dismissed EB-2 NIW Case: Structural Biology

lI.S. Dcpartnlrr~t ul'Honleland Sceurilj 
U.S. Citizenship and Immigration Senices 
Ofjce of Admrnrstrarrve Appeals MS 2090 
Washington. DC 20529-2090 
U.S. Citizenship 
and Immigration 
FILE: Office: NEBRASKA SERVICE CENTER 
c LIN 07 264 5161 1 
 Date: JAN 0 8 2010 
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. 13 1 153(b)(2) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
This is the decision of the Administrative .4ppeals 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)(I)(i). 
AD {udb G/L 
r Perry hew 
rchiif, 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. 5 1153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as a postdoctoral fellow at the University of California, Irvine (UCI). 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 statement and evidence relating to his most recent work. 
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. 
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., 1st Sess., 1 1 (1989). 
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. 21 5 (Commr. 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 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. tj 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 27, 2007. In an introductory statement, the petitioner (referring 
to himself by name, in the third person) described his work at the University of Texas, El Paso (UTEP): 
[The petitioner] chose the most challenging yet important research project, DNA repair 
mechanism, in the graduate program of the Department of Biology at UTEP. As all 
biologists know, the ultimate cause of cancer is DNA damage. . . . [The petitioner] 
studied AP endonuclease from Chinese hamster with 92% similarity to the human 
counterpart. He expressed the protein in insect cell line, mastered molecular biology 
techniques and enzyme kinetic analysis knowledge, and characterized the enzyme. 
Page 4 
The expression of AP endonuclease was quite a novel work at that time. 
Regarding his later work at UCI, the petitioner stated: 
[The petitioner] solved a very important crystal structure of CooA protein in the form of 
active CO bound complex. The finding, published in the prestigious journal - Acta 
crystullographica, has a tremendous impact on the understanding of the huge 
conformational change of this gas sensing transcription factor upon the binding of the 
signaling gas molecule. CooA is a member of the large transcription factor family 
(CAMP receptor protein or CRP) in the bacterial world. The mechanism described in 
[the petitioner's] paper provided the structural insight into the activation of pathogenic 
Escherichia coli CAMP receptor protein. . . . 
[The petitioner's] other projects are studies of human Soluble Guanylate Cyclase (sGC) 
and DosT from Mycobucterium tuberculosis. sGC is a heme enzyme that converts GTP 
to cGMP upon binding NO gas inside the cells. cGMP, much like CAMP, acts as a 
universal second messenger in the cells. One of the major functions of cGMP in human 
body is promoting the relaxation of vascular smooth muscles, which leads to 
vasodilation and increased blood flow. . . . 
DosT is an important oxygen sensing heme protein of Mycobacterium tuberculosis (TB 
bacterium) that plays a major role in bacterial two component signal transduction 
pathway. Blocking this signal transduction is surely a deadly blow to this bug. 
The petitioner submitted several letters, all from the petitioner's professors and collaborators. = 
stated: 
[The petitioner] independently developed his own research ideas and began an active 
collaboration with professors in the Chemistry Department. He used high-tech 
analytical instrumen[ta]tion, such as the ICP spectrometer, to incorporate 3D structural 
information into his metal titration analysis of AP endonuclease. This was a 
methodologically difficult endeavor, and the capacity for collaboration and 
interdisciplinary learning that he demonstrated was remarkable - to a degree that I've 
seldom seen in a faculty member, much less a foreign graduate student. . . . Not 
surprisingly, upon being granted the PhD degree, he was recruited to a renowned X ray 
crystallography laboratory at the University of California-Irvine for further postdoctoral 
training in structural biology, in order to study important bio-molecules at the atomic 
level of resolution. This further training, which is currently in progress, will help fill out 
[the petitioner's] potential for a highly successful career in the important biomedical 
research field. 
of UTEP's Graduate School, ranked the petitioner "among the top two or 
ave worked with me." stated that the petitioner "has the 
potential to become an outstanding research scientist and to make significant contributions to the fields 
of DNA repair, cancer biology and protein biochemistry." 
, now an assistant research professor at the Burham Institute for Medical Research, 
previously collaborated with the petitioner and served on his thesis committee at UTEP. He credited the 
petitioner with "very important seminal contributions that lead toward innovative drug design." 
extraordinary intellectual aspirations," who "always took the most challenging projects and conducted 
the experiments in an almost perfectionist way." stated that the petitioner "was the first person 
who successfully expressed APE in insect cells." 
[The petitioner] has rapidly risen to [a] position of major responsibility since joining 
[my] lab as a postdoc in Feb. 2005. He currently is in charge of a critical NIH funded 
research project. He arrived in the lab as an outstanding protein chemist and molecular 
biologist with essentially no training or background in protein crystallography. In a 
remarkably short period of time he has mastered all aspects of determining x-ray crystal 
structures and published a paper (as first author) in a prestigious crystallographic 
journal. This paper puts forth a hypothesis on how an important carbon monoxide 
sensing transcription factor works. This has been a puzzle for some time but [the 
petitioner's] work has provided the critical structural underpinnings for understanding 
how this large group of transcription factors work[s]. . . . 
Because of his unusual ability to master new techniques quickly, his keen intellect, work 
ethic, and ambition to accomplish something important, he has taken on some of the 
most difficult yet important projects in the lab. 
since 1999," stated: 
[The petitioner] has been a major driving force in the scientific community's 
understanding of CooA. CooA exists in two forms: in the absence of carbon monoxide 
(CO), CooA is inactive, but in the presence of CO, CooA binds CO tightly and 
undergoes a huge conformational change that allows it to turn on genes. The products 
of these genes then degrade the CO. When [the petitioner] started the project, we only 
knew the inactive structure of CooA. We therefore neither knew the more biologically 
important active form nor did we understand the effect caused by CO binding. [The 
petitioner's] structure of the active form of CooA has changed our understanding 
completely. 
