dismissed EB-2 NIW Case: Organic Chemistry

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U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
FILE:
LIN 0414852567
Office: NEBRASKA SERVICE CENTER Date:
F'Ee O~ iii?
INRE: Petitioner:
Beneficiary:
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced
Degree or an Alien ofExceptiona1 Ability Pursuant to Section 203(b)(2) of the Immigration
and Nationality Act, 8 U.S.c. § 1153(b)(2)
ON BEHALF OF PETITIONER:
SELF-REPRESENTED
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office .
. ~,:..~
.'Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
Page 2
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa
petition, which is now before the Administrative Appeals Office on appeal. The appeal will be
dismissed.
The petitioner seeks classification pursuant to section 203(b)(2) of the hnmigration and Nationality Act
(the Act), 8 U.S.C. § 1153(b)(2), as .an alien of exceptional ability. The petitioner asserts that an
exemption from the requirement of a job offer, and .thus of an alien employment 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 had 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 responds to several of the director's concerns. For the reasons discussed
below, the petitioner has not overcome the director's concerns.
Section 203(b) of the Act states in pertinent part that:
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of
Exceptional Ability. --
(A) In General. -- Visas shall be made available ... to qualified immigrants who are
members of the professions holding advanced degrees or their equivalent or who
because of their exceptional ability in the sciences, arts, or business, will substantially
benefit prospectively the national economy, cultural or educational interests, or welfare
of the United States, and whose services in the sciences, arts, professions, or business
are sought by an employer in the United States.
(B) Waiver of Job Offer.
(i) ... the Attorney General may, when the Attorney General deems it to
be in the national interest, waive the requirement of subparagraph (A)
that an alien's services in the sciences, arts, professions, or business be
sought by an employer in the United States.
It appears from the record that the petitioner seeks classification as an alien of exceptional ability. This
issue is moot, however, because the record establishes that the petitioner holds a Ph.D. in Organic
Chemistry from the Shanghai Institute of Materia Medica. The petitioner's occupation falls within the
pertinent regulatory definition of a profession. The petitioner thus qualifies as a member of the
professions holding an advanced degree. The remaining issue is whether the petitioner has established
that a waiver of the job offer requirement, and thus an alien employment certification, is in the national
interest.
Page 3
Neither the statute nor 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, 101st Cong., 1st Sess., 11 (1989).
Supplementary information to the regulations implementing the Immigration Act of 1990 (IMMACT),
published at 56 Fed. Reg. 60897,60900 (November 29, 1991), states:
The Service 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 "exceptiona1."] 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 Dep't. of Transp., 22 I&N Dec. 215 (Comm. 1998), has set forth several
factors which must be considered when evaluating a request for a national interest waiver. First, it must
be shown that the alien seeks employment in an area of substantial intrinsic merit. Next, it must be
shown that the proposed benefit will be national in scope. Finally, the petitioner seeking the waiver
must establish that the alien will serve the national interest to a substantially greater degree than would
an available U.S. worker having the same minimum qualifications.
It must be noted that, while the national interest waiver hinges onprospective 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 concur with the director that the petitioner works in an area of intrinsic merit, drug development,
and that the proposed benefits of his work, new drugs for diseases such as Alzheimer's Disease,
cancer and HIV/AIDS, would be national in scope. It remains, then, to determine whether the
petitioner will benefit the national interest to a greater extent than an available U.S. worker with the
same minimum qualifications.
In the request for additional evidence, the director requested evidence relating to a higher
classification, aliens of extraordinary ability pursuant to section 203(b)(I)(A) of the Act. For
example, the director requested evidence of awards, exclusive memberships and published material
about the petitioner. Such documentation corresponds to the regulatory requirements for aliens of
extraordinary ability,. 8 C.F.R. §§ 204.5(h)(3)(i), (ii), and (iii) respectively. In the final decision,
Page 4
however, the director no longer requires such evidence, focusing instead on the lack of evidence that
the petitioner's work has influenced the field beyond his immediate circle of colleagues.
