dismissed EB-2 NIW Case: Microbiology

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PUBUCCOpy 
FILE: 
IN RE: Petitioner: 
Beneficiary: 
L.S.llq>artment Qr fioml'iand ~et:urit~ 
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u.s. Citizenship 
and Immigration 
Services 
Office: TEXAS SERVICE CENTER Date: 
MAR 0 3 2011 
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. § 1153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your casco All of thc 
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. 
Thc 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. § I 03.5(a)( I lei) requires that any motion must 
be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
\'I"W\"", .lIscis.go, 
Page 2 
DISCUSSION: The employment-based immigrant visa pelltion was denied by the Director, 
Texas Service Center, and is now before the Administrative Appeals Office (AAO) on appeal. The 
appeal will be dismissed. 
This petition, filed on February 28, 2008, seeks to classify the petItIOner pursuant to section 
203(b)(2) of fhe Immigration and Nationality Act (the Act), 8 U.S.c. * 1153(b)(2), as a member of 
the professions holding an advanced degree. 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, counsel argues that the petitioner's "contributions to the field are substantially greater 
than those of others similarly employed" and that fhe director en-ed by ignoring the documentation 
submitted by the petitioner. For the reasons discussed below, we uphold the director's decision. 
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, aIts, 
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 petitioner received her Ph.D. in Microbiology from Arizona State University CASU) in August 
2007. The director found 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 pertinent regulations define the terrn "national interest." Additionally, 
Congress did not provide a specific definition of the phrase, "in the national interest." The 
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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, 101st Cong., 1st Sess., 
II (1989). 
A supplementary notice regarding the regulations implementing the Immigration Act of 1990 
(IMMACT), published at 56 Fed. Reg. 60897, 60900 (November 29, 1991), states, in pertinent pat1: 
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 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 ()j' New York State Dep't. uf Tramp., 22 I&N Dec. 215, 217-18 (Comm'r. 1998) 
(hereinafter "NYSDOT"), 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 Id. at 217. Next, it must be shown that the proposed benefit will 
be national in scope. Id. Finally, the petitioner seeking the waiver must establish that thc alien 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. 
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 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 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. Id. 
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 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. 
We concur with the director's finding that the petitioner's work at ASU was in an area of 
intrinsic merit, biomedical science, and that the proposed benefits of her work at the university, 
research advancements in virology pertaining to the coronavirus, 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 qual ifications rather than with the 
position sought. [n 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. Jd. 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. Jd. 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. Jd. 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. 
Jd. at 221, n. 7. 
Along with her published and presented work, educational qualifications, and other 
documentation pertaining to her accomplishments, the petitioner submitted several letters of 
support discussing her Ph.D. research at ASU under the supervision of 
Associate Professor, Center for Infectious Diseases and Yaccinology (CIDY), Biodesign Institute, 
ASU. 
IThe petitioner] has been doing research in _ Lab in ClOY for the past 5 
years"" During her graduate study, I the petitioner I conducted very challenging research 
on a group of infectious viruses. She focused on viral-infectious disease study, 
specialized in corona virus. During the year 2002, the outbreak of the life-threatening 
disease Sever Acute Respiratory Syndrome (SARS) caused around a thousand deaths 
worldwide and led to a huge economic loss. Since then, a new coronavirus, SARS 
coronavirus, has been identified as the origin. Through study of this virus' life cycle, [the 
petitioner I made significant contribution to the understanding of this novel virus, and 
potential new strategies for its control. One of her achievements is the identification of a 
key motif of coronavirus that is responsible for the virus' assembly. The motif is defined 
by the position of four hydrophilic amino acids in the transmembrane domain of a small 
protein whose organization is critical in order for the whole virus particle to assemble. 
Due to [the petitioner's I unique perspective and insightful observation, she disclosed the 
importance of this motif through insightful experiments. This breakthrough not only 
helps understanding the new eoronavirus, but also hugely contributes as a therapeutic 
Page 5 
target in small molecue I sic] design for drug development. The other big contribution of 
Ithe petitioner's I research is beyond virus itself. She revealed a nontraditional mechanism 
carried by corona virus to interact with host innate immune response. During the SARS 
outbreak, while most scientists were trying to fight the virus with interferon, which was a 
traditional theoretical treatment, [the petitioner] proposed that the virus was resistant to 
interferon. By her hard work, she not only provided strong evidence to support her 
hypothesis, but also revealed the unique mechanism by which coronavirus takes to 
interrupt the interferon system, more importantly, she discovered the viral protcin that is 
the interferon antagonist. . .. As an expert in the field of infectious disease, I can 
anticipate anti-coronavirus drug and vaccine development by applying Ithe petitioner's I 
discoveries, in the event a reoccurrence of SARS and emergence of new viruses. 
