dismissed EB-2 NIW Case: Nutritional Epidemiology

i, 
U-S. Department of Homeland Semrity 
20 Massachusetts Ave., N.w., ~m. 3000 
Washington, D.C. 20529-2090 
u. S. Citizenship 
and Immigration 
co- 
FILE: Office: TEXAS SERVICE CENTER Date: JAN 1 3 2009 
SRC 07 800 22662 
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. fj 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. fj 103.5(a)(l)(i). 
shn F. Griss u , 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. 1 1 53(b)(2), as a member of the professions holding an advanced degree. At the 
time she filed the petition, the petitioner was a doctoral student and research assistant at the Bloomberg 
School of Public Health at Johns Hopkins University (JHU), Baltimore, Maryland. The record shows 
that the petitioner completed her doctorate in early 2008 and then applied for a postdoctoral fellowship 
at the National Institutes of Health (NTH). 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. 
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 tenn "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 
Page 3 
increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise. . . ." S . Rep. No. 5 5,lO 1 st Cong., I st Sess., 1 1 (1 989). 
Supplementary information to regulations implementing the Immigration Act of 1990 (IMMACT), 
published at 56 Fed. Reg. 60897,60900 (November 29, 1991), states: 
The Service [now U.S. Citizenship and Immigration Services (USCIS)] 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 (Cornrnr. 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. 5 204.5(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. 
Six witness letters accompanied the petitioner's initial filing. Five of the witnesses are current or former 
faculty members of JHU or Iowa State University in Arnes (where the petitioner studied before her time 
at JHU). 1, supervisor of the petitioner's doctoral studies at JHU, 
described the petitioner's work there: 
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At Hopkins, [the petitioner's] research focuses on obesity and its related chronic 
diseases. Her ongoing research is addressing the role of drinking beverages, including 
soda, hit drinks, hit juice, coffee, tea and alcoholic drinks in the development of 
obesity. . . . 
One major component of [the petitioner's] research is to find how consumption of 
beverages influences weight gain or weight loss. The result of the study, which has 
already been accepted by the Obesity Society (NAASO) annual conference, provides 
innovative evidence to show that reducing the intake of soR drinks that provide no 
nutritional benefits could be a simple but effective strategy to reduce energy intake, 
manage body weight, and maintain adequate micronutrient intake. She will continue her 
research by expanding her findings fiom the above study to a broader socioeconomic 
and politic context. In particular, she will continue to explore the socioeconomic factors 
that influence American's [sic] beverages consumption and the impact of reducing soR 
drink consumption on obesity prevalence. . . . [The petitioner's] groundbreaking 
research would be a vital component in preventing and providing treatment for obesity 
nationwide. 
. . . [The petitioner] made many remarkable contributions to new methodologies in 
nutritional epidemiology. She proposed innovative approaches for developing a dose- 
response curve in meta-analysis (an advanced statistical method for qualitative summary 
of existing data in the literature). She also combined several models such as GEE, 
Mixed Effect, and Change Score models in longitudinal data analysis. . . . 
Because of her unique combination of skills in the fields of clinical medicine, nutrition, 
physiology, epidemiology, and biostatistics, I invited her to be a key researcher in my 
new $1.5 million research project, which focuses on multiple components of 
intervention of chldhood obesity, targeting children fiom 0 to 2 years of age. 
, now an associate professor at the Medical University of South Carolina, was 
formerly an assistant professor, and then an associate professor, at JHU until 2006. 
 stated: 
[The petitioner] and I worked together on a systematic review of the literature on diet 
and cancers of the lung and nasopharynx, and through this collaboration I have come to 
know [the petitioner] very well during the past three years. . . . [The petitioner's] 
primary interest is addressing issues related to how beverage consumption impacts 
human health. . . . [The petitioner's] research indicates that alcohol may not be related to 
nasopharyngeal carcinoma risk at low levels of consumption, but that risk does become 
apparent at heavier levels of consumption. . . . 
The composite picture painted by this record of achievement is that [the petitioner] will 
have an outstanding research career. Clearly, [the petitioner] is progressing along a path 
that shows a highly favorable career trajectory. 
