dismissed EB-2 NIW Case: Neuroscience

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., h~. 3000 
identifying 
 deleted to Washington, D.C. 20529-2090 
:/ it~3nted 
prevcnl GILL- . 
,e c; ncl 3f 2+-*Tc<;il<! ~;YI'J~C) 
~\C*JA~I U. S. Citizenship 
and Immigration 
BrnLIC copy 
office: TEXAS SERVICE CENTER 
 Date: MAR 0 3 2fifiS 
---- 
SRC 07 800 223 10 
IN RE: 
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. 5 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. $ 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. $ 103.5(a)(l)(i). 
u 
aohn F. Grissom, Acting Chief 
Administrative Appeals Office 
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 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 seeks employment as a postdoctoral researcher at the University of California, Davis (UCD). 
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 copies of materials already in the record. 
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). 
Page 3 
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 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 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. 
To discuss the petitioner's work and its significance, the petitioner submitted six witness letters with the 
initial filing ofthe petition. i of the Center for Brain Science Research at Fudan 
University, Shanghai, China, stated: 
[The petitioner] was my Ph.D. student fi-om 1999 to 2004. . . . 
[The petitioner] is pursuing three lines of research: 1) how animals and human beings 
see things, 2) what are the retina and brain mechanisms underlying vision, and 3) how 
Glaucoma causes the visual fbnction loss. . . . 
The central theme of [the petitioner's] novel work is that the functional properties of the 
retinal ganglion cells and afferent neurons are essential to the shape perception 
experienced in natural environments. In establishing this theory, [the petitioner] has 
made many important achievements in the areas of functional properties of retinal 
ganglion cells, brain hctional architecture and related brain malhction caused by 
acute Glaucoma. 
of Northwestem University, Evanston, Illinois, stated: 
I have long known and collaborated with [the petitioner's] P1.D. advisor, - 
who is an eminent neuroscientist in the P.R. China, . . . 
From September 2004 to July 2005, [the petitioner] did postdoctoral research in my 
laboratory. 
 I was his direct supervisor. 
 [The petitioner's] research dealt with 
characterizing the receptive field properties of retinal ganglion cells using the in vivo 
single cell extracellular recording technique. He was also engaged in some theoretical 
modeling work and helped develop some new software for the laboratory. . . . 
Currently, [the petitioner] is doing fiuther postdoctoral research with - 
- at the University of California, Davis. He is working at the leading edge of 
visual neuroscience by researching about retinal ganglion cell development, the pattern 
formation of retinogeniculate projection, and mechanisms of neurotransmitter 
regulation. 
[The petitioner] joined our laboratory in 2005. . . . Without question, [the petitioner] has 
contributed significantly to our understanding of the hctional role of retinal activity in 
the early stages of visual system development. [The petitioner] extended and clarified 
our understanding of how neuronal activity serves to regulate the development of two 
key features of mammalian retinal ganglion cells: their dendritic morphologies and their 
eye-specific projections to the brain. This information will have relevant implications 
for future studies of human visual system development as well as the myriad ontogenetic 
disorders that can adversely impact human vision. 
[The petitioner] and I have been collaborating on an exciting project for a year to 
decipher the implication of retinal activity in the visual system development. The 
Page 5 
purpose of this project is to find mechanisms that may potentially lead to therapeutic 
application for treatment of human retinal disease. Through this collaboration, I found 
that [the petitioner] is a very talented scientist with excellent potential. . . . 
[The petitioner's] current project in s lab is to clarify how the complex 
visual system is developed in the fetal and neonatal stages. It has been known that the 
malfunction of neurotransmitters, such as acetylcholine or glutamate, in the visual 
system of young children would lead to life-long loss of vision. . . . Understanding the 
neural mechanisms of acetylcholine and glutamate systems in the brain will likely 
provide clinically useful therapeutic approaches to cure these neurological disorders. 
of Wake Forest University School of Medicine, Winston-Salem, North Carolina, 
stated: 
I have met [the petitioner] and spent time with him. I am also well aware of his 
research. I met him when I attended his presentation at the Shanghai International 
Conference On Physiological Biophysics (SICPB 2006) in Shanghai, China, last 
November. I was impressed by his excellent presentation and his significant and 
original contribution in the area of retina development research, especially the effects of 
neurotransmitters to retinal ganglion cell activity. . . . 
