dismissed EB-2 NIW Case: Nuclear Physics

U.S. Department of Homeland Security 
identi$ine ?.-!a de::t~d to 
 U.S. Citizenship and Immigration Services 
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 OfJice ofAdmrn~strat~ve Appeals MS 2090 
y-~ebly2\ Washington, DC 20529-2090 
i~zsi2n of re- - - 
 U.S. Citizenship 
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 and Immigration 
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Office: TEXAS SERVICE CENTER Date: yUN 2 5 2009 
SRC 07 232 5 1532 
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. 5 103.5 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). 
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 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 seeks employment as a faculty associate at the University of Texas Southwestern Medical 
Center (UTSWMC), Dallas. 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 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). 
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. 
The petitioner filed the petition on July 27,2007. In an introductory statement, counsel asserted that the 
petitioner "is a truly extraordinary nuclear physicist. He has over 25 years of broad experience as a 
nuclear physicist, seven year[s] of which [were devoted] toward the advancement of medical imaging." 
Seven witness letters accompanied the initial filing. , now a Research Scientist at 
Ibce University, Houston, Texas, stated: 
Page 4 
I met [the petitioner] in 1997, when I joined . . . the Compact Muon Solenoid (CMS) 
collaboration. The CMS is a large international project in high energy physics currently 
under construction at CERN [the European Organization for Nuclear Research, Geneva, 
Switzerland]. The ultimate goal of this experiment is to prove the existence of Higgs 
boson, which is critical for understanding why certain fhdamental particles have mass. 
The collaboration involves more than 1600 scientists and engineers from approximately 
150 institutions worldwide. 
At this time, [the petitioner] was one of [the] key members of the CMS group from the 
Joint Institute for Nuclear Research (JINR) in Dubna, Russia. The group was working 
on the design and development of the inner cathode strip chambers that are the most 
critical detectors of the muon system at CMS. . . . Experience in this area of electronics, 
both the conceptual design and its successful implementation, exists in very few places 
in the world. 
. . . I can confirm that [the petitioner] has a strong background not only in electrical 
engineering . . . but in experimental physics in general. . . . 
[The petitioner] made a significant contribution to the CMS project while working at 
JINR. He designed and commissioned electronic devices for precise measurements of 
the muon position and momentum using the detectors built by the JINR group. 
Currently the production and testing of the cathode strip chambers and associated 
electronics is close to completion. They will be installed at CERN in the near future and 
the experiment is scheduled to start operation in 2007. 
. . . [The petitioner] joined UT Southwestern Medical Center at Dallas in February 2000. 
. . . [H]e . . . quickly became a leading electronics expert in the Department of 
Radiology, where he is focused on advanced radiology and nuclear imaging, mainly on 
PET(Positron Emission Tomography)/SPECT(Single Photon Emission Computer 
Tomography) techniques. The initial results of his research have been published 
recently and look very promising. 
I have known [the petitioner] for more than 20 years, first meeting him at the JINR at 
Dubna. At that time he was working on a novel and challenging method of acceleration 
of heavy ions, studying behaviour of cooling helium at extremely low temperatures. His 
world-class experiments were crucial for the progress of the whole team of several 
hundred physicists and engineers. . . . 
[The petitioner] was one of the key members of the CMS group from JINR. . . . 
Page 5 
He also made a crucial contribution to the successful completion of the radiation 
hardness tests of the LHC [Large Hadron Collider] electronics and materials. . . . 
His unique expertise both in nuclear physics and electronics allows him to play a leading 
role in the Department of Radiology as an expert in the area of nuclear medical imaging. 
. Director of the Advanced Radiological Sciences (ARS) Division at UTSWMC, 
stated: 
[The petitioner] joined the ARS Division in February 2000. . . . For the past seven years, 
I have worked closely with [the petitioner]. . . . [The petitioner] has brought new 
expertise to the ARS Division, and has been very successful. [The petitioner] plays a 
key role in ,several significant research projects involving the design of novel 
instrumentation for PET, SPECT and BLI (bioluminescence imaging). . . . 
[The petitioner] demonstrates a broad knowledge of nuclear particle detection and 
nuclear electronics that ha[s] been instrumental in advancing diagnostic imaging 
modalities. 
[The petitioner] has successfully designed and implemented circuits, networks and data 
capturing and processing concepts. He has made fundamental and vital contributions to 
the development of novel biochemical imaging instruments in our laboratory. . . . 