 She shows all the indications of 
developing into an outstanding nutritional epidemiologist. 
Since 2001, I have had many opportunities to interact with [the petitioner] both as a 
member of her doctoral dissertation committee and in other occasions in our program.' I 
have found that she is a very gifted young researcher with unique and outstanding skills 
in the fields of nutrition, epidemiology, and biostatistics with a focus on identifying the 
risk factors for obesity, cancer, and other chronic diseases. . . . 
[The petitioner] is one of the scholars who are working on the fiont line of this area. . . . 
[The petitioner's] recent research shows that reducing consumption of sugar-sweetened 
beverages such as soda, fruit drinks, fruit punch, and ice tea can have significant impact 
on weight loss. Most significantly, her study will be among the first that provide solid 
scientific evidence to indicate that reducing soda drinking is a simple and effective 
lifestyle change that will help reduce the risk of obesity in adults. 
at Iowa State University, directed the petitioner's master's 
studies at that institution. 
 stated that the petitioner's "research project advanced our 
understanding as to the mechanism by which lutein, a naturally-occurrin 
 ellow carotenoid pigment in 
dark green vegetables, may prevent" age-related macular degeneration. dh asserted: "The depth, 
breadth, and quality of [the petitioner's] training in the United States are . . . truly impressive and 
unique." 
Another associate professor at Iowa State Universi 
 "was quite impressed with [the 
petitioner's] dedication to research, but 
 letter contains few details about the petitioner's 
work except to observe that her "work on a protein purification method requires expertise in 
biochemistry and considerable time commitment. She was proactive in receiving assistance and advice 
fiom the experts to complete the project with the most efficient results." 
The last of the initial witnesses is - Research Director at the Primary Care 
Coalition of Mont omery County (Maryland), Inc. An exhibit list accompanying the initial sub&ssion 
listed d letter as an "independent advisory opinion." however, is a JHU School 
of Public Health alumna who e petitioner "worked and contributed her dedicated efforts to 
one of my research projects." asserted that the petitioner's "work is significant in the battle 
against obesity in the United States." 
The petitioner submits copies of her published articles and conference presentation materials. A 
number of the petitioner's articles are review articles, which summarize the previously published 
' We note that, according to the record the etitioner did not arrive at JHU until 2003. In 2001, the petitioner was a 
student at Iowa State University, and 
 was on the faculty of the University of Illinois at Chicago. 
Page 6 
findings of other researchers rather than report new research findings. A printout from a citation 
database indicates that one of the petitioner's articles, published in 2004, has been cited seven times as 
of the petition's July 2007 filing date. One of these seven citations is a self-citation by co-author S. 
Rodermel. 
The petitioner submitted a copy of an article that contains a citation of another article by the petitioner. 
The cited article is a review article from 2004, interpreting prior research, rather than original scientific 
research conducted by the petitioner. The article containing the citation cited the petitioner's article as 
part of a joint citation with six other articles dating from 1989 to 2000. 
The petitioner submitted background evidence to establish the importance of studying the link between 
beverage consumption and obesity. The evidence shows that a 2002 drafi report by the World Health 
Organization linked soft drink consumption to obesity. The petitioner clearly did not discover this link, 
as she did not begin to study this particular issue until she arrived at JHU in 2003. The petitioner's 
further exploration of this link has substantial intrinsic merit and national scope, but ha very 
involvement is not presumptive evidence of eligibility for the waiver. 
On January 8,2008, the director issued a request for evidence, instructing the petitioner to establish that 
she meets the guidelines set forth in Matter of New York State Dept. of Transportation. The director 
also requested "letters of recommendation from independent sources." In response, the petitioner 
submitted new letters and additional evidence. One if the petitioner's collaborkors, JHU professor 
, stated that the petitioner "has continued to impress me as a very intelligent and 
dedicated young scientist." stated that the petitioner "found that reducing sugar-sweetened 
beverage intake by 1 serving pa day was associated with weight loss. This is a relationship that has 
been difficult to 
 despite-its cokceptual appeal." 
 added that the petitioner "was also 
the first to report, using data collected in humans, 
 in liquid calorie intake could 
result in more effective weight loss (2-3 times) compared with reduction in solid calories." 