Although it has long been realized that spontaneous retinal activity exists in the early 
stages of human visual system development, their specific roles in retinogeniculate 
projection (i.e., the pathway that the retina uses to send visual information to the brain) 
have remained unclear. Thus, determining whether there is a link between retinal 
activation and the visual pathway development is of great importance. [The petitioner's] 
recent results have showed that spontaneous activity of retinal ganglion cells play a very 
important role in the early mammalian and human visual system development. Based 
on his presentation and publication, I would like to say that [the petitioner's] 
accomplishments are extremely impressive and significant.. His current research 
findings are crucial to the elucidation of the function of retinal activity in the visual 
system development. 
stated: 
I am aware of [the petitioner's] significant and original contributions fiom his high 
quality papers. [The petitioner] has made significant contributions in the areas of 
functional properties of retinal ganglion cells, brain functional architecture and related 
brain malfunction caused by acute glaucoma. For example, [the petitioner] developed a 
progressive theory about the function of the retinal ganglions. He proposed that the way 
we perceive complex orientation is based on the function of retinal ganglion cells, 
instead of the cortex neurons. Experiments proved that his theory accurately accounts 
for a variety of perceptual phenomena that have puzzled vision scientists for many years. 
His findings also revealed that silicone oil tamponade is a safe treatment for complicated 
retinal detachment. . . . 
[The petitioner] has proven himself to be an absolutely brilliant scientist in the field of 
development and function of visual system research. He has made several important 
contributions to find factors that regulate the structural and functional properties of 
retinal ganglion cells and has repeatedly demonstrated that he has surpassed his peers in 
the same area. . . . [The petitioner's] contributions to the research are of fundamental 
importance to the understanding of functional and developmental construction of the 
visual system. 
The petitioner submitted copies of four articles he co-wrote. To establish the significance of his 
published work, the petitioner submitted copies of 18 articles and book chapters (four of them in 
unpublished manuscript form) containing citations of his work. At least five of these citations were 
self-citations by the petitioner's co-authors. Because one article was in Chinese with no translation 
provided as required by 8 C.F.R. 5 103.2(b)(3), we cannot determine the identities of its authors. Thus, 
the petitioner's initial submission contained, at most, nine published ind endent citations of the 
petitioner's work. Every citation pertains to the petitioner's work i 
 laboratory in China, 
Ad therefore this evidence does not establish the reception or impact of the petitioner's more recent 
work in the United States. 
On December 20,2007, the director issued a request for evidence, instructing the petitioner to "[slubmit 
documentary evidence of the exact influence the beneficiary's work has had on his specialty or on the 
field in general," including evidence of citation of published work. In response, counsel stated: 
"Petitioner's work has been cited a significant 26 times by non-affiliated researchers." An 
accompanying exhibit index identified Exhibit 49 as "26 independent citations of [the petitioner's] 
work" (emphasis in original). Exhibit 49 includes several articles by the petitioner himself, along with 
26 other pieces that contain citations to his work, including duplications fi-om the prior submission. 
Eight of those 26 articles contain self-citations by the petitioner's collaborators, particularly Tiande 
Shou. Self-citation is common and accepted practice, but it is false and absurd to call the petitioner's 
citations of his own work "independent citations" "by non-affiliated researchers." The supplementary 
submission includes fourteen published independent citations of the petitioner's work, one untranslated 
article in Chinese of undetermined authorship, and three unpublished independent citations, including 
two graduate theses or dissertations. 
The director denied the petition on April 10, 2008. The director acknowledged the petitioner's 
submission of citations and independent letters, but found that the petitioner has not established impact 
or influence in hs field to an extent that would justiQ the national interest waiver. 
On appeal, counsel observes that the authors of three previously submitted articles commented on the 
merits of the petitioner's work when citing his articles. Review of these articles indicates that the 
petitioner's work has not been singled out to the extent counsel implies. A 2004 review article fi-om 
Current Opinion in Ophthalmology included 35 articles in its bibliography. Three of those articles, 
including the petitioner's article, were marked "Of special interest." Five others were marked "Of 
outstanding interest." 
