dismissed EB-2 NIW Case: Neuroscience

identifying data deleted to 
prevent clearly. unw~ted 
invasion of personal pmaoy 
PUBLIC Copy 
DATE: NOV 1 7 2011 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
V.S. Department of Homeland Security 
V.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
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: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. 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 $630. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
/:erry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Texas 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. § 1153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner is studying for a doctor of optometry (O.D.) degree at the New England College of 
Optometry, Boston, Massachusetts. 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. 
On appeal, the petitioner submits a brief from counsel and two witness letters. 
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, WIst Cong., 1st Sess., 11 (1989). 
Page 3 
Supplementary information to regulations implementing the Immigration Act of 1990 (lMMACT), 
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 (Act. Assoc. Comm'r 1998), has 
set forth several factors which must be considered when evaluating a request for a national interest 
waiver. First, the petitioner must show that the alien seeks employment in an area of substantial 
intrinsic merit. Next, the petitioner must show 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. 
While the national interest waiver hinges on prospective national benefit, the petitioner must establish 
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 intention behind the term "prospective" is 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 AAO also notes that the regulation at 8 C.P.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 petitioner filed the Form 1-140 petition on December 8,2009. In an accompanying Porm ETA-
750B Statement of Qualifications of Alien, the petitioner listed her academic history. The petitioner 
stated that she earned a B.S. degree in biophysics from Nankai University in China between 
September 1991 and June 1995 and a Ph.D. degree in neuroscience from Syracuse (New York) 
University from August 1998 to December 2007. The petitioner stated that she began studying for 
an O.D. degree at New England College of Optometry in March 2009. Section 15 of the form, 
headed "work experience," instructed the petitioner to "[l]ist all jobs held during the last three (3) 
years" as well as any earlier jobs in her intended occupation. The petitioner left this section blank 
and signed the document, thereby declaring under penalty of perjury that the information on the form 
was true and correct. In effect, the petitioner declared that she has never worked (as opposed to 
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studied) in her intended occupation. The petitioner did not claim any academic or professional 
activity between December 2007 and March 2009. 
In a statement accompanying the initial filing, counsel stated: 
[The petitioner] is a scientist with extensive experience and documented record of 
success in neuroscience and vision science. More specifically, she has been a highly 
productive and influential research scientist in studying human stereopsis and depth 
perception research, areas of research that have broad applications in medicine as 
well as artificial visual systems .... [The petitioner] has been making important 
contributions to these fields that have earned her an international reputation as one of 
the premier vision researchers .... 
In addition to her presentations at prestigIOus international conferences, [the 
petitioner's] publications in prominent journals such as the Journal of Vision were 
equally influential. 
The petitioner submitted copies of seven articles that she co-wrote, all published while she was a 
doctoral student at Syracuse University. Six of the articles appeared between 2002 and 2004; the 
seventh saw print in 2007. The petitioner submitted no evidence to show that she continued to 
produce research for publication after she graduated from Syracuse, or that she had written more 
than one article after 2004. Counsel repeatedly claimed that the petitioner's work has appeared in 
multiple journals, using the phrases "prominent journals such as the Journal of Vision" and "such 
leading international journals ... as the Journal of Vision." Every article in the record, however, is 
from the Journal of Vision. The record contains no evidence that any other journal has published 
any article by the petitioner. 
The unsupported assertions of counsel do not constitute evidence. See Matter of Obaigbena, 19 I&N 
Dec. 533, 534 n.2 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1, 3 n.2 (BIA 1983); Matter of 
Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Counsel's claims, including assertions about the 
petitioner's reputation and the importance of her work, have no weight. Therefore, counsel's assertions 
regarding "the proposed benefits from [the petitioner's] work," "her proven record of achievement and 
her unique and innovative set of skills, knowledge, and background" cannot suffice to demonstrate the 
petitioner's eligibility. 
Five witness letters accompanied the petitioner's initial filing. Counsel stated that two of these 
letters are "independent evaluations." The other three witnesses served on the 's Ph.D. 
dissertation committee at Syracuse University. 
I was impressed by [the petitioner's] ability. She ranks among the best students 
whom I had advised during my more than 30 years as a faculty member. ... [The 
petitioner] studied human stereopsis, the depth sensation given solely by binocular 
disparity .... [The petitioner] studied how the brain extracts and employed disparity 
information from retinal images to give us depth sensation. 
