dismissed EB-2 NIW Case: Proteomics

identifying drf. A-leted ta 
prevent cder- ananted 
hvasion of persoid privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington. DC 20529 
U. S. Citizenship 
and Immigration 
Bc- 
LIN 06 010 50226 
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) 
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. 
/((&dfii 34 dvab 717k 
.&,- 
Robert 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 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. 11 53(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 research fellow. The 
petitioner asserts that an exemption fiom 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 and additional evidence. As will be discussed below, the test 
counsel offers is no more useful than the test he accuses the director of applying. Ultimately, we 
concur with the director that the petitioner has not demonstrated his influence in the field. 
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. 
The petitioner holds a Ph.D. fiom Tsinghua University. 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, lOlst 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 "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. 2 15 (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, proteomics, and 
that the proposed benefits of his work, improved biomarkers for cancer, 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. 
On appeal, counsel provides a lengthy discussion of how this final issue should be evaluated. 
Counsel essentially asserts that the director used a flawed theoretical analysis. Counsel asserts that 
rather than attempt to weigh the proposed benefits of the petitioner's work with the benefit inherent 
to the alien employment certification process, the adjudicative test is whether the alien will benefit 
the national interest to a great extent than an available worker with the same minimum qualifications. 
Under counsel's analysis, however, we would still be relying on a subjective comparison: that of the 
Page 4 
alien to others with the minimum qualifications for the job. Rather than accept bare statements that 
the alien's abilities exceed those of other researchers qualified for the position, however, we look for 
specific accomplishments that have influenced the field and that therefore justify a prediction of 
future benefit. 
Specifically, 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 qualify for a national interest 
waiver. Matter of New York State Dep 't of Transp., 22 I&N Dec. at 218. Moreover, it cannot 
suffice to state that the alien possesses usehl 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 22 1, n. 7. 
The petitioner received his Master of Science degree in Biochemistry from the Chinese Academy of 
Science, Graduate School of Beijing, in 1995. He then worked as a senior research scientist at the 
Yunnan Science Academy of Tobacco in China until March 2000. In 2003, the petitioner received 
his Ph.D. in Analytical Chemistry from Tsinghua University, as stated above. Upon receiving this 
degree, the petitioner accepted a Postdoctoral Research Fellowship at the University of Michigan 
Medical School. A little over a year later, the petitioner began his current position as a postdoctoral 
research fellow at the Fred Hutchinson Cancer Research Center in Washington. 
Initially, the petitioner submitted no evidence relating to his accomplishments in the field. In 
response to the director's request for additional evidence, the petitioner submitted reference letters 
from an associate research professor at the Fred Hutchinson Research Center and four independent 
members of the field. While letters from one's own circle of colleagues, by themselves, cannot 
establish an alien's influence beyond that circle, letters from mentors are useful in explaining the 
alien's roles on various projects and providing a first-hand assessment of the alien's skills. In this 
matter, the record lacks a letter from the petitioner's mentor,or any other 
coauthor. The record also lacks letters from colleagues at the University of Michigan, Tsinghua 
University or the Yunnan Science Academy of Tobacco. 
On appeal, counsel emphasizes that the petitioner submitted a number of letters from members of the 
field who have never worked with the petitioner. While letters from independent members of the 
field are often useful, the mere submission of letters from independent sources is insufficient. We 
must evaluate the content of those letters. Counsel cites a non-precedent decision from this office 
stating that Citizenship and Immigration Services (CIS) "must defer" to such letters on issues "where 
it cannot pretend competence." In and of itself, this statement is not remarkable. We do not 
question statements by scientific experts regarding the results of research projects. Where reference 
letters go beyond pure science, however, and make assertions regarding the alien's influence in the 
field, such assertions are more persuasive when supported by other evidence of record that should be 
readily available where such an influence really exists. More significantly, it is our area of expertise 
to interpret our statute, regulations and precedent decisions. Thus, while scientific factual assertions 
from scientists can serve as evidence of the truth of those scientific facts, whether or not the alien's 
accomplishments constitute the type of influence in the field contemplated by Matter of New York 
State Dep't of Transp., 22 I&N Dec. at 215, falls within our area of expertise. 
