dismissed EB-2 NIW Case: Public Health

U.S. Department of IIomeland Security 
U.S. Citizenship and Immigration Services 
Office ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
identieing data deleted to 
prevent clearly unwarrantec 
&dm - of+ privafr 
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U.S. Citizenship 
and Immigration 
PTTRLTC COPY 
FILE: Office: NEBRASKA SERVICE CENTER ~ateDcT 2 6 2009 
SRC 07 800 25111 
IN RE: 
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. 9 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. 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. 9 103.5(a)(l)(i). 
tladr ilc 
Perry Rhew 
IL Chief, Administrative Appeals Office 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will 
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. At the 
time she filed the petition, the petitioner was a doctoral student at Johns Hopkins Bloomberg School of 
Public Health (JHBSPH), Baltimore, Maryland, and, as a contractor through Sabre Systems, Inc., a 
subject matter specialist at the International Programs Center of the Population Division, United States 
Census Bureau (USCB), Suitland, Maryland. The petitioner asserts that an exemption from the 
requirement of a job offer, and thus of a labor 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 has 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 submits a brief from counsel and copies of documents already in the record. 
Section 203(b) of the Act states, in pertinent part: 
(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) that an alien's 
services in the sciences, arts, professions, or business be sought by an employer 
in the United States. 
The director did not dispute that the petitioner qualifies as a member of the professions holding an 
advanced degree. The sole issue in contention is whether the petitioner has established that a waiver of 
the job offer requirement, and thus a labor certification, is in the national interest. 
The regulation at 8 C.F.R. tj 204.5(k)(4)(ii) requires that a petitioner seeking to apply for the 
exemption must submit Form ETA-750B, Statement of Qualifications of Alien (or equivalent 
sections of ETA Form 9089), in duplicate. The record does not appear to contain this required 
document, in which case the petitioner has not properly applied for the national interest waiver. The 
director, however, did not raise this issue. We will, therefore, review the matter on the merits rather 
than leave it at a finding that the petitioner did not properly apply for the waiver. 
Neither the statute nor the 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, 101 st Cong., 1 st Sess., 1 1 (1 989). 
Supplementary information to regulations implementing the Immigration Act of 1990 (IMMACT), 
published at 56 Fed. Reg. 60897,60900 (November 29, 1991), states: 
The Service [now U.S. Citizenship and Immigration Services] 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 Dept. of Transportation, 22 I&N Dec. 215 (Comrnr. 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, whle 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. 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 also note that the regulation at 8 C.F.R. fj 204.5(k)(2) defines "exceptional ability" as "a degree 
of expertise significantly above that ordinarily encountered" in a given area of endeavor. By statute, 
aliens of exceptional ability are generally subject to the job offerllabor certification requirement; 
they are not exempt by virtue of their exceptional ability. Therefore, whether a given alien seeks 
classification as an alien of exceptional ability, or as a member of the professions holding an 
advanced degree, that alien cannot qualify for a waiver just by demonstrating a degree of expertise 
significantly above that ordinarily encountered in his or her field of expertise. 
The petitioner filed the petition on July 28, 2007. The petitioner submitted copies of seven research 
papers, only one of which had actually been published (the rest were listed as in preparation, under 
revision, or submitted for review). Her one published article, entitled "Analyzing Related Issues on 
U.S. Not-For-Profit and For-Profit Hospitals and Inspirations for Chma," appeared in Chinese Hospital 
Management in 2005. 
The petitioner's initial submission included six witness letters. 
stated: 
Since 2003, [the petitioner] and I have been collaborating on a project entitled "Births 
Averted due to Contraception." This project aims to estimate the impact of 
contraceptive use as estimated by births averted in the major countries around [the] 
world. . . . [The petitioner] obtained and analyzed information such as contraceptive use 
and major demographic indicators from 156 countries around the world. . . . [The 
petitioner] then presented our preliminary results in the 2004 Annual Meeting of the 
Population Association of America, the most scientifically rigorous conference in 
demography in the US. At the conference, she stood out from the crowd, as the 
youngest presenter in the session. . . . [The petitioner's] presence on the project has been, 
and will continue to be, invaluable. 
As a member of her proposal committee, I enjoy watchng [the petitioner's] progress on 
her nearly-completed dissertation, "Desire for HIV Testing and Counseling in Kenya." 
