dismissed EB-2 NIW Case: Neuroscience

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U:S. Citizenship 
and Immigration 
FILE: LN 03 068 52468 Office: NEBRASKA SERVICE CENTER Date: 1 3 2005 
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. 8 1 153(b)(2) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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. 
wobert P. Wiemann, Director 
Administrative Appeals Office 
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DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa petition; 
reopened the matter after treating the petitioner's untimely appeal as a motion; and denied the petition a second 
time. The matter 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. 5 1153(b)(2), as a member of the professions holding an advanced degree. The petitioner is a 
postdoctoral research associate at the University of Chicago. 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, 
lOlst Cong., 1st Sess., 1 l (1989). 
Supplementary information to regulations implementing the Immigration Act of 1990 (IMMACT), published at 
56 Fed. Reg. 60897,60900 (November 29, 1991), states: 
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The Service [now 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 (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. 
The petitioner's work involves the study of the vestibular system, parts of the inner ear and brain responsible 
for the sense of balance. Vestibular disorders can cause nausea, dizziness, or falls. The petitioner submits 
background documentation to establish the intrinsic merit and national scope of vestibular system research. 
The petitioner also submits copies of his published work. 
Several witness letters accompany the petition. ~rofessor of the University of Chicago 
describes the petitioner's work: 
[The petitioner] is currently a Research Associate in my lab at the University of Chicago, 
where he is conducting advanced research in vestibular physiology. . . . In the past 2 years, he 
has initiated 2 projects of immense importance in vestibular physiology: (1) a study of 
sensitivity of vestibular nucleus neurons to vestibulo-collic reflex (VCR) head movements in 
different postures; and (2) a comparison of the vestibular nucleus neurons to active and 
passive head movements in different postures. His work is of extremely high caliber and is 
notable because he is continually finding new ways to approach problems and to move to the 
next stage of research. He will be initiating two new projects in the immediate future: 1) a 
study of the source and characteristics of the head movement efference copy inputs to the 
vestibular nuclei that cancel or attenuate vestibular signals on secondary vestibulo ocular 
reflex (VOR) neurons during gaze pursuit; and 2) a study of the contribution of the cerebellar 
flocculus to viewing distance related changes in the angular and linear VOR during passive 
and active head movements. . . . 
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Given his importance to our present and future studies, [the petitioner's] departure from the 
United States would have a deleterious impact on the research that is ongoing laboratory 
[sic]. The research in this area is has [sic] important health consequences - particularly for 
the elderly, who are prone to debilitating falls due to loss of equilibrium during the aging 
process. The work is also relevant to human interface problems related to piloting airplanes 
in low visibility and adapting to microgravity during spaceflight. 
~r. an assistant professor at the University of Rochester Medical Center, states: 
[The petitioner] joined the University of Chicago in 2000 
while I was there as a He has become an indispensable 
member of the research team at the University of Chicago and has played a significant role on 
several research projects. . . . While I was at the University of Chicago, he developed a new 
experimental apparatus designed to study eye and head movement reflexes in awake 
behaving primates. . . . [Hlis experimental apparatus have [sic] allowed us to study how eye 
movement reflexes are modified based on what we are looking at and how far away the 
object is from our body. These types of experiments are among the most innovative in our 
field, and are providing new exciting concepts for how we control eye and head movement 
reflexes. . . . I am confident that these latest experiments will not only have an impact on our 
current knowledge of the neuroscience of vestibular disorders but will also impact the modem 
technology employed in robotics and imaging. 
Professor Hisao Nishijo, who chaired the petitioner's dissertation committee at Toyama Medical and 
Pharmaceutical University in Japan, states that the petitioner's "findings . . . are very helpful in building our 
knowledge of balance in space, particularly related to severe dizziness and nausea." 
All of the above witnesses have worked directly with the petitioner. The director issued a request for 
evidence, asking whether other researchers have cited the petitioner's work, and whether the petitioner's work 
has had a demonstrable impact beyond his own collaborators and professors. In response, the petitioner 
submits evidence showing that independent researchers have cited his work twice (not counting one self- 
citation by the petitioner). All of the citations appeared after the petition's filing date. This minimal citation 
record does not establish that the petitioner's work stands out from the work of other competent researchers in 
his specialty. 
The petitioner also submits four new letters. ~r.of Washington University School of 
Medicine states: 
I have recently come to know [the petitioner] through his work and presentations at scientific 
meetings, where I have been impressed with his exceptional insight and skills. [The 
petitioner] is an excellent scientist whose research has significant interest to my colleagues 
and myself in the broad field of systems neuroscience and specifically vestibular system 
function. . . . 
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[The petitioner] has been working on the very important topic of the role of the cerebellum in 
balance and motor coordination. His approach is providing valuable and essential basic 
information regarding how the system responsible for motion detection, balance, and spatial 
orientation functions. . . . I have no reservation to say that [the petitioner's] work in Dr. 
laboratory is not only outstanding but also the very best in the particular field of 
study. 
Professor f Baylor College of Medicine explains that neuroscientists seek to understand 
how the brain accounts for the movement of the head and eyes when interpreting visual signals. prof- 
asserts that the findings from prof-boratory "are a significant part of a recent body of work that 
may completely change the way we think about the neural control of eye movements and the role of the 
vestibular nucleus and other brainstem areas in the control of gaze." ~rof.mm~hasizes the difficulty of 
recording the output of individual neurons without injury to the cells or physical head restraints, and he states 
that the experiments performed by the petitioner and Prof. "represent a technical tour de force and, 
currently, can be performed in only a few laboratories in the world." Prof Sparks deems the petitioner to be 
"an absolutely essential member of the research team involved in these studies. . . . As an expert in the area of 
motor control, I assure you that [the petitioner's] work is of great importance." 
