qualifies for classification as a member of the professio~s 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, the petitioner submits a statement and additional evidence. For the reasons discussed 
below, we uphold the director's determination that the petitioner has not established his eligibility for 
the benefit sought. Ultimately, as\will be explained in more detail below, the petitioner's primary bases 
for requesting the waiver, that he is an experienced microsurgeon and that the United States is suffering 
a shortage of workers with this skill, can be addressed by the alien employment certification process. 
Thus, the petitioner has not established why that process should be waived in the national interest. 
While one of the petitioner's references, suggests that the waiver would allow the 
petitioner to adjust status in the United States without leaving to secure an immigrant visa,. 
_ does not explain this assertion. As noted by the director, the petitioner qualifies for 
classification as an advanced degree professional. The waiver he seeks would not afford him a higher 
preference. 
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 invnigrants 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 edu~~tional interests, or welfare 
of the -United States, and 'whose services in the sciences, arts, professions, or b~siness 
are sought by an employer in the United States. i 
(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) 
Page 3 
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 Medical Science from 
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 an alien employment certification, is in the national interest. 
Neither the statute nor pertinent regulations defme the term "national interest." Additio.nally, Congress 
did not provide a specific definition of the phrase, "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, 10ist Cong., 1st Sess., 11 (1989). 
A supplementary notice' regarding the regulations implementing the Immigration Act of 1990 
(lMMACT), published at 56 Fed. Reg. 60897,60900 (Nov. 29; 1991), states, in pertinent part: 
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 signif~antly 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 establisli 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 o/New York State Dep't. ojTransp., 22 I&N Dec. 215, 217-18 (Comm'r. 1998) (hereinafter 
"NYSDOT"), has set forth several factors that U.S. Citizenship and Immigration Services (USCIS) 
must consider when evatuating a request for a national interest waiver. First, the petitioner must show 
that the alien seeks employment in an area of substantial intrinsic merit. ld at 217. Next, the petitioner 
must show 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. ld at 217-18. 
It must be noted that, 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 subjective assurance that the alien will, in the future, serve the 
national interest cannot suffice to establish prospective national' benefit. We include the term 
"prospective" 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. Id 
Page 4 
We concur with the director that the petltIOner works in an area of intrinsic merit, rodent 
microsurgery, and that the proposed benefits of his work, improved understanding of neural and 
cardiovascular conditions, 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. 
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. 
NYSDOT, 22'I&N Dec. at 218. Moreover, it cannot suffice to state that the alien possesses useful 
skills, or a "unique background." Special or unusual knowledge or training does not inherently meet 
the national interest threshold. The issue of whether similarly-trained workers are available in the 
United States is an issue under the jurisdiction of the Department of Labor. Id. at 221. 
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. In evaluating the petitioner's achievements, we note that original 
innovation, such as demonstrated by a patent, is insufficient by itself. Whether the specific 
. innovation serves the national interest must be decided on a case-by-case basis. Id. at 221, n. 7. 
As stated above, implies that the waiver would allow the petitioner to adjust status in the 
United States without le(iving the country to ,obtain an immigrant visa. , We reiterate that the waiver 
does not provide anY'Preference benefits beyond those already available to the beneficiaries of a second 
preference visa petition supported by an approved alien employment certification. Moreover, nothing 
in the legislative history suggests that the national interest waiver was intended simply as a means for 
employers (or self-petitioning aliens) to avoid the inconvenience of the labor certification process. Id. 
at 223. 
the petitioner's 
The record contains the petitioner's research article 
coauthored with Most, if not all 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 government grant inherently serves the national interest to an extent that 
justifies a waiver of the job offer requirement. 
The petitioner also submitted his 2007 article coauthored with several Chinese­
language articles from 1996, 1997 and 1998; a Chinese-language book chapter published, according to 
the petitioner's self-serving curriculwn vitae, in 2002; two presentations listing the petitioner as a 
coauthor and a presentation listing the petitioner in the acknowledgements. The petitioner's early work 
addressed renal xenotransplantation. The mere dissemination of the petitioner's work cannot 
demonstrate the impact of that work once disseminated. 
