dismissed EB-2 NIW Case: Molecular And Cell Biology

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COpy 
DATE: 
JUL 
OFFICE: TEXAS SERVICE CENTER 
23 2012 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigratiun Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 209(} 
Washington, DC 20529-209{) 
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. § 1153(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 AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form 1-290B, Notice of Appeal or Motion, with a fcc of $630. The 
specific requirements for filing such a motion can he found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please he aware that 8 C.F.R. § 103.5(a)(I)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
\\l~(1~ 
) Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
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 Immigration and Nationality Act 
(the Act), 8 U.S.c. § 1153(b)(2), as a member of the professions holding an advanced At the 
time he filed the the petitioner was a postdoctoral research associate at 
The petitioner asserts that an exemption from the 
offer, and thus of a labor 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 from counsel and a new witness letter. 
Section 203(b) of the Act states, in pertinent part: 
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Al iens 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. 
(8) 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, IOlst Cong., 1st Sess., 11 (1989). 
Page 3 
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 (USerS)] 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, the petitioner must show that the alien seeks employment in an area of substantial 
intrinsic merit. Next, the petitioner must show 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. 
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. 
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 October 29, 2010. In a 54-page introductory 
memorandum, counsel described the petitioner's work, focusing on the Shiga toxin produced by 
bacteria such as E. coli 0157:H7: 
petitioner's 1 main research areas are treatments 
disorder and bacterial toxin .... He is one of [the] rare scientists who can perform 
Page 4 
interdisciplinary researches by using cutting-edge research techniques in molecular 
and cell biology blood researches and genetics .... 
[The petitioner] has made seminal findings on the toxin-induced stress which affects 
various signaling pathways underlying programmed cell death and survival in human 
myelogenous leukemia cells undergoing maturation. Especially, [the petitioner] is 
one of the exporters [sic] in the field of_ in human cells induced by_ 
toxins. He has shown that _ toxins induce autophagy in cells that are sensitive to 
toxin-mediated killing and in cells that are resistant to killing. From his research 
results, it is anticipated to provide better ways to stop human tissue damages without 
side effect in those who have intestinal infection by the bacterial toxin, such as kidney 
failure, bloody diarrhea and gut damages. Moreover, his researches could provide 
key understandings about NDM-l gene which makes some bacteria resistant to 
almost all standard antibiotics and its treatment, so called super bacteria. 
Counsel stated that the petitioner's research accomplishments include "[ c ]haracterization of potential 
targets for development of novel interventional therapies against. toxin-induced diseases" and 
"[s]uccessfully, visualizing movement of the toxin-responsive target molecules into human cells 
with fluorescen[t] chemical dyes, indicating that human cells have survival mechanisms against 
pathogen attack." Counsel stated that the petitioner is researching ways of fighting bacterial 
infections without the use of antibiotics, to fight antibiotic-resistant strains of pathogens. 
Counsel asserted that the labor certification process could result i~ of the petitioner's 
work. In this vein, the AAO notes that the of_ February 22, 2010 
job offer letter to the petitioner, offering him position "for the period May 24, 20 I 0 
through May 31, 2011." The letter did not any provisions for extending this 53-week term 
(but did indicate that it could end earlier without cause). As the AAO will further explain later in 
this decision, USCIS records show that the petitioner left_before the end of that defined 
period. He later returned to_ around November 2011, but left a second time, around 
February 2012. 
The petitioner submitted copies of four published articles and a proof copy of a fifth article, accepted 
for publication but not yet published. Counsel stated: "His contributions to the scientific area can be 
evidenced by the citations of her [sic] papers by other scientists and many recommenders' 
recommendations." The petitioner submitted materials to show 45 citations of five articles, 28 of 
them independent (the balance being self-citations by the petitioner and/or his collaborators). 
Six witness letters accompanied the initial filing of the petition. Four of the witnesses are on the 
faculties of universities where the petitioner has trained and studied. teaches at 
where the petitioner earned his and 
cell biology. credited the petitioner with "significant contributions in his research field" 
and "excellent research achievement[ s]." Dr. _ who teaches chemistry and physics and whose 
past experience involves nanotechnology and semiconductors, claims no training, experience or 
Page 5 
expertise in biology. Therefore, it is not clear what authority Dr._has when describing the 
significance of the petitioner's work. The remaining witnesses have stronger claims to expertise and 
authority when describing and evaluating the petitioner's work. 
who supervised the petitioner's doctoral studies and 
subsequent postdoctoral training, stated: 
[I]t is quite likely that [the petitioner's] work will identify novel targets for the 
development of therapeutic approaches to treat or prevent diseases caused by_ 
toxin-producing bacteria .... There currently are no effective therapeutic agents or 
vaccines to treat or prevent disease caused by _ toxin-producing organisms. 