. . . In light of increased government and philanthropic interest in public health research, 
[the petitioner's] thesis contributes to a better understanding of how funding can be 
wisely spent. Specifically, [the petitioner] provides evidence that the scaling-up of 
HIVIAIDS treatment and care has a great impact on peoples' lives around the world. . . . 
[The petitioner's] results will directly benefit American policy-makers by providing 
scientifically sound evidence that the benefits of scaling-up antiretroviral treatment goes 
beyond treating the infected people and helps the general population of AIDS-stricken 
countries. 
from her participation in a program for developing country health scientists that I directed at the 
Population Reference Bureau. . . . I have maintained contact with her since then." 
 also 
stated that the petitioner belonged to "the small working group that I led." stated that the 
petitioner's "work on biases in the estimation of HIV prevalence stood out for its importance to U.S. 
policy." 
[The petitioner] was a Population Reference Bureau (PRB) Population Policy 
Communication Fellow during the year 2006 and 2007. Over the course of that year, I 
had the opportunity to meet her and discuss with her the details of her research work. . . . 
I was greatly impressed with [the petitioner's] profound knowledge and the significance 
and depth of her scientific work. [The petitioner] is dedicated to studying the intention 
and behaviors of utilizing HIV testing and counseling - an established intervention to 
prevent HIV infections and treat AIDS. [The petitioner's] dissertation work specifically 
focuses on Kenya, one major participant countr[y] of the President's Emergency Plan 
for Aid Relief (PEPFAR). HIV testing is the entry point for AIDS treatment. Hence 
knowledge about HIV testing is essential to the premise of. . . scaling up antiretroviral 
treatment, which is the main component of PEPFAR. However, after years of effort to 
expand HIV testing in many provinces, the overall HIV testing rate still stays low in 
Kenya. [The petitioner's] thesis work seeks to examine the problem by looking at the 
ground-breaking topic of desire for HIV testing among individuals, couples, and 
communities. It is [the petitioner's] hypothesis that the availability of antiretroviral 
treatment in the community increases individuals' desire for HIV testing and counseling. 
Her unique background in medicine, biostatistics and population studies provides [the 
petitioner] several scientifically rigorous approaches to study this important topic with 
fundamental policy implications. As a policy-maker, I can testifL to the necessity of 
information about HIV testing. The kind of knowledge and information that [the 
petitioner's] work provides enables me and my colleagues to make better, more 
informed decisions about potential legislation. As a congressman, I have a desire to 
increase AIDS treatment and to help combat the disease. [The petitioner's] work will 
help me - and other congressmen - to make decisions that are in the best interests of the 
nation as a whole. I consider the retaining of [the petitioner] here to be in the best 
interests of the United States because of her ability to provide crucial information on 
valuable topics. 
since 2006, deemed the petitioner "an indispensable member of the Health Studies Branch" and "a 
critical member of the Health Studies Branch." described the petitioner's work there: 
[The petitioner] has been working on the country profiles of the 15 countries addressed 
by the President's Emergency Plan for Ad Relief (PEPFAR). . . . [The petitioner] is in 
charge of the HIVIAIDS information compilation for China and contributes to the 
HIVIAIDS surveillance database. . . . [The petitioner] is involved in determining HIV 
prevalence and incidence, and reviewing information on the AIDS pandemic. [The 
petitioner] collects and codes information from all Chinese journals and reports. Her 
exceptional bilingual skills in both English and Chinese, together with her solid 
knowledge in the HIVIAIDS prevention and treatment area, make her the only person 
that is qualified for this position. 
(Emphasis in original.) Counsel referred to the letter from 
 as an "Independent 
Recommendation," although 
 is the Chief of USCB's International Programs Center and was 
directly involved in hiring the petitioner as a contractor there. stated: 
In addition to her work on the Chinese HIVIAIDS epidemic, [the petitioner] has been 
tasked with updating . . . the country profiles for the 15 PEPFAR countries, which had 
become seriously out of date. These documents serve as one of the major information 
tools to evaluate the progress of PEPFAR. . . . 
[The petitioner's] innovative study on the association between the availability of 
antiretroviral treatment (ART) and the desire for HN testing contributes to the design of 
projects for scaling-up ART, such as those funded by PEPFAR, and provides more 
evidence to justify the reauthorization of PEPFAR. . . . 