Since joining the Department of Radiology in 2000, [the petitioner's] research interests 
have moved beyond nuclear imaging. He actively works in the area of designing new 
detectors and methods for bioluminescence imaging. 
I have followed [the petitioner's] wok for more than 20 years. [The petitioner] conducts 
advanced research of high-speed electronics for nuclear detectors and data acquisition 
systems, which has been well-recognized and widely used. . . . 
[The petitioner has] significantly improve[d] the sensitivity of the small animal PET 
imager. His groundbreaking results have been widely used in experiments toward 
developing new positron active agents for early cancer diagnostics. . . . 
He is a key researcher in the new project to create a multimodal system for high-contrast 
CT and high spatial and temporal resolution SPECT for digital mammography, based on 
Gaseous Electron Multiplier (GEM) structure. The goal of this project is to create [a] 
non expensive portable device for very early stage breast cancer diagnostics. 
Page 6 
improvements in Single Photon Emission Computed ~omo~ra~h~ (SPECT), an imaging technique of 
great value in clinical practice and in research for studies in brain, cardiac and cancer. . . . [Hlis 
expertise is very valuable to the ongoing development of SPECT." 
I have followed [the petitioner's] research over the last few years as we have a very 
important common research goal. 
. . . [The petitioner's] current and past research and development of novel devices for 
molecular imaging such as Positron Emission Tomography (PET) imaging and small 
animal Single Photon Emission Computerized Tomography (SPECT) imaging have 
been recognized internationally. . . . 
I feel that [the petitioner's] research has had a significant impact in the field of nuclear 
medical imaging. [The petitioner's] research focus sets him apart from others in the 
field, as it is highly original. 
did not elaborate as to how the petitioner's work differs from the work of others in the field, 
or provide any details about the petitioner's "significant impact." While 
 did not mention 
any active collaboration with the petitioner, the record identifies several articles that list him and the 
petitioner as co-authors. 
The petitioner submits copies of several dozen of his published articles, some relating to his present 
medical imaging work, others relating to his earlier research in particle physics. To establish the impact 
of these published works, the petitioner submitted printouts from the Google Scholar database 
(htt~://scholar.noonle.com) showing that six of his articles have been cited one to six times each 
(usually three times or less). The petitioner submitted copies of two articles containing independent 
citations to his work. The petitioner also submitted a partial copy of a doctoral dissertation by one of 
the petitioner's German collaborators. An article by Russian researchers contains no citations to the 
petitioner's work, but the petitioner is one of several individuals thanked in the "Acknowledgments" 
section at the end of the article. 
On January 18, 2008, the director requested further details and evidence to show the nature and extent 
of the petitioner's impact on his current field. In response, the petitioner submitted a letter from 
I-, Director of Medical Physics at the University of Nebraska Medical Center, 
Omaha, who stated: 
I do not know [the petitioner] personally but through my review of his publications and 
documented accomplishments in the field. [The petitioner] is an extraordinary research 
scientist in the field of biomedical instrumentation. . . . 
[The petitioner] has contributed a number of seminal publications in the area of 
experimental high energy physics. 
Because of his expertise in instrumentation, [the petitioner] was subsequently recruited 
to the University of Texas Southwestern Medical Center to direct groundbreaking efforts 
in medical imaging. His work has been pivotal to the development of several small 
animal imaging devices, including single photon emission computerized tomography 
(SPECT) and positron emission tomography (PET) scanners. The devices, among the 
first in the world of their kind, have revolutionized molecular imaging application[s] in 
both the clinical and pre-clinical setting. These landmark efforts have led to 
fhdarnental understanding of the basic mechanisms of many human diseases. . . . 
[The petitioner] has made significant scientific advances to our knowledge of this 
specialized field and his work has had a tremendous impact on the way that scientists 
approach related studies throughout the United States and abroad. 
letter provides no more details about the nature of the petitioner's contributions than did 
the previous letters. Like the prior witnesses, Prof. Solberg simply asserted that the petitioner made 
important but unspecified contributions to SPECT and PET technolo-gy. 
An electronic mail message from to counsel reads: 
[The petitioner's] area of expertise lays mostly in the design and development of tools 
framework [sic] for nuclear imaging but not in biochemistry or biology. [The petitioner] 
played a pivotal role in our research endeavors in that he created and modified the small 
animal PET imager that provided the foundation for our research. 
There is no question that without his device and expertise, this research would not have 
been possible. . . . It would be highly unusual for him to be listed as a first author on any 
paper resulting fi-om his device, however, the lack of his first authorship on these papers 
in no way minimizes his substantial contributions [to] the field in creating and 
modifying as needed his innovative small animal PET imager. 
