dismissed EB-2 NIW Case: Public Health

identifying data deleted to 
prevent clearly unwarr~nted 
invasion of personal prlvacy 
PUBLlCCOPY 
DATE: OC1 0 4 2011 OFFICE: NEBRASKA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., 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. § I I 53(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. 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 $630. Please be aware that 8 C.F.R. § 103.5(a)(I)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
~~o~ 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. The director then reopened the proceeding on the director's motion, and again denied the 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will 
summarily dismiss the appeal. 
The petitioner seeks classification pursuant to section 203(b )(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.c. § 1153(b )(2), as a member of the professions holding an advanced degree. The 
petitioner is a postdoctoral research fellow at the Harvard School of Public Health, Boston, 
Massachusetts. The petitioner asserts that an exemption from the requirement of a job offer, and thus of 
a labor certification, is in the national interest ofthe United States. The director found that the petitioner 
qualifies for classification as a member of the professions holding an advanced degree, but that the 
petitioner has not established that an exemption from the requirement of a job offer would be in the 
national interest of the United States. 
The U.S. Citizenship and Immigration Services (UserS) regulation at 8 C.F.R. § 103.3(a)(l)(v) states, 
in pertinent part, "[ a]n officer to whom an appeal is taken shall swnmarily dismiss any appeal when the 
party concerned fails to identify specifically any erroneous conclusion oflaw or statement of fact for the 
appeal." 
On appeal from the director's decision, the petitioner submits dozens of exhibits, all of them previously 
submitted, as well as a 50-page brief. On the Form I-290B Notice of Appeal, counsel presents a capsule 
summary of the arguments in the appellate brief. 
Review of the appellate brief shows that counsel made nearly all of the same arguments in the earlier 
motion. The appellate brief is, therefore, ahnost entirely a direct copy of a brief that pre-dates the 
present denial. The brief is not a response to the denial if it preceded that denial. 
Submission of the two identical briefs in response to two identical decisions might be understandable, 
but such is not the case here. While counsel's briefs on motion and on appeal are virtually identical, the 
director's two denial decisions (dated March 2 and July l3, 2010) are quite distinct from one another. 
The appellate brief contains only one substantive paragraph that counsel did not simply copy from the 
earlier brief. In that paragraph, on pages 7-8 ofthe brief, counsel states: 
After quoting all the specific evidence submitted [with] the petition, [the director] still 
states that "The petitioner has merely shown that he authored or coauthored nine 
research publications that have been well received by some researchers, through their 
supporting letters." . . . The Service [ Center] Director does not reason why all the 
specific evidence, including but not limited to, the professional media reports, the 
ScienceDirect report that [the petitioner's] first-author paper was recognized to be the 
"No.1 of the Top 25 Hottest Articles" in the field, the geographic presentation of the 
independent scientists who cited [the petitioner's] papers as authoritative, etc., are not 
Page 3 
sufficient to prove that [the petitioner's 1 work has some degree of influence on the field 
as a whole. 
In the denial notice, the director stated that witness letters, while "not without weight," "cannot form the 
cornerstone for a successful claim" for the national interest waiver. The director had previously cited 
Matter of Caron International, 19 I&N Dec. 791, 795 (Comm'r 1988), which indicates that expert 
witness letters are not presumptive evidence of eligibility. The director found that the petitioner had not 
submitted sufficient documentary evidence to support the claims in the letters. The director 
acknowledged the citation of the petitioner's published work, but found that the petitioner had not 
shown this citation rate to distinguish the petitioner from others in his field. 
Counsel states that the director did not give sufficient weight to "the ScienceDirect report that [the 
petitioner's] first-author paper was recognized to be the "No.1 of the Top 25 Hottest Articles" in the 
field." The director acknowledged the petitioner's submissions in this regard, but found that "it is upon 
the petitioner to prove that these achievements deserve a waiver of the labor certification." The record 
shows that counsel has mischaracterized the ScienceDirect listing. The material in the record is not a 
"report" that the petitioner's paper was one of the "'Top 25 Hottest Articles' in the field." Rather, 
ScienceDirect listed the "Top 25 Hottest Articles" that had appeared in one particular journal (Applied 
Ergonomics). The list is dated "October to December 2007," indicating that ScienceDirect compiles the 
list on a quarterly basis. The printout does not explain how the "hottest articles" are selected. Review 
of the list shows lopsided inclusion of the most recent articles. Eleven of the 25 articles, including the 
petitioner's, are from the January 2008 issue of Applied Ergonomics, representing 108 of the first 121 
pages of that issue. Six other articles are from the November 2007 issue. It is natural that newly 
published articles would, at least temporarily, attract the most attention, at least until the next issue 
appeared. The director justifiably questioned the importance of this list, and counsel, on appeal, offers 
no response except to claim, incorrectly, that the list shows the "hottest articles in the field," when it 
actually deals with articles in a single journal, mostly from two issues thereof. 
On consideration, the AAO finds that the one new paragraph buried in a redundant 50-page brief is not 
sufficient basis for a substantive appeal and de novo review of the entire petition. Counsel's refusal to 
accept the director's conclusions about the petitioner's evidence does not mean that the director failed to 
consider that evidence. Counsel's mischaracterization of the "Top 25 Hottest Articles" list, whether 
intentional or inadvertent, gravely undermines the assertion that counsel has devoted more care than the 
director to consideration of the evidence. 
Inasmuch as counsel has failed to identify specifically an erroneous conclusion oflaw or a statement of 
fact as a basis for the appeal, the appeal must be summarily dismissed. 
ORDER: The appeal is dismissed.