~ opines that "in the event a reoccurrence of SARS and emergence of new viruses" he 
"can anticipate anti-coronavirus drug and vaccine development by applying Ithe petitioner's I 
discoveries." A petitioner, however, cmmot file a petition under this classification based solely 
on the expectation of future eligibility. See Matter of' Kutighak, 141&N Dec. 45, 49 (Reg'!. 
Comm'r. 1971). While the petitioner's research for ASU is no doubt of value, it can be argued 
that any research must be shown to be original and present some benefit if it is to recei ve funding 
and attention from the scientific community. Any Ph.D. thesis or postdoctoral research, in order 
to be accepted for graduation, publication, presentation, or funding, must offer new and useful 
information to the pool of knowledge. It does not follow that every researcher who performs 
original research that adds to the general pool of knowledge inherently serves the national 
interest to an extent that justifies a waiver of the job offer requirement. 
I The petitioner I worked in lab in our department, and I have known her 
since she joined our center in 2005. In the beginning, [the petitioner's] research was 
focused on coronavirus budding and assembly. She used the novel full length infectious 
system to construct mutant viruses, and discovered the important role of the envelope 
protein of coronavirus in virus budding and assembly. Furthermore, she also identified 
this envelope protein functioning as a viroporin, providing new insight of this emerging 
area as novel strategy for virus therapy. Morc interestingly, by introducing mutation at 
different pos ition of this protein, four importance I sic I amino acids and their position 
have been identified as the key motif of the protein activity. Thus, it provides an 
important target for small molecule design for drug development. Since the outbreak of 
SARS coronavirus, [the petitioner I has been conducting an exciting investigation on 
invasion of coronavirus in host innate immune response. Her finding of interferon 
resistance characteristics of coronavirus was one of the leading reports in the coronavirus 
field. In addition to that, she is the first researcher who identified the virus interferon 
antagonist and the involving mechanism. Thus, [the petitioner's I research has opened a 
new era in the treatment and vaccine development of SARS corona virus. 
Page 6 
Based upon what I have seen of her work, I believe I the petitioner I to be an extraordinary 
research scientist, who has already made some important contributions to science, and 
who will without doubt accomplish more. I am sure that Ithe petitioner's I recent findings 
about coronavirus assembly and identification of the coronavirus interferon antagonist in 
its interaction with the innate immune system will greatly highlight the research work in 
virology field around the world. The results of her work have been presented at several 
important national and international conferences, many of which have been selected as 
oral presentation, suggesting the significance of her work. The detailed results have been 
published in the prestigious academic journals journal of' Virology and in the book 
chapter. 
While the petitioner has published and presented the results of her graduate research at ASU, the 
Department of Labor's Occupational Outlook Handbook (OOH), 2010-11 Edition, (accessed at 
www.bls.gov/oco on February 18,2011 and incorporated into the record of proceedings), provides 
information about the nature of employment as a postsecondary teacher (professor) and the 
requirements for such a position. See www.bls.gov/oc0/ocos066.htm. The handbook expressly 
states that faculty members are pressured to pelform research and publish their work and that the 
professor's research record is a consideration for tenure. Moreover, the doctoral programs training 
students for faculty positions require a dissertation, or written report on original research. Ill. 
FU11her, the OOH states specifically with respect to the biological sciences that a "solid record of 
published research is essential in obtaining a permanent position performing basic research." See 
www.bls.gov/oc0/ocos047.htm.This information reveals that original published research, whether 
arising from research at a university or private employer, docs not set the set the petitioner apat1 
from others in her field. 
I met I the petitioner J a couple of times at conferences such as the annual American 
Society of Virology meeting and I am convinced that she is a truly outstanding young 
scientist who has made substantial contribution in the field. In her paper called "Mouse 
Hepatitis Coronavirus A59 Nucleocapsid Protein is a Type I Interferon Antagonist" 
which appeared in the journal (!f'Virology, [the petitioner], as a lead author, discovered 
that a viral protein may allow the virus to evade the immune system. This ground 
breaking finding has received strong international recognition. Many scientists at other 
independent research groups have cited her work. 