With [the petitioner's] demonstrated qualifications, I am confident that she will grow 
into an outstanding scientist in the area of HN prevention and treatment. 
at the Fogarty International Center at the National Institutes of 
Health, became aware of the ~etitioner's work uuon reading a "book . . . that svstematicallv reviewed 
the available measures of burden of disease (BOD)." continued: 
Measures of BOD are important tools to measure the mortality and morbidity burden of 
a specific disease or a spectrum of diseases in a population. They serve as the key 
instruments to monitor the epidemic of a disease, to evaluate the inventions for the 
disease control, and to determine the allocation of health care resources and policy 
making. . . . To manage and review seven independent studies on BOD and come up 
with insighthl policy implications from these review[s], [the petitioner] demonstrates 
outstanding research capacity that exceed[s] her peers. . . . 
[The petitioner] is one of the most talented researchers who have the special 
combination of interdisciplinary knowledge and skills that enable her to make 
contributions in two unique public health areas that very few others can. 
On September 26,2008, the director instructed the petitioner to submit fbrther independent evidence to 
establish that the petitioner qualified for a national interest waiver at the time of filing. In response, 
counsel discussed-the petitioner's initial submission. Counsel particularly emphasizeithe lettei from 
"who does not know7' the petitioner (counsel's em hasis i oring own 
statement that he had met the petitioner, as well as evidence that P spouse worked closely 
with the petitioner. 
Counsel stated: "other researchers have relied upon petitioner's findings as is proven by the frequent 
citations to [the petitioner's] work by independent researchers." Counsel identified four exhibits as 
citations, all to an article that was not published until after the filing date. We note that the cited article 
from Population Studies (counsel erroneously stated that the article appeared in Population Research) 
does not relate to HIVIAIDS research, which counsel has otherwise represented as a cornerstone of the 
petitioner's waiver claim. 
Some of the submissions identified as citations do not mention the ~etitioner's work at all. and all of 
review in which he asserted "the use of modem contraceptives averts more births in 
world, around 195 million per year, than actually take place, roughly 125 million." 
identified no source for this statistic. 
The second identified citation is in an electronic slide presentation by the petitioner's co-author, 
referring to her own work with the petitioner. (Without using the words "citation" or 
"cited," counsel also stated that the petitioner's article "was submitted by the Gates Institute" as 
evidence for a British Parliamentary report. The Bill and Melinda Gates Institute for Population and 
Reproductive Health is located at JHBSPH.) 
The third identified citation is an entry in the Popline database maintained by JHBSPH's INFO Project. 
This is not a "citation"; it does not report new research, based in part on the petitioner's work. Rather, 
the record identifies Popline as a "connection to the world's reproductive health literature," essentially a 
catalog of existing articles. 
The fourth identified citation is a press release from The Pop Reporter, whch shows the JHBSPH 
insignia at the top of the document. The document appears to be a listing of recently published articles, 
and as such is no more of a "citation" than the Popline database. None of the identified "citations" 
show that "other researchers have relied upon petitioner's findings" as counsel claimed; they show only 
JHBSPH's efforts to promote and publicize that work. 
Four new letters accompanied the petitioner's response to the request for evidence.-~ 
Executive Secretary of Health Metrics Network, stated: 
Although I have never met [the petitioner] in person, I am deeply impressed by her work 
on burden of disease studies in developing countries. She has written a seminal book on 
the subject. . . . 
[The petitioner's] work has had a major impact in the field of BOD study 
internationally. 
[The petitioner] has also made major contributions to a research project on 
"Reproductive Health Life Expectancy." . . . The study is slated for presentation at the 
2009 Annual Meeting of the Population Association of America. 
of the Demographic and Health Survey (DHS) Project of Macro 
tated: "I have never met [the petitioner], and have not worked directly with 
her," but she also indicated that the petitioner has "served as an external consultant on several studies 
DHS has conducted." onsidered the petitioner to be "truly an exceptional researcher with 
enormous romise." The record does not reveal whether is related in any way to prior 
witness 
 Both individuals work in or near Waslungton, D.C., and- 
curriculum vitae, in the record, shows that he andcollaborated on a presentation at a 1996 
workshop in Belgium. 
of Population Studies, praised the petitioner's article that appeared in 
that journal in mid-2008. He stated: "I have no doubt that the paper will be frequently cited," although, 
as we have noted, the paper seems to have no citation history outside of the school where the 
beneficiary earned her doctorate. 
the time of filing, and predicted that the petitioner's "work will draw heavy citations in the near future." 
