dismissed EB-2 NIW Case: Neurological Research

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U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office ofAdministrative Appeals MS 2090 
Washington. DC 20529-2090 
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U. S. Citizenship 
and Immigration 
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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. $ 1153(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 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 3 103.5 for 
the specific requirements. 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 $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 3 103.5(a)(l)(i). 
L(,M0? lh~bj 
r ''fohn F. Gnssom 
ru~cting Chief, Administrative Appeals Office 
DISCUSSION: The Director, Nebraska 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. 5 1153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner is a staff research associate at the University of California, Los Angeles (UCLA). The 
petitioner asserts that an exemption fiom 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 fiom 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. 
Section 203(b) of the Act states, in pertinent part: 
(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, 101 st Cong., 1st Sess., 1 1 (1989). 
Page 3 
Supplementary information to regulations implementing the Immigration Act of 1990 (IMMACT), 
published at 56 Fed. Reg. 60897, 60900 (November 29, 199 I), states: 
The Service [now U.S. Citizenship and Immigration Services] 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 (Cornmr. 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 hnges 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. 
We also note that the regulation at 8 C.F.R. 6 204.5(k)(2) defines "exceptional ability7' 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 offerllabor 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 petition on July 30, 2007. The petitioner performs neurological research using 
the snail species Aplysia californica. That species of snail is used as a model for studying learning and 
memory because the neural structure of its relatively simple brain has been completely mapped. 
Six witness letters accompanied the petition. One witness is the petitioner's former professor at 
Qingdao University in China; another witness's studies at Tongji Medical University overlapped with 
the petitioner's time there. Three of the remaining witnesses are on the UCLA faculty, and the final 
witness previously worked and studied in the same laboratories at UCLA where the petitioner has 
conducted his work. While the letters are not identically worded, they all share the same overall 
structure: (1) discussion of the witness's credentials; (2) explanation of the Aplysia model; (3) 
description, in technical detail, of the petitioner's work with sensitization, long-term facilitation, the 
effects of 5-HT, and changes in neuronal excitability and morphology caused by injury; (4) the assertion 
that the petitioner's work has important implications for the study of Alzheimer's disease and other 
disorders that affect learning and memory; (5) the assertion that the petitioner's work has had a 
significant impact on the field; and (6) the assertion that the petitioner intends to submit manuscripts to 
Nature Neuroscience, Science, and the Journal of Neuroscience (usually named in that order). Because 
the letters follow the same basic narrative, detailed discussion of each letter individually would be 
redundant. 
The petitioner submitted copies of one published article, and two manuscripts that the petitioner 
intended to submit for publication. The published article, from 2005, concerns the petitioner's earlier 
work in China with oral cancer. The petitioner did not claim or demonstrate that, as of the petition's 
filing date, he had published any journal articles relating to memory. Therefore, the petitioner's impact 
in the area of memory research would have been primarily through conference presentations. 
The witnesses asserted that the petitioner would soon submit manuscripts to Nature Neuroscience, 
Science, and the Journal of Neuroscience, and the witnesses noted the prestige of those journals. The 
intent to submit a manuscript to a prestigious journal does not automatically impart comparable prestige 
on the manuscript. As we shall discuss below, subsequent submissions establish that only one of those 
journals accepted the petitioner's articles for publication. 
On October 16, 2008, the director issued a request for evidence (WE), instructing the petitioner to 
submit evidence that other researchers have cited the petitioner's work in their published articles. In 
response, the petitioner asserted that his initial submission included "ample evidences'' of his "superior 
qualification." That initial submission included several letters from witnesses who asserted that the 
petitioner's work has earned international attention, but all of those witnesses have demonstrable ties to 
the petitioner. Their letters are not first-hand evidence of any reputation or impact extending beyond 
the institutions where the petitioner has worked or studied. An international reputation, by definition, 
extends beyond UCLA. 
The petitioner established the publication of two of his articles in, respectively, Current Biology and the 
Journal of Neurophysiology. The petitioner had previously submitted a manuscript entitled "The Role 
of Rapid, Local Postsynaptic Protein Synthesis in Learning in Aplysia," and indicated that he intended 
to submit that manuscript for publication in the journal Science. The manuscript was dated July 22, 
2007. The Current Biology article submitted in response to the WE bears the similar title "The Role of 
Rapid, Local, Postsynaptic Protein Synthesis in Learning-Related Synaptic Facilitation in Aplysia." The 
article was submitted for publication in September 2007, and accepted with revisions in October 2007. 
The published article appears to be a revision of the similarly-titled manuscript from July 2007. If the 
petitioner submitted the manuscript to Science, then it is clear that Science rejected the article and the 
petitioner re-submitted the manuscript to Current Biology instead. If, on the other hand, the petitioner 
never submitted the manuscript to Science, then numerous witnesses were incorrect when they stated 
that the petitioner would submit the manuscript to that journal. Either way, the outcome demonstrates 
that witnesses' assertions regarding the petitioner's intentions carry negligible weight; neither the 
witnesses nor the petitioner had any control over whether Science would accept the manuscript. 
