dismissed EB-2 NIW Case: Neurophysiology

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preventclearly unwarr~tec1
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"'UBLICCoPY.' ,
U.S. Department of Homeland Security
20 Mass. Ave., NW., Rm. 3000
Washington, DC 20529
u.S. Citizenship'
.and Immigration
Services
. FILE:
LIN 0527051619
Office: NEBRASKA SERVICE CENTER MA'l' fl' 4 2"7-Date: '
INRE: Petitioner:
Beneficiary:
PETITION: Immigrant Petition (or 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. §J 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
the office that originally decided y~>ur case. Any further inquiry must be made to that office.
)/JuJdl)-UJdy,~
;1: . Robert P. Wiemann, Chief
T1I Administrative Appeals Offi~e
"
www.uscis.gov
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. § 1153(b)(2), as an alien of exceptional abiiity or a member of the professions
holding,an advanced degree. The petitioner is a postdoctoral researcher. The petitioner asserts that an
,exemption from the requirement of a job offer, and thus of an alien employment certification, is in the
national interest· of the United" States. The director, found that the petitioner qualifies for the
.classificationsought, but that the petitioner had not established that an exemption from the requirement
of a job offerwould be in the national interest oHhe,united States.
, , '
. , .
On appeal, counsel submits a brief, asserting in general that the director failed to con~ider the letters
from purportedly,independent references. For the reasons discussed below, we uphold the director's
'decision. ' ,
Section 203(b) ofthe Act state~ 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 immigrant~ who are
menibersof the prOfessions holding, advanced degrees or their 'equivalent or-who
, because of their exceptional ability in the sciences, arts, or business, will substantially
benefit prosp~ctively the national economy, cultural or educational interests,or welfare
, of the United States, and whose services inihe sciences, arts, professions, or business
, are sought by an employer in the United States. .' '
(B) Waiver of Job ·Offer.
. ..' . .
(i) ... th~ Atto'mey 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. i~ Ne~rophysiology from ' The
petitioner's occupation falls within the pertinent regulatory definition of a profession. The petitioner
thus qualifies as a memh,er.of the professiqns holding an advanced degree. The remaining issue is
whether the petitioner has estabiished that a waiver of the job offer requirement, and thus an alien
employment certification, is in the national interest. ' ,
Page 3
Neither the statute nor pertinent regulations define the tenn "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, 101st Cong., 1st Sess., 11 (1989).
Supplementary infonnation to the regulations implementing the hnmigration Act of 1990 (IMMACT),
published at 56 Fed. Reg. 60897,60900 (November 29, 1991), states:
The Servi«e 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 willrest
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 Transp., 22 I&N Dec. 215 (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
~hown 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 tenn "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 concur with the director that the petitioner works in an area of intrinsic merit, neurophysiology,
and that the proposed benefits of, her work, improved, understanding and treatment of deafuess,
would be national in scope. It remains, then, to detennine whether the petitioner will benefit the
national interest to a greater extent· th~m 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 word~, 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. '
Matter ofNew York State Dep 't of Transp., 22 I&N Dec. at 218. Moreover, it cannot suffice to state
that the alien posses~es useful skills, or a "upique background." Special or unusual knowledge or
Page 4
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. Id. 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 thy visa
classification she 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. !d. 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.,.casebasis. !d. at 221, n. 7.
The director acknowledged the submission of reference letters, but concluded that they were not
sufficiently corroborated in the record, such as by evidence that the petitioner was frequently cited..
On appeal, counsel. asserts that the director erred in dismissing the opinions .of ~everal references
purported to be independent. .
We will consider the letters below. At the outset, however, we acknowledge that Citizenship and
Immigration Services (CIS) may, in its discretion, ~se as advisory opinions statements submitted as
expert testimony. See Matter of Caron International, 19 I&N Dec. 791, 795 (Comm. 1988).
However, CIS 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; CIS may evaluate the content of those letters as to whether
they support the alien's eligibility. See id. at 795-796. CIS may even give less weight to an opinion
that is not corroborated, in accord with other information or is in any way questionable. Id. at 795;
See also Matter of Soffici, 22 I&N Dec. 158, 165 (Corom. 1998) (citing Matter of Trea~ure Craft of
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). .
In evaluating. the reference letters, we note that letters containing mere assertions of originality and
applicability are less persuasive than letters that provide specific examples of how .the petitioner has
already influenced the field. Regarding work that has yet to be published and, thus, disseminated in
the field, the petitioner bears a heavy burden in establishing that such work has already influenced
the field.. In addition, letters from truly independent references who were previously aware of the
petitioner through her reputation and who have applied her work are far more persuasive than letters
from references who are merely responding to a solicitation to review the petitioner:s curriculum
vitae and work and provide an opinion based solely on this review and the assertions of the
·petitioner's supervisor.