Page 5 
In particular, [the petitioner] studied how disparity information carried by high and 
low spatial-frequency components is combined to give us highly precise depth 
perception .... In a given image, sharp edges are composed of higher spatial­
frequency components (fine scales) and the areas or "blobs" confined by edges are 
composed of lower spatial-frequency components (coarse scales). There are neural 
channels in the visual cortex of our brain that are tuned to different spatial 
frequencies. It had been widely believed that disparity information carried by 
different spatial-frequency channels did not interact with each other, at least not at the 
stereothreshold level. However, [the petitioner] devised a set of highly original 
studies and obtained results that suggest that this is not the case .... This discovery 
greatly enhanced our understanding of why we have such exquisite acuity in depth 
perception. 
that, in addition to their medical significance, the petitioner's findings have 
applications for "artificial visual systems, which are used by military search and targeting systems 
and autonomous vehicle navigation systems (e.g., the Mars Rovers)." 
Profe f the University of California, Berkeley, stated: 
I have known [the petitioner] for almost eight years and have served on her Ph.D. 
dissertation committee and am therefore very familiar with her research. [The 
petitioner] is one of the most talented scientists I have ever encountered in my over 
four decades of research in vision science . 
. . . It had been a long standing belief that spatial-frequency channels in the visual 
system were independent of each other. About twenty years ago, my colleague and I 
demonstrated that this was also the case in the human stereo vision system .... [The 
petitioner] ingeniously modified the methods and obtained utterly different results, 
whereby spatial-frequency channels are in fact interacting at the stereothreshold. This 
is indeed a revolutionary discovery .... Such evidence is very important because it 
leads to the mechanisms beyond the independent channels, a path rarely trodden. 
University, Syracuse, follows research at 
Syracuse University because the research groups at the two universities "have at least weekly 
conference meetings to discuss the state of the field and our work." _ stated that the 
petitioner's "work is highly significant not only for the field of visual science, but for all of the many 
applications and ways in which we depend on proper visual depth perception."_ asserted that 
the petitioner "plans to integrate these efforts with more clinically relevant efforts, so [as] to 
'translate' her research results toward applications that can improve the visual health of patients." 
The remaining two witnesses each stated that they have not worked . 
have seen her conference presentations and reviewed her published work. 
New York, New York, described the petitioner's 
Page 6 
research work in technical detail and called it "fascinating because it reveals how our visual system 
might deal with the imbalance in the natural images and it can be tested physiologically." He stated: 
[The petitioner] has not only successfully demonstrated that spatial-frequency 
channels in the stereo system do interact with each other, but also quantitatively 
revealed the mechanisms underlying the interaction. These groundbreaking 
discoveries have profound implications to future research in vision science by guiding 
the direction of research in both psychophysics and physiology. 
National Taiwan University, Taipei, stated: 
I first attended [the petitioner's] presentation at the annual meeting of the Vision 
Science Society in 2002. Although she had just started to conduct vision research as 
a graduate student at Syracuse University, her discoveries were truly groundbreaking 
and left me with a very deep impression. She ranks among the most outstanding 
scientists I have ever met. 
Clearly the witnesses quoted above are highly impressed with the petitioner's work and view it as an 
important contribution in her specialty. The initial submission, however, lacked objective, 
documentary evidence to show the extent of the petitioner's impact. Therefore, on February 23, 
2010, the director issued a request for evidence. The director stated: 
The record neither claims nor establishes your research has resulted in such 
significant recognition that you will present a benefit so grate as to outweigh the 
national interest inherent in the labor certification process. 
Too, the record does not establish your work has been responsible for any changes in 
the thinking or approach of similarly employed personnel in your field. 
Also, in your field of endeavor, a look at the number of times your work has been 
officially cited by colleagues must be considered. 
A check of the search engine Google Scholar reveals your three professional 
publications appearing in the record have been cited on twenty occasions. However, 
four of those citations are self-cites .... This leaves a total of sixteen citations from 
your colleagues. 
In response, counsel claimed that sixteen independent citations "is an impressive number of citations 
... for all researchers in [the petitioner's] specialized sub-field of research." 