At the outset, we acknowledge that the petitioner submitted evidence of his memberships, including
his post-filing membership in Sigma Xi. The letter from Dr. Executive Director of
Sigma Xi, reveals that Sigma Xi invites to full membership "those who have demonstrated noteworthy
achievements in research." These achievements must be evidenced by "publications, patents, written
reports or a thesis or dissertation, which must be available to the Committee on Admission if
requested." Dr. j continues that the "Committee on Qualifications and Membership interpreted
this qualification to include primary authorship of two papers." In addition, an earned doctoral degree
may be substituted for one paper. We cannot conclude that primary authorship of one or two papers is
evidence of the petitioner's influence in the field. Moreover, one of the criteria for aliens of
exceptional ability, a classification that normally requires a labor certification, is membership in a
professional association. We cannot conclude that meeting one criterion, or even the requisite three
criteria, for that classification warrants a waiver of the job offer requirement in the national interest.
Matter of New York State Dep't of Transp., 22 I&N Dec. at 222. Regardless, as the petitioner was
elected to membership after the date of filing, it is not evidence of his eligibility as of that date. See
8 C.F.R. § 103.2(b)(12); Matter ofKatigbak, 14 I&N Dec. 45, 49 (Reg. Comm. 1971).
Eligibility for the waiver must rest with the alien's own qualifications rather than with the position
sought. In other words, we generally do not accept the argument thata given project is so important
that any alien qualified to work on this project must also qualify for a national interest waiver.
Matter ofNew York State Dep 't of Transp., 22 I&N Dec. at 218. Moreover, it cannot suffice to state
that the alien possesses useful skills, or a "unique background." Special or unusual knowledge or
training does not inherently meet the national interest threshold. The issue of whether similarly­
trained workers are available in the United States is an issue under the jurisdiction of the Department
of Labor. Id. at221.
At issue is whether this petitioner's contributions in the field are of such unusual significance that the
petitioner merits the special benefit of a national interest waiver, over and above the visa
classification he seeks. By seeking an extra benefit, the petitioner assumes an extra burden of proof.
A petitioner must demonstrate a past history of achievement with some degree of influence on the
field as a whole. Id. at 219, n. 6. In evaluating the petitioner's achievements, we note that original
innovation, such as demonstrated by a patent, is insufficient by itself. .. Whether the specific
innovation serves the national interest must be decided on a case-by-case basis. !d.:at 221, n. 7.
As stated above, the petitioner obtained his Ph.D. in 1999 from the Shanghai Institute of Materia
Medica. The petitioner then worked as a research associate at the School of Pharmacy, University of
Wisconsin until August 2001. The petitioner left Wisconsin for the P! II! Institute in
Minnesota and remained there as of the date of filing. The petitioner is currently working at the
University of Illinois at Chicago. .
A79 286 478
Page 5
The petrtioner submits several reference letters discussing his work at the above institutions.
Citizenship and Immigration Services (CIS) 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. 1988). However, CIS 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; CIS may evaluate the content of those letters as to
whether they support the alien's eligibility. See id. at 795-796. CIS 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. 1998) (citing Matter of Treasure
Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972)).
In evaluating the reference letters, we note that letters containing mere assertions of industry interest
and positive response In the field are less persuasive than letters that provide specific examples of
how the petitioner has influenced the field. In addition, letters from independent references who
were previously aware of the petitioner through his reputation and who have applied his work are far
more persuasive than letters from independent references who were not previously aware of the
petitioner and are merely responding to a solicitation to review the petitioner's curriculum vitae and
work and provide an opinion based solely on this review.
At the Shanghai Institute of Materia Medica, the petitioner worked on synthesizing Huperzine A, an
extract from a Chinese herb that has acetylcholinesterase (AChE) inhibitor properties useful in treating
Alzheimer's Disease. The petitioner worked under the supervision of Dr. I. Dr._
explains that Huperzine A has a complex structure, making it difficult to synthesize in a laboratory.
According to Dr. _, the petitioner was able to obtain "by far the highest ee [(enantiomeric excess)] %
in the world and successfully completed the asymmetric total synthesis of (-)-huperzine A."
