dismissed EB-2 NIW Case: Medicinal Chemistry

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
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. 9 1 153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Administrative Appeals Office 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa petition. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner seeks classification pursuant to section 203@)(2) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 5 1153@)(2), as a member of the professions holding an advanced degree. At the time she filed the 
petition, the petitioner was a medicinal chemist at Solanan, Inc., Dallas, Texas. The petitioner asserts that an 
exemption fiom 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 £?om the requirement of 
a job offer would be in the national interest of the United States. 
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. 
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 (IMMACT), published 
at 56 Fed. Reg. 60897,60900 (November 29, 1991), states: 
The Service [now Citizenship and Immigration Services (CIS)] 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 
"e~ceptional.'~] 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 (Commr. 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 term "prospective" is used here to require future 
contributions by the alien, rather than to facilitate the entry of an alien with no demonstrable prior achievements, 
and whose benefit to the national interest would thus be entirely speculative. 
We also note 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 offedlabor 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's initial submission includes copies of nine articles that contain citations of the petitioner's 
work. The AAO acknowledges that the citing authors are based around the world, but the small number of 
citations gives little support to the petitioner's waiver application. The petitioner did not demonstrate that this 
volume of citations set her apart fi-om others in her specialty. 
Several witness letters accompanied the initial filing of the petition. We shall consider examples of those 
letters here. Associate Professor at the University of Texas at Austin, described the 
petitioner's doctoral work: 
[The petitioner] joined my group in 2001, and she completed her PhD in Medicinal 
Chemistry . . . under my supervision in 2005. . . . For her doctoral research [the petitioner] 
studied aza-enediynes and their rearrangements with an emphasis on characterizing the 
kinetics and reactive intermediates involved, particularly their potential as DNA-damaging 
agents. Aza-enediynes are novel variants of enediyne antibiotics, highly effective anticancer 
agents. They have a unique mechanism of action that targets the DNA of cells. Enediynes, 
however, are extremely cytotoxic and have serious side effects that limit their use. Our lab 
has been studying aza-enediynes and their rearrangements for several years with intent to 
developing drugs that can selectively target cancer cells and reduce the side effects of 
chemotherapy. In the course of these studies, [the petitioner] has made a number of 
important findings that have had a major impact on our ultimate goal of designing aza- 
enidiyne-based DNA cleavage warheads for cancer cell-selective cytotoxic agents. I believe 
that [the petitioner] is now considered to be a major player in this area. 
[The petitioner] was assigned to synthesize and characterize a number of pirfenidone 
derivatives at Solanan Inc. I am proud of her ability to successfblly complete the synthesis of 
one such compound having 4 to 10 times as much pharmacological activity as the parent 
compound. This newly synthesized compound is now being evaluated in various animal 
models of human diseases. We are very optimistic regarding its potential therapeutic uses for 
a number of devastating diseases of autoimmune origin. This level of success would not have 
been possible without the enduring efforts of [the petitioner]. 
Four of the letters are described as "independent advisory opinions." We note that the author of one of these 
letters is - a Consultant Veterinarian for. Another author is - 
of Jackson State University, whose awareness of the petitioner's work stems in part from a "personal 
connection with the University of Texas, College of Pharmacy," where 
 was a postdoctoral 
researcher. 
in person, I am aware of her significant contributions from her high quality research papers published in the 
field of aza-enediyne chemistry. . . . [The petitioner] has designed and synthesized a series of new class [sic] 
of enediynes - aza-enediynes and aza-enyne allenes - as potential potent anticancer agents with cancer cell 
targeting properties." The other witnesses similarly focused on the petitioner's work with aza-enediyne 
chemistry. They did not discuss her work at Solanan, nor did the witnesses from Solanan indicate that the 
petitioner has continued to work with aza-enediynes. Many witnesses thus focused on the petitioner's 
doctoral work rather than establish that the petitioner has shown a sustained pattern of achievement. 
On May 30, 2007, the director issued a request for evidence, instructing the petitioner to "submit any 
available additional documentary evidence" to establish the petitioner's "influence on medicinal chemistry." 
In response, the petitioner submitted copies of three articles containing citations of the petitioner's work. One 
of these articles was already included in the petitioner's initial submission, so only two of the articles are new 
to the record. 
The petitioner submitted two additional witness letters, as well as a copy of an AAO decision £?om 2003 in 
which the AAO found that independent witness letters can be strong evidence of eligibility. The AAO, in the 
Page 5 
cited decision (which has never been published as a binding precedent), did not state that all independent 
witness letters carry equal weight or that a petition including such letters must invariably be approved. While 
8 C.F.R. § 103.3(c) provides that AA0 precedent decisions are binding on all CIS employees in the 
administration of the Act, unpublished decisions are not similarly binding. 
