dismissed EB-2 NIW Case: Medicine

identifying data deleted to 
prevent clearly unwarr~nted 
invasion of personal privacy 
PUBLIC COpy 
DATE: MAR 2 9 2012 Office: TEXAS SERVICE CENTER 
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. Ci tizenshi p 
and Immigration 
Services 
Fll..,E: 
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. § 11S3(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 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 I-290B, Notice of Appeal or 
Motion, with a fee of $630. Please be aware that 8 c.F.R. § 1 03.S(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.OWf/CIu r Perry Rhew 
"'\ Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Texas 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 physician scientist. 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 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 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 his third personal statement and a research proposal. The record 
contains only minimal evidence to support the petitioner's own self-serving discussions of his 
accomplishments, namely: the petitioner's professional credentials, a single article with a single 
citation, a single conference presentation, an unpublished manuscript and a single letter from his 
supervisor. Thus, the AAO concurs with the director that the petitioner has not established the 
necessary track record to warrant a waiver of the alien employment certification process in the national 
interest. 
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 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. 
Page 3 
The director did not contest that the petitioner, a physician, is an advanced degree professional. 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 define the term "national interest." Additionally, 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, WIst Cong., 1st Sess., 11 (1989). 
A supplementary notice regarding the regulations implementing the Immigration Act of 1990 
(IMMACT), 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 1 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 Dep't. of Transp., 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 evaluating a request for a national interest waiver. First, the petitioner must show 
that the alien seeks employment in an area of substantial intrinsic merit. Id. at 217. Next, the petitioner 
must show that the proposed benefit will be national in scope. Id. 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. Id. 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. The AAO uses 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. 
The AAO concurs with the director that the petltIOner works in an area of intrinsic merit, 
electrophysiology, and that the proposed benefits of his work, improved treatment for neurological 
diseases, 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. 
Page 4 
On appeal, the petitioner states: 
It is illogical to speculate that someone with no experience or skills working in the 
same field with minimum qualification, even if available through a labor certification 
process, will be in the future benefit [sic] to the field as a whole to a greater extent 
than someone how [sic] has already investigated the disease process for many years 
making the certification process in this case unreasonable and time consuming. 
The modifier "minimum" does not nullify the word "qualifications" or suggest an unskilled worker. 
In other words, an available U.S. worker with the requisite "minimum qualifications" for the job is 
one who, by definition, is qualified for the job. The "minimum qualifications" for a given job may, 
in fact, be quite stringent. While USCIS recognizes the advantage to an employer of retaining 
qualified staff rather than training inexperienced, newly hired workers, the contention that no other 
experienced workers are available should be tested on an application for alien employment 
certification. Id. at 222. 
Eligibility for the waiver must rest with the alien's own qualifications rather than with the position 
sought. In other words, USCIS generally does 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. 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. 
Initially, the petitioner submitted a lengthy statement discussing his research accomplishments and 
laboratory skills. For example, he asserted (1) that he produced results using the patch clamp technique 
(to be published in 2010), (2) that he is the only member of his team who can perform the "dual 
patching" and culture of brain cell techniques, (3) that he subcloned certain vectors and (4) that he 
quantified the amount of a specific protein in various tissues (presented at a conference). He also lists 
several laboratory techniques with which he has gained experience. 
Going on record without supporting documentary 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, 14 I&N Dec. 190 (Reg'!. Comm'r. 1972)). Moreover, it cannot 
suffice to state that the petitioner 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 U.S. is an issue under the jurisdiction of the 
Department of Labor. NYSDOT, 22 I&N Dec. at 221. 
Finally, job-related training in an important new method cannot be considered to be an achievement 
or contribution comparable to the innovation of that new method. Id. at 221, n.7. The petitioner did 
assert that he has "developed a new highly efficient and easy means for culturing astrocytes and 
maintaining these cells for an extended time to study connexin proteins expression." Nevertheless, 
even 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. 
In support of his self-serving statement and self-serving curriculum vitae, the petitioner initially 
submitted evidence of his membership in the American Epilepsy Society, an article on the mechanisms 
of convulsions in eclampsia in Medical Hypotheses and a poster presented at the Gordon Research 
Conference in Ventura, California. The article in Medical Hypotheses reports the petitioner's personal 
theory rather than the results of original research and the petitioner did not submit evidence that 
Medical Hypotheses is a peer-reviewed medical journal. 
