dismissed EB-2 NIW Case: Molecular Biology

I 
 U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
5/ 
i - 2; 
IN RE: Petitioner: 
Beneficiary: 
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. 5 1 153(b)(2) 
ON BEHALF OF PETITIONER: 
/ : INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. AII documents have been returned to 
the office that originally decided your case. Any firther inquiry must be made to that office. 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office 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. 5 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 "senior fellow." As of the date of 
filing, the petition& was a postdoctoral researcher. 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 an alien of exceptional 
ability or a member of the professions holding an advanced degree, but that the petitioner had not 
established that an exemption fi-om the requirement of a job offer would be in the national interest of 
the United States. 
On appeal, counsel asserts that the evidence submitted is sufficient and that the precedent decision on 
this classification, Matter of New York State Dep 't of Transp., 22 I&N Dec. 2 15 (Comm. 1998), "is 
so ambiguous and vague that it results in decisions that are inconsistent, arbitrary and capricious." By 
law, the director does not have the discretion to reject published precedent. See 8 C.F.R. 5 103.3(c), 
which indicates that precedent decisions are binding on all Citizenship and Immigration Services 
(CIS) officers. To date, neither congress' nor any other competent authority has overturned the 
precedent decision, and counsel's disagreement with that decision does not invalidate or overturn it. 
In fact, one federal court has upheld Matter of New York State Dep 't of Transp., 22 I&N Dec. at 21 5, 
as a valid precedent. Talwar v. INS, No. 00 CIV. 1166 JSM, 2001 WL 767018 (S.D.N.Y. July 9, 
2001). Counsel's specific assertions will be addressed below. 
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. 
1 
 Congress has amended the Act to facilitate waivers for certain physicians. This amendment demonstrates 
Congress' willingness to modify the national interest waiver statute in.response to Matter of New York State 
Dept. of Transportation; the narrow focus of the amendment implies (if only by omission) that Congress, thus 
far, has seen no need to modify the statute further in response to the precedent decision. 
(B) Waiver of Job Offer. 
(i) . . . the Attorney General may, when the Attorney General deems it to 
be in the national interest, waive the requirement 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 holds a Ph.D. degree in Molecular Biology Genetics from Wayne State University. The 
petitioner's occupation falls within the pertinent regulatory definition of a profession. The petitioner 
thus qualifies as a member of the professions holding an advanced degree. The remaining issue 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 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, 101 st Cong., 1 st Sess., 1 1 (1 989). 
Supplementary information to the regulations implementing the Immigration Act of 1 990 (IMMACT), 
published at 56 Fed. Reg. 60897,60900 (November 29, 1991), states: 
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 quali@ 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 Tramp., 22 I&N Dec. 2 15 (Comm. 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 
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with no demonstrable prior achievements, and whose benefit to the national interest would thus be 
entirely speculative. 
We concur with the director that the petitioner works in an area of intrinsic merit, molecular biology 
and genetics, and that the proposed benefits of his work, improved anti-viral agents, 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 qualifications rather than with the position 
sought. In 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 qualifl for a national interest waiver. 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. 
We disagree with counsel that this inquiry is too vague and subject to abuse. To demonstrate that the 
waiver of the labor certification requirement is warranted in the national interest, a petitioner must 
demonstrate a past history of achievement with some degree of influence on the field as a whole. Id. 
at 2 19, n. 6. 
his Ph.D. from Wayne State University in December 1999. ~r.= 
e petitioner's advisor at Wayne State University, discusses the petitioner's research at 
that institution. Specifically, the petitioner "helped to develop and employed a novel genetic system for 
analysis of ribosomal RC funciion 
 as become the leading technology for analysis of 
ribosomal RNA function in vivo." 
 erts that the five articles he coauthored with the 
petitioner are "held up" until patent 
 e. The record, however, lacks letters fi-om other 
laboratories confirming their use of the model,-which would be expected if it is the 'leading 
technology" for this type of analysis as claimed. 
Biochemistry at the University of Washington in Seattle and the petitioner accompanied him, 
continuing as a postdoctoral researcher. In response to the director's inquiry as to whether the 
petitioner had received professional recognition in the field, Dr serts that the petitioner's 
selection for two postdoctoral positions is evidence of the petitioner s contributions and distinction. 
The Association of American Universities' Committee on Postdoctoral Education, on page 5 of its 
Report and Recommendations, March 3 1, 1998, set forth its recommended definition of a postdoctoral 
appointment. Among the factors included in this definition is the acknowledgement that "the 
appointment is viewed as preparatory for a full-time academic andlor research career." (Emphasis 
added.) While serving in a postdoctoral position does not preclude eligibility, selection for an entry- 
level position and remaining at that level, even with a prestigious university, is not in and of itself 
persuasive evidence of the significance of the petitioner's influence in the field. At issue are the 
petitioner's accomplishments while in that position. 
praises the petitioner's abilities and compares him favorably with others in the field. Dr. 
also discusses the importance of the petitioner's area of research. 
