dismissed EB-2 NIW Case: Medical Science

Identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privac) 
PUBLIC COpy 
DATE: OFFICE: TEXAS SERVICE CENTER 
JUL 1 2 ZO\\ 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and immigration Services 
Administrative 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 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. § lI53(b)(2) 
ON BEHALF OF PETITIONER: 
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 have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in 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 1-290B, Notice of Appeal or Motion. 
with a fee of $630. Please be aware that 8 c.F.R. § 103.5(a)(l)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
)J iJeadnct 
('Perry Rhew 
'f Chief, Administrative Appeals Office 
wwW.USciS.g-ol' 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will 
dismiss the appeal. 
The petitioner seeks classification pursuant to section 203(b )(2) of the lmmigration 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 medical scientist at the~Salt Lake City. The 
petitioner asserts that an exemption from the requirement~ 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. 
In this decision, the term "prior counsel" shall refer to _ who represented the petitioner at 
the time the petitioner filed the petition. The term "counsel" shall refer to the present attorney of 
record. 
On appeal, the petitioner submits a brief from counsel and supporting evidence. 
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. 
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. 
Page 3 
Neither the statute nor the pertinent regulations define the tenn "national interest." Additionally, 
Congress did not provide a specific definition of "in the national interest." The Committee on the 
Judiciary merel y 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, 101st Cong., 1st Sess., 11 (1989). 
Supplementary information to regulations implementing the Immigration Act of 1990 (IMMACT), 
published at 56 Fed. Reg. 60897, 60900 (November 29, 1991), states: 
The Service [now U.S. Citizenship and Immigration Services] 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. 215 (Act. Assoc. Comm'r 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 tenn "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 AAO also notes that the 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. 
The petitioner filed the Form 1-140 petition on May 1, 2009. In an accompanying statement, prior 
counsel stated that the petitioner "has a significant history of demonstrated achievements in medical 
Page 4 
science, specifically in three [sic] areas: cerebrovascular diseases and hemodialysis vascular access 
occlusion. " 
"-1,", .11. 
[The petitioner I joined our stroke group as a postgraduate student and was actively 
involved in an excellent cerebrovascular disease program during her time there. [The 
petitioner's] research focused on occlusive cerebrovascular disease and ischemic 
cerebral infarction, the major type of stroke .... [The petitioner] made a breakthrough 
discovery: there is a significant relationship between the extent and severity of the 
occlusive cerebrovascular lesions and occurrence of stroke .... 
In addition, [the petitioner] also participated in a research project on a population­
based study of the cerebral vasculature of rural Chinese peoples .... The research 
findings further affirmed that the condition of occlusive vascular lesions is of 
predictive value for future occurrence of stroke . 
. . . It is my opinion that [the petitioner's work will greatly benefit the field of 
neurology and will significantly contribute to the development of strategies for 
diagnosis and prevention of stroke. 
I first came to know I the petitioner's] work through her original publications in 
premier journals and visited her stroke group in Hong Kong because we have similar 
interests in stroke research .... I would like to address [the petitioner's] exceptional 
research here to show you how significantly [the petitioner's] work contributed to 
stroke research and will benefit the national interests . 
. . . [The petitioner] joined the of 
Hong Kong as an enthusiastic and was actively involved in an 
excellent cerebrovascular disease program during her time there. Her research mainly 
focused on the relationship between cerebrovascular diseases and stroke in relation to 
advances in trans cranial Doppler (TCD) ultrasonography .... In order to predict and 
prevent stroke occurrence, Ithe petitioner] conducted TCD ultrasonography to detect 
cerebrovascular lesions in stroke patients, followed-up the progression or regression 
of those lesions and occurrence of recurrent strokes, and investigated the correlations 
between occlusive cerebrovascular diseases and first-ever or recurrent strokes .... 
Her research showed there were significant relationships between the extent and 
severity of occlusive cerebrovascular diseases and occurrence of recurrent stroke in 
stroke patients. This is an innovative finding of predictive and preventive value. 
Page 5 
Additionally, rthe petitioner] participated in a research project, , . focused on 
detecting the prevalence of cerebrovascular occlusive disease in a non-stroke 
population and the existence of vascular risk factors .... [The petitioner's] findings 
affirmed that the more cerebrovascular lesions, the higher risk of occurrence of first­
ever stroke in a non-stroke population .... 
All of the above indicate that l the petitioner] has made outstanding accomplishments 
and is internationally recognized in the complex and extremely difficult field of 
neurology and stroke. 
When considering the above letters, the AAO cannot ignore that the petitioner is no longer 
performing research in the "field of neurology and stroke." The petitioner now works for a dialysis 
program, where the focus is on diseases of the kidney. 
A well-functioning vascular access ... is a crucial requirement for hemodialysis. 