The petitioner submitted copies of 30 research articles citing to her work. A review of the submitted 
documents indicates than none of the petitioner's individual articles had been independently cited to 
more than a dozen times as of the petition's February 28, 2008 filing date. Moreover, almost half of 
the submitted articles were published subsequent to the petition's filing date. A petitioner, 
however, must establish eligibility at the time of filing. 8 C.F.R. §§ 103.2(b)(I), (12); Muller of' 
Kutigbuk, 14 I&N Dec. at 49. Accordingly, the AAO will not consider articles published after 
February 2008 in this proceeding. Further, at least two of the submitted citations were se!f-
Page 7 
citations by the petitioner's coauthor _ While a no~ected process, the self­
citations cannot demonstrate the petitioner's influence beyond_laboratory. On appeal, 
the petitioner submits a self-serving list of 42 purported citations that allegedly derives from Google 
Scholar. Twelve articles appearing on the petitioner's citation list are not documented in the record. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. Matter<!FSo/fici, 22 I&N Dec. 158, 165 (Comm·r. 1998) 
(citing MatterrJ/' Treasure Crafi of CaliFornia, 14 I&N Dec. 190 (Reg'/' Comm'r. 1972». Counsel 
provides no explanation for why the petitioner did not submit the actual printout from Google 
Scholar. Nevertheless, even if we accepted the self-serving list of undocumented citations, no 
single article by the petitioner has garnered more than a dozen independent citations as of the 
petition's February 28, 2008 filing date. Ultimately, the citation record submitted by the petitioncr 
is not indicative of a notable influence in the field at the time of filing. 
University of Leubeck, Germany, 
which they participated. 
states that he met the petitioner at scientific conferences m 
further states: 
[The petitioner's! work focused on coronavirus budding and assembly. She found the 
important role of the envelope protein of coronaviruses in budding. She also identified 
this envelope protein functioning as a viroporin. Her work provided new insight in this 
emerging area as a novel strategy for antiviral therapy. Since the outbreak of the SARS 
coronavirus, ! the petitioner 1 has been investigating the intervention of the corona virus 
with host innate immune response. She was the first scientist to identify a viral protein 
that may allow the virus to evade the immune systems. [The petitioner's! breakthrough 
has opened up a new approach into which others have followed. Many scientists have 
cited her work. Hcr articles have also become the subject of many review articles. She 
has become a sought -after expert in the treatment and vaccine development of SARS 
coronavlrus. 
As previously discussed, the citation evidence submitted by the petitioner indicates that no single 
article by her had garnered more than a dozen independent citations as of the petition's filing 
date. The articles citing to the petitioner's work after February 28, 2008 do not constitute 
evidence that her virology research was already influential as of that date. A petitioner must 
establish eligibility at the time of filing. 8 C.F.R. §§ 103.2(b)(1), (12); Matter (J/ Katighak, 14 
I&N Dec. at 49. In this matter, that means that the petitioner must demonstrate her track record 
of success with some degree of influence in her specialty 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. See Matter of Wing's Tea House, 
16 I&N Dec. 158, 160 (Reg'/' Comm'r. 1977); Matter oj" Katighak, 14 I&N Dec. at 49; see also 
Matter of/zummi, 22 I&N Dec. 169, 175-76 (Comm'r. 1998) (citing Matter of Bardollille. 18 
I&N Dec. 114 (B IA 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 her research will subsequently prove influential. 
Ultimately, in order to be meritorious in fact, a petition must meet the statutory and regulatory 
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re~uirements for approval as of the date it was filed .. Ogundipe v. Mukasey .. 541 F.3d 257, 261 
(4' Clr. 2008). Accordmgly, whlle cltatlons pubhshed atter the date ot hlmg may serve as 
evidence of the continued relevance of an alien's work that had already been well cited as of the 
filing date, they cannot be considered evidence that the alien was already influential as of that 
date. To hold otherwise would have the untenable result of an alien securing a priority datc 
based on the speculation that her work might prove influential while the petition is pending. As 
such, the AAO will not consider cites to the petitioner's work from March 2008 and later in this 
proceeding. 
On appeal, counsel argues that 
petitioner's] reach [sic] 
issued by ASU and posted at 
ignored "substantial 
submitted a 
f(:leas.e was prepared by 
of I the 
and then provided to the preceding websites. A 
press release is a written communication directed at the news media for the purpose of 
announcing information claimed as having news value. The preceding ASU press release. which 
is not the result of independent media reportage and which was sent to media outlets to encourage 
them to develop articles on a subject, is not indicative of a notable influence in the field. 