~r.an assistant professor at Cornell University's Weill Medical College, states "I have never 
been [the petitioner's] collaborator, but I have been following his research with a great enthusiasm." 
credits the petitioner with "significant discoveries in the field. He is the first person who 
functions of Vestibular Nuclei in squirrel monkeys, his findings are important because they show that 
Vestibular Nuclei plays [sic] an essential role in different postures." ~r. an assistant professor at 
Northwestern University's Feinberg School of Medicine, credits the petitioner with "a great achievement to 
understand the brain mechanisms of posture control and self-motion, and will likely lead to discoveries of the 
cause of falls resulting from vestibular disorders." 
On July 29, 2004, the director denied the petition, stating that the petitioner's minimal citation history does 
not show "that the petitioner's record of publications set him apart from his peers." The director also found 
that the independent witness letters are either vague, or else refer to projects that began after the petition was 
filed. The director concluded that, despite enthusiastic support from witnesses, the petitioner had failed to 
show that he "had already made any measurable impact on his field." 
The petitioner filed an appeal on September 15, 2004. In this appeal, the petitioner stated that he has 
submitted a paper to a "top journal" and is still awaiting the results of the peer review process. The director 
rejected the appeal as untimely, pursuant to 8 C.F.R. $ 103.3(a)(2)(i), and considered it as a motion, pursuant 
to 8 C.F.R. 5 103.3(a)(2)(v)(B)(2). The director denied the petition again on January 21, 2005, reaffirming 
the prior finding that the petitioner had not documented "a specific record of achievements which 
significantly distinguished him from other postdoctoral researchers in his field." 
On appeal from this second denial, the petitioner states: 
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On November 5th 2004 I received an award from [the] Brain Research Foundation and Brain 
Research Institute Executive Committee during the Brain Research Foundation Neuroscience 
Day conference. While about 40 postdoctoral research associates . . . presented their work, 1 
was the only postdoctoral research associate to whom the award was given. . . . I was 
presented with this honor because the committee recognized the outstanding merit of my 
work. . . . 
While the award was received recently, most of the work honored was done before the filing 
date [of] December 27 2002. This award demonstrates my ability to distinguish myself from 
my peers if given the opportunity. 
The record contains no first-hand documentation of this award. The record does contain a copy of a 
certificate from the conference, but this certificate indicates only that the petitioner was a "Poster Presenter" 
at the conference. 
The record shows that the Brain Research Institute is located at the University of Chicago, where the - 
petitioner works. ~rofessoho moderated the conference, states: 'This unique forum is 
intended to provide all members of the neurosciences community at the University of Chicago the opportunity 
to share their newest findings in neuroscience" (emphasis added). Given that the petitioner received this 
award nearly two years after the petition's filing date, it is difficult to conclude that the research had been 
essentially completed before the filing date. Even then, we note that formal recognition of one's work is, 
pursuant to 8 C.F.R. tj 204.5(k)(3)(ii)(F), one element of a claim of exceptional ability. Aliens of exceptional 
ability in the sciences, in turn, are not automatically eligible for the waiver; they are typically subject to the 
job offer requirement. Considering that this award from the petitioner's own employer would not, by itself, 
suffice to establish exceptional ability, we cannot find that the same award would represent a strong argument 
for the added benefit of a national interest waiver, even if the beneficiary had received the award prior to the 
filing date. 
A petitioner may not make material changes to a petition that has already been filed in an effort to make an 
apparently deficient petition conform to CIS requirements. See Matter of Izummi, 22 I&N Dec. 169 (Comm. 
1998), and Matter of Katigbak, 14 I&N Dec. 45 (Reg. Comm. 1971), which require that beneficiaries seeking 
employment-based immigrant classification must possess the necessary qualifications as of the filing date of the 
visa petition. An alien cannot qualify for a given priority date based on factors that did not come into existence 
until after that date had passed. 
While, clearly, there are some independent witnesses who have high opinions of the petitioner and his work, 
these witnesses do not indicate the impact that the petitioner's work had already had on the field as of the 
petition's filing date. They either refer to projects that hit their stride after the filing date, or to the overall 
reputation of prof- laboratory at the University of Chicago. There is reason to believe that many of 
the petitioner's findings are (or were, as of the filing date) preliminary or tentative; and other arguments 
appear to hinge on the petitioner's mastery of technology developed by others. Such expertise is not a strong 
argument for a waiver; see Matter of New York State Dept. of Transportation at 221, n. 7. 
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For the above reasons, based on careful consideration of the evidence submitted, we conclude that the 
petitioner's request for a national interest waiver is, at best, premature. We note that the petitioner holds an 
H-1B nonimmigrant visa that allows him to continue working at the University of Chicago until 2008. The denial 
of the instant petition in no way affects the validity of that nonimmigrant visa, and therefore the petitioner has 
several years of authorization to continue his research while the university pursues other avenues to secure an 
immigrant visa for the petitioner, should it choose to do so. (If the university has no intention of employing the 
petitioner after he completes his temporary postdoctoral employment, then a national interest waiver would not 
compel the university to continue employing him.) 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. fj 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.