The remaining witnesses claim not to have met the petitioner personally. 
 an 
assistant professor at Harvard Medical School and Harvard School of Public Health, stated: 
I do not know [the petitioner] personally and have never met her. However, I am quite 
familiar with the published studies based on her excellent research, and have commented 
on some of her publication manuscripts. . . . She has already made a number of 
significant contributions to our understanding of the ways in which dietary patterns 
influence obesity and related co-morbidities such as hypertension and metabolic 
syndrome, and her research has influenced the way scientists in our field think about 
certain types of beverages. 
. . . [The petitioner's] research has resulted in several notable discoveries. First, she 
found that individuals who consume larger amounts of calories fi-om beverages more 
easily gain weight than those otherwise similar persons who consume a smaller 
percentage of their calories fi-om beverages. . . . Second, [the petitioner] found that 
Page 7 
reducing consumption of sugary drinks is significantly associated with weight loss. . . . 
Third, she found that reducing sugary drink consumption can result in significant 
reduction in blood pressure, independent of weight loss. . . . Last, she clarified that there 
is a J-shaped relationship between alcoholic beverage intake and risk of nasopharyngeal 
cancer. 
an associate researcher at the Cancer Research Center of Hawaii, University of 
Hawaii, "became aware of [the petitioner's] research when she sent her publication manuscripts for my 
comments." states that the petitioner's ''research is groundbreaking, because it is the first 
study that I know of that conclusively demonstrates that reducing sugary beverage intake has such a 
drastic effect on obesity and hypertension." 
Program Director at the Fogarty International Center at NIH, "found the petitioner's] 
publications via PubMed, and then contacted her for more literature." (stated that the 
petitioner's "research record identifies her as a special asset to our field. Her research is truly 
outstanding." 
, an investigator at the NIH's National Institute of Child Health and Human 
Development (NICHD), stated: 
I came to know [the petitioner] when she applied for the Intramural Research Post- 
doctoral Training (IRTA) Fellowship position at Epidemiology Branch, NICHD, NM. 
. . . [The petitioner] stands out among the applicants by her excellent training and 
knowledge in nutrition, biochemistry, epidemiology, clinics and statistics, and 
extraordinary research achievements and skills. 
stated: "As a post-doctoral IRTA Fellow at NICHD, NIH, [the petitioner] will continue her 
research on nutrition, obesity, and chronic diseases." This seems to imply that the petitioner had 
already been selected for the fellowshp. Elsewhere in the letter, however,- stated that the 
petitioner "has been selected as a candidate for an IRTA Fellowship." 
Most of the above witnesses appear to have learned of the petitioner's work when the petitioner 
submitted her manuscripts for comment, or when the petitioner applied for a postdoctoral fellowship at 
NM. The letters do not establish that the petitioner's work had had significant impact as of the 
petition's filing date. 
Also failing to show significant impact, an updated citation database printout indicates that two of the 
petitioner's articles have garnered 14 citations in the aggregate - one cited ten times from 2004 to 2007, 
the other four times from 2006 to 2007. The petitioner did not establish that this citation rate stands out 
in the petitioner's field. 
Page 8 
The director denied the petition on April 14, 2008, stating that the petitioner had not established 
widespread impact of her work, either through significant citation or through other evidence that the 
petitioner's findings have been independently applied. On appeal, counsel states: 
A requirement that the alien beneficiary's work be cited frequently or at all is certainly 
quite inflexible. Moreover, such a standard fails to take into account factors such as how 
long the alien beneficiary has been working in the field, how many publications (if any) 
have been made, and how long the published work has been available to the scientific 
community. 
