dismissed EB-2 NIW Case: Pharmacology

iddfyhg data &Id to 
prevent clearly rriwan;lRted 
invasion of personal privacy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Imxnigration 
Services 
Office: NEBRASKA SERVICE CENTER Date: 
EAC 06 012 50210 
 FLB 29 zooe 
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. 
u 
zobert P. Wiemann, Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition, which 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. 8 1153(b)(2), as an alien of exceptional ability or a member of the professions 
holding an advanced degree. The petitioner seeks employment as a postdoctoral associate. The 
petitioner asserts that an exemption fi-om 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 the classification sought, but that the petitioner had not established that an 
exemption fiom the requirement of a job offer would be in the national interest of the United States. 
On appeal, counsel submits a brief For the reasons discussed below, the petitioner has not overcome 
the director's bases of denial. 
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 requirements of subparagraph (A) 
1 
 Counsel requests that the appeal "be granted" or "in the alternative, that this matter be treated as a Motion 
to Reopen and that said Motion [be] granted." The regulation at 8 C.F.R. 5 103.3(a)(2)(iii) allows the 
director to treat an appeal as a motion for the purpose of talung favorable action prior to forwarding the 
appeal to ths office. Counsel provides no authority that would allow the director to consider an appeal as a 
motion after the AAO has already dismissed the appeal on the merits. The AAO's authority over the service 
centers is comparable to the relationship between a court of appeals and a district court. Louisiana 
Philharmonic Orchestra v. INS, 2000 WL 282785 at *3 (E.D. La.), aff'd, 248 F.3d 1139 (5th Cir. 2001), cert. 
denied, 534 U.S. 819 (2001). The director did not take favorable action pursuant to 8 C.F.R. 
5 103.3(a)(2)(iii). Rather, the director forwarded the appeal to the AAO. As we are upholding the director's 
decision on the merits, there is no longer any legal basis for the director to consider the appeal as a motion. 
that an alien's services in the sciences, arts, professions, or business be 
sought by an employer in the United States. 
The petitioner holds a Ph.D. in Botany-Pharmacology and Environmental Toxicology from the 
University of Madras. 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. 
As such, the issue of whether the petitioner is also an alien of exceptional ability as defined at 8 C.F.R. 
5 204.5(k)(3)(ii) is moot. 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. 
Neither the statute nor pertinent regulations define the term "national interest." Additionally, Congress 
did not provide a specific definition of the phrase, "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). 
A supplementary notice regarding the regulations implementing the Immigration Act of 1990 
(IMMACT), published at 56 Fed. Reg. 60897,60900 (Nov. 29, 1991), states, in pertinent part: 
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 "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 Dep't. of Transp., 22 I&N Dec. 215, 217-18 (Comrnr. 1998)(hereinafter 
"NYSDOT"), 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. Id. at 21 7. Next, it must be shown that the proposed benefit will be national 
in scope. Id. 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. Id. at 2 1 7- 1 8. 
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. Id. at 219. 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. Id. 
We concur with the director that the petitioner works in an area of intrinsic merit, pharmacology, and 
that the proposed benefits of his work, improved understanding and treatment of asthma, would be 
nationil 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. 
The petitioner has submitted several letters supporting the petition. The letters, which will be 
discussed in more detail below, outline the petitioner's laboratory skills and areas of past and current 
research. They attest to original research performed by the petitioner. Several further attest to the 
severity of asthma and the importance of research in this area to the United States. Some of the 
references and other evidence submitted by the petitioner suggest a shortage of researchers in the 
United States. On appeal, counsel asserts: 
It is well settled that in cases where no purpose will be served if the applicant is 
required to re-file the I- 140 petition using a labor certification, but would rather lead 
to an abuse of discretion and grave injustice to the Alien Petitioner, the discretion 
should be exercised in favor of the beneficiary and his family. 
We have already acknowledged the substantial intrinsic merit of the petitioner's area of research and 
the national scope of the proposed benefits above. These considerations, however, are insufficient 
by themselves. We generally do not accept the argument that a given project is so important that any 
alien qualified to work on this project must also qualify for a national interest waiver. NYSDOT, 22 
I&N Dec. at 218. Moreover, it cannot suffice to state that the alien possesses useful skills, or a 
"unique background." Id. at 22 1. Special or unusual knowledge or training does not inherently meet 
the national interest threshold. As stated by the director, 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. While counsel provides no legal citation for his characterization of what he considers 
"well settled," we note that a purpose would indeed be served by requiring an alien employment 
certification. The assertion of a labor shortage should be tested through the alien employment 
certification process. Id. at 220. 
Ultimately, 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 element 
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. Id. at 221, n. 7. 
The petitioner relies on several letters from members of his field and other fields. 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 (Cornmr. 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. 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 ofsoffici, 22 I&N Dec. 158, 165 (Cornmr. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Regl. Cornmr. 1972)). 
In evaluating the reference letters, we note that letters containing mere assertions of laboratory 
experience and skills 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. 
