dismissed EB-2 NIW Case: Neuroscience

identifying dm di-lsted to 
prevent cieerly v'w~rrznted 
invasion ofpersoitn! privacy 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
PUBLIC COPY 
FILE: Office: NEBRASKA SERVICE CENTER Date: MAY 1 1 2009 
LIN 07 143 50383 
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. @ 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 
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. !j 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. !j 103.5(a)(l)(i). 
AYQdflLM, 
~ohn F. Grissom 
t/~ctin~ 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. At the 
time she filed the petition, the petitioner was a staff scientist in the Neurosurgery Department at the 
University of Illinois at Chicago (UIC); she has since relocated to New York. 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 fkom the requirement of a job offer would be in the national interest of the United States. 
On appeal, the petitioner submits a brief fkom counsel, as well as new witness letters and additional 
exhibits. 
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., 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 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 hinges on prospective national benefit, it clearly 
must be established that the alien's past record justifies projections of hture benefit to the national 
interest. The petitioner's subjective assurance that the alien will, in the hture, 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. $ 204.5(k)(2) defines "exceptional ability" 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 regulation at 8 C.F.R. $ 204.5(k)(4)(ii) requires that a petitioner seeking to apply for the 
exemption must submit Form ETA-750B, Statement of Qualifications of Alien, in duplicate. The 
record does not contain this required document, and therefore the petitioner has not properly applied 
for the national interest waiver. The director, however, did not note this omission in the denial 
notice. We will, therefore, review the matter on the merits. 
Page 4 
In a statement submitted with the April 16,2007 filing of the petition, the petitioner stated: 
I wish to live permanently in the United States to continue my work in the field of 
Neurological Surgery and Neurosciences (new diagnostic and management research 
for patients undergoing surgery to treat trigeminal neuralgia [a painful disorder of 
facial nerves] and Parkinson's disease). 
. . . I have been doing research in various areas, which lead [sic] to several 
publications on topics like stroke, cancer, social issues, various biomedical techniques 
and pharmacology. . . . [A]t the Emory University Atlanta fkom 2005-2006, . . . I 
played a key role in developing a standard diagnostic and management tool for 
diabetic neuropathy in the medically indigent population and hence managing 
diabetes in a better way in the United States. I am currently working as a Research 
Fellow In the department of Neurological Surgery at the University of Illinois at 
Chicago, where I am working on studying natural history of trigeminal neuralgia, new 
diagnostic and management tools for patients suffering from it and also writing . . . a 
paper on pregnancy associated changes in trigeminal neuralgia. . . . I am also working 
on the debilitating condition of Parkinson's disease and its surgical treatment. 
Counsel credited the petitioner with "major breakthrough[s] in medical science." To support this 
assertion, the petitioner submitted seventeen witness letters with the initial filing. Most of the witnesses 
are UIC researchers, and every witness is at an institution where the petitioner had worked or studied. 
Most of the numerous witnesses offered largely general praise for the petitioner's skill and dedication. 
Rather than provide a lengthy and largely redundant discussion of every letter, we will focus, here, on 
letters providing more specific details. 
Associate Dean of Student Affiiirs at the Aga Khan University, Karachi, Pakistan, 
stated that the petitioner "was an excellent student" who "was . . . involved in a number of research 
projects during the course of her studies." 
 identified eight such projects, but on1 two of them 
show publication information, with a third apparently presented at a confaence. 
 did not 
indicate the extent, if any, of the dissemination of the petitioner's other findings. 
 also did not 
indicate the impact, if any, of the identified research projects. 
[The petitioner] was a medical department and worked under my supervision fiom 
September until November 2002. 
. . . She attended rounds and grand rounds as well as neuroradiological conferences. She 
was able to join the diagnoses of spinal and intracranial disorders and was very 
interested to join neurosurgical operations. She assisted [in] several [surgical] cases. . . . 
She was also involved in a research project regarding preoperative functional imaging as 
a preparation for tumor surgery in eloquent areas. 
Page 5 
focused on the petitioner's clinical practice of medicine, with only a passing mention of "a 
research project." This, coupled with description of the petitioner as a "medical 
student," indicates that there was little emphasis on research during the petitioner's time in Heidelberg. 
[The petitioner] is currently involved in studying [the] natural history of trigeminal 
neuralgia and devising a standard questionnaire for diagnosis and management of facial 
pain patients as well as writing a paper on trigeminal neuralgia changes associated with 
pregnancy. 
She discovered that in some pregnant patients trigeminal neuralgia actually improves 
even without medication. Nothing has been written so far on this; hence in my opinion 
it will be a major breakthrough in medical science. Since this disease is long standing 
and chronic, this discovery will have major impact on the therapeutic approaches related 
[to] trigeminal neuralgia and possible cure of the disease. 
called the petitioner "an indispensable member of our research team. I 
have been consistently impressed with her abilities as a scientist and expect that in the long term her 
work will have a lasting impact on the field of neurosurgicial research. Overall [the petitioner] has 
made significant contributions to the research conducted in this area." 
the excellence of data she collected [in a] relatively short period of time. Her knowledge in trigeminal 
neuralgia has been very valuable in this study." 
, another UIC physician with no stated title, stated that the petitioner "is 
an accomplished young research scientist who has published about breast cancer, stroke and trigeminal 
neuralgia as well as social issues like domestic violence and factors associated with smolung in college 
going students." 
The petitioner submitted copies of two of her published articles, published respectively in 2001 and 
2006. The petitioner's initial submission did not include evidence of independent citation of those 
articles. 