Dr. Director of Combinatorial Chemistry at deCODE , asserts that he
became aware of the petitioner's work through his articles and has contacted the petitioner "for some
experiment details." Dr.~ asserts that the previous highest recorded ee percentage for asymmetric
bridgecycle construction was only 64 percent and that the petitioner obtained a 90.5 percent ee, high
enough to have top pharmaceutical value. Dr.· , Associate Director of the National Prion
Disease Pathology Surveillance Center, provides similar information. Neither Dr.
provides an example of a pharmaceutical company actually manufacturing the petitioner's version of
synthetic Huperzine A or have expressed an interest in doing so.
Professor D. , a professor at the University of Johannesburg, asserts that while he has
not met the petitioner, he has read the petitioner's articles and cited one of them. Dr. s asserts
that the petitioner's use of new types of chiral ligands to synthesize Huperzine A "should provide
improvements in other protocols where these ligands are applied." In his article, Dr : cites the
petitioner as one of six studies using palladium-medium allylic substitution reactions employed in
. producing different types of products.
)
Page 6
Dr.• notes that the petitioner's work on Huperzine A led to three articles in top journals and asserts
that these articles have been cited "a lot." Dr._i further states that the second article reported the
results of a collaboration with "a world renowned structure biologist, Dr. " Two of the
petitioner's articles on this subject had been cited as ofthe date of filing..
The petitioner's 2001 article on this subject had been cited four times as of the date offiling, including
one self-citation by Dr. _ As of the petitioner's response to the director's request for additional
evidence, nine articles had cited this article, including two self-citations. Significantly, however, the
petitioner's article was typically included as one of several articles cited for a single proposition.
Curiously, in 2003, Dr. _ Trost cited the petitioner's article as an example of a "recent effort
with new ligands [that] utilized the same nucleophile and electrophile and ultimately led to the highest
levels of enantioselectivity." In a subsequent article published in 2005, however, Dr. _ cited the
same article by the petitioner as one of "a handful ofexamples [that] have been subsequently disclosed
with similar poor results." cited the petitioner's article as one of 16 reporting prepared
analogues of Huperzine A. cited the petitioner's article as one of several using one of
two methods for asymmetrical synthesis, but concluded that "no protocol was satisfactory for preparing
(-)-huperzine A yet."
The petitioner's 2002 article coauthored with Dr. which lists the petitioner as the seventh of
eleven authors, had been cited four times as of the date of filing, including two self-citations by Dr. _
and Dr. . In response to the director's request for additional evidence, the petitioner submitted
evidence that this article had been cited 10 times, including five self-citations. The petitioner has not
demonstrated that this number of citations is remarkable.
In addition to his work on Huperzine A, the petitioner is also listed as an inventor on a patent
application for the preparation process for a hypertension and benign prostatic hyperplasia medicine.
As stated above, an alien cannot secure a national interest waiver simply by demonstrating that he or
she holds a patent. Whether the specific innovation serve's the national interest must be decided on a
case-by-case basis. Matter ofNew York State Dep t. ofTransp., 22 I&N Dec. at 221, n. 7. Therecord
contains no evidence that any pharmaceutical company has expressed any interest in licensing the
petitioner's process for this drug. '
Dr. , formerly a visiting professor at the University of Wisconsin-Madison, discusses the
petitioner's work at that institution. Dr .• asserts that the petitioner demonstrated that Horseradish
Peroxidase can be used in Vancomycin synthesis. While Dr. • asserts that this work "is crucial to
the development of new drugs and disease treatments," he provides no examples of how this work has
already proven influential. We note that the petitioner has not published or presented the results of the
work he performed at the University of Wisconsin-Madison.
At the Parker Hughes Institute, the petitioner collaborated with Dr. Dr.
explains that the petitioner worked on three projects: Stampidine metabolites
identification, d4t prodrugs design and synthesis and anti-cancer drug development. Dr.
Page 7
Venkatachalam asserts that Stampidine is "a promising new anti-HN drug developed at Parker Hughes
Institute" and is much more potent than the commonly used drug Stavudine. Dr. ••••••
asserts that the petitioner's work on this project "will strongly support the application for its clinical
trial from FDA." Another collaborator on this project, Dr. provides similar
information, expanding on the complexities involved based on the numberof potential metabolites. Dr.