Regardless, the decision cited by counsel is not binding authority in future matters. 
 8 C.F.R. 
fj 103.3(c). 
 A more thorough discussion of this issue is, not surprisingly, found in precedent 
decisions that are binding on us. 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 of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
In evaluating the reference letters, we note that letters containing mere assertions of interest and 
positive response within 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. 
hh 
an associate research professor at the Fred Hutchinson Cancer Research Center, 
asserts t at e knows of the 
 ork because the petitioner is part of s research 
team at the same institution. 
 oes not claim to have personally worked with the petitioner 
or otherwise explain how he has first hand knowledge of the petitioner's roles on various projects, 
especially tho! 
There is no evidenc 
Page 6 
explains that the petitioner discovered two such markers, previously undiscovered despite 
ten years of research by others. 
 work resulted in a 2002 student fellowship 
award. As this work took 
 does not appear to have first hand knowledge 
regarding the petitioner's 
 Moreover, the record contains no 
evidence that any clinic or hospital, either in the United States or China, has begun using this test to 
diagnose the various stages of lung cancer. The record even lacks letters from clinics or hospitals 
expressing an interest in human trials of this test. 
The regulation at 8 C.F.R. fj 204.5(g)(l) provides that evidence of an alien's experience or training shall 
be in the form of letter(s) from current or former employer(s) or trainer(s). We do not read the 
regulation at 8 C.F.R. fj 204.5(g)(l) to permit current employers to verify past employment with other 
employers. Rather, the verification must come from the employer who has first hand knowledge of the 
employment. ~hus, confirmation of the petitioner's employment in China has little 
evidentiary value. 
fiher asserts that the petitioner has developed a new method to classify different lung 
cancers at the molecular level that is "simple, saves time, requires smaller sample amounts, and 
provides higher resolution for significantly more accurate molecular classification of different lung 
carcino does not provide a single example of a laboratory that has adopted this 
method. - en claims that the petitioner's presentation of his work on analyzing intact cell 
surface proteins demonstrates the impact of this work. We will not presume the influence of a given 
presentation from the conference where it was presented. Rather, the petitioner must demonstrate the 
influence of the individual presentation. 
asserts that the petitioner "was the first to develop a quantitative analysis and 
for the insulin protein in W/O/W [water-in-oil-in-water] formulation." Dr. Lampe 
asserts that the petitioner's "water plug effecting" approach "solved the bottleneck problem of 
- - 
quantitative analysis of insulin in WION formulation" as it is more sensitive and has a better 
resolution than conventional methods. mpredicts this work "could advance efforts to develop 
and commercialize oral medication for insulin-dependent diabetics." According to the petitioner's own 
article on the subject, the "novel model of water-in-oil-in-water (WION) formulation had been 
proposed" in 1998 by an unrelated research team publishing in the International Journal of 
Pharmacology. As noted by several references, the petitioner's work on this subject was cited in a 
2003 review article as reporting a "rapid, simple and precise MEKC analysis" for determination of 
insulin in oil formulation. Another article cites the same work by the petitioner as one of four articles 
reporting the importance of organic modifiers to separation systems. The record, however, contains no 
additional citations of the petitioner's work or letters from pharmaceutical companies pursuing oral 
diabetic drugs based on the petitioner's techniques. Thus, the petitioner has not established any 
continued interest in this work within the field. 
Director of the Protein Center at the Sloan-Kettering Cancer Center, asserts that he 
knows of the petitioner's research "because it is at the forefront of cancer proteomics." lso 
indicates that he has reviewed the petitioner's curriculum vitae and some of his most recent works. Dr. 
serts that the petitioner's method of analyzing biotinylated cell surface proteins in liver 
cancer "~rovides a novel method of in vivo cancer imaging and simificantlv advances efforts to find 
U" u 
viable biomarkers." her asserts that the petitioner's success in profiling stage specific 
proteins in lung cancer contn utes in a critical way to our understanding of the mechanism of 
tumorigenesis, th 
 osis of cancer and monitoring cancer treatments." The only support for 
these conclusions 
 provides, however, is that the etitioner has published his work and has 
been requested to review manuscripts for publication. dh oes not suggest or imply that other 
research laboratories, including his own, have adopted the petitioner's methods or are in the process of 
developing new diagnostic tools based on the petitioner's work. 