The petitioner obtained his Ph.D. in Botany Pharmacolo 
 and Environmental Toxicology at the 
University of Madras in 2000 under the direction of - Upon graduating, the 
fellow at the Japanese National Institute of Animal Health in the laboratory of 
. In 2002, the petitioner began working as a fellow at the National Institute for 
(NIES) Fellow in Japan. There, the petitioner worked in the laboratory of Dr. 
In 2003, the petitioner accepted a postdoctoral fe t the Albany Medical 
College in New York. In 2004, the petitioner joined the laboratory of illm at the Weill Medical 
College of Cornell University as a postdoctoral research associate. The petitioner remained in this 
position as of the date of filing in 2005. 
serts that the petitioner's Ph.D. research investigated "the role of various indigenous 
health." More specifically, the petitioner "isolated two cardiac active 
phytochemicals from Aegle marmelos and he conducted cardiovascular pharmacological and 
toxicological studies in frogs, rats and dogs." notes that the petitioner obtained 
original results and received travel grants to present his work. 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 Ph.D. thesis or postdoctoral research, in order to be accepted for graduation, 
publication or funding, must offer new and usefbl 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 warrants a waiver of the alien employment certification in the national interest. Dr. 
does not explain how the petitioner's work has impacted the treatment of heart disease or 
cardiac research in general. 
asserts that, at the National Institute of Animal Health, the petitioner continued his 
investigation of Aegle marmelos. 
 Specifically, he isolated two biologically active substances and 
examined the functions of them on the cardiovascular system using a Langendorffisolated heart in a rat 
model. Once again, asserts that the petitioner presented this work and that future 
publications will follow, but fails to explain how this work has impacted the treatment of heart disease 
or cardiac research in general. 
explains that he had contact with the petitioner while the petitioner was working with 
m d subsequently invited the petitioner to join hls laboratory to investigate diesel exhaust 
particles on the cardiovascular system. 
 lists the laboratory techniques used by the 
that the petitioner presented this work at international conferences. 
praises the petitioner's professionalism and the quality of his 
experiments. 
 identify any significant results or explain how those results have 
impacted the field of toxicology. 
The r cord contains no letters fiom the petitioner's colleagues at Albany Medical College. = 
a research scientist at the New York State Department of Health in Albany, asserts that he had 
interacted with the petitioner to establish a collaboration between his laboratory and the Center for 
Cardiovascular Sciences at Albany Medical Colle e to study the effects of exposure to environmental 
pollutants on the cardio-pulmonary system. h implies he is still attempting to write a joint 
grant proposal with the petitioner although the petitioner is no longer in Albany. 
des not 
discuss the results of the petitioner's work in Albany or explain how it has impacte 
 e study of 
environmental pollutants or the treatment of cardio-pulmonary conditions. 
explains that the petitioner's current work at Come11 focuses on the role of mast cells and 
their role in asthma. Specifically, expanding on previous work by, the petitioner used 
complex surgery to demonstrate that the release of rennin fiom mast cells triggers a local rennin- 
angiotensin system that leads to bronchial constriction. 
w!! 
asserts that the petitioner is preparing 
a manuscript rep0 
 k and speculates that the artic e 
 ill be enthusiastically received." In a 
subsequent letter, 
"qrrrrr 
asserts that the petitioner's recent research has been accepted for 
presentation at a con erence. The petitioner submitted evidence that the petitioner presented this work 
in 2006, after the petition was filed. 
In a similar letter, 
 a professor at the Cornell University Medical Center, asserts that 
the petitioner's work on mast cells "will be the 
 nstration that angiotensin can be made in the 
airways and then act on the bronchial tissue." 
 then speculates that the petitioner's research 
"can open new doors for developing therapies in the treatment of asthma." As stated above, the 
petitioner must demonstrate his eligibility as of the date of filing. See 8 C.F.R. 88 103.2(b)(l), (12); 
Matter of Katigbak, 14 I&N Dec. 45,49 (Regl. Cornmr. 1971). Thus, in order to establish that a waiver 
of the alien employment certification process is in the national interest, the petitioner must demonstrate 
his influence on the field as a whole as of the date of filing. We cannot conclude that research that has 
yet to be published and, thus, widely disseminated in the field or even subject to peer-review, can 
demonstrate the petitioner's influence in the field. 
The record contains other letters fiom colleagues and former fellow students, now just postdoctoral 
associates themselves, reiterating the petitioner's credentials and providing general praise. These letters 
Science and Technology in Taiwan, although he claims to have collaborated with the petitioner. In 
request for additional evidence, the petitioner provided a letter fi-om =~ 
Special Advisor to the Rector of the U 
 ce at the United 
Nations. The record contain harmacological 
expertise, if any. Regardless, merely recites the petitioner's credentials and 
concludes that the petitioner will continue to make contributions that will benefit the United States. 