On June 6, 2008, the director issued a request for evidence, indicating that the petitioner had not 
established the impact or influence of her research work. The director instructed the petitioner to 
submit "[clopies of published articles by other researchers citing or otherwise recognizing the self- 
petitioner's research and/or contributions," or printouts from a citation database identifying such 
articles. 
*-~ Page 6 
In response to the request for evidence, counsel stated that the petitioner's "research findings have been 
cited and discussed by other prominent scientists as authoritative in several publications." Counsel 
stated: "Appended as Exhibit 2 are published articles that have analyzed, discussed, refaenced or cited 
[the petitioner's] work as authoritative." The three items listed under "Exhibit 2" are all articles by the 
petitioner herself. 
Counsel then stated that the petitioner's "specific research inquiries have been discussed at length and 
are supported by an abundance of documentation from other scientist[s] (See Ex. 3)." Counsel's 
description of Exhibit 3 was a list of twenty published pieces. When we examine the published pieces 
themselves, however, we cannot see how they reflect the petitioner's influence. For instance, the first 
published piece is an article by 16 researchers, mostly at institutions in Atlanta (including Emory 
University). This article was submitted for publication in March 2001, when the petitioner was a 20- 
year-old medical student, and several months before the petitioner's earliest documented publication. 
The article has been highlighted liberally, emphasizing the names 
 and - 
and certain portions of text. The article's bibliography identified 110 sources. The only thing 
highlighted in the bibliography is 
 name, on articles published while the petitioner was a 
teenager. The petitioner did not explain how her work was "discussed at length" in this article. 
Another article, number 5 on counsel's exhibit list, was submitted for publication in 1989 when the 
petitioner was nine years old. This article may touch on areas in which the petitioner later conducted 
research, but it clearly predates her own research career and therefore cannot possibly show her 
influence as a researcher. 
The director denied the petition on September 16, 2008, stating "there is no evidence that independent 
researchers view the petitioner's individual work as particularly significant or influential." On appeal 
the petitioner submits copies of six articles, all published in 2008, containing citations to a 2006 article 
by the petitioner. One of these citations is a self-citation by the petitioner's co-author,. The 
petitioner has not shown that the number of citations is unusual in her field. 
Even disregarding their low quantity, the newly-submitted citations appeared after the petition's filing 
date and therefore cannot establish that the petitioner was already an influential researcher when she 
filed the petition. The petitioner must have been eligible for the benefit sought as of the petition's filing 
date. See 8 C.F.R. $8 103.2(b)(l), (12); Matter ofklatigbak, 14 I&N Dec. 45,49 (Regl. Comrnr. 1971). 
The ~etitioner submits five new witness letters on ameal. Two of the letters. attributed res~ectivelv to 
I I 
- of Mid-Ohio Valley Nephrology Associates and 
 0; St. ~olk's 
Queens Hospital, are completely identical except for the letterhead and signatures. The two letters even 
contain the same errors of grammar and capitalization. For example, both letters indicate that the 
petitioner "fulfils the requirements of the eliGbility for National interest waiver to pursue the research 
projects which will be very beneficial to the people of United States at large." 
 Clearly,-1 
and - did not happen to write exactly the same letter. Therefore, the petitioner's submission of 
Page 7 
identical letters from two supposedly independent witnesses raises obvious questions about the true 
origin of the letters. 
Furthermore, the questions about the two letters discussed above necessarily raise doubts about the 
other letters in the record, whether submitted on appeal or previously. Doubt cast on any aspect of 
the petitioner's proof may lead to a reevaluation of the reliability and sufficiency of the remaining 
evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). 
Two other new letters on appeal also contain errors of grammar and capitalization, which su 
that the are from the same source as the two identical letters. A letter attributed to 
Y 
 ggests 
of Astoria, New York, states that the petitioner "merits the special benefit of a national 
interest waiver and she does qualify as the 'Prospective' as her contributions is significant enough 
for the medical community." A letter attributed to - of St. John's Queens 
Hospital states that the petitioner's "work is cited in scholarly articles and she does qualify as the 
'Prospective' and hence, I enthusiastically submit my unqualified recommendation." We note that 
both of these letters refer to the petitioner as "the 'Prospective."' 
The only letter submitted on appeal that does not share the general characteristics of the above letters is 
from, Director of Research at Georgia Cancer Specialists and also a Professor at the 
University of Alabama Comprehensive Cancer Center. , like the petitioner, attended the 
University of Heidelberg. states that the petitioner "was involved in the generational [sic] of a 
number of clinical protocols, many of which are awaiting approval by the Institutional Review Boards 
(IRB) at those respective institutions, and will most likely lead to important clinical trials." - 
thus indicates that the petitioner has designed studies that have not yet taken place, in whch case it 
seems to be too early to gauge the importance of the petitioner's work. similarly, states that 
the petitioner's work "should lead to significant improvement in the diagnosis and management of 
patients with trigeminal neuralgias," but does not specie what results the petitioner's work has already 
had in th~s regard. 
The record indicates that the petitioner's research is not without intrinsic merit, and has national 
scope by virtue of the nature of published medical research. Nevertheless, the petitioner has not 
established that her research work distinguishes her from others in her field to an extent that would 
justify a national interest waiver. Most of the minimal evidence of her impact dates from after the 
petition's filing date. A number of articles said to reflect her influence were, in fact, published well 
before the petitioner began her research career. The petition rests largely on witness letters that have 
been compromised for reasons discussed above. 
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 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 a labor certification issued by the Department of Labor, appropriate supporting evidence and fee. 
ORDER: The appeal is dismissed.