The remaining independent letters are very similar to the letter fromalthough some include 
additional information. an adjunct professor at the University of New Mexico and 
Team Leader of the Bioscience Division of the Los Alamos National Laboratory, asserts that the 
petitioner helped design target phosphorothioate oligonucleotides to treat lung cancer-based on his work 
profiling protein expression in lung cancer. 
 fiu-ther asserts that th 
 valuation of these 
targets "is already under way in China." According to his curriculum vitae, 
 has resided in the 
United States since at least 1986. He provides no explanation as to how he has first hand knowledge of 
the clinical studies of the petitioner's work in China. 
The regulation at 8 C.F.R. fj 103.2(b)(2) permits a petitioner to rely on affidavits only after showing that 
primary and secondary evidence is unavailable or does not exist. Affidavits should be from individuals 
kith "direct personal -knowledge of the event." Thus, while we do not question -dibility, 
the regulations cited above strongly suggest that affidavits from those without personal knowledge have 
little evidentiary value. This is not to say that letters from independent references are not extremely 
usehl in establishing an alien's influence beyond his collaborators. That said, the most usefbl 
independent letters are from independent sources who attest to an influence in their own laboratory 
because they have first hand knowledge of the alien's influence. 
Scientific Director of the Vascular Biology and Angiogenesis Program at the 
Sidney Kimrnel Cancer Center, asserts that he reviewed the petitioner's curriculum vitae and some of 
his articles to prepare the reference letter. He further asserts that he was previously familiar with the 
petitioner's research "because his work has had a direct bearing on my own research." 
never explains, however, how the petitioner has impacted his own work. For example, = 
does not claim to have applied the petitioner's methods or to be pursuing a diagnostic tool or treatment 
He does not claim to have cited the petitioner and the record 
includes no citations by 
Director of Proteomics at the Vanderbilt University Medical Center, asserts that 
reported multiple times on the website of Clinical Proteomics Research 
Map (CPRMap) . " 
 further asserts that only the top 10 to 25 percent of research selected for 
Page 8 
conferences in the field are selected to be featured on this website. Other references provide similar 
information. 
While we will consider opinions as to the significance of evidence submitted in support of a petition, 
the record in this matter does not include printouts from CPR's website. Thus, the petitioner has not 
ed that his work appeared on this website or how many times it was featured. We note that Dr. 
does not define "multiple." Moreover, information directly from CPR regarding their selection 
m 
cntena for including abstracts on their website would significantly bolster the assertions made by Dr. 
- 
On appeal, the petitioner submits a letter from scientific Director at the Virginia 
Prostate 
 irector of the Center for Biomedical Proteomics at Eastern Virginia Medical 
School. 
 affirms that his opinion is based on a review of the petitioner's curriculum vitae 
and publications. He does not imply that he was aware of the petitioner's work prior to being contacted 
for a reference. More significantly, he does not suggest that his own work has been impacted by the 
petitioner's methods. Rather, he speculates that the petitioner's method "will be widely applied in the 
current proteomics research and speed up the discover of biomarkers for the early detection of human 
diseases and therapeutic targets for treatment." 
Counsel and several of the petitioner's references emphasize that the petitioner was invited to review 
manuscripts for the Journal of Proteome Research and Tobacco Science Review. Counsel and most of 
the petitioner's references use the phrase "peer reviewer (i.e., judge)." Thus, while the references have 
affirmed the contents of the letters with their signature, it is not clear that the language is their own. We 
cannot ignore that scientific journals are peer reviewed and rely on many scientists to review submitted 
articles. The invitation from the Journal of Proteome Research expressly requests other names of 
potential reviewers if the petitioner is too busy. Thus, peer review is routine in the field; not every peer 
reviewer can be presumed to have influenced the field. 
Finally, the director acknowledged the petitioner's publication record but concluded that publication 
was routine in the field. Thus, the director concluded that without evidence of the influence of 
individual articles, such as through evidence of wide and frequent citation, the publication record alone 
was not persuasive. 
