dismissed EB-2 NIW Case: Neurophysiology

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U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.S.Citizenship
and Immigration
Services
FILE:
LIN 04 162 51008
Office: NEBRASKA SERVICE CENTER Date: MAR 19 2007
INRE: 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.
~~~
7Robert P. Wiemann, Chief
Administrative Appeals Office
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 ability or a member of the professions
holding an advanced degree. 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 classification sought, but that the petitioner had not
established that an exemption from the requirement of a job offer would be in the national interest of
the United States.
On appeal, counsel submits a brief and additional evidence. For the reasons discussed below, we
uphold the director's decision.
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 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.
It appears from the record that the petitioner seeks classification as an alien of exceptional ability. This
issue is moot, however, because the record establishes that the petitioner holds a Ph.D. in Physiology
from Hebei Medical 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 an alien employment certification, is in the national interest.
Page 3
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, 101st Cong., 1st Sess., 11 (1989).
Supplementary information to the regulations implementing the hnmigration Act of 1990 (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 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 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
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.
We concur with the director that the petitioner works in an area of intrinsic merit, neurophysiology,
and that the proposed benefits of his work, improved understanding how estrogen impacts cardiac
regulation (relevant to hypertension) in the brain and the effect of gravity on cardiovascular function,
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.
The director concluded that the reference letters submitted were unsupported by other evidence of
the petitioner's influence in the field, such as evidence that the petitioner has been widely and
frequently cited. On appeal, counsel asserts that the petitioner submitted five letters from
independent researchers who explain the significance of the petitioner's research, that the petitioner's
publications are too recent to have been frequently cited and that the director did not give sufficient
weight to the petitioner's grant from the American Heart Association (AHA). Counsel further
asserts that the petitioner's track record also includes publications of his research while in China.
The petitioner submits information about the Chinese journals that published the petitioner's work, a
new letter from the petitioner's supervisor, the grants supporting the petitioner's research, evidence
that the petitioner has reviewed manuscripts for two journals and evidence that the petitioner's
articles have been minimally cited. We will consider this evidence below.
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 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 possesses useful skills, or a "unique background." Special or unusual knowledge or
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 the visa
classification he 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. Id. 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-case basis. Id. at 221, n. 7.
The petitioner received his Doctor of Medicine degree from Hebei Medical University in 1989. In
1997, he received his Master of Science degree and in 2000 he received his Ph.D. from the same
institution. Both of the latter degrees were in the field of Physiology. In 2000, the petiti~
•
stdoctoral fellowship at the University of Missouri-Columbia under the direction of_I
After the date of filing, it appears that the petitioner followed_ to the University of
Iowa, accepting a position as an assistant research scientist at that institutIon.
Chairman of the Department of Physiology at Hebei Medical University, asserts that
the petitioner's thesis was the first study "to demonstrate that Capsaicin activates the
catecholeminergic neurons of brainstem nuclei involved in cardiovascular regulation, thereby
inducing increases in blood pressure and heart rate, which provided the electrophysiological and
morpholo~or interaction between the afferent (sensory) and efferent (motor) never
system." _notes that this work was published. On appeal, the petitioner submitted
evidence that the Chinese journals publishing the petitioner 's work are prestigious. We will not,
however, presume the influence of a given article from the journal in w~ared. Rather, the
petitioner must demonstrate the significance of the individual article. _ does not explain
how this work has influenced the field and the petitioner's articles in Chinese journals, published in
2000 and 2001, have been cited no more than twice each. Moreover, one of the citations of the
article cited twice is a self-citation by a coauthor.
_ former Director of the National Center for Gender Physiology at the University of Missouri
and currently the Vice President for Research at the University of Iowa, discusses the importance of
investigating the link between sex hormones and high blood pressure. Upon arriving at the
University of Missouri, the petitioner "designed and built a sophisticated system for recording
extracellular action potential discharge in the region of the nucleus tractus solitarius (NTS.)"
Through his subsequent experiments, the petitioner demonstrated that estrogen inhibits spontaneous
and excitatory amino acid induced NTS neuronal activity through estrogen activation of estrogen
receptors." The petitioner also developed a mouse model through which he confirmed that "similar
to other species, in mice the ability of Angiotensin II to acutely reset baroreflex control of heart rate
is dependent on an intact area postrema."
Further, the petitioner used his surgical skills to timely and accurately implant transmitters and
lateral ventricular cannula used for telemetric recording of blood pressure and chronic infusion of
drugs in conscious mice. The results from this research demonstrated that estrogen and androgen
"may modulate cardiovascular function through their actions on [the] central nervous system." In a
subsequent letter', _ characterizes this work, published after the petition was filed, as
"particularly notew~he petitioner must demonstrate his eligibility as of the date of filing.