In response to the director's request for additional evidence and again on appeal, the petitioner asserts 
that China has no system to track citations prior to 2000. Where required evidence does not exist or is 
unavailable, the petitioner must docurpent the unavailability and submit secondary evidence. While we 
acknowledge that citations are not required evidence, going on record without supporting docwnentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of 
Soffici, 22 I&N Dec. 158, 165 (Comm'r. 1998) (citing Matter of Treasure Craft of California, 14I&N 
Dec. 190 (Reg'l. Comm'r. 1972)). The petitioner submitted no evidence that China lacks any system, 
including non-electronic indices, capable of tracking citations prior to 2000. Moreover, the petitioner's 
book chapter appeared in a 2002 book; thus, any citations of that chapter should be available. 
In response to the director's request for additional evidence, the petitioner submitted three citations of 
his 2007 article. None of these citations cite the article for its innovations in microsurgery. Regardless, 
the citations all postdate the filing of the petition in July 2007. The petitioner must establish his 
eligibility as of that date. Matter of Katigbak, 14 I&N Dec. 45,49 (Reg'l. Comm'r. 1971). In this 
,matter, that means that he musPdemonstrate his track record of success with some degree' of 
'influence on the field as a whole as of that date. All of the case law on this issue focuses on the 
policy of preventing petitioners from securing a priority date in the hope that they will subsequently 
be able to demonstrate eligibility. Matter of Wing's Tea House, 16 I&N Dec. 158, 160-(Reg'l. 
Comm'r. 1977); Matter ofKatigbak, 14 I&N Dec. at 49; see also Matter oflzummi, 22 I&N Dec. 169, 
175-76 (Comm'r. 1998) (citing Matter of Bardouille, 18 i&N Dec. 114 (BIA 1981) for the 
proposition that we cannot "consider facts that come into being only subsequent to the filing of a 
petition.") Consistent with these decisions, a petitioner cannot secure a priority date in the hope that 
his recently published research will subsequently prove influential. Ultimately, in order to be 
meritorious in fact, a petition must meet the statutory and regulatory requirements for approval as of 
the date it was filed. Ogundipe v. Mukasey, 541 F.3d 257,261 (4th Cir. 2008). 
As the petitioner must establish eligibility as of the date of filing, Matter of Katigbak, 14 I&N Dec. 
at 49, we will also not consider the two presentations submitted in response to the director's request 
for additional evidence and the following evidence submitted on appeal: a 2009 young investigator 
, award received for a recent presentation listing the petitioner as a coauthor and 
an unpublished manuscript. 
Initially, the petitioner submitted _ results for "kidney transplantation mouse model" 
and "heart transplantation mouse ~ first search produced 106 results and the second 
search produced 456 results. In response to the director's request for additional evidence, the 
petitioner explained the submission of these results as follows: 
Page 6 
Even today, there are very limited labs or instituters] that can perform mouse kidney 
transplant and/or mouse transplant surgeries that are requires [sic] unique 
microsurgery skills, broad experiences, as well as strong medical background. 
Attached here [is] another PubMed search result which shows: during the past 40 
years, papers published all over the world about heart disease is 799800, 3122 papers 
involve mouse model, only 469 papers relates [to] myocardial infarction mouse model 
(average 14 papers/year)! It is not that researchers don't want to use [the] mouse 
model. It is really difficult to perform mouse heart surgery. I know a very 
experienced microsurgeon working on rodent heart surgeries for 35 years', has never 
surely seen left anterior descending (LAD) coronary artery. 
The petitioner asserted that kidney surgery on a mouse is even more difficult. In support of his 
assertions, the petitioner submitted the results of a PubMed search for "myocardial infarction mouse 
model" reflecting 469 results. 
On appeal, the petitioner discusses his "unique skills," "broaq. experiences" and "special trainings." 
The petitioner asserts that his experience and training exceeds "most of my peers and 'an available 
US worker with minimum qualifications." The petitioner submits email correspondence between the· 
petitioner and potential employers as evidence of the shortage of available U.S. skilled 
mlcrosurgeons. 
Simple exposure to advanced technology constitutes, essentially, occupational training which can be 
articulated on an application for alien employment certification. NYSDOT, 22 I&N Dec. at 221. 
Special or unusual knowledge or training, while perhaps attractive to the prosp,ective U.S. employer, 
does not inherently meet the national interest threshold. ld The issue of whether similarly-trained 
workers are available in the United States is an Issue under the jurisdiction of the Department of 
Labor and should be tested through the alien employment certification process. ld at 221. 
