dismissed EB-2 NIW Case: Virology

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khit!@fng data deleted to 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Rr 
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. tj 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. 
Administrative Appeals Office 
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. 5 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 research associate. The petitioner 
asserts that an exemption from 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 from 
the requirement of a job offer would be in the national interest of the United States. 
On appeal, counsel submits a statement. For the reasons discussed below, the petitioner has not 
overcome the director's legitimate concerns. 
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's occupation falls within the pertinent regulatory definition of a profession. 
 The 
petitioner holds a Master's degree from the Universite de Poitiers and a Diploma of Detailed Studies in 
Chemistry and Biochemistry from the University of Dakar. While the petitioner did not submit an 
evaluation of her foreign credentials, the director did not contest that the petitioner qualifies for the 
classification sought as an advanced degree professional or an alien of exceptional ability. 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, 101 st Cong., 1 st Sess., 1 1 (1 989). 
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 fbture 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, virology, and that 
the proposed benefits of her work, identifying novel targets for the development of antiviral therapies 
for herpes viruses, 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. 
In her initial letter, the petitioner's current supervisor, Dr. asserts that before 
hiring the petitioner, several aspects of certain projects could not be accomplished in a timely fashion 
because ~ras unable to find a researcher with the petitioner's unique qualifications. 
Page 4 
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 ofNew York State Dep 't of Transp., 22 I&N Dec. at 21 8. 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 she 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. 
In support of the petition, the petitioner has submitted several reference letters from colleagues at 
institutions where she is or was employed. The petitioner also submitted articles she has authored and 
articles to which she contributed enough to be acknowledged, but not enough for authorship credit. 
The director concluded that the letters did not establish that the petitioner's work is known beyond her 
circle of colleagues, that the record lacked citations of the petitioner's published work and that the 
petitioner had not established the importance of her role on projects at Ohio State University, for which 
she had not received authorship credit as of the date of filing. 
On appeal, counsel asserts that the petitioner cannot be replaced on her project because she assisted 
with the building of the project and another qualified researcher would not be as familiar with the 
project. The unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 
I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez- 
Sanchez, 17 I&N Dec. 503,506 (BIA 1980). We will examine the precise statements of the petitioner's 
supervisors below. 
Regardless, simple exposure to advanced technology constitutes, essentially, occupational training 
which can be articulated on an application for alien employment certification. Special or unusual 
knowledge or training, while perhaps attractive to the prospective U.S. employer, does not inherently 
meet the national interest threshold. Id. at 221. Moreover, the petitioner's many years of experience, 
while notable, do not justify a waiver of the alien employment certification. The regulations indicate 
that ten years of progressive experience is one possible criterion that may be used to establish 
exceptional ability. Because exceptional ability, by itself, does not justify a waiver of the alien 
employment certification requirement, arguments hinging on the degree of experience required for the 
profession, while relevant, are not dispositive to the matter at hand. Id. at 222. Thus, the petitioner 
must demonstrate more than her years of experience in the field and on a particular project; she must 
demonstrate that she has made contributions that, to some degree, have influenced the field as a whole. 
Citizenship and Immigration Services (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 the importance 
of the project and competence in completing assigned duties 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 her reputation and who 
have applied her 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 cumculum vitae and work and provide an opinion based solely on this review. 
As stated above, the petitioner received her Diploma of Detailed Studies from Dakar University in 
198 1. The petitioner has also documented her employment at the Laboratory for Toxicology, Industrial 
Hygiene and Control at Omar Bongo University in Gabon Republic. The petitioner indicates she was 
there from 1985 to 1998. In 1999, the petitioner joined the Ohio State University as a research assistant 
and in 2002 was promoted to a research associate at the same institution. 
Dr. currently a professor at the University of Nantes, France, indicates that he 
knows the petitioner from his former position at a professor at Dakar University. Dr.- 
asserts that while a student, the petitioner collected red seaweed and "purified and identified interesting 
organic compounds, leading to better understanding of the ecological niche, and chemistry" of the 
seaweed. According to Dr. 
 the research team reoriented their work based on the 
petitioner's findings. Dr. - and the petitioner coauthored a published article in 1982. 
Professor - of Dakar University provides similar information. 
Any graduate thesis or other 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. Dr. 
mes not explain how the petitioner's work with seaweed has impacted marine biology 
beyond her colleagues as Dakar University. 
As evidence of her work at Omar Bongo University, the petitioner submitted letters 
a former postdoctoral researcher at Omar Bongo University, and Dr. 
an assistant professor at that university. Dr. asserts that the petitioner trained 
and educated herself in molecular biology, genetics and virology so that she was "able to participate in 
research generating transgenic mice and viral mutants, in particular herpes simplex virus mutants." Dr. 
asserts that the generation of transgenic mice and viral mutants are important steps towards 
understanding genetic diseases and the development of antiviral compounds. Dr. oes not, 
however, identify any novel methods developed by the petitioner. Leaming lab techniques already in 
use in the field is not a contribution to the field but the type of occupational training that can be 
articulated on an application for alien employment certification. Dr. asserts that the work 
to which the petitioner contributed has "been the object of many reports and publications." The record 
contains no reports or publications referencing work credited to the petitioner. 
At the Ohio State University, the petitioner first worked as a technician in the laboratory of Dr. - 
Dr. asserts that the petitioner was responsible for cassava plant tissue culture and its 
molecular analysis. Dr. further asserts that the petitioner's work allowed the team to make rapid 
progress on their project, which involves a major subsistence crop in Africa. ~r.- 
Chairman of the Ohio State University's School of Public Health, Division of Environmental Health 
Sciences, explains that the goal of the project