See 8 C.F.R. § 103.2(b)(l2); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg. Comm. 1971). The
petitioner cannot demonstrate that this work had already influenced the field as of the date of filing
when it had yet to be disseminated widely in the field through publication. Similarly, we cannot
consider the petitioner's post-filing promotion and new role as Dr. Hay's senior laboratory manager
overseeing the postdoctoral fellows and technicians.
While the petitioner's results may have served as a basis for the progress report justifying continued
funds from a previously awarded grant, all funded researchers must justify their continued receipt of
grant money. More generally, it can be argued that most research, in order to receive funding, must
present some benefit to the general pool of scientific knowledge. It does not follow that every
researcher working with a government grant inherently serves the national interest to an extent that
justifies a waiver of the job offer requirement.
Another collaborator at the University of Iowa, ~ asserts that the petitioner's
research has "alread im acted the direction of research in this area of studying hypertension as
related to gender." however, provides no examples of independent laboratories that
have been influenced by the petitioner or how they have applied his results.
Finally, both _and another collaborator at the University of Missouri­
Columbia, discuss the petitioner's investigation of gravity and blood pressure. The petitioner used
mice with dysfunctional gravity receptors to demonstrate that the slopes of baroreflex were
significantly blunted in these mice when compared to wild type mice. According to _these
.' .
results "suggest that gravity receptors play an important role of baroreflex regulation, which
maintains the stable blood pressure." This work, funded by the National Aer.· and Space
Administration (NASA) has implications for space flight. In a subsequent letter, asserts that
this work "has opened the door to develop countermeasures that can prevent 0.'..orthostatic
intolerance after spaceflight and has made him a leading expert in this field." rovides no
examples and the petitioner did not submit any letters from high level officials at confirming
their pursuit of technology based on the petitioner's work.
, an associate professor at the University of Texas Health Science Center
and a listed co-investigator on_1998 grant application to study estrogen and hypertension,
discusses the petitioner's unique combination of skills. Specifically, the petitioner is capable of
applying "a number of diverse approaches to investigate the complicated regulation of sex hormones
on cardiovascular activity, including physiology, pharmacology, and molecular biology." Simple
training in advanced technology or unusual knowledge, while perhaps attractive to the prospective
U.S. employer, does not inherently meet the national interest threshold. Id. at 221.
, Director of Basic Research in Anesthesiology at the Pennsylvania State University,
asserts that he has "known [the petitioner] and his research for several years." ~oes not
explain how he came to know the petitioner. I eviews the petitioner's research, discussed
above, and concludes that the petitioner's research "not only is significant in basic science, but also
is critical to therapeutic interventions of hypertension and orthostatic intolerance (hypotension) of
older individuals or astronauts after spaceflights." _speculates that the petitioner's research
"will ultimately lead to the development of new therapies for the treatment of hypertension and
orthostatic hypotension." The record does not contain any letters or other evidence from
pharmaceutical companies supporting~ assessment. The petitioner also failed to submit any
media coverage, including local coverage, of his work and its implications.
a professor at the University of Nebraska Medical Center, provides a letter of
support in response to the director's ~additional evidence but does not explain how he
learned of the petitioner and his work. _ states:
I consider the impact of [the petitioner's] research very significant and of critical
importance to our field as his discoveries have finally shed light on developing
clinical therapies for hypertension. I also consider his research to be among the best
to elucidate orthostatic intolerance (hypotension) of older individuals or astronauts
after spaceflights. I can comment that incorporation and development of these
research advances by [sic] may well take five to ten years before we see full-scale
adoption, and that his ongoing research is critical to the success of such
implementation. As [the petitioner] will continue to playa key role in important NIH
research projects 2/1/05-1/31/09), we certainly cannot
afford to lose his con mue con n u Ions 0 IS area of research in the United States.
Finally, [the petitioner's] research is of a novel nature. The data from his experiments
Page 7
are unique and of importance to our cardiovascular research field. His original efforts
in the understanding of mechanisms underlying the development of hypertension
cannot be replaced.
concludes that the petitioner's discoveries are "among the most important" with an
impact that "has been, and will be, signi~resumed that all published research is unique
and original. While we do not question _Isincerity in opining that the petitioner's work
will, in several years, prove influential, the petitioner must demonstrate some degree of influence as
of the date of filing.
Chairman of Neuroscience at the University of Pittsburgh, asserts that the "impact of
[the petitioner's] ongoing research is evidenced by his discoveries themselves (with which I am
familiar), as well as the quality of his publications and presentation of his work." Once again, we are
not persuaded that the mere fact that the petitioner has published and presented his work sets him
apart from other researchers with the same minimum qualifications. The Association of American
Universities' Committee on Postdoctoral Education, on page 5 of its Report and Recommendations,
March 31, 1998, set forth its recommended definition of a postdoctoral appointment. Among the
factors included in this definition are the acknowledgement that "the appointment is viewed as
preparatory for a full-time academic and/or research career," and that "the appointee has the freedom,
and is expected, to publish the results of his or her research or scholarship during the period of the
appointment." Thus, this national organization considers publication of one's work to be "expected,"
even among researchers who have not yet begun "a full-time academic and/or research career."
