dismissed EB-2 NIW Case: Pharmacology

U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
mce of Administrative Appeals, MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
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. § 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. 9 103.5 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. 5 103.5(a)(l)(i). 
6ekE"dL 
Chief, Administrative Appeals Office 
DISCUSSION: 
 The Director, Texas 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 1 153(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 fiom the requirement of a job offer, and thus of an alien employment certikation, 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 fiom the requirement of a job offer would be in the national interest of the United States. 
On appeal, counsel submits a brief and additional evidence, some of which postdates the filing of the 
petition. As will be discussed in more detail below, the petitioner must establish his eligiiw as of that 
date. See 8 C.F.R. 8 8 1 03.2(b)(l), (1 2); Matter of Katigbak, 14 I&N Dec. 45,49 (Reg'l. Comrn'r. 1971). 
For the reasons discussed below, we uphold the director's decision. 
Section 203(b) ofthe 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 
memba 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 weke 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 ofjob 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. 
In the initial cover letter, counsel asserts that, in addition to holding an advanced degree, the petitioner has 
exceptional ability. The issue of whether the petitioner qualifies as an alien of exceptional ability, however, 
is moot because the record establishes that the petitioner holds a PkD. degree in Pharmacology fiom the 
University of Louisiana. The petitioner's occupation falls within the pertinent regulatory deiinition 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. 
Neither the statute nor pertinent regulations define the term "national interest." Additionally, Congress did 
not provide a 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 'Yocused 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., 1st Sess., 1 1 (1989). 
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 sigdicantly above that necessary to prove the "prospective national 
benefit" [required of aliens seeking to quali@ as "exceptional."] The burden will rest with 
the alien to establish that exemption itom, or waiver 06 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. 21 5, 21 7-1 8 (Comrn'r. 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 217. 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 217-18. 
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 21 9. 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, hypoglycemia 
research, and that the proposed benefits of his work, improved understanding and treatment of 
diabetes, 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. 
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 that a given project is so important 
that any alien qualified to work on this project must also qualifL 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." 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. at 22 1. 
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. Id. at 221, n. 7. 
Initially, the petitioner submitted nine published articles reporting his PhD. research; evidence of citation, 
including one article with moderate citation, and reference letters. In supplementing the electronically fled 
petition, the petitioner included additional citations and evidence that he has received a two-year grant fiom 
the Juvenile Diabetes Research Foundation. The new citations and grant postdate the fling of the petition. 
The petitioner must demonstrate his eligibility as of the filing date. See 8 C.F.R. $8 1 03.2(b)(l), (1 2); 
Matter of Katigbak, 14 I&N Dec. at 49. In this matter, that means that he must demonstrate his track 
record of success with some degree of influence on the field as a whole as of that date. All of the 
case law on this issue focuses on the policy of preventing petitioners fiom securing a priority date in 
the hope that they will subsequently be able to demonstrate eligibility. Matter of Wing's Tea House, 16 
I&N Dec. 158, 160 (Reg'L Cornm'r. 1977); Matter of Katigbak, 14 I&N Dec. at 49; see also Matter of 
Izummi, 22 I&N Dec. 169, 175-76 (Cornm'r. 1998) (citing Matter of Bardouille, 18 I&N Dec. 1 14 
(BIA 198 1) for the proposition that we cannot "consider facts that come into being only subsequent 
to the filing of a petition.") Consistent with these decisions, a petitioner cannot secure a priority date 
in the hope that his research will subsequently prove influential. Ultimately, in order to be meritorious 
in fact, a petition must meet the statutory and regulatory requirements for approval as of the date it 
was filed. Ogundipe v. Mukasey, 541 F.3d 257,261 (4'h Cir. 2008). 
Regardless, the vast majority of research, if not all research, is funded by government or private foundation 
grants. While the approval of a grant application reveals that the grant-awarding entity £inds the proposed 
research promising, a grant does not set the petitioner's research apart fiom other research in his field. 
Even if we accepted counsel's characterization of a grant as some of type of recognition for past 
accomplishments, recognition for achievements fiom an organization is merely one criterion for 
establishing eligiiility as an alien of exceptional ability. 8 C.F.R. 5 204.5(k)(3)(ii)(F). As this classification 
normally requires an approved alien employment certification, we cannot conclude that meeting one 
criterion for the classifmition, or even the requisite three criteria, warrants a waiver of that requirement in 
the national interest. NYSDOT, 22 I&N Dec. at 21 8,222. 
