dismissed EB-2 NIW Case: Molecular Biology

U.S. Department of Homeland Security 
20 Mass. Ave.. N.W.. Rm. A3042 
Washington. DC 20529 
U.S. Citizenship 
and Immigration 
FILE: EAC 03 028 52244 Office: VERMONT SERVICE CENTER Date: 
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 
cided your case. Any further inquiry must be made to that office. 
Administrative Appeals Office 
EAC 03 028 52244 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Vermont Service 
Center, and is now before the Administrative Appeals Ofice (AAO) on appeal. The appeal will be dismissed. 
The petitioner seeks classification pursuant to section 203(b)(2) of the lmmigration and Nationality Act (the Act), 
8 U.S.C. 3 1153(b)(2), as a member of the professions holding an advanced degree. The petitioner seeks 
employment as a researcher in molecular biology. At the time of filing, the petitioner was a postdoctoral 
researcher at Cornell University. 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. 
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. 
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, 
I0 1 st Cong., 1 st Sess., 1 1 (1 989). 
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 "exceptional."] The 
EAC 03 028 52244 
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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. 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 with no demonstrable prior achievements, 
and whose benefit to the national interest would thus be entirely speculative. 
In a letter submitted with the initial filing, counsel states that the petitioner "is responsible for a radical 
breakthrough in the understanding of the transcription process of the HIV virus, and has made significant 
headway into the understanding of inherited diseases and the use of gene therapy to combat the adverse 
effects of inherited diseases." Counsel contends that the petitioner "had pioneered research that had changed 
the entire field of molecular biology's view of the transcription of HIV." 
irector of research at the Ecole Normale SupPrieure in Paris, supervised the petitioner's 
research at that ~nstitution. He states that the petitioner "has made an extremely original pioneering 
research field. She found a new mechanism involved in HIV transcription." 
an associate professor who oversaw the beneficiary's postdoctoral work at the 
edical Center, states: "Our current understanding of the activation of the HIV-I 
promoter-gene owes much to the work of' the beneficiary. The petitionerworked with HIV as a graduate 
student in France, but her subsequent work has not involved HIV. 
wnstitute for Animal Health at Cornell University's College of 
Veterinary Medicine has "worked closely with [the petitioner] since February, 2002." He states that the 
petitioner's "research focuses on the gene expression pattern that characterizes the sick and dying 
photoreceptor cells. . . . I feel that [the petitioner's] efforts and contributions have had a substantial impact on 
her colleagues and field of endeavor at the national and international level." Others who have collaborated 
with the petitioner offer similar endorsements, and observe that the petitioner's work has appeared in major 
scholarly journals. 
To establish the impact of these published articles, the petitioner submits copies of two articles that cite her 
work. (Cou re three such articles, but the record contains only two.) One of these is a 
self-citation who collaborated with the petitioner on the cited article. 
The director denied the petition, observing that all of the witnesses are the petitioner's collaborators, mentors. 
and/or acquaintances, and that the petitioner had documented only a minimal citation record for her published 
work. Therefore, the director concluded, the petitioner had not established that her work has had a significant 
impact beyond the research groups where she has worked. The director also concluded that the petitioner has 
not shown that her work is national in scope. 
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On appeal, counsel states that the director erred by failing to issue a request for evidence pursuant to 8 C.F.R. 
$ 103.2(b)(8). Counsel correctly asserts that such a notice is required when the petitioner has submitted 
insufficient evidence of eligibility, and the record contains no evidence of ineligibility. The most expedient 
remedy for this shortcoming is to consider, on appeal, whatever evidence the petitioner would have submitted 
in response to such a notice had the director issued one. 
We concur with counsel's assertion that the director erred in finding that the petitioner's work is not national 
in scope. The petitioner conducts scientific research and publishes the results of such research in nationally or 
internationally circulated journals. There is nothing inherently local about the petitioner's work. 
With respect to the originally submitted witness letters, counsel states: "While some of the letters were from 
scientists with whom [the petitioner] has worked, others were from scientists who simply are familiar with her 
work." Counsel fails to identify any witness who falls into the latter category. Our review of the record 
indicates that every one of the witnesses has interacted with the petitioner either as her supervisor or 
of the institutions where she has worked. Counsel notes that one 
witness f the University of California, Davis, "collaborated 
or co-author on any of her publications." 
describes his collaboration with the petitioner as "limited." Rather, he states that 
petitioner] on several projects" in 1997 and again in 1999. He does not indicate that he was already aware of 
the petitioner by reputation when he began this collaboration. Counsel fails to provide a persuasive 
explanation as to why this individual who "collaborated with [the petitioner] on several projects" is not one of 
the petitioner's collaborators. 
"knows of [the petitioner's] work only 
because she Given that the petitioner works at Cornell 
University, this assertion appears to be dubious. hire the petitioner for the position; she 
another laboratory. 
Counsel is correct to argue that a petition should not automatically be denied simply because all of the 
witnesses have some connection to the alien. That being said, we must consider the extent to which the 
record objectively supports the claims that the witnesses make on the alien's behalf. When several of the 
petitioner's collaborators assert that the petitioner's work has had significant influence throughout thefield, as 
is the case here, then it is entirely reasonable to expect there to be corroborating evidence that represents a 
cross-section of the field. If there is no evidence to show this influence outside the petitioner's own circle of 
collaborators and supervisors, then we are not obliged to give substantial credence to claims regarding such 
influence. 