After receiving her Ph.D. from n1998, !he petitioner worked as a
. postdoctoral researcher under the'supervision of Professo~ at the Neuroscience Research
Institute in Beijing. In September ~ooo, the petitioner joined the laboratory ofDL at
the.University of Wisconsin-Madison. While the petitioner published one abstract reporting the results
of her work with Dr. b none of the petitioner's references' discuss this work. Thus, the
significance ofthat work is not established. As of the date of filing, the petitioner was working in the.
laboratory of Dr. at the same university. . '.
professo.sserts that while at '.. . . . the petitioner investigated
pain tolerance, demonstrating that CCK antagonists can enhance opioid actions and that vitamin B2 has
an analgesic effect. Professor_ asserts that the petitioner's work with vitamin B2 led to two
published papers and was recognized with a competitive award from Ji-Lin Province. The petitioner
submitted a 2004 certificate advising the petitioner that the results of a project on which she worked
"has been recognized as a scientific accomplishment in the Province of Ji-Lin." The certificate further
indicates that 'the project was conducted at the University of Ji-Lin, although the petitioner do~s not
claim to have worked at that institution. Moreover, the petitioner worked on this project from 1995
'through 1998. While Dr ' asserts that the petitioner's finding regarding vitamin B2 '''is now used
in the treatment of pain," the record lacks letters from clinics or hospitals relying on,the petitioner's
work in their pain management policies or evidence that the use of vitamin B2 has been·in~orporated
into govenlinent or other official pain management guidelines. .
In . Professor _ laboratory, the petitioner discovered that "substance P (SP)" enhances the
hyperpolarization-activated current (TIl) in treated dorsal root ganglion neurons and "could c'<;mtributeto
cutaneous pain and mechanical hyperalgesia during certain diseases and injuries of the spine."
Professor ~characterizesthis work .as "grouridbreaking" ,and asserts that it resulted in a research
grant whereby the petitioner was the principal investigator. While the record contains the grant, as
. noted by the director, research·funded by grants is the rule rather than the exception. This research
resulted in four published aitides and conference presentations: While Professor" asserts that this
work attracted wide attention in the field and has been highly regarded, the record lacks testimonials
from researchers who have been influenced by this work or evidence that it has be~nwell cited.
Significantly, this work was published several years before the petition was filed and has'been available
for perusal and citation. "
In joining Dr. .·laboratory, the petitioner shifted focus from pain management to hearing loss.
Dr. _ asserts that the petitioner "has been using electrophysiology to examine mice that suffer from
genetic deafuess," including testing whether synaptic transmission is altered in the absence of hearing.
Overall,Dr.lIIliiiIIII-.lpredicts that this work "wi111eadto improved use of cochlear implants." More
,specifically, Dr. ..asserts that the petitioner demonstrated that the synaptic current evoked by .
activity in the auditory .nerve is greater in jerkerdeaf mice than normal mice, a possible compensatory
mech;misrn. This work was presented at two conferences but had' yet to appear in a peer-reviewed
journa1. .
In addition, the petitioner's study of the behavior of the voltage-dependent ion channels that are the
basis of electrical activity in the brain led to two "major findings." ,
" .
Page 6
First, her work revealed that the .number of ion channels that mediates the
hyperpolarization-activated current is controlled dynamically in neurons and that it is
very.sensitive to changes in temperature~ This current c~ntrols the excitability of most
neurons as well as of heart and skeletal muscle cells and thus reveals how excitability is
controlled as environmental conditions vary. Second, she showed that to understand the
physiological function of ion channels it. is essential to study them at physiological
temperatures. She demonstrated for the first time that the macroscopic currents of cells
in the mammalian cochlear nucleus vary over the range of temperatures generally used
and that, becaust;: they respond differently to' changes· in temperature,·
electrophysiological properties of neurons are distorted at reduced temperatures.
This' work was both presented at a conference and published. While Dr. I asserts that the
significance of the petitioner's work is apparent from publication in a prestigious journal, we will not
presume the influence of a given article .from the prestige of the journal in which it appeared. Rather,;
the petitioner must demonstrate:the influence of the individual article.
Two other faculty menibers at the University of Wisconsin, Dr.
provide general praise ofthe,petitioner's work and assert that the petitioner's work is highly relevallt to
improving cochl~ar implants. They do not, however, provide any examples of the petitioner's work
influencing the work of other research teams. '
The petitioner does provide letters from researchers not currently at the 'University of Wisconsin..'
.While we will discuss.these letters, we note at the outset that the record lacks letters.from researchers .
. desigriing cochlear implants affirming their reliance on or at least interest in the petitioner's work.
Dr. , .a professor at the Oregon Health Science University,1 asserts that he met the
petitioner at a conference and that the petitioner's work reveals "important properties of synaptic
transmission"jn genetically deaf mice. He further asserts that the petitioner is one of a limited number
of researchers who has mastered Patch clamp recording in the auditory system. Special or unusual
knowledge or training, however, while perhaps attractIve to the prospective US. empioyer, 'does not
inherently meet the. national interest threshold. Matter of New York State Dep't of Transp., 22 I&N
Dec. at 221. . .'