We will consider the letters below. U.S. Citizenship and Immigration Services (USCIS) 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'r. 1988). However, USCIS is ultimately responsible 
for making the final determination regarding an alien's eligibility for the benefit sought. Id. The 
submission of letters fiom experts supporting the petition is not presumptive evidence of eligibility; 
USCIS may evaluate the content of those letters as to whether they support the alien's eligibility. See 
id. at 795. USCIS 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 SofJici, 22 I&N Dec. 
158, 165 (Comm'r. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l. 
Comm'r. 1972)). 
In evaluating the reference letters, we note that letters containing mere assertions of a 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 fiom independent references who were 
previously aware of the petitioner through his reputation and who have applied his work are the most 
persuasive. 
Although the petitioner's only published work resulted fiom his Ph.D. research, the petitioner did not 
submit letters fiom his professors and collaborators at the University of Louisiana. Rather, the letters 
are all fiom colleagues at Yale University, where the petitioner is currently employed as a 
postdoctoral associate in the laboratory of , or fi-om independent colleagues. 
explains the seriousness of hypoglycemia in diabetes patients and the importance of 
understanding how the brain activates hypoglycemia defense mechanisms to more effectively prevent 
hypoglycemia in diabetic patients treated with insuh. asserts that the petitioner focused on 
understanding the mechamm underlying hypoglycemia associated autonomic Mure in diabetes, 
demonstrating that neurons become habituated by repeated bouts of hypoglycemia which is also 
accompanied by a blunting of counterregulatory responses. ncludes that this work is "of 
great importance and [the petitioner] is among the first to show that neuronal activation involved in 
glucose sensing and maintenance of glucose homeostasis is adversely affected by antecedent hypoglycemia 
and that this may be one of the mechanisms behind the clinically observed phenomenon of hypoglycemia 
unawareness." otes that his own laboratory and a collaborating laboratory 'hve conducted 
&her studies in transgenic animals with a knockdown of glutamate transporter continuing on [the 
petitioner's] findings." While notable, the continuation of the petitioner's work at the laboratory where he 
now works does not demonstrate his wider influence. 
, a research career scientist/research professor at Yale University, asserts 
that the petitioner's doctoral dissertation research suggest that maintenance of neuronal activation may 
possibly kleviate the deleterious effects of recurrent hGglYcemia on munterregulatory responses. 
further asserts that this work is simcant for understanding the counterregulatory deficits 
observed in diabetic patients to recurrent hypoglycemia and improves our understanding of the mechanisms 
of hypoglycemia associated autonomic Wure in diabetes. states that the petitioner also 
demonstrated that a particular population of neurons in the lateral hypothalamic area, the Orexin neurons, 
respond to the stimulus of hypoglycemia and that these neurons may be involved in the activation of 
parasympathetic outflow via the activation of preganglionic neurons in the dorsal vagal nucleus. Finally, 
the petitioner demonstrated that the activation of Orexin neurons is negatively affected by recurrent 
hypoglycemia. es not, however, explain how this work is already influencing the field. 
- an assistant professor at Yale University, explains that the petitioner's doctoral 
research has "shown that that neural circuitry involved in the acute and chronic monitorin of glucose 
homeostasis, shows reduced activation in the fact of repeated hypoglymnk" asserts that 
this research has "pointed the way for many subsequent studies to focus on these nuclei in the brain that 
respond to and whose responses are impaired by hypoglycemia" - an associate research 
scientist at Yale University, advances a similar claim. Neither nor identifies any 
of these subsequent studies. 
also discusses the petitioner's work at Yale University. 
 explains that the 
petitioner is currently "investigating the role of insulin signahrig in the central nervous system on 
metabolism and the feedback control of insulin and glucagon secretion." mher explains this 
laboratory had previously established 
 of the ventromedial nucleus of the hypothalamus in 
glucose sensing and counterregulation. continues: 
[The petitioner] has shown that insulin action in the brain is critical for the generation of the 
glucagon response to hypoglycemia. His recent work has also revealed that brain glucose 
levels also influence this response. These results are unique and challenge the existing 
belief of the mechanisms involved in this important defense mechanism These studies 
suggest that the reduction in islet insulin secretion might not be the only mechanism leading 
to the dismhiiition of glucagon secretion. These observations are unique and significantly 
change our current understanding of the role of the brain in pancreatic function. He is also 
working to understand the novel role of sodium glucose cotransportem (SGLT's) in brain 
and beta cell glucose sensing. These research projects are extremely unique and have the 
potential to radically challenge our cmt thinking of the mechanisms underlying the 
control of insulin secretion fiom the pancreas, hypoglycemia counterregulation and insulin 
resistance associated with diabetes. 