, Director of the Residents' Ambulatory Clinic at Sinai-Grace Hospital at Wayne 
State University, asserts that he knows the petitioner "though his scientific publications and his 
contemporary research." xlains that the petitioner has made "several important 
discoveries with phytochernicals, which have the potential to help us fight asthma and heart disease." 
does not identify those discoveries or explain how they have already impacted the field by 
and skills to pursue his research does not establish that a waiver of the alien employment certification 
process, which would determine the availability of similarly qualified U.S. workers, is warranted in the 
national interest. 
clinical researcher in heart failure at the University of Hull in the United Kingdom, 
explains that he was asked to support the petitioner's petition for permanent residence in the united 
States. He states that he "understand[s]" that the petitioner has done substantial research and is 
associated with distinguished research teams. He concludes that retaining high quality scientists like 
the etitioner will help the United States maintain its status as the world leader in scientific research. 
db does not claim to have ever heard of the petitioner or his research prior to being contacted 
for a reference and does not claim any first hand knowledge of the impact the petitioner's research has 
had in the field. It is the position of CIS to grant national interest waivers on a case-by-case basis, 
rather than to establish blanket waivers for entire fields of specialization, such as researchers in a 
specific area or researchers in general. Id. at 2 1 7. 
Many of the letters reference the petitioner's publications and presentations. The petitioner lists six 
published articles on his cumculum vitae, one of which is a poster presentation, and submitted copies 
of those articles. 
 The earliest article was published in 1999. 
 The petitioner's 2004 article in 
Phytomedicine is available as a "book" through Amazon.com and MedicalTextbook.com. While the 
- 
petitioner also lists four manuscript 
 ew or in preparation, none of those manuscripts report 
the results of his recent work with 
 at the University of Cornell. The petitioner also lists 
several conference presentations. Initially, the petitioner submitted evidence that one of his articles is 
included in a list of articles on pharmacology and toxicology at www.niscair.res.in. Two of the 
petitioner's articles are listed as "related publications" on aegle marrnelos monoclonal antibodies at 
www.exactantigen.com. A search of the annotated bibliography of Indian medicine for the petitioner's 
name and "aegle" produces three articles by the petitioner. Finally, another research team at the 
University of Madras, where the petitioner obtained his Ph.D., cited one of his articles. This citation by 
researchers at the University of Madras is the only true citation submitted initially. The Internet allows 
for a search of existing articles in many ways. That the petitioner is able to produce Internet searches 
that locate his articles is not evidence that other researchers have relied on his work as would be 
demonstrated by actual citations. 
In response to the director's request for additional evidence, counsel asserts that the petitioner "was 
cited by many other researchers found in printed as well as online journals and other internet trade 
sources." Counsel then notes the submission of "the cited reference sheet and other citations." In 
support of the response, the petitioner provided more electronic database searches that include the 
petitioner's articles in the results. Once again, the fact that the petitioner's articles are accessible in 
databases is not evidence that they are actually relied upon by other researchers. The petitioner also 
submitted a "Cited Reference Search" wluch lists nine articles by the petitioner or someone with the 
same last name and first initial. As noted by the director, four of the articles, including the only two 
articles to be cited more than twice, were published prior to 1999, the year the petitioner first published 
hs work. On appeal, counsel asserts that "it was not possible to exclude citations from other authors 
with the same initial and last name" and noted that the petitioner's articles were listed with the original 
petition. Regardless, it remains that the evidence submitted does not establish that the petitioner "was 
cited by many other researchers" as claimed by counsel in response to the director's request for 
additional evidence. A rate of one or two citations for an individual article is not consistent with a track 
record of success with some degree of influence on the field as a whole. 
In addition, the record contains evidence that the petitioner was selected for a prestigious training 
fellowship in Japan, that he has reviewed a manuscript for a journal and that he is a member of several 
professional associations with unremarkable membership requirements. Even if we were to conclude 
that these accomplishments are consistent with an alien of exceptional ability pursuant to 8 C.F.R. 
5 204.5(k)(3)(ii), by statute, "exceptional ability" is not, by itself sufficient cause for a national 
interest waiver. NYSDOT, 22 I&N Dec. at 21 8. Thus, the benefit which the alien presents to her 
field of endeavor must greatly exceed the "achievements and significant contributions" contemplated 
for that classification. Id; see also id. at 222. 
Finally, a few of the letters reference a scientific poetry composition by the petitioner. Authorship of a 
poem, even one with a scientific theme, does not appear relevant to the petitioner's alleged influence as 
a researcher. 
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 fbnding and attention from the 
scientific community. Any Ph.D. thesis or postdoctoral 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 warrants a waiver of the alien employment certification in the national interest. The 
record includes numerous attestations of the potential impact of the petitioner's work. None of the 
petitioner's references, however, provide examples of how the petitioner's work is already 
influencing the field. While the evidence demonstrates that the petitioner is a capable researcher, it 
falls short of establishing a track record of success with some degree of influence as a whole. 
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. 5 1 36 1. 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.