_ notes that their manuscript reporting their results was accepted without revision.
I
I '--
Associate Editor of Drug Metabolism and Disposition, asserts that the journal's
acceptance of the petitioner's article on Stampidine represents a significant accomplishment by the
petitioner. Mr. continues:
[The petitioner's research not only identified the structure of the phase II metabolite, but
also illustrated the important hydrolysis mechanism of Stampidine. Importantly, his
paper prompts the development of new anti-HN drugs that have similar metabolism
with Stampidine. This paper has been recognized as significant for HN drug discovery
and has been cited eight times by top-ranking journals.
We will not presume the influence of a given article from the journal in which it appeared. The
petitioner submitted nine articles that cite the petitioner's article in Drug Metabolism and Disposition,
at least three of which postdate the filing of the petition. As noted by the director, all of these citations
are self-citations by Dr. ,. On appeal, the petitioner asserts that the reason this work has yet
to be cited by independent research teams is that the Parker Hughes Institute is the only research
laboratory investigating Stampidine. It can still be expected that significant work limited to one
institution will garner attention beyond that institution even if the institution is the sole location of that
work. The record contains no evidence that the general, health or science media have acknowledged
the significance of the petitioner's work on Stampidine or even Stampidine's potential as an HN drug.
The record does contain a letter from Dr. , a research scientist with the International Agency
for Research on Cancer (IARC) within the World Health Organization, asserting that the petitioner's
research on Stampidine, a potential HN drug, has implications for the anti-cancer drug HPV-16. Dr.
lIIiIasserts that their work on HPV-16 "could never go so far without [the petitioner's] discoveries."
The record, however, lacks IARC reports or articles citing the petitioner's Stampidine research as
relevant to HPV-16. J
Dr. Director ofthe Structural Biology and Computational Chemistry Department at the
Parker Hughes Institute, asserts that the petitioner also focused on BTK, SYK and PLK, drug targets
proposed by the institute and currently the focus of research by pharmaceutical companies.
Specifically, these targets have the potential to become the next generation of chemical-sensitizers or
modulators to alleviate resistance to current cancer drugs. According to Dr. _, the petitioner "has
successfully designed and synthesized a number of novel lead compounds that have demonstrated
potency against a panel of drug-resistant cancer cell lines. As acknowledged by Dr. _ however, this
work had yet to be published as ofthe date of filing.
Page 8
Dr. _,a former staff scientist at the Parker Hughes Institute, asserts that their collaboration
revealed a series of novel compounds targeting a novel target with a novel binding mode. Dr._
asserts that this discovery will likely lead to novel drugs with potent anti-tumor activity. Dr." does
not indicate, however, that this work has been presented or published. Thus, it has yet to be subject to
peer-review. While Dr. • implies that the petitioner's participation is necessary to further this
project, the petitioner is currently at the University of Illinois at Chicago pursuing tuberculosis drugs.
While Dr. • also left the Parker Hughes Institute for the University of Illinois at Chicago, the record
does not establish that he and the petitioner are still collaborating on cancer drugs. The petitioner's
work on tuberculosis postdates the filing of the petition and cannot be considered. See 8 C.F.R.
§ I03.2(b)(12);MatterofKatigbak, 14I&NDec. at 49.
Dr. a project officer at the National Cancer Institute, asserts that the petitioner is "about to
make a breakthrough in anti-cancer research." Dr. _, however, does not assert that this work has
already proven influential.
While the petitioner's research is no doubt of value, it can be argued that any research must be
shown to be original and present some benefit if it is to receive funding and attention from the
. 'scientific community. Any research, in order to be accepted for graduation, publication or funding,
must offer new and useful information to the pool of knowledge. It does not follow that every
researcher who performs original research that adds to the general pool of knowledge inherently
serves the national interest to an extent that justifies a waiver of the job offer requirement.
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 alien employment 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.
This denial is without prejudice to the filing of a new petition by a United States employer
accompanied by an alien employment certification certified by the Department of Labor, appropriate
supporting evidence and fee.
ORDER: The appeal is dismissed.