Counsel cites an unpublished AAO decision in which "[tlhe only evidence discussed by the AAO were [sic] 
the several letters of support submitted. The AAO found these letters to be persuasive because the letters 
came from experts at the top of the petitioner's field, were specific about the petitioner's contributions, and 
stressed the impact of the petitioner's discoveries." Counsel then submits copies of four different AAO 
decisions, and therefore it is not clear which article is the subject of comparison. (Counsel states that the cited 
decision is dated January 9, 2004; but two of the decisions show that date, and on the other two, the date is 
illegible; therefore, identifying the cited decision only by date is of no value.) In one decision, the AAO 
discussed the witness letters and then stated: "Other materials in the record [i.e., materials other than letters] 
support the contention that the petitioner is well known . . . as a highly regarded expert in his field." The alien 
in that case also held "leadership roles in national and international organizations." In contrast, the petitioner 
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in the instant case has worked only as a graduate student and as a postdoctoral researcher, which is the lowest 
non-student rung on the academic research hierarchy. 
The second submitted decision mentions a letter from an independent witness who is a member of the 
National Academy of Sciences. The decision also noted specific projects in which the alien's work had been 
implemented (as opposed to vague and general attestations of "impact" or "influence"). In the third submitted 
decision, the AAO found "the petitioner has earned a significant reputation outside of his immediate circle of 
mentors and collaborators, and that established experts in the field consider his work to be highly significant in 
establishing a theoretical framework upon which to build." The fourth case includes the observation that the 
petitioner had submitted "an independent letter and objective evidence," and that the petitioner's published 
work had "a consistent pattern of recognition in the research community." Counsel fails to demonstrate 
significant similarities between any of the four decisions and the present matter. 
Counsel argues that the director "ignored objective evidence of the importance of [the petitioner's] work." 
The published articles and conference presentations by the petitioner show that the petitioner has been 
productive, but these articles and presentations do not, by the mere fact of their existence, show that the 
petitioner's work has been of unusual importance within the field. A fundamental purpose of scientific 
research is to obtain new information for dissemination to others in the field, and publication and presentation 
are the two chief means by which this dissemination occurs. As we have already observed, the original 
submission established only two citations of the petitioner's work, one of which was a self-citation by a co- 
author. One independent citation does not demonstrate that the petitioner's work has attracted unusual notice 
among researchers other than the petitioner's mentors and collaborators. 
On appeal, the petitioner demonstrates additional independent citations of her work. Because these citations 
were never brought to the director's attention prior to the denial, the director did not "ignore" this evidence; it 
simply was not there to consider. The director's lack of awareness of evidence that the petitioner did not 
submit cannot reasonably be construed as error. The newly submitted evidence shows moderate citation of 
two of the petitioner's articles, relating to an avenue of inquiry that the petitioner appears no longer to be 
pursuing (having left HIV research to study genetic roots lung cancer and, subsequently, canine blindness). 
The record does not establish even this moderate level of impact for anything that the petitioner has done 
since she finished her graduate studies. Thus, the record does not establish a consistent pattern of research 
work that has attracted significant notice within the field. It simply cannot suffice for a succession of 
collaborators and former supervisors to discuss the petitioner's "immense influence" within the field without 
providing some objective means to verify that influence. 
Counsel also observes one. of the petitioner's former supervisors, has cited the 
petitioner's past work in e top journal Nuture. The petitioner was not involved in this 
article, any more than the hundred or so other re~ear~hers whose work is also cited in that same article. If we 
are to give the petitioner credit for articles she did not write, then logically we must also attribute the 
petitioner's own articles to the great number of researchers whose work is cited in those articles. 
Counsel states that the director "applied an incorrect standard from Matter of New York State Depf. of 
Trunsportation . . . in requiring that the record 'demonstrate that the beneficiary's achievements and skills are 
indicative of a prospective national benefit significantly greater than from an alien of exceptional ability."' 
This is not an incorrect standard; it appears at pages 216-2 17 of the precedent decision, which in turn quotes 
from supplementary information published with CIS regulations in 1991. (The relevant quotation from the 
supplementary information appears elsewhere in this decision.) The reasoning is that an alien of exceptional 
ability must, by statute, offer a substantial prospective benefit to the United States. Even then, such an alien 
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is not, by virtue of his or her exceptional ability, automatically exempt from the job offer requirement. 
Therefore, the alien must offer a substantial prospective benefit that is greater than the benefit inherent in the 
alien's exceptional ability. Because Congress never stated that a member of the professions holding an 
advanced degree is entitled to a lower standard for a waiver than an alien of exceptional ability is, it 
necessarily follows that every alien seeking a waiver must offer a substantial prospective benefit greater than 
what is usually demonstrated by an alien of exceptional ability.' 
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 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 ofthe Act, 8 U.S.C. 5 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. 
There exists a limited exception for certain physicians, set forth at section 203(b)(2)(B)(ii) of the Act, which is not 
relevant to the present discussion.