Furthermore, with regard to experience, the regulations indicate that ten years of progressive experience 
is one' possible crit.~rion that may be used to establish exceptional ability. ld. at 222. Because 
exceptional ability, by itself, does not justify a waiver of the alien employment certification 
requirement, arguments hinging on the degree of experience required for the profession, while relevant, 
are not dispositive to the matter at hand. ld ' 
The remaining evidence consists of letters. of 
asserts that the petitioner has made "major 
contributions to neuroscience research and his unique skills in microsurgical techniques, which have 
been recognized nationally and internationally." _ further states that the petitioner'S work 
"has had significant impact on the field of his research with strong potential for appreciable 
improvements for science and health in the United States." USCIS need not accept primarily 
conc1usory assertions.! Moreover, ~oes not explain why, if the petitioner's work has 
1 1756, Inc. v. The Attorney General of the United States, 745 F. Supp. 9, 15 (D.C. Dist. 1990). 
" 
,~ 
-Page 7 
already had a significant impact, it only has the "potential" for appreciable improvements in science 
and health. 
More specifically, asserts that he petltlOner was "an essential contributor" to the 
laboratory's efforts to decipher the molecular and cellular mechanisms of myelination and 
demyelination and that the petitioner's "unique skills in microsurgery make him . for our 
scientific programs." The petitioner, however, no longer works at 
_lists several types of mouse surgery that the petitioner has performed but does not suggest that 
the· . are original or that they have influenced the field of microsurgery beyond 
the 
_notes that the petitioner's intracranial implantation of new glial restricted precursor cells 
into shiverer mice confirmed their functionality in vivo .. The petitioner has not demonstrated that 
this work had been' cited as of the date of filing or that it has subsequently been cited for an 
innovatIon in microsurgery. 
asserts generally: 
[The petitioner] has significantly advanced our understanding of the relationship 
between nutrition and neural stem cells during early developmental stages of [the] 
central nervous system, and may well lead the way towards future treatments for the 
. neurological diseases, such as Parkinson's disease, AlZheimer disease, which is a 
health problem of enormous proportions in our country, especially with its aging 
population. 
further asserts that the petitioner was involved as "a key personnel'\ on ~funded 
research. We reiterate that most research, in order to receive funding or be accepted for publication, 
must present some benefit to the general pool of scientific knowledge. It does not follow that every 
published researcher working with' a government grant who contributes to the general pool of 
knowledge inherently serves the national interest to an extent that justifies a waiver of the job offer 
requirement. 
discusses the petitioner's surgical skills. As discussed at length above, specialor 
unusual knowledge or training, while perhaps attractive to the prospective U.S. employer, can be 
enumerated on an application for alien employment certification and does not inherently meet the 
national interest threshold. Id at 221. 
describes "several disease rodent models by operations micro surgically" the petitioner 
created and continues: 
With these models, he found that deficiency of iron or thyroid hormone could greatly 
reduce or delay the development of [ a] glial precursor cell, which result in 
demyelinaiton [sic] ,in [the] nervous system. He testify [sic] the roles and functions of 
different normal glial precursor cells and virus infected glial precursor cells in the 
process of repairing these cells demyelinated lesions, these results had been reported on 
several national symposiums. [The petitioner] and other researcher [sic] also testified 
[to] the contributions of different oncogenes on promoting formation of gliomas in [the 
central nervous system] that was publish[ ed] this April. 
does not explain how this work has impacted the field and does not indicate whether 
other micro surgeons are applying the petitioner's techniques. 
states 
that the petitioner's "studies help us fully appreciate the unique properties of these neural stem cells, 
which have great relevance for understanding neurological disorders that affect millions of American 
people." _continues that the petitioner and his colleagues "have been exploring the 
enormous potential of stem cells for several years, helping lead research projects focused on new cancer 
treatments, the role nutrition plays ~elopment, and in understanding how to repair the 
damaged brain and nervous system." __ confIrms that his own laboratory received 18 animal 
models the petitioner created by performing a thyroidectomy on fIve-day old rat pups. 