Five new witness letters accompanied the petitioner's response to the request for evidence. Counsel 
stated that all of these new witnesses were independent of the petitioner, but one of them,_ 
is on the faculty of the New England College of Optometry, where the petitioner is a 
stated: 
Page 7 
Dr. 
[The petitioner's] breakthrough findings ... were very well received by researchers at 
the VSS [Vision Science Society] annual meetings. Leading scientists in the field 
were very excited because her discoveries are very important in furthering our 
understanding of human stereo vision, especially as to why we have such exquisite 
acuity in depth perception .... [The petitioner's] discoveries are very important for 
guiding future experimentation in both psychophysics and physiology . 
. . . [The petitioner's] papers have had a significant impact on the field of vision 
research, which is evidenced by the number of citations (16, excluding self-citation) 
they have received in a relatively short period of time. Although this may not seem 
like an inordinate amount of citations, especially compared to other fields of 
biomedical research, our area of research is a very specialized field. Thus, it is not 
uncommon to see a paucity of citations in our field. 
of Johns Hopkins University, Baltimore, Maryland, stated: 
I attended her presentation at the [VSS] annual meeting and I can attest to the strong 
reception her research received by the international audience of researchers and 
professional[s] in attendance. In fact, it is my expert opinion that [the petitioner's] 
revelations are recognized as landmark discoveries because she dispelled previously 
long-held erroneous viewpoints .... 
[The petitioner's] publications have been well received by the VISIon research 
community. In only a few years, her papers have been cited 16 (excluding self­
citations) times by researchers from the US, UK and Japan. Considering that [the 
petitioner] works in a very specialized and narrow subfield of research, the number of 
papers citing her publications in such a relatively short period of time is a very 
impressive record and evidence of the impact of her work .... [S]he has deservedly 
gained an international reputation as a highly respected and outstanding scientist. 
lecturer at the University of Glasgow, Scotland, stated: 
In my expert opinion, [the petitioner's] research and developments have significantly 
advanced research into human stereopsis. Although I have never met her, I have 
utilized [the petitioner's] scientific results in my own research projects, where I cited 
her publication ... in my own research .... [The petitioner's] work has deepened our 
knowledge of how the visual system may have been implemented to result in a bias in 
our perception of trajectory angles of a small target traveling in depth. 
(Emphasis in original.) at Brown University, Providence, 
Rhode Island, stated that his research group has "cited two of [the petitioner's] papers in each of ... 
two of our papers." described the petitioner's work in technical detail and concluded: 
"These are indeed revolutionary discoveries!" 
Page 8 
.. -.... . Aston University, Birmingham, England, stated th~ 
"very original" work has "served as the sole support for our own research results.'_ 
credited the petitioner with "important discoveries that have significant impact on the field of vision 
as a whole, and human stereo vision in particular." 
The director denied the petition on April 15, 2010. The director acknowledged the intrinsic merit 
and national scope of the petitioner's occupation, and quoted from several witness letters. The 
director stated that none of the witnesses had identified "any particular widespread ramifications or 
direct applications concerning any neurology or vision-based malady adopted by the medical 
community" as a result of the petitioner's work. The director also noted that the petitioner had not 
disputed the low citation figures for her published work. The director concluded that, while the 
petitioner's talent may have begun to attract some notice, the petitioner had not shown that she 
qualifies for the national interest waiver. 
On appeal, counsel protests that the director "disproportionately" focused on the petitioner's citation 
rate and "did not take into consideration that she is working in a highly specialized field of research 
that typically does not have many publications." Counsel states that the director should have given 
greater weight to the independent witness letters that described the petitioner's work and its 
importance "in great detail." 
Counsel claims that another citation of the petitioner's work has appeared following the petition's 
filing date. The petitioner submits no actual documentation of this claimed citation, merely an 
updated citation list. 
Two previous witnesses provide new letters on stated: 
The significance of her research is evidenced by the fact that her publications have 
been cited by researchers around the world. . . . These researchers utilized [the 
petitioner's] results to design their experiments or to implement their computational 
model. In fact, in some of these projects, [the petitioner's] papers served as the sole 
support for their own research results. Thus, it is apparent that [the petitioner's] 
discoveries were instrumental to the scientists who cited her papers. Such an 
impressive impact should not be taken lightly. 
