dismissed EB-2 NIW Case: Medicinal Chemistry

(b)(6)
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 
DATE: APR 2 2 2015 OFFICE: NEBRASKA SERVICE CENTER FILE: 
IN RE: 
PETITION: 
Petitioner: 
Beneficiary: 
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: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms 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. 
Thank you, 
��berg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office on appeal. We 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. § 11 53(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as a postdoctoral 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. 
On appeal, the petitioner submits a brief with supporting exhibits. 
I. Law 
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. 
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, lOl st Cong., 1st Sess., 11 (1989). 
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In reNew York State Dep't of Transportation, 22 I&N Dec. 215, 217-18 (Act. Assoc. Comm'r 1998) 
(NYSDOT), sets forth several factors which must be considered when evaluating a request for a national 
interest waiver. First, a petitioner must establish that the beneficiary 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. Id. Finally, the petitioner seeking the waiver must establish that the beneficiary 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 beneficiary's past record justifies projections of future benefit to the national interest. Id. at 
219. The petitioner's assurance that the beneficiary 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 beneficiary, rather than to facilitate the entry of a beneficiary with no 
demonstrable prior achievements, and whose benefit to the national interest would thus be entirely 
speculative. Id. 
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 individual seeks 
classification as an alien of exceptional ability, or as a member of the professions holding an 
advanced degree, that individual cannot qualify for a waiver just by demonstrating a degree of 
expertise significantly above that ordinarily encountered in his or her field of expertise. See 
NYSDOT, 22 I&N Dec. at 218-19. 
The director found that the petitioner qualifies for classification as a member of the professions 
holding an advanced degree, and that the petitioner had established the intrinsic merit and national 
scope of his intended employment. The only issue in this proceeding, therefore, is whether the 
petitioner has met the third prong of the NYSDOT national interest test. 
II. Facts and Analysis 
The petitioner filed the Form I-140, Immigrant Petition for Alien Worker, on October 24, 2013. The 
petitioner indicated that his research involves using nanotechnology in drug delivery systems for 
HIV and tuberculosis (TB). The petitioner stated that he "has, to date, published four peer-reviewed 
journal papers ... in leading journals," and that his articles "have been cited in leading journals by 
other well-known scientists and researchers in the field." The petitioner submitted partial copies of 
four published articles, and also unpublished manuscripts and abstracts of conference presentations. 
The petitioner also documented eight citations to his published work including one self-citation by a 
co-author. 
The petitioner stated that he "has received many requests for his work, information, and opinion 
[from] other scientists in the field including a request [from] a publishing house [for] the 
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[petitioner's] dissertation to be published as a book." The petitioner submitted printouts of two 
electronic mail messages. One message was an inquiry from a peptide chemist who had read the 
abstract of the petitioner's dissertation and expressed interest in reading the entire paper. The other 
message was from . a print-on-demand service, offering to publish the 
dissertation. 
The petitioner submitted seven letters with the petition, many of which described the petitioner's 
work in technical detail. Two of the letters are from professors at 
where the petitioner earned his doctorate. Dr. stated that the petitioner's graduate 
work "has important applications in the study of new anticancer drugs. . . . His successes in 
developing methods for synthesizing tuberculosis and cancer inhibitors are an indication of his 
promising future." 
Dr. 
_ 
stated: "[t]he molecules synthesized during [the petitioner's] Ph.D. 
work will be utilized as new probes for visualizing the actin cytoskeleton that plays a major role in 
the process of cell division and migration." 
Dr. _ _ , an adjunct professor at is also a professor at 
_ 
where he supervises the petitioner spouse. Dr. stated: "The early detection of 
metastasis is a critical factor for determining the probability of survival for many cancers. . . . 
Therefore [the petitioner's] finding of a biomarker is likely to have a major impact on the cancer 
management and health of many patients .. . [the] world over." 