Associate Professor at Northern Kentucky University, discusses aza-enediynes and states 
that the petitioner "has successfully redesigned the enediyne core structure and synthesized a series of aza- 
enediynes as potential potent anticancer agents with can[c]er cell targeting properties." Passages in Dr. 
letter closely match portions of 
 letter, submitted previously. 
- of the Indian Institute of Technology states that the petitioner's 'papers contain several 
elegantly designed experiments that provided not only results that contributed to a broadening of knowledge 
in the field, but also gave other researchers more tools to study similar molecules. Speaking from my 
professional expertise, I can assert that these results have had a significant impact in the field of aza-enediyne 
research." Prof.- offers little indication as to what that impact was, as the letter contains more 
information about own research than that of the petitioner. As with the earlier group of letters, 
the new letters focus on the petitioner's student work with aza-enediynes rather than her later work at Solanan 
which, as described by own officials, appears to involve neither aza-enediynes specifically nor 
cancer drugs in general. The petitioner did not submit or identify any further articles by the petitioner, either 
published or in preparation, based on work the petitioner performed after she completed her doctorate. 
The director denied the petition on January 24, 2008. In the denial notice, the director acknowledged the 
intrinsic merit and national scope of the petitioner's occupation, but found that the evidence submitted did not 
support the claim that the petitioner has been responsible for significant, influential breakthroughs in her field 
of research. 
On appeal, the petitioner submits a new witness letter from Associate Professor at the 
University of Georgia, states that the petitioner's "research provides a wealth of information and insight that 
significantly enhances our understanding of the kinetics of the aza-Bergman reaction." ~r. asserts: "It 
is most uncommon for a comparably experienced researcher in the same field to have made such a major 
impact like that generated by" the petitioner. does not discuss the petitioner's continued impact, if 
any, in the more than two years since the petitioner completed her doctorate and, to all appearances, ceased 
working with aza-enediynes. 
Counsel, on appeal, claims that the petitioner "created a newly synthesized class of enediynes called aza- 
enediynes and aza-enyne allenes." The evidence of record, includings curriculum vitae and 
the petitioner's own published articles, shows that was publishing articles about aza-enediynes 
before the petitioner joined his research group in 2001. While the petitioner has worked with various 
processes to synthesize aza-enediynes, it is simply false to claim that she "created" that class of compounds. 
The record is similarly devoid of evidence to show that the petitioner is the creator of aza-enyne allenes. The 
unsupported assertions of counsel do not constitute evidence. See Matter of Obaigbena, 19 I&N Dec. 533, 534 
n.2 (BIA 1 98 8); Matter of Laureano, 1 9 I&N Dec. 1,3 n.2 (BIA 1 983); Matter of Ramirez-Sanchez, 1 7 I&N Dec. 
503,506 (BIA 1980). 
Page 6 
Counsel adds: "While [the petitioner's] contributions relating to enediynes should be enough to establish her 
qualifications for a national interest waiver, she has also made significant advances in the synthesis of Pirfenidone 
derivatives." The only exhibits to which counsel cites in support of this claim are letters from individuals who 
worked with the petitioner at . There is no indication that this work has had any impact outside the 
company that employed her. 
We note that the Form I-290B 
 tice gives a California address for the petitioner, which indicates that the 
petitioner no longer works for 
 in Texas. Counsel does not mention the beneficiary's relocation or 
describe the petitioner's activities since leaving . At the time the appeal was filed, the petitioner was the 
beneficiary of a Form 1-129 nonimmigrant visa petition (receipt number WAC 08 081 50715) filed by 
., Torrance, California. That petition was approved in April 2008, after the present appeal was 
filed, but four months later another employer, - Irvine, California, filed a new 
nonimmigrant visa petition (receipt number WAC 08 232 50917) on her behalf. 
Counsel states that the director failed to take into account witness letters showing that other researchers have 
benefited from the petitioner's work. The director did not deny or overlook those materials. Rather, the 
director found that the petitioner had not established the significance of her contributions. Because no 
scientist works in isolation, it is expected that researchers will build on one another's work. It cannot suffice 
for the petitioner simply to show that others are aware of her work. The issue is the extent of the petitioner's 
influence, rather than whether the petitioner has had any influence at all. 
The record does not show a sustained pattern of impact on the field to a degree that qualifies the petitioner for 
a national interest waiver. At best, the record shows that the petitioner attracted positive attention with 
research she conducted while a doctoral student at the University of Texas. The record does not show that the 
petitioner has continued such research, or that her subsequent work has attracted comparable notice. 
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 @&it 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. 
This denial is without prejudice to the filing of a new petition by a United States employer accompanied by a 
labor certification issued by the Department of Labor, appropriate supporting evidence and fee. 
ORDER: The appeal is dismissed.