The record contains no evidence that the petitioner had published any of his research at Yale University as 
of the date of filing. While we do not question assessment of the originality of the research, 
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 whose work 
does not duplicate work that was done by others qualifies for a waiver of the alien employment 
certification in the national interest. In addition, while we do not question 
 expertise 
and sincerity in characterizing the petitioner's results as important, the petitioner must provide 
evidence of his influence in the field beyond the laboratory where he works. - 
speculates that the petitioner novel observation showing the importance of brain insulin on glucagon 
secretion "will surely have a significant impact in the field of diabetes research." - 
however, provides no examples of how this work is already influencing the field. 
On appeal, the petitioner submits a new letter from who asserts that he hired the 
petitioner after attending a presentation by the petitioner and recognizing his "enormous potential for 
a career in research." goes on to discuss the petitioner's work at Yale University, which 
asserts was conducted "almost entirely on his own." 
 concludes that the 
selection of the petitioner to give oral presentations in 2008 and 2009, after the date of fig, 
demonstrates recognition for the 
 work. We cannot conclude that work disseminated afler 
the date of filing can demonstrate the petitioner's influence prior to that date. As discussed above, 
the petitioner must demonstrate his eligibility, and, thus, his influence, as of that date. See 8 C.F.R. 
$0 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. at 49. 
The petitioner did submit letters from references who appear to be independent, although the record does 
not include their curriculum vitae. 
 Associate D& for clinic$ and Translational 
Research at the Albert Einstein College of Medicine at Yeshiva University, provides similar information to 
that discussed above. does not explain how he came to be 
 with the petitioner's work 
and does not suggest that he has personally applied the petitioner's work in his own research 
an associate professor at the University of Pennsylvania School of Nursing, characterizes 
the petitioner's findings as ''mportant" with 'kmportant implications in understanding the very basic 
functioning of the body's homeostatic machinery'' that "can have a significant effect on developing 
therapeutic strategies to improve counterregulatory defenses in patients." She provides no examples of the 
petitioner's influence in the field and does not claim to have applied the petitioner's work in her own 
laboratory. 
an associate professor at the New Jersey Medical School, asserts that the petitioner's 
altered the understanding of how glucagon is released fiom the pancreas and has 
[a] direct and sigdcant impact on our current understanding of not only normal physiology but also the 
development of diabetes and its complications." She mher asserts that the petitioner's findings have 
closely matched and impacted her own research, "albeit in a different setting." She then explains how she 
produced findings that are "completely analogous to [the petitioner's] work" and discusses how their 
findings in the aggregate enable them "to begin to understand how insulin therapy may impair the ability of 
the brain to defend against hypoglycemia" 
 As this letter was submitted on appeal, it is not clear that 
was utilizing the petitioner's research as of the date of filing. Moreover, 
 does not explain 
how she has built on the petitioner's research as opposed to producing similar results with her own 
methodology, Once again, all research must be original and usefbl to be accepted for graduation, 
publication or hding. It does not follow any research that produces new and useful information 
warrants a waiver of the alien employment certification in the national interest. 
asserts that he met the petitioner at a confaence and has been following his research since that time. m. 
mprovides information similar to that discussed above and notes that the petitioner's articles have 
appeared in prestigious journals, such as Neuroscience. We will not presume the iduence of an article 
fiom the journal in which it appears. Rather, it is the petitioner's burden to demonstrate the influence of 
the individual article. 
The petitioner initially submitted evidence that his PkD. research has been cited, mostly one or two times 
per article. Only one article had been moderately cited. The petitioner did not, however, provide a kt of 
the citing articles. As such, the record does not reflect how many of the citations are fiom independent 
researchers. Subsequently and again on appeal, the petitioner has submitted evidence of additional 
citations, although most of his articles remain mmmlly cited with only one article producing moderate 
citation. We are not persuaded that the petitioner's citation record, in the context ofthe record as a whole, 
demonstrates his past achievements at a level such that we can conclude that he will prospectively benefit 
the national interest to an extent that warrants a waiver of the alien employment certification. 
The record shows that the petitioner is respected by his colleagues and has made useful contributions 
in his field of endeavor. As discussed above, however, it can be argued that most research, in order 
to be accepted for publication or finding, must present some benefit to the general pool of scientific 
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 fiom a plain reading of the statute, it was not the intent of Congress that every person qualified 
to engage in a profession in the United States should be exempt fiom the requirement of a job offer based 
on national interest. Likewise, it does not appear to have been the intent of Congress to grant national 
interest waivers on the basis of the overall importance of a given profession, rather than on the merits of the 
individual alien. On the basis of the evidence submitted, the petitioner has not established that a waiver of 
the requirement of an approved 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. 
8 1 361. The petitioner has not sustained that burden. 
This denial is without prejudice to the fling 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.