This prediction may eventually prove true, but speculation about what might happen in the future 
cannot have the same weight as documentary evidence of what has already occurred. 
The director denied the petition on March 6,2009. The director found that the petitioner had not shown 
her work to have been especially influential in her field. The director acknowledged the submission of 
several witness letters, but found that these letters failed to demonstrate the impact (as opposed to 
expected future impact) of the petitioner's body of work as it existed on the filing date. The director 
also noted that the reception of the petitioner's subsequent work cannot retroactively show that the 
petitioner was already eligible for the waiver as of the filing date. The regulations, as well as published 
precedent, support this position. An applicant or petitioner must establish that he or she is eligible for 
the requested benefit at the time of filing the application or petition. 8 C.F.R. 5 103.2(b)(l). Therefore, 
subsequent events cannot cause a previously ineligible alien to become eligible after the filing date. See 
Matter ofKatigbak, 14 I&N Dec. 45,49 (Regl. Commr. 1971). 
On appeal, counsel argues that the petitioner ''does have evidence of [qualifying] past achievements" 
(counsel's emphasis), and then lists the petitioner's achievements prior to the filing date. Simply listing 
the petitioner's accomplishments begs the question of how significant they are. Counsel attempts to 
address this by stating that the petitioner's work has "provid[ed] a unique methodology of studying 
desirability of HIV testing" and "significantly advanced public health objectives in the US." The 
record, however, lacks objective, documentary evidence to support these vague statements. Counsel 
does not identify any specific, active initiative that had been created or substantially modified as a direct 
result of the petitioner's work prior to the filing date. 
Counsel contends that the director did not give due consideration to letters from "independent and 
objective" witnesses. We have already shown that a number of these witnesses actually have close 
ties to the petitioner. For instance, on appeal counsel refers to "independent referee, - 
and then quotes from the very letter in which 
 made it clear that she personally 
worked with the petitioner in a "small working group." Counsel's persistently erroneous claims 
about these witnesses do not inspire confidence in the accuracy of counsel's other assertions. In any 
event, the assertions of counsel do not constitute evidence. See Matter of Obaigbena, 19 I&N Dec. 
533, 534 n.2 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1, 3 n.2 (BIA 1983); Matter of Ramirez- 
Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
Counsel does not dispute the director's finding that there are few citations of the petitioner's work, 
but asserts that the director "failed to review the quality of these citations versus just the number. 
Some of the citations were made . . . in order to advance public policy objectives. Such citations, 
certainly demonstrate that [the petitioner's] work has been influential over that of her peers." This 
argument is not persuasive. The petitioner has not shown that her work has influenced public policy; 
she has only shown that a small number of individuals have mentioned her work while attempting to 
influence public policy. Furthermore, there are policy implications in the very nature of her work, 
which relate to the intrinsic merit and national scope of her specialty rather than any special traits 
specific to the petitioner alone. Counsel, therefore, fails to show that the petitioner's work has been 
particularly influential. 
Counsel notes that the petitioner has received prizes in the past. The record does not establish the 
significance of these prizes. Under 8 C.F.R. 5 204.5(k)(3)(ii)(F), prizes and comparable recognition 
can form part, but not all, of a successful claim of exceptional ability in the sciences. Because 
exceptional ability in the sciences is not an automatic basis for the waiver, it is clear that a partial 
claim of exceptional ability is, likewise, insufficient. 
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 fi-om 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. Comments about the petitioner's work after the filing date, and 
expectations about the impact that the petitioner's work might eventually have, indicate that the petition 
was, at best, filed prematurely. On the basis of the evidence submitted, the petitioner has not 
established that a waiver of the requirement of an approved labor 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 decision is without prejudice to the 
filing of a new petition by a United States employer accompanied by a labor certification issued by the 
Department of Labor, appropriate supporting evidence and fee. 
ORDER: The appeal is dismissed.