The description of appellate Exhibit 5 reads: 
Copy of a citing paper rating one of [the petitioner's] first-authored works and noting 
that thls work established one of the few new approaches that have "bridged the gap 
between the signal processing mechanism at the molecular or cellular level and the 
information processing mechanism in the functional portions of the brain." 
What follows is a more thorough excerpt, with references, from the article in question (a 2007 article 
fi-om Frontiers of Computer Science in China): 
Doubts have been raised about the more traditional memory models that were based on 
weights-evolution and fixed structure. Therefore, new approaches have been tried 
which adopted neuron encoding [6], or structure-oriented learning [7], or sparse sub- 
networks [8], or dynamic neuron processing [9]. Research in cell encoding [lo, 111, 
micro-circuits [12], functional columns 113, 141 and the structure and function of 
receptive fields [15] has bridged the gap between the signal-processing mechanism at 
the molecular or cellular level and the information-processing mechanism in the 
fbnctional portions of the brain. So, research into A1 models fusing memory, 
perception, and representation is becoming more prominent [ 16- 1 81. 
Reference 15 is a 2004 article by the petitioner. In context, it is far fiom clear that the petitioner's work 
merited greater attention than the dozen other articles referenced in the same excerpt shown above. 
The third article discussed on appeal, fiom Proceedings of the 2005 3rd International Conference on 
Intelligent Sensing and Information Processing, appears to be the most favorable with specific reference 
to the petitioner's work; one sentence reads, in full: "Furthermore, very recent evidence in favour of 
extended surrounds [ 1 71 and also previously found evidences of zero-crossing detection [18, 191 at even 
higher stages of visual information processing, is highly significant fiom such a point of view." 
Reference 17 is a 2004 article by the petitioner. 
The above references to the petitioner's work indicate that the petitioner's past work has been of use to 
other researchers, but the examples offered on appeal do not suffice to establish a pattern of especially 
substantial influence or impact on the field in comparison to other researchers in the specialty. 
Counsel asserts that the petitioner "won the 2002 and 2004 International Brain Research Organization 
Fellowship. (Original Petition Exhibits 9-10) This is a clear indication that his work surpasses that of 
his peers." Original Exhibits 9 and 10 document the petitioner's membership in professional 
associations. Exhibit 11 was labeled "Documentation evidencing [the petitioner's] receipt of 
International Brain Research Organization Fellowship in 2002," but this exhibit is simply a certificate 
showing that the petitioner "successfully completed the IBRO Course in Neuroscience at Fudan 
University, Oct. 21-29,2002." There is no mention of any fellowship, and the petitioner was already a 
student at Fudan University in 2002, so his completion of a course there is not remarkable. Exhibit 12 
identified the petitioner "as a recipient of a special IBRO Fellowship" in 2004. The purpose of the 
fellowship was to assist in the petitioner's "training in neuroscience," indicating that the fellowship was 
intended for individuals whose training was still considered incomplete. Counsel offers no persuasive 
argument that the petitioner's attendance at a short training course demonstrates his eligibility for the 
national interest waiver. 
Counsel protests that the director "dismissed out of hand" the independent witness letters submitted in 
support of the petition. While such letters can establish eligibility, depending on a number of factors, 
there is no guarantee or requirement that the submission of independent witness letters must inevitably 
result in approval of a given petition. The statutory job offer requirement is not limited to researchers 
whose work is entirely ignored and lacking in practical application (which would be the logical 
corollary of a finding that any influence is enough influence to merit a waiver). Each record of 
proceeding must be considered independently and as a whole. The AAO does not question the 
expertise of the witnesses of record, but the record in its entirety does not persuasively establish that the 
petitioner's effect on his chosen field warrants the special benefit of a national interest waiver. 
The record shows a pattern of exaggerated or inaccurate claims regarding the evidence submitted (such 
as the claim that articles by the petitioner's supervisor are fiom "non-affiliated" authors). While the 
petitioner's research work is not without value, and shows promise for future progress, the request for 
the waiver in this instance appears to have been premature at best. 
As is clear fiom 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 fiom 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. 5 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.