Nevertheless, the preceding two-page article onl y includes two sentences mentioning the petitioner 
and instead focuses on her supervisor_ 
Counsel further argues that the director disregarded the citation evidence and letters of support 
submitted by the petitioner. In this case, at the time of filing, there was nol already an 
established pattern of frequent citation of the petitioner's work. Thus, even if the petitioner had 
documented a significant later pattern of citation, which we do not concede here, this would not 
establish that she was eligible for a national interest waiver at the time of filing. We note that 
citations are not the only means by which to show the petitioner's impact on her field. 
Independent witness letters can playa significant role in this respect. Here, however, the 
petitioner has submitted only a few such letters, which collectively fail to establish the depth or 
extent of her influence on the field as whole. Simply listing the petitioner's novel findings 
cannot suffice in this regard, because all graduate students and postdoctoral researchers are 
arguably expected to produce original work. 
The opinions of experts in the field arc not without weight and have been considered above. 
USCIS may, in its discretion, usc as advisory opinions statements submitted as expert testimony. 
See Matter o(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; USCIS may evaluate the content of those letters as to 
whether they support the alien's eligibility. See id. at 795-796; see also Maller o( 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"). Thus, the content of the experts' statements and how they became aware of the 
petitioner's reputation arc important considerations. Even when written by independent expcrts. 
Page 9 
letters solicited by an alien in support of an immigration petition are of less weight than 
preexisting, independent evidence that one would expect of virology researcher who has 
influenced the field as a whole. 
While petitioner has contributed to research projects at AS U, she has not established that her past 
record of achievement is at a level that would justify a waiver of the job offer requirement which, 
by law, normally attaches to the visa classification sought by the petitioner. We note that the 
petitioner need not demonstrate notoriety on the scale of national acclaim, but the national 
interest waiver contemplates that her influence be national in scope. NYSDOT, 22 I&N Dec. at 
2 I 7 n.3. More specifically, the petitioner "must clearly present a significant benefit to the field 
of endeavor." ld. at 218. See also id. at 219 n.6 (the alien must have "a past history of 
demonstrable achievement with some degree of influence on the field as a whole.") 
Finally, we note that on the Form 1·140, Immigrant Petition for Alien Worker. the petitioner 
failed to provide any information in Part 6, "Basic information about the proposed employment." 
Part 15 of the petitioner's Form ETA·750B, Statement of Qualifications of Alien, identifies the 
petitioner's employer as a "Life Science merchant banking" business where 
she has worked since July 2007. I The description of duties at Part IS states: "Intern as a 
research analyst for the life science industry, analyzing biopharrnaceutical industry. scientific 
diligence spanning all major therapeutic areas, drug market competitive analysis." As previously 
discussed, the petitioner's past record must justify projections of future benefit to the national 
interest. NYSDOT, 22 I&N Dec. at 219. In the present matter. the petitioner has not established 
that she seeks to continuing working in the U.S. as a virology researcher specializing in the 
coronavirus. USCIS can infer future national impact from past impact in one's field, but onl y if 
the alien continues working in the same area of research. As the intends to intern as a 
biopharmaceutical industry research analyst for it is not clear that her past 
research on the coronavirus is particularly indicative of her ability to benefit the national interest 
through her analytical work for a life sciences merchant bank. Moreover, the petitioner's 
research in the area that she intends to pursue is not documented to 
have been notably influential. Although the petitioner has worked for from 
July 2007 to the petition's February 28, 2008 filing date, there is no evidence of her specific 
research accomplishments for the company during that period. 
I The company's website states: is a life sciences merchant bank focused exclusively on 
companies involved in biotechnology, pharmaceuticals, diagnostics, devices, human healthcare and related medical 
technologies, nutraceuticals and wellness. agricultural biotechnology. and industrial biotechnology 
(biomaterials/bioprocesses) with uver $950 million under management. technical and venture investing 
competence spans the entire spectrum of life sciences. The expertise of the firm's investment team, strategic partners 
and Advisory Boards is unparalleled in depth and breadth. In addition, _is a leader in life science strategic 
partnering. an invaluable practice to build vulue in portfolio companies and to uccelerate their growth and 
development." See htlp:llvvww.burrillandcn.comJahoul hurriIJ.htm[. accessed on February 18, 2011, copy 
incorporated into the record of proceeding 
Page 10 
As is clear from a plain reading of the statute, it was not the intent of Congress that every alien of 
exceptional ability 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 occupation, 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, 
S U .S.c. § 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.