In response to the director's request for additional evidence, the petitioner submitted another personal 
statement. As stated above, going on record without supporting documentary evidence is not sufficient 
for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. at 
165 (citing Matter of Treasure Craft of California, I&N Dec. at 190). The petitioner also submitted 
evidence that one article had cited his article in Medical Hypotheses, es of the 
petitioner's article and an unpublished manuscript he coauthored with Requests 
for copies of an article demonstrate an interest in the petitioner's work rather than ultimate application 
of his work. Thus, they carry less weight than citations. A single citation is not evidence of the 
petitioner's influence in the field as a whole. 
As stated above, on appeal the petitioner submits a research proposal listing what part the petitioner 
will play in future research. This proposal does not demonstrate how the petitioner has already 
influenced the field to any degree. Rather, it addresses prospective research. 
The final piece of evidence in the record is a letter from I a professor at the University of 
Pennsylvania. _confirms that, as of October 2006, the petitioner has been working in Dr. 
Scherer's laboratory as a postdoctoral researcher investigating how astrocytes and oligodendrocytes are 
coupled by brain activities. _explains that neurological diseases can damage these cells that 
are essential for normal brain function. _ontinues: 
By understanding how gap junctions work in these cells, we hope to provide a treatment 
for these diseases. To do so, [the petitioner] has been examining these cells with 
complex electrophysiological methods called whole cell patch clamp and dual patch 
clam studies; this requires advanced education and expertise to perform. 
u,,,_u,,,,,,,, the complexity and importance of these techniques, noting that the inventors of 
the patch clamp technique received the Nobel Prize for this work. As stated above, job-related training 
in an important new method cannot be considered to be an achievement or contribution comparable 
to the innovation of that new method. NYSDOT, 22 I&N Dec. at 221, n.7. lists 
Page 6 
several other laboratory skills, which appear amenable to enumeration on an application for alien 
employment certification. 
- -. . - . 
asserts that the petitioner "built a new electrophysiology rig, performed medical 
eriments using these techniques, and has written manuscripts describing his results." 
characterizes the petitioner's demonstration that oligodendrocytes are coupled to each 
other as "very important." _ does not suggest that the University of Pennsylvania is 
considering patenting the petitioner's rig. Even if the university is pursuing a patent, the petitioner 
cannot secure a national interest waiver simply by demonstrating that he or she holds a patent or 
pending patent. Whether the specific innovation serves the national interest must be decided on a case­
by-case basis. Id. at 221, n. 7. _ does not suggest that any independent laboratory has 
expressed an interest in licensing or otherwise using the petitioner's rig. _ does not 
explain how the petitioner's manuscripts, only one of which has been published, have influenced the 
field beyond the University of Pennsylvania. _also fails to explain how the petitioner's 
work on coupling has influenced any laboratory~ University of Pennsylvania. 
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 
evidence lacks specificity, detail, or credibility, there is a greater need for the petitioner to submit 
corroborative evidence. MatterofY-B-, 21 I&N Dec. 1136 (BIA 1998). 
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 
of Caron International, 19 I&N Dec. 791, 795 (Comm'r. 1988). However, USCIS 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; uscrs may, as this decision has 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 (Comm'r. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l. 
Comm'r. 1972)). 
The letter considered above primarily contains bare assertions of the importance of the petitioner's 
work without providing specific examples of how those innovations have influenced the field. 
Merely repeating the legal standards does not satisfy the petitioner's burden of proof.' The petitioner 
I 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.N.Y.). Similarly, USCIS need not accept 
Page 7 
did not submit any letters from independent researchers who can affirm the petitioner's influence on 
their own work. The petitioner also failed to submit corroborating evidence in existence prior to the 
preparation of the petition. 
Ultimately, as of the date of filing, the petitioner had published a single article expressing a theory 
rather than reporting his research results. That article had garnered only a single citation as of the date 
of filing. The petitioner's area of research is no doubt of value and the petitioner possesses certain 
laboratory skills that are useful to his employer. It can be argued, however, that any research must be 
shown to be original and present some benefit if it is to receive funding and attention from the 
scientific community. Any research, in order to be accepted for publication or funding, must offer 
new and useful information to the pool of knowledge. It does not follow that every researcher who 
performs original research pursuant to a research grant serves the national interest to an extent that 
justifies a waiver of the job offer requirement. 
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 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. 
primarily conclusory assertions. 1756, Inc. v. The Attorney General of the United States, 745 F. Supp. 9, 15 
(D.C. Dist. 1990).