There is no codified, formal requirement regarding citations, but Matter of New York State Dept. of 
Transportation at 219 indicates that an alien seeking a waiver must demonstrate a prior history of 
achievement that would justify expectations of future benefit to the United States. For aliens engaged in 
published scientific research, citations are a quantifiable, objective measure of the extent of the alien's 
impact on others in the field. With respect to "how long the alien beneficiary has been working in the 
field," experience alone does not qualify an alien for the waiver, but it is certainly true that a more 
experienced researcher will have had more opportunities to influence his or her field. This is not 
evidence against bias against younger researchers, however. If a researcher's very first published article 
has a substantial impact in the field, this evidence will be duly considered. On the other hand, a 
researcher could work for decades without producing work of a caliber that warrants a national interest 
waiver. In any event, the timing of the waiver request is up to the petitioner, not USCIS. It was the 
petitioner who initiated this proceeding while she was still a student, and it was the petitioner who chose 
to introduce citations of her work into the record, first in the initial filing and then again in response to 
the request for evidence. Only after the director found the petitioner's unrequested citation data wanting 
has the petitioner, through counsel, protested the director's reliance upon citation of the petitioner's 
published work. There is no justification for imposing a more lenient burden of proof on aliens who 
have had less time to establish themselves in their respective fields. 
Counsel's asserts: "It is reasonable to expect that experts in the field would have taken note of her 
work but had not yet published work citing the relevant publication." 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). The record does not show a significant surge in citation of the petitioner's work 
between July 2007, when the petitioner filed the petition, and May 2008, when she filed the appeal. As 
of May 2008, several of the petitioner's articles had been in print for two to four years. One of the 
petitioner's own articles, submitted for publication in 2003, cited articles published in 2002. More 
hndamentally, the existence of even one citation of the petitioner's work proves that enough time has 
elapsed for citations to appear. Counsel's speculation that many more citations could be imminent is 
not a basis for approval of the waiver. Indeed, it was the petitioner, not USCIS, who determined the 
timing of the present petition. By choosing to file when she was still a student with a minimal 
publication record, instead of waiting for the expected bust of citations to appear, it is the petitioner 
who established the conditions under which the petition would be considered. We must consider the 
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petition based on the existing evidence, rather than on potential future evidence that counsel claims may 
be "reasonable to expect." 
Furthermore, notwithstanding counsel's allegation of inflexibility, a lack of heavy citation is not 
invariably fatal to a national interest waiver petition. The petitioner must, however, produce some form 
of reliable evidence of impact and influence on his or her field. Here, the petitioner has relied largely on 
letters fi-om mentors, collaborators, and others who had significant prior contact with the petitioner 
(including one self-described collaborator who was put forward as an independent witness). 
On appeal, counsel argues that the petitioner "has made major contributions to nutritional 
epidemiology," and then proceeds to list these accomplishments. 
 The list merely identifies the 
petitioner's achevements, however; the significance thereof is not self-evident. The witnesses have 
argued that the petitioner has made significant contributions to nutritional epidemiology, but the record 
does not establish the extent to which the petitioner's findings have affected research, public policy, or 
other areas of endeavor relevant to her work. The mere existence of influence is not sufficient, as every 
researcher who interacts with others has some degree of influence simply by virtue of that interaction. 
The key is to establish the degree of that influence, and to show that the petitioner stands out as a result 
of that influence. 
Counsel notes that , in his letter submitted with the initial filing, stated: 
When the Beverage Guidance Panel was established to propose a "New Guideline 
System for Beverage Consumption in the United States" (published in American Journal 
of Clinic Nutrition in 2006), I recommended [the petitioner's] literature review to each 
member in the panel, resulting in a significant amount of her work being used in the new 
guideline. 
The record does not contain "the new guideline" itself, and therefore the petitioner did not establish the 
extent to which the panel relied on the petitioner's "literature review," Furthermore, there is no 
evidence that the panel relied on the petitioner's own original research. Because - 
- 
himself was a member of the panel, it is not surprising that one of 
 students would have 
served in some supporting capacity. 
Counsel asserts that the petition is supported by "independent expert" testimony, but we have already 
shown, above, that the independence of these witnesses has been exaggerated. We will not repeat that 
discussion here. 
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 fi-om 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 
Page 10 
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. 8 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.