Chair of the Department of Physiology at the University of Oklahoma
Health Sciences Center, discusses the importance of the petitioner's area of research, which is not in
dispute. He references a recent article in Science on the contro one replacement therapy
for women. The petitioner does not provide the article and does not imply that the
article cites the petitioner's work as a significant contribution to this debate.
The petitioner also submitted a letter from Director of the Center for the
Study of Sex ~CSD) at Georgetown University. According to ~culum
Vitae, she and_ coauthored an abstract on testosterone in 2005. _ asserts
that she is familiar with the petitioner's work through his publications and that his work has
impacted her own investigation of the influence of gonadal steroids on the gender differences in high
blood pressure and kidney disease. does not explain how the petitioner impacted her
own work. For example, she does not state that she utilized his monitoring techniques or that his
results opened up new avenues for exploration or identify so . ence. In fact, she fails to
identify which of the petitioner's projects was influ wrote her letter June 20,
2005, over a year after the petition was filed. If was influenced by a publication
published after the date of filing, such information would not relate to the petitioner's eligibility as of
the date of filing.
Page 8
We do not question the sincerity or credentials of the above authors. While Citizenship and
Immigration Services (CIS), may, in its discretion, use as advisory opinions statements submitted as
expert testimony, it remains that CIS is ultimately responsible for making the final determination
regarding an alien's eligibility for the benefit sought. See Matter of Caron International, 19 I&N
Dec. 791, 795 (Comm. 1988). 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 (Comm. 1998) (citing Matter of Treasure Craft of
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Thus, the objective evidence of record must
support the necessarily subjective opinions discussed above.
Several references attest to the significance of the petitioner's receipt of a postdoctoral fellowship
grant from the AHA, the invitations extended to the petitioner to review manuscripts for scientific
journals and his membership in the American Physiological Society.
The petitioner was elected as a regular member of the American Physiological Society in April 2003.
The record does not contain the official bylaws of the society. Thus, the petitioner has not
established the membership criteria for the society. Professional memberships open to members of
the field with a specific level of education and/or experience are not evidence of the member's
influence on the field. Moreover, membership in a professional association is one of the regulatory
criteria for aliens of exceptional ability, a classification that normally requires an alien employment
certification. We cannot conclude that meeting one criterion, or even the requisite three criteria for
that classification warrants a waiver of that process in the national interest.
The Heartland Affiliate Research Committee of the AHA approved a postdoctoral fellowship for the
period July 1, 2003 through June 30, 2004 to support the petitioner's investigation of Angiotensin II
dependent hypertension and the effects of gender. The petitioner's references assert that the AHA
only funds 20 percent of the proposals submitted. While the review of the petitioner's proposal
praises his past experience it refers to him as a "trainee." The review looks favorably on the ability
of the "sponsor" to provide an "optimal training experience" and the quality of the proposal.
Nothing in these materials suggests that the approval of this grant in indicative of the petitioner's
past influence in the field or guarantees that the results will be notably influential.
As of the date of filing, the petitioner had been requested to review a manuscript for Brain Research.
The record contains no evidence from this journal regarding their selection process or the number of
reviewers they utilize. We cannot ignore that scientific journals are peer reviewed and rely on many
scientists to review submitted articles. Thus, peer review is routine in the field and is not necessarily
indicative of the reviewer's influence in the field.
As acknowledged by the director, the petitioner received an "Iowa Physiological Society Trainee
Award" from the American Physiological Society on May 17, 2004, four days after the petitioner
filed the instant petition. The award does not relate to the petitioner's eligibility as of the date of
filing. See 8 C.F.R. § 103.2(b)(12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg. Comm. 1971).
Regardless, recognition as a "trainee" is not indicative of an influence in the field.
Finally, as of the date of filing, the petitioner had authored 11 articles, two of which relate to the U.S.
research discussed by the petitioner's references. The petitioner had also authored six published
abstracts. As of the date of filing, one of the petitioner's Chinese articles had been cited once by an
independent research team. As of the petitioner's response to the director's request for additional
evidence, the petitioner's articles in Brain Research and the American Journal of Physiology-Heart
and Circulatory Physiology had also been cited by one independent research team each. As of the
date of appeal, the number of independent citations of the petitioner's articles in Brain Research and
the American Journal of Physiology-Heart and Circulatory Physiology rose to two each. While
counsel asserts on appeal that the articles are too recen~idely cited, we note that one of the
articles citing the petitioner's work, by nd_has already been cited nine times.
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 postdoctoral research, in order to be accepted for graduation, publication
or funding, 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 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 alien employment 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. § 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 an alien employment certification certified by the Department of Labor, appropriate
supporting evidence and fee.
ORDER: The appeal is dismissed.