Thus, the characterization of any signaling pathway activated by_ toxins leading 
to cell death represents an important potential target for drug development. 
stated that the petitioner's "work was of exceptionally high 
quality and provides valuable insights on the subject of microbial infectious diseases." 
asserted that the petitioner "has made many outstanding 
contributions to toxicological research in general, and to elucidating pathogenesis mechanisms 
associated with_toxin." 
pel1tIOner a strong interdisciplinary researcher 
microbiology, infectious disease, and cellular biology," and stated: 
Because of his extraordinary skills and diligence, [the petitioner] has performed 
innovative and cutting-edge research on the mechanism by which the _ toxin 
induces host cell death including human and animal cells. His research is directed 
toward development of novel approaches to prevent inflammation and cell death upon 
exposure to _toxin. His work has direct and important clinical relevance. 
advanced the field of the Sickle cell anemia researches," 
remarkable contributions" "as a doctoral student" 
that the petitioner "continued to make 
Specifically, his research has pointed to the discovery of a novel balancing 
mechanism for bacterial toxin-caused cell death or inflammatory responses in which 
the_ toxins elicit a balanced pro- and anti-inflammatory or death or survival 
response with the long term goal of manipulating the host response to the toxin. His 
work in defining the role of survival factors and regulators such as Bcl-2, Death 
Receptor proteins in human cellular death by the toxin is very important because 
these are key target proteins to manipulate the immune response in human organs and 
Page 6 
disrupt toxic action of bacterial toxin when human cells become intoxicated by 
pathogenic infection. 
On April 15, 2011, the director issued a request for evidence (RFE), instructing the petitioner to 
"establish ... a past record of specific prior achievement with some degree of influence on [his] 
field as a whole." In response, the petitioner submitted further witness letters and updated 
information about the petitioner's publications aud citations thereof. Counsel maintained that the 
petitioner "played key and pivotal role in his researches" (sic). 
The updated citation information showed 66 citations of four articles, with the two most-cited 
articles showing 29 and 25 citations, respectively. The petitioner identified the articles that cited 
three of the four articles. At least 15 of the documented citations are self-citations. The article for 
which the petitioner did not identify the citing articles is one that, in the first submission, showed 
only self-citations. 
Eight of the submitted letters are from researchers who have cited the petitioner's articles in their 
. work. The witnesses offered varying levels of praise for the work. of 
stated: 'The study is well addressed to novel 
molecular mechanism of the shiga toxin" and "was well arranged for the scientific novelty in the 
ribotoxic stress responses." 
stated 
that the petitioner's article "reported findings that we felt were of or to tield. 
[The petitioner] was co-first author on this paper indicating at he provided significant contributions 
to the work." 
important to 
pathway in the lethal mechauism of Shiga toxin." 
called the petitioner's work "an 
a critical cellular stress signalling 
stated: "We 
considered the petitioner's finding] as one of our theoretical basis [sic] in the study of MPM." 
called the petitioner's article "a very 
of_ toxin." 
that the petitioner's article "has contributed much 
to the understanding of the endoplasmic reticulum stress induced by Shiga toxin I 
(Stxl) ... , and to innovate the new concept of cell death caused by Stxl with C/EBP homologous 
protein (CHOP)-death receptor 5 (DRS) signaling pathways in THP-I cells." 
stated that "excellent research 
findings, such as [the petitioner's] are expected to become the basis for ... new treatments and 
preventive procedures. [The petitioner's] research has been considered as the major important 
advance in the field of biomedical sciences." 
stated that the petitioner's "article 
... represents an outstanding piece of work and was extremely helpful for me .... Moreover, this 
article ... represents a milestone in better understanding the molecular mechanisms that underlie 
Stx-mediated interaction with cells of the immune system." 
staff fellow at the Food and Drug Administration, credi~titioner with 
mnovative ideas, which no one before him has attempted." Dr. _ asserted that 
the petitioner's "expertise ... has been absolutely crucial in providing an understanding of' the 
various subjects that the petitioner has researched. 