The petitioner and witnesses had earlier mentioned a third manuscript, intended for Nature 
Neuroscience, but the petitioner did not submit that manuscript. The RFE response includes a second 
article that appeared in Current Biology in June 2008, but it is not clear whether this is the article 
originally intended for Nature Neuroscience. 
The manuscript that the petitioner intended to publish in the Journal of Neurophysiology did indeed 
appear, in revised form, in that journal. The journal received the manuscript in May 2008 and accepted 
it in October 2008. All three of the articles described above appeared after the petition's filing date. 
According to 8 C.F.R. 5 103.2(b)(l), the petitioner must establish eligibility as of the filing date. 
The petitioner noted that another manuscript had been "submitted to Journal of Neuroscience." For 
reasons made obvious by the record, the petitioner's predictions about where his articles will appear 
cany little weight. 
The petitioner submitted copies of various articles and online printouts which, he stated, established the 
reaction to his work. A "research highlight" fkom Nature Reviews Neuroscience summarized the 
findings in the petitioner's June 2008 Current Biology paper. Background information in the record 
indicates that "Research Highlights" are "short updates on new papers," and that Nature Reviews 
Neuroscience publishes "around 10 Research Highlights . . . each month." 
A June 2008 "Science News" article from Science Daily reported that "UCLA cellular neuroscientists 
are providing new insights into the mechanisms that underlie long-term memory." The record shows 
that article is a word-for-word copy of a press release issued by UCLA. 
The petitioner submitted a database printout identifying four citations of his 2007 Current Biology 
article. One was a self-citation by the petitioner, and another was a self-citation by a co-author, leaving 
two independent citations. One citation appeared in a 2008 article in Current Biology. The petitioner's 
2007 article is also one of 336 articles cited in a 2008 article in Behavioural Brain Research. 
The materials submitted in response to the RFE concern the field's reaction to the petitioner's published 
work, which did not exist until after the filing date. The petitioner did not submit any evidence to 
establish the international reputation that several witnesses claimed the petitioner had already earned 
before those publications appeared. 
The director denied the petition on December 1 1,2008. In the decision, the director acknowledged the 
intrinsic merit and national scope of the petitioner's occupation, but found that the petitioner had 
documented only minimal impact of his work. The director found the witness letters unpersuasive, and 
observed that the petitioner's published articles appeared after the petition's filing date. The director 
cited Matter of Katigbak, 14 I&N Dec. 45,49 (Regl. Commr. 1971)' which held that the beneficiary of 
Page 6 
an employment-based immigrant petition must be eligible for the requested benefit at the time of filing 
the petition, and therefore, subsequent events cannot cause a previously ineligible alien to become 
eligible after the filing date. 
On appeal, counsel asserts that Katigbak is not applicable because, while the citations and other articles 
appeared after the filing date, these materials relate to work that the petitioner had already performed 
prior to the filing date. Counsel states: "at the time of filing, the petitioner had already completed his 
experiment. The papers summarizing such experiment results had been submitted but not published, or 
had been published but not cited." Neither of these assertions is true in this case. When he first filed 
the petition, the petitioner submitted copies of manuscripts and stated his plans to submit them to 
various journals. The published articles show submission dates weeks or months after the filing date. 
There is some merit to the observation that the petitioner's work had already taken place as of the filing 
date, but a petitioner cannot complete an experiment and then immediately file a petition, before even 
submitting the results for publication, on the expectation that qualifying evidence will eventually come 
into existence. The petitioner has documented minimal independent citation of his work. Because all 
of these citations appeared after the filing date, the subsequent citations do not continue a pattern of 
influence that was already apparent at the time of filing. 
Numerous witnesses. in the initial submission. claimed that the ~etitioner's work had alreadv had an 
international impact7' even before its 
 stateithat the 
petitioner's "research contributions have been recognized internationally in hs field." The petitioner's 
supervisor, laimed that the petitioner "has received international 
recognition for his significant contributions to the field of learning and memory research." The initial 
submission, however, contained no evidence of this claimed international recognition. 
 Making 
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presentations at conferences is not international recognition. 
 Recognition may result from such 
presentations, depending on what is presented and how the field responds, but the presentation itself is 
not recognition, nor are the arrangements leading up to the presentation. 
Returning to the petitioner's response to the RFE, counsel lists and describes the various exhibits 
submitted at that time. Counsel, however, does not establish that this handhl of articles and citations 
amounts to an unusual level of attention given to the petitioner's work. Counsel seems to imply that the 
very existence of any such material is, on its face, sufficient to compel approval of the petition and 
waiver. We disagree. The threshold for the national interest waiver may be inherently difficult to 
quantify, but we will not hold that every researcher is eligible provided that his or her work is not totally 
ignored by the scientific community. 
It may be that the petitioner's work will attract more notice as time goes by, and the petitioner publishes 
and presents more of his results. At present, however, the response to the petitioner's work appears to 
be too sparse and preliminary to justifL a finding that he stands out fi-om his peers to such an extent that 
he warrants the special benefit of a national interest waiver. 
Page 7 
As is clear fiom 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. 5 1361. The petitioner has not sustained that burden. 
This decision 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.