Dr. an.associate professor at Northwestern University, asserts that he has "followed
[the petitioner's] research quite closely over the last several years," witnessed her presentations and .
reviewed her curriculum vitae and publications. He provides a favorable assessment of the petitioner's
unique skills and co'ncludes that her results "have profound implications for the understanding and
treatment of hearing loss."
• 1 Dr. ~also a formermemberof the facultyat the.Universityof WiS.consin who has coauthored..articl~s
withDr_accordingto www.ohsu.eduand www.jneurosci.org. .. i". .,
Page 7
The record also includes a letter from Dr. Ann Stuart, a professor at the University of North Carolina at
Chapel Hill and, like Dr._ completed a postdoctoral appointment at Harvard Medical Schoo1.2
She asserts that she is "farhiliar" with the petitioner's "very important and beautiful work." She
expresses her intent to continue following the petitioner's work "and its implications." Dr.~ states
that the petitioner's results "are significant and will lead to improved use of cochlear implants.'" While
Dr_ asserts that the petitioner is irreplaceable, she fails to explain how the petitioner has already
influenced the field. '
Dr.' t, Director of Research Training and Education at the University of North Carolina at
, Chapel Hill, asserts that thepetitioner's research is both fundamental and translational in that it will
have an impact on human medical treatments. He does not provide illJ. example, howeve~, of medical
treatments that are being developed based on the petitioner's work, very. little of which has been
published in the field of heai-ing loss. Dr. concludes that the:petitioner is leading the way on
investigating changes in the brain resulting from hearing loss and praises her skills.
Dr g; a professor' at Johns Hopkins University,3 asserts that' he is aware of the petitioner's
work "from her resume and publications." Dr. lacknowledges having known Dr. "for
many years." Dr. . explains the importanceof the petitioner's findings regarding temperature as
most experiments on neurons are done at a temperature well below body temperature, requiring a
correction.. Dr. _ does not suggest that, based on the petitioner'.s work, accurate corrections are
now possible and are being applied in laboratories studying neurons. .
, . .'
,Dr. a professor at National ~University and a fornier ,visiting associate'
'professor at the University of Wisconsin according to his curriculum vitae, asserts that his evaluation is
based on the petitioner's "achievements and review of her resume and publications." He concludesthat
the petitioner's results "are very significant and wi11lead,to improved use of cochlear implants,'which
will potentially direct the development of novel ,and more effective treatments of deafuess." This
conclusion does not identify how thepetitioner has alreadyinfluenced the field.
",
Finally, Dr~ ••ls conclude~:'
[The petitioner] has made substantial and essential contributions to the res,earch of
,he'aring loss and ddlfuess. Her, original w()rks improve. fundamentally our
understanding of these neuro-related diseases. Her impact in the field is evidence from
her numerous landmark publications in prominent ·scientiflcjournals. '
2 Dr.~ and Dr.__ coauthored an article tbgetherj~ 1981 according towww.pubmedcentral.nih.gov.
3 Dr. _ and Dr. coauthored a chapter 'in The Synaptic Organization of the Brain according to
.www.oup.com/uk. ' '
Page 8
,While the petitioner has presented her work at several conferences, the record contains only.asingle
, article on hearing loss published in a peer-revie~ed journal. Dr. ; reference to "numerous"
published artides on hearing loss is not consistent-withthe record.
Moreover,. articles that are truly "landmark publications" receive considerable attention in trade
journals or through frequent and' wide citation. The record contains no more than two independent
citations for anyone of the petitioner's articles. Dr. asserts that the petitioner's work is recent
. and that it takes time.in the field for an article to be disseminated, reviewed and ultimately relied upon
and cited. While this may be true, it remains that much of the' petitioner's work on hearing loss,
remained unpubli~hed as of the date of filing. At best, 'the petition was filed prematurely, before the
bulk of the petitioner's work on hearing loss was widelY',disseminatedand subject to evaluation in the
field.
While the peti'tiorter's research is no, do'~bt of ,value,'i'tcan be '~rgued that any research must be
shown to beorigirial and present some benefit if i~ is 'to receive funding and attention from the
scientific community. Any postdoctoral research, in order to be accepted for graduation, publication .
or funding,'~ust 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 pational interest to an extent thatjustifies a waiver ofthe job offer requirement., ,
As is clear from, a plain readir'1g of the statute, it was llot the intent of Congress.tha,t every person
qualified to engage in a profession in the United States should'be exempt from the requirement of a job
offer basedo~ 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 alien employment certification will be in
the national interest of the United States.
" .
. ,
The burden of proof ill these proceedings rests solely.with the petitioner. Section 291 of the Act,
8 U.S.c. § 1361. The pl'?titionerhas not sustained.thatburden.. ..' . ' ,
This denial is without prejudice to the filing or' a new petition by a United States' employer
accompanied by an alien employment certification certified by the Department of Labor, appropriate
supporting evidence andfee. ", .
ORDER: The appeal is dismissed.
. .:~
..•..