Unfortunately, complications of the vascular access are common and contribute 
significantly to the morbidity of these patients .... In fact, 40 to 50% of hemodialysis 
grafts failed in the first year after they have been surgically placed, primarily as a 
result of stenosis and occlusion. Despite... its high prevalence, there are no 
established strategies to prevent hemodialysis vascular access stenosis .... 
The animal model with arteriovenous graft placement is absolutely crucial for this 
project. As the primary surgeon, [the petitioner] is in charge of animal surgeries. She 
also directs the administration of test drugs to prevent the vascular stenosis .... After 
the experimental approach has proven to be successful in animals, pilot clinical 
studies will be planned. 
Another related project in which rthe petitioner] also makes significant contributions 
is the examination of the role of soluble epoxide hydrolase in the prevention of 
hemodialysis graft stenosis. If this role can be established, a logical next step will be 
the employment of inhibitors of this enzyme to prevent stenosis .... 
In addition, [the petitioner] is actively pursuing in vitro research studies .... Last 
year, [the petitioner] investigated the effects of an immunosuppressive agent on the 
proliferation of vascular smooth muscle cells, an important step in the pathogenesis of 
hemodialysis access stenosis .... At present, [the petitioner] is studying the potential 
role of carbamylated low-density lipoprotein in failure of hemodialysis vascular 
access. 
Page 6 
expressed "high expectations" regarding the petitioner's "exciting and promIsIng 
research projects," but offered little information about the finished results that the petitioner's work 
at. had already produced. The goals of the petitioner's research speak to the intrinsic merit of the 
work, but simply working toward such unrealized goals does not inherently qualify the petitioner for 
the national interest waiver. See Matter of New York State Dept. of Transportation, I&N Dec. 215. 
Prior counsel stated that the petitioner "has published eleven research papers in some of the top 
journals of her field," with "a total of 272 independent citations to her published research .... The 
sheer [number] of citations to [the petitioner's] published work is a clear indicator of the significant 
and foundational impact she has had on the field of medical science as a whole." 
The petitioner submitted the cover pages from her articles, as well as printouts from ...­
showing an aggregate total of 272 citations for six of he~ 
most-cited articles have, respectively, 54, 87 and 104 citations. The "272" figure is for all of 
the citations (self-citations included), not just independent citations as counsel claimed, but 
nevertheless the evidence shows very heavy citation of the petitioner's published work. 
All of the published articles in the record derive from the petitioner's former 
into circulatory disorders of the brain, not from her current work at The 
petitioner has worked at~ince 2006, but the initial submission did not show that her years of 
work had thus far produced any published results. 
The petitioner did not explain the connection between her past work with stroke, which appeared in 
neurological journals, and her current work. The letters from neurologists did not mention her 
dialysis work. Her current supervisor's letter briefly mentioned her earlier neurological work, but 
did not explain how it relates to her current work apart from that the beneficiary's experience 
with "vascular imaging techniques" prepared her to work' 
On February 3, 2010, the director requested additional evidence to show that the petitioner qualifies 
for the waiver. In response, counsel asserted that "as of February 23, 2010, Petitioner's citation 
count had risen to 413 i ... This represents an increase of 141 citations since 
the priority date." Updated printouts corroborate these figures. Counsel claimed: 
"Petitioner is conducting seminal research into stroke and kidney disease," but the record contains 
no evidence that the petitioner continues to perform stroke-related research. 
The director denied the petition on March 4, 2010, acknowledging the intrinsic merit and national 
scope of the petitioner's medical research, but stating that the petitioner has not established the 
importance of her work relative to that of other researchers. 
On appeal, the petitioner again submits citation data, along with a table attributed to Thomson 
Reuters' Essential Science Indicators database, showing that papers in the field of neurosciences 
have an average citation rate of 17.82 from 1998 to 2008. Counsel notes that the petitioner's total 
number of citations has climbed to 399, which "demonstrates that [the petitioner's] excellent work 
Page 7 
not only has had a significant effect on stroke research in the past, but it also continues to have a 
wide influence over the current[j state ofresearch in the field." 
Lost in this discussion is the documented cessation of the petitioner's active research into stroke and 
cerebrovascular disorders. The record does, indeed, show that the petitioner participated in highly 
influential stroke research while at the""'-of Hong Kong. It does not follow, 
however, that because the beneficiary us~al stroke researcher, she will therefore 
be an influential kidney disease researcher in ~etitioner has not submitted any 
published work resulting from her work at the __ , and no evidence that her work 
relating to kidney disease and dialysis has had any significant influence or impact. in 
his letter, referred repeatedly to unfinished projects and anticipated results, with few references to 
findings that had already resulted from the petitioner's work. 
In the absence of any evidence or persuasive explanation to show how the beneficiary's current work 
relates to her former work in neurology, the success of the petitioner's former neurological work 
does not justify a conclusion that the petitioner will enjoy comparable success in what appears to be 
a significantly different field. 
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. § 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.