Page 6 
in protein crystals and solved the CO complexed CooA structure. This experiment provides insight into 
the activation mechanism of CRP by CAMP, and is the first CO complex CooA structure that directly 
demonstrates the structural similarities with the active form of CRP-CAMP complex." 
of the Federal University of Santa Catarina, Brazil, who has collaborated 
by [the petitioner's] clever design of the experiments using 
chemistry tools," calling the 
 methods "exceptio~ally innovative" and "intriguing." 
- 
called the petitioner "a unique and talented young scientist and the best postdoc with immeasurable 
- 
potential in our department.; stated that the petitioner ~'~ubiished a major X ray crystal 
structure paper of an important carbon monoxide (CO) sensing transcription factor called "COOA" in a 
prestigious journal." 
The petitioner submitted copies of one published article, but no evidence (such as citations) to show 
how the scientific community received the article. The petitioner also submitted three manuscripts, 
with no evidence of publication. 
On September 10, 2008, the director issued a request for evidence, instructing the petitioner to submit 
documentation of his impact on his field, such as citations of his published work. In response, the 
petitioner acknowledged that he was not submitting "the requested items." He asked the director. 
however, to take into consideration that his "research fields and interests are going more deliberately 
oriented and more challenging. . . . X ray crystallography is the ultimate accurate and technically 
demanding technology in life sciences." This assertion attests to the intrinsic merit of X-ray 
crystallography, but Congress established no blanket waiver for X-ray crystallographers. The petitioner 
must establish not only the importance of his field, but also that of his work in the field. 
The petitioner stated: "Since last fall [i.e., fall 20071, I have been interested in DNA sequencing 
technology." The petitioner did not cite any achievements in this area; he merely expressed an interest 
in pursuing it. Even then, he acknowledged that he was not doing this work when he filed the petition 
in summer 2007. 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), (12). Therefore, 
subsequent events cannot cause a previously ineligible alien to become eligible after the filing date. See 
Matter ofkhtigbak, 14 I&N Dec. 45,49 (Regl. Commr. 1971). 
The petitioner conceded that his publication and citation record did not support approval of the petition, 
but he asked the director to take into account that the petitioner is "a versatile scientist" who is "on two 
rails - publication and invention. I always believe I will achieve more important things as long as I . . . 
keep seeking and doing [a] good job." The petitioner's versatility and persistence are, without a doubt, 
desirable qualities in a researcher. These personal traits, however, cannot form a sufficient foundation 
for the special immigration benefit of a national interest waiver. 
Page 7 
The director denied the petition on February 23, 2009, stating that the petitioner has not shown that his 
"modest publication record" has had significant impact in his field. The director noted the petitioner's 
submission of favorable witness letters, but found that the record lacks objective evidence of the 
significance of the petitioner's work. 
On appeal, again referring to himself in the third person, the petitioner states: 
The petitioner now realized that his response to the Request for Evidence was 
inadequate due to lack of citations and too much effort contributed on idea development 
of whole genome sequencing technology and microRNA profiling technique. Since the 
idea of microRNA profiling is mature and the [grant] proposal is being written . . . , the 
petitioner would like to provide a new line of evidence to support his Immigration Visa 
Petition. 
. . . Briefly, microRNA, associated with many types of cancer and other serious diseases, 
is a potential diagnostic and therapeutic agent. Profiling microRNA in [a] clinical lab is 
the doorstep to the personalized medicine. . . . Since the idea is innovative and 
accomplishable, we are very optimistic about the funding. 
The petitioner submits materials relating to the proposed project described above. This project was not 
even proposed until well after the petition's filing date. As we have already noted (and as the director 
noted in the decision), the petitioner must be eligible for the benefit sought when he files the petition. 
Later developments cannot retroactively cause him to have been eligible on the filing date. For this 
reason, a petitioner may not make material changes to a petition that has already been filed in an effort 
to make an apparently deficient petition conform to USCIS requirements. See Matter of Izummi, 
22 I&N Dec. 169, 175 (Commr. 1998). This applies, as well, to the handful of new citations that the 
petitioner documents on appeal. 
The petitioner, on appeal, asserts that his innovative and original ideas can help him to make significant 
contributions in the future. Nevertheless, those traits are difficult to quantify as evidence. Intriguing 
research ideas and the petitioner's self-confidence cannot guarantee that the petitioner will bring those 
ideas to fruition, or that the petitioner's research will yield the expected results. Viewed in this light, the 
petition appears to have been, at best, prematurely filed, before the petitioner had the opportunity fully 
to prove that his accomplishments will match his own high expectations. 
Without a doubt, the petitioner has risen from what he describes as humble origins and earned the 
respect of his mentors. The letters show that he has made a deep and favorable impression on his 
professors and collaborators, but they cannot, by themselves, establish the petitioner's wider impact 
on his field. Witnesses have praised the petitioner's potential for significant achievements, but 
subjective opinions about the petitioner's potential cannot replace persuasive evidence that the 
petitioner has already realized that potential. Some witnesses have praised the petitioner's work 
with CooA, but the record does not show that independent researchers share the witnesses' opinions 
about that work. 
Page 8 
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 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.