In addition, in my expert opinion, 17 citations (excluding self-citation) in a relative 
short period of time in the field of vision science are considered in our specialty to be 
a high number of citations .... 
[The petitioner] is one of the leading researchers in this field. 
~xpressing a sentiment very similar to that found in _earlier letter, states 
that the petitioner's "record of citations ... is in fact very impres~d of vision," which 
"is different from other fields of biomedical research." 
Page 9 
Several witnesses have claimed that 16 or 17 independent citations over "a relatively short period of 
time" was impressive in the petitioner's specialty. Over five years elapsed between the articles' 
2004 publication dates and the submission of the witness letters in early 2010. The petitioner did not 
submit any documentary evidence to show the usual citation rates of articles in the petitioner's 
specialty. Going on record without supporting documentary evidence is not sufficient for purposes 
of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 
(Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 
1972)). 
The record shows that the often-quoted "16 citations" figure (increased to 17 on appeal) is 
overstated .. The petitioner had submitted printouts from http://scholar.google.com, showing nine 
citations of one article, five for a second, six for a third and two for a fourth. The raw total is 22 
citations, but this does not mean there were 22 independent citations of the petitioner's work. 2 
to anomalies such as variations in the article titles, there are three duplicate listings. The lists, 
therefore, identify only 19 unique citations. Eleven of these 19 citations in articles by the 
petitioner's co- sometimes . and/or the petitioner 
herself. Whether the petitioner or a co-author is the one citing his or her own work, the end result 
does not establish wider impact or influence. Setting aside the 11 self-citations leaves eight 
independent citations of the petitioner's published work. (Two articles show three independent 
citations each; a third article has two.) 
Regarding the newly claimed 1 i h independent citation, the first author of the identified article is. 
_who was also the petitioner's co-author on the cited article. Counsel states that the newly 
claimed citation shows increasing citation of the petitioner's work, but it actually continues the 
pattern of self-citations by ~utnumbering citations from all other sources put together. 
All three of the petitioner's independently cited papers date from March to May of 2003 (when she 
submitted the articles for publication). The record does not show that the petitioner has produced 
any further independently cited publications since that time. The record identifies only one article 
that the petitioner published after 2004, and nothing published after 2007. 
The opinions of experts in the field are not without weight and the AAO has considered them above. 
USCIS may, in its discretion, use as advisory opinions statements submitted as expert testimony. 
See Matter of Caron International, 19 I&N Dec. 791, 795 (Comm'r 1988). However, USCIS 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; USCIS may, as above, evaluate the content of those letters as to whether they 
support the alien's eligibility. See id. at 795. USCIS 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'r 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg'l. Comm'r 1972)). USCIS may also give less weight to such 
letters that are not corroborated, in accord with other information, or are in any way questionable. 
Id. at 795; see also Matter of D-R-, 25 I&N Dec. 445, 460 n.13 (BIA 2011) (discussing the varying 
Page 10 
weight that may be given expert testimony based on relevance, reliability, and the overall probative 
value). 
The record leaves little doubt that certain researchers have found value in the petitioner's published 
work, citing it in their own subsequent research. Some of those researchers are of the opinion that 
the petitioner made a major contribution by overturning a previously dominant hypothesis in the 
field. The record, however, contains no objective evidence to show that the impact of the 
petitioner's work extends beyond a handful of researchers. Assertions that the petitioner's citation 
rate is relatively high for the specialty, and that the petitioner "is one of the leading researchers" in 
that specialty, are unsupported and appear to be exaggerated. The witnesses have basically focused 
on work that the petitioner finished in 2003, which indicates a single creative burst rather than an 
ongoing pattern of influential research that will prospectively benefit the United States. Even a 
professor at the New England College of Optometry, where the petitioner has studied since 2009, 
had nothing to say about the petitioner's more recent research work. 
In the final analysis, while the petitioner has shown some admirable work in her field, the overall 
record does not establish a consistent pattern of influential work that would distinguish her from 
others in her field and demonstrate that a waiver of the job offer requirement would serve the 
national interest. 
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. 
ORDER: The appeal is dismissed.