In an electronic mail message to the petitioner, UTSWMC stated: "I am sure 
you will be pleased to learn that the small animal PET, which you develop [sic] and support over the 
past years was used to achieve some important data for a significant paper just published in Clinical 
Cancer Research." The petitioner was not a co-author of the Clinical Cancer Research article, but the 
article includes a citation to a 2006 article by the petitioner which, in turn, announced the construction 
and testing of a small animal PET imager. 
An anonymously-prepared table listed the small animal PET scanner and other devices such as a "Multi 
head bioluminescence imager." It is not clear whether the petitioner invented these devices, or simply 
modified them to meet specific project needs. 
An updated citation printout shows an increase of two citations since the preparation of the previous list. 
The director denied the petition on September 8, 2008. The director stated: "A check of the citation 
index Google Scholar indicates you have had only two professionally published articles cited by other 
scholars in your field." We note that many of the petitioner's published articles appeared with a 
different transliteration of the petitioner's surname. Therefore, a search for one variant of the surname 
will not yield any results published under the other variant. 
The director also indicated that the petitioner's most significant achievements with PET and SPECT 
imaging apparently took place after the petition's filing date, because the first round of letters indicated 
only that this research was "promising." The beneficiary of an immigrant visa petition must be eligible 
at the time of filing. See Matter of Katigbak, 14 I&N Dec. 45,49 (Regl. Cornmr. 1971). Therefore, we 
must judge the petitioner's achievements as of the filing date. Later accomplishments cannot cause the 
petitioner to be eligible if he was not already eligible at the time he filed the petition. 
On appeal, the petitioner submits recent articles and related materials. Counsel asserts that, although 
these materials originated after the filing date, they reflect "the impact of pre-filing work carried out by" 
the petitioner. Counsel is correct that these exhibits have weight insofar as they reflect the continuing 
impact of what the petitioner accomplished before he filed the petition. The articles were published by 
UTSWMC researchers with, in some cases, collaborators at other institutions. 
Counsel also states: 
[The classification sought] does not require a specific type of documentation (i.e. 
publications or citations) to demonstrate . . . significant and substantial impact to the 
national interest. The supporting documentation established that [the petitioner] 
developed first of its kind PET and SPECT imaging technology that enables physicians 
and biomedical researchers to more rapidly detect cancer and other deadly diseases in 
their infancy stages. He continually advances this technology for the needs of front line 
physicians and researchers in their quests to discover early detection methods of disease. 
Counsel is correct that citations alone are not a universal, mandatory qualifying factor for the national 
interest waiver. Aliens with few or no citations can qualify for the waiver using other evidence, and a 
heavily-cited alien may be unable to overcome other serious disqualifying factors. Nevertheless, 
whatever types of evidence a given petitioner submits, that evidence must show that the alien has and 
will continue to benefit the United States (beyond the intrinsic merit in the alien's occupation) to such a 
degree that it is in the national interest to waive the job offer requirement. 
Here, it is clear that the petitioner himself does not conduct medical research as such, which is why he is 
unlikely to receive principal author credit on medical research articles. Therefore, his contributions do 
not rest in the actual medical research performed at UTSWMC and reported in various journals. 
Instead, the record demonstrates that the petitioner has performed significant work on various imaging 
devices used in medical research. The petitioner has not, however, sufficiently established the 
importance or scope of that work. For example, the record does not indicate that the petitioner or 
UTSWMC have sought to patent the devices in question. Therefore, we cannot tell if the petitioner's 
work involved the creation of entirely new devices, substantial modifications on earlier models, or 
simple fine-tuning for specific, limited purposes. 
If the petitioner has invented important new laboratory equipment, or made significant improvements to 
existing devices, and the petitioner's innovations are now in widespread use, then one could make a 
persuasive case for a national interest waiver. It is more difficult to say the same if the petitioner's work 
focuses on modifying equipment in use at one laboratory. Here, the record does not show that other 
institutions have begun using the petitioner's devices (or adapted their equipment to the petitioner's 
specifications). Nearly all of the witnesses have been the petitioner's own collaborators, the one 
exception having described the petitioner's work very broadly, with little helpful detail. The record 
does not establish widespread use of the petitioner's innovations outside the University of Texas. 
Evidence of widespread use of PET and SPECT imaging cannot suffice in this regard, as there is no 
evidence that the petitioner invented those technologies. 
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. 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.