On appeal, counsel cites a July 30, 1992 correspondence memorandum from Lawrence Weinig, Actinn 
~ssistkt Commissioner, to the then Director bf the Nebraska Service Center, 
issued his correspondence memorandum in response to an inquiry from 
he is discussing his personal inclinations. Moreover, in contrast to official policy memoranda 
issued to the field, correspondence memoranda issued to a single individual do not constitute official 
CIS policy and will not be considered as such in the adjudication of petitions or applications. 
Although the correspondence may be useful as an aid in interpreting the-law, such letters are not 
binding on any C% officer as they merely indicate the writerb analysis of an issue. See 
Page 9 
Memorandum from Thomas Cook, Acting Associate Commissioner, Office of Programs, 
Sign4ficance of Letters DraJted by the Ofice of Adjudications (December 7,2000).' 
Counsel notes that in this 1992 correspondence memorandum, 
 asserts that scholarly articles 
and citations are "solid pieces of evidence." Thus, according to counsel,mplies that the 
publication of scholarly articles is not routine. Rather, concludes counsel, publication is the means by 
which postdoctoral researchers distinguish themselves for future positions. 
In his letter t-~ aised concerns about several regulatory criteria relating to aliens 
of extraordinary ability pursuant to section 203(b)(l)(A) of the Act and outstanding researchers 
. ,. ,. - 
pursuant to secion 203(6)(1)(~) of the Act. ~~ecificall~,vised that "it is almost a job 
requirement at many universities that professors and researchers publish papers." Separately, Mr. 
uestioned whether citations were published material about the cited author. In his response, 
Is unequivocally states that "a footnoted reference to the alien's work without evaluation . . . 
would be of little or no value." 
 on to state that "entries (particularly a goodly number) 
in a field . . . would more than 
 of evidence." 
Obviously, the publication of scholarly articles in peer-reviewed journals is "solid" evidence. Clearly, 
publication of one's work in a peer-reviewed journal is a useful means for a researcher to disseminate 
his work and potentially impact the field. We concur with the director, however, that publication by 
itself, without some other evidence reflecting the impact of the individual articles, is insufficient. 
On appeal, counsel asserts that another non-precedent case by this office is a good example of how this 
office applies Matter of New York State Dep 't of Transp., 22 I&N Dec. at 215. As noted by counsel, 
the alien in that case had yet to publish his work but was still deemed eligible. The case, provided by 
counsel, is easily distinguished from the matter before us. The alien in that case may not have 
published his work, but he had developed a diagnostic test for ruminants that had gained widespread 
use beyond his own circle of colleagues. Had the petitioner in this matter demonstrated that clinics and 
hospitals were now diagnosing and treating lung cancer or other cancers differently based on his work it 
would be a far more persuasive record than the one before us. The record, however, contains no such 
evidence. 
Counsel fiuther attempts to demonstrate the significance of publication alone by noting that while 
publication may be common among postdoctoral associates, the statutory minimum for the 
classification sought is only a Master's degree. Counsel is not persuasive. The issue is whether the 
alien will benefit the national interest to a greater extent than an available U.S. worker with the 
minimum qualifications for the position, not the classification. Moreover, the regulation at 8 C.F.R. 
6 204.5(k)(2) provides that if "a doctoral degree is customarily required by the specialty, the alien must 
have a United States doctorate or a foreign equivalent degree." The petitioner seeks employment as a 
I 
 Although this memorandum principally addresses letters from the Office of Adjudications to the public, the 
memorandum specifies that letters written by any CIS employee do not constitute official CIS policy. 
Page 10 
postdoctoral research associate. The very title implies that a doctorate is customarily required by the 
position. 
Ultimately, we concur with the director that the two citations provided prior to appeal are minimal and 
do not establish the petitioner's influence on the field as a whole. On appeal, the petitioner submits 
evidence of additional citations. This evidence shows that no one article by the petitioner has been 
cited by more than three independent research groups. Thus, even considering this new evidence, the 
petitioner's citation record is unremarkable. 
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 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 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. 5 1361. The petitioner has not sustained that burden. 
This denial is without prejudice to the filing of a new petition by a United States employer 
accompanied by an alien employment certification certified by the Department of Labor, appropriate 
supporting evidence and fee. 
ORDER: The appeal is dismissed.