speculates that the studies based on these models "will help us to understand how nutrition and thyroid 
'hormone, affect the myelination during the developmental process." The fact that one independent 
laboratory has utilized the petitioner's models to conduct studies that may add to the general pool of 
knowledge in the fIeld does not establish the petitioner's track record of success with some degree of 
influence on the field as a whole. ' 
Finally, in response to the director's request for additional evidence, the petitioner submitted a letter 
from where the 
petitioner now works. While notes that he has never collaborated directly with the 
petitioner, he acknowledges that the the microsurgery for one of 
postdoctoral fellows. As the petitioner and are both at is not an 
independent reference. _ asserts that the petitioner "is one of the few people at Stanford 
who can perform mouse microsurgeries, and is now for' providing cardiovascular disease 
mouse models to at least 5 laboratories." concludes that the petitioner's research at 
Stanford "has greatly contributed to our understanding of cardiovascular disease. His research may 
lead to the discovery of novel and mo~e effective treatments." The petitioner's cardiovascular research' 
at Stanford, however, postdates the filing of the petition and cannot be considered evidence of the 
petitioner's eligibility as of that date. See 8 C.F.R. § § 103.2(b)(1), (12); Matter of Katigbak, 14 I&N 
Dec. at 49. 
The Board of Immigration Appeals (the Board) has held that testimony should not be disregarded 
simply because it is "self-serving." See, e.g., Matter of S-A-, 22 I&N Dec. 1328, 1332 (BIA 2000) 
(citing cases). The Board also held, however: "We not only encourage, but require the introduction 
of corroborative testimonial and documentary evidence, where available." Id If testimonial 
-. Page 9 
evidence lacks specificity, d~tail, or credibility, there is a greater need for the petitioner to submit 
corroborative evidence. Matter ofY-B-, 21 I&N Dec. 1136 (BIA 1998). I 
The opinions of experts in the field are not without weight and have been considered above. USCIS 
may, in its discretion, use as advisory opinions statements submitted as expert testimony. See Matter 
oj Caron International, 19 I&N Dec. 791, 795 (Comm'r. 1988). However, USCIS js ultimately 
responsible for making the final determination regarding an alien's eligibility for the benefit sought. 
Id. The submission of letters from experts supporting the petition is not presumptive evidence of 
eligibility; USCIS may, as we have done above, evaluate the content of those letters as to whether , 
they support the alien's eligibility. See id. at 795; see also Matter of V-K-, 24 I&N Dec. 500, n.2 
(BIA 2008) (noting that expert opinion testimony does not purport to be evidence as to "fact"). 
USCIS may even give less weight to an opinion that is not corroborated, in accord with other 
information or is in any way questionable. Id. at 795; see also Matter of Soffici, 22 I&N Dec. 158, 
165 (Cpmm'r. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l. 
Comm'r. 1972)). 
The letters considered above primarily contain assertions of unique skills without specifically 
identifying innovations and providing spe~ific examples of how those innovations have influenced 
the field. Merely repeating the legal standards doe~ not satisfy the petitioner's burden of proof? The 
petitioner submitted only a single independent letter and while the letter establishes the practical 
value of the petitioner's work, this letter does not establish the petitioner's influence in the field as a 
whole. The petitioner also failed to submit"sufficient corroborating evidence in existence prior to the 
preparation of the petition, which could have bolstered the weight of the reference letters. 
While the petitioner's research clearly has practical applications, it can be argued that any research, 
in order to receive funding or acceptance for publication, must offer new and useful information to 
the pool of knowledge. Ultimately, the basis of the petition is the petitioner's unique skills as a 
microsurgeon, skills that can be enumerated on an alien employment certification. As the petitioner 
has never explained why the alien employment certification cannot accommodate the petitioner's 
skills as a microsurgeon and address the claimed shortage of micro surgeons, he has not established 
that a waiver of that process is in the national interest. We reiterate that the issue of whether 
similarly-trained workers are available in the United States is an issue under the jurisdiction of the 
Department of Labor. NYSDOT, 22 I&N Dec. at 221. 
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 
2 Fedin Bros. Co., Ltd. v. Sava, 724 F .. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 1990); 
Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.NY.). Similarly, USCIS need not accept 
primarily conclusory assertions. 1756, Inc., 745 F. Supp. at 15. '--
-. -.---.~ '--~~-----
Page 10 
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 alien employment 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. 
ORDER: The appeal is dismissed. 
/