The remaining three letters are from prior witnesses. New letters from 
repeated large sections of their previous letters, adding new passages to emphasize the importance of 
the work that the petitioner performed at the universities where he studied and trained. 
__ stated that the petitioner "was responsible for the 
experiments, and for writing the manuscripts" of several articles. 
have been able to complete the specific aims of my NIH grant 
[petitioner's] efforts." 
for carrying out the 
",,;et1ted: "I would not 
it not been for the 
The director denied the petition on June 24, 2011, acknowledging the overall importance of the 
petitioner's area of expertise, but stating that the petitioner had not set himself apart from his peers. 
The director noted that, as of the denial date, the petitioner held H-IB nonimmigrant status 
permitting him to work for his employer until March 31, 2014. 
On appeal, the petitioner submits a new letter from Prof. _ who states that the director 
misconstrued his earlier letters and other evidence in the recmnd that the labor certification 
process cannot adequately accommodate the petitioner's highly specialized qualifications. In an 
appellate brief, counsel contends that the director did not give sufficient weight to the evidence in 
the record. 
Counsel asserts that the director's mention of the petitioner's nonimmigrant status is irrelevant, 
because it gives the petitioner only temporary permission to work in the United States. The point of 
the director's observation was that, given that status, the petitioner could work without interruption 
while the Department of Labor processed an application for labor certification. This observation 
was relevant because witnesses had stressed that the petitioner should receive a waiver in order to 
avoid an interruption in his employment. 
Page 8 
This emphasis on ensuring the continuity of the petitioner's work is relevant to the next development 
in the proceeding. The AAO, in found that the left_ 
in early 2011 in order to work for the 
Thus, by the time the petitioner filed the appeal in July 2011, the petitioner 
_ even as his attorney contended that the petitioner's work was too important to interrupt. 
USCIS records further showed that, alth~ petitioner received H-1B nonimmigrant status to 
work for_ for three years, he left_ on October 19, 2011, after about six months. He 
then returned to_, but again left that employer on or before March 1, 2012, before his 
nonimmigrant status expired. 
On May 30, 2012, the AAO issued a notice to the petitioner and to counsel, noting that the petitioner 
had apparently left three research positions (two at _ and one at _ for reasons 
unrelated to immigration issues. The AAO stated: 
The AAO can find no record of~uent petition from any other employer. The 
evidence shows that you left _ twice since filing your petition, and left 
_ with several years remaining on your H-1B nonimmigrant status. This 
information casts doubt on your ability and/or intention to continue performing medical 
research in the United States. Because your original waiver claim rested heavily on the 
claim that _ can ill afford to lose your services, your premature and 
unexplained departure from _ has clear consequences for the AAO's 
consideration of your appeal. 
There is no evidence that you still intend, or are able, to engage in scientific research in 
the United States. For this reason, the AAO intends to dismiss your appeal. 
The AAO allowed the petitioner an opportunity to submit further evidence to establish that he continues 
to work as a researcher. The record contains no response from the petitioner or from counsel, and no 
evidence that the United States Postal Service was unable to deliver either copy of the AAO's notice. 
The petitioner's failure to respond to this notice is, itself, further grounds for denial of the petition and, 
thus, dismissal of the appeal. See 8 C.F.R. §§ 103.2(b )(13) and (14). 
The AAO acknowledges that the petitioner seeks a waiver of the job offer requirement, which includes 
specific evidentiary demands involving factors such as labor certification and the intending employer'S 
ability to provide compensation. Seeking a waiver of the job offer requirement, however, does not 
completely absolve the petitioner of any responsibility to show that he will be employed in the United 
States. If the petitioner is, as claimed, a highly inflnential researcher whose work has attracted 
considerable attention, then it is reasonable to expect some demand for his services. The petitioner has 
not shown that such demand exists, nor has he explained the premature termination of his earlier 
research appointments. As such, the petitioner has not rebutted the AAO's concerns about his intention 
and/or ability to continue his research career in the United States. 
Page 9 
The petitioner has documented some past research contributions of note. Prospective national benefit, 
however, rests on future effort~ rather than on past achievements. Absent evidence to show that that the 
petitioner will continue to work in the field, and that employers are willing to employ him, 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, 
S U.S.c. § 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.