Two of the letters are from faculty members. Dr. professor and 
chair of ; Department of Pharmacology and Experimental Neuroscience, stated that the 
petitioner had made "pioneering contributions" in Dr. ' laboratory before coming to 
and that he "has solved some of the difficult problems that have troubled organic chemists 
worldwide for decades." Dr. stated: 
[The petitioner] has established a medicinal chemistry initiative that has focused on 
developing new compounds to treat Mycobacterium tuberculosis. He has had 
extraordinary success in developing the initiative and in finding new ways for 
treatment of an age old disorder that still afflicts individuals both in and outside the 
USA. . . . [The petitioner] has also developed new nanoformulations for sustained 
release of antituberculus agents that serve[] to improve patient compliance. 
Dr. , the petitioner's supervisor at stated that the petitioner "has 
grasped new techniques quickly, and is a fine researcher. At the end of this post-doctoral fellowship, 
[the petitioner] will have a set of skills in pharmacology, experimental neuroscience and medicinal 
chemistry techniques that very few researchers will possess." Dr. further stated that 
the petitioner's "projects will revolutionize the long search for new cures by developing new drugs 
against multidrug resistant TB and HIV infections." 
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Dr. director of chemistry at the first learned of 
the petitioner's work from an article in the. . Dr. stated that the 
petitioner's "pioneering work has had a great impact on research" and that "his contributions have 
been recognized as representing major advances in the field ... . His research and publications are 
milestones in our recent effort to find[] cures against HIV and TB co-infections." 
Dr. assistant professor at the 
attended a conference presentation by the petitioner. Dr. ' stated that the petitioner's 
"profound knowledge on the synthesis of unnatural amino acids and cyclopeptides" led to a 
"significant breakthrough [that] has a great impact on the design of anticancer and anti-parasitic 
drugs." 
The director issued a request for evidence on May 7, 2014. The director instructed the petitioner to 
submit evidence of "a history of achievement with some degree of influence on the field as a whole," 
including evidence of citation of the petitioner's published work. 
In response, the petitioner indicated that he has continued to contribute to his field since filing the 
petition, stating m part that he has published additional works and was "recently awarded a 
fellowship by company to develop long acting antiretroviral formulations for HIV 
eradication at " These developments, however, cannot serve to establish eligibility as of the 
filing date. The petitioner must establish that he is eligible for the requested benefit at the time of 
filing the benefit request. 8 C.F.R. § 103. 2(b)(l). U.S. Citizenship and Immigration Services 
(USCIS) cannot properly approve the petition at a future date after the petitioner becomes eligible 
under a new set of facts. See Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). 
The petitioner submitted a second letter from Prof. who stated: 
[The petitioner] has had sustained and unquestioned success in developing long 
acting drug nanocarriers that target cellular reservoirs of infection. This represents 
the most challenging goal in drug targeting. The nanocarriers minimize drug 
degradation and loss, prevent harmful side effects and increase the availability of the 
drug at the disease site. [The petitioner] has shown how the drugs and disease 
causing organisms are trafficked inside the cell. This groundbreaking work was 
recently submitted to the where he is the first author. [The 
petitioner] has also devised unique methods for formulating hydrophilic drugs 
through prodrug approach. These discoveries are very important for improving 
outcomes in HIV and tuberculosis therapy .... New and important science is resulting 
from [his ongoing] studies. 
Additional documentation showed that the petitioner's citation count had increased to 11, including 
two self-citations by co-authors. 
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In denying the petition, the director listed the evidence that the petitioner submitted in support of the 
petition, and stated that the petitioner's citation record was not sufficient to show influence on the 
field as a whole. The director noted that several of the letters in the record indicated that the 
petitioner's work is promising and could lead to important new developments, but that the 
petitioner's documented past impact is not sufficient to show that the petitioner's continued 
employment in the United States is a matter of national interest. 
On appeal, the petitioner states that the director "failed to consider evidence of petitioner's past 
achievements" that showed his influence on his field, and that the director selectively quoted from 
letters to emphasize references to his "potential," thereby "failing to consider the references to 
petitioner's past achievements." The petitioner also states that the director "failed to consider ... 
evidence which demonstrates that petitioner will serve the national interest to a substantially greater 
degree than would an available U.S. worker having the same minimum qualifications." The 
petitioner refers to previously submitted letters that indicate the petitioner's departure from his 
current research projects would adversely affect continued progress on those projects. 