 Regarding specific 
accomplishments, however, 
 states oily that the petitioner's "experiments are providing 
valuable information that will facilitate the design of new antiviral drugs based on nucleotide analogs." 
Dr. another professor at Yale, explains that nucleotide analogs are the most effective 
treatment for viral diseases such as AIDS, herpes and hepatitis. He then asserts that the petitioner has 
shed light on how nucleotide analogs interact with the TRNA nucleotidyltransferase, which "will" 
provide the foundation for the development of novel nucleotide analogs for use as drugs. 
~r-a principal investigator at the National Cancer Institute, provides somewhat more 
detail. %le counsel characterizes Dr. 
Y1 
s an independent reference, hs Curriculum Vitae 
shows that he was a postdoctoral researcher at a e, in the same 
 t as the petitioner. His time 
at Yale overlapped with the petitioner's by several months. Dr 
 serts that the petitioner has 
investigated the use of nucleotides by the CCA-adding enzyme and the use of U2 small nuclear RNA as 
a substrate for the CCA-enzyme. The petitioner has also identified a single catalytically active subunit 
of the CCA-adding enzyme-and collaborated on the crystal structure of the CCA-adding enzyme. Dr. 
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does not, however, provide any examples of this work being applied by other research teams. 
The rernainin~ letters are fi-om more independent references. Dr, a professor at the 
College of Medicine and Secretary of the Genetic Society of 
America, asserts that she is familiar with the petitioner's work because it is within her area of expertise. 
She states that the petitioner has made ''major contributions to understanding how the CC~iaddin~ 
enzyme can enerate a defined sequence of nucleotides without a template. As an example of this 
work, Dr. *asserts that the petitioner "proved that a single active site on the enzyme is 
responsible for addition of both C and A nucleotides." This work and a collaboration with the "famous 
laboratory headed by Dr. emonstrated "a new view of how an enzyme active site can 
m- the implications of the work are vast!" As a result of this 
asserts that an important question is now "close to a theoretical solution, paving the 
~rxecutive Oficer of the RNA Society, asserts that he knows of the petitioner's work 
through its publication in the society's journal and other journals. Dr. sserts that the petitioner is 
"providing a continuing and critical series of fundamental contributions to the field of RNA research 
and our understanding of the structure, function, and origins of DNA and RNA polyrnerases," which 
are targets for anti-cancer, anti-viral and other pharmaceutical agents. ~r. concludes that the 
petitioner's work "is completely unique in this field, taking a perspective that no other researcher has 
been able to take on the most fundamental properties of these critical biological molecules." 
While the independent reference letters are favorable, they provide no examples of how the petitioner 
has already had some degree of influence on the field as a whole. The record lacks letters fi-om high- 
level officials at pharmaceutical companies expressing interest in the petitioner's work. 
Several of the petitioner's references discuss the significance of the petition&'s publication record. Dr. 
notes that the petitioner is "first author" of articles published in the.prestigious Journal of 
a1 Chemistry and RNA and that he coauthored an article in Cell, "arguably the most prestigious 
scientific journal worldwide." In general, we will not presume the significance of an article solely from 
the prestige of the journal in which it appears. Rather, the cont 
 ber of citations can serve as 
more probative evidence of the article's significance. While Dr 
 asserts that the first author "is 
generally the key person in conducting the experiments and preparing the work for publication," the 
petitioner's first-authored articles had only been cited two and three times by independent research 
groups. These numbers are not significant. 
The petitioner's-article in Cell had been cited 17 times as of the date of filing. As acknowledged by Dr. 
of this article. 
 Moreover, it appears that Dr. 
this work. 
 Finally, the petitioner has not 
published in Cell. While many of the citations 
are favorable 
 that none of the papers on the structures of the 
icle in Cell, have "satisfactorily resolved the key 
questions." Rather, the article references a subsequent article by Dr. n Nature, which the 
petitioner did not coauthor, as one of two articles that "zero in on the problem with the needed 
structures of ternary complexes of enzyme, RNA and nucleotide." 
While the petitioner's research 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 receive funding and attention from the 
scientific community. Any Ph.D. thesis or postdoctoral research, in order to be accepted for 
graduation, publication or fbnding, 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. 
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 fiom 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 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. § 136 1. The petitioner has not sustained that burden. 
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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.