In his decision, the director acknowledged that the submitted letters "note the importance of what 
you are doing and what you have done," but found that they were "not backed up with sufficient 
evidence to demonstrate that your contributions have been noted by other researchers within your 
field as having influence on your field as a whole." While the petitioner asserts on appeal that the 
submitted letters. establish the significance of the petitioner's prior achievements and his influence 
on the field, the record does not include independent evidence to corroborate the assertions in the 
letters. The opinions of experts in the field are not without weight and have received consideration 
above. USCI S may, in its discretion, use as advisory opinions statements submitted as expert 
testimony. See Matter of Caron International, 19 I&N Dec. 791, 795 (Comm'r 1988). However, 
USCI S is 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; USCI S may, as above, evaluate the content of those letters as to 
whether they support the alien's eligibility. USCIS may give less weight to an opinion that is not 
corroborated. See id. at 795; see also Matter of V-K-, 24 I&N Dec. 500, 502 n.2 (BIA 2008) (noting 
that expert opinion testimony does not purport to be evidence as to "fact"). See also Matter of 
Soffici, 22 I&N Dec. 158, 165 (Comrn'r 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg'l Comm'r 1972)). 
With respect to the contention that the petitioner's departure would hamper his ongoing research at 
the denial of the present petition does not affect the validity of any existing nonimmigrant 
status permitting the petitioner to work temporarily in the United States, and the evidence does not 
establish that intends to continue employing him following his temporary postdoctoral 
. . 1 
position. 
1 As of this writing, the petitioner holds H-lB nonimmigrant status, authorizing him to work at 
30,2017. 
until November 
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Regarding his citation history, the petitioner states on appeal: " 
_ 
shows that there are 
only 14,000 published articles in the area of HIV {fB co-infection area in comparison to more than 
2.5 million articles for either HIV or TB research when assessed independently, which explains the 
beneficiary's lower number of citations." The record does not contain a ·printout to 
support these asserted figures. See Matter of Soffici, 22 I&N Dec. at 165. Regardless, the petitioner 
has not asserted or established that his articles are highly cited in comparison to other articles within 
his specialty. 
The appellate brief lists the petitioner's publications, awards, and appointments, but the record does 
not contain evidence establishing the significance of the listed achievements. For instance, counsel 
contends that the petitioner's 
_ 
. . . recognizes the 
outstanding achievements that revolutionized the field of tutelage in chemistry and stem 
programs " (counsel's emphasis), but the submitted evidence does not establish that the petitioner has 
influenced the field of chemistry instruction. The unsupported assertions of counsel do not 
constitute evidence.· Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 
19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Under 
8 C.P.R. § 204.5(k)(3)(ii)(F), evidence of recognition for achievements and significant contributions 
to the industry or field by peers, governmental entities, or professional or business organizations can 
be partial evidence of exceptional ability, but exceptional· ability alone does not establish eligibility 
for the national interest waiver. 
The appellate brief concludes with a discussion of the petitioner's activities and accomplishments 
since filing the petition, including his fellowship. Activities that took place after the petition's 
filing date cannot retroactively show that the petitioner was eligible at the time of filing. See 8 
C.P.R. § 103.2(b)(1); Matter of Katigbak, 14 I&N Dec. 49. Furthermore, the petitioner has not 
submitted documentary evidence to establish the asserted significance of the fellowship and his other 
recent activities. Statements made without supporting documentation are of limited probative value 
and are not sufficient to meet the burden of proof in these proceedings. See Matter of Soffici, 22 I&N 
Dec. at 165. 
III. Conclusion 
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, 
22 I&N Dec. 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 beneficiary must have "a past history of 
demonstrable achievement with some degree of influence on the field as a whole"). 
As is clear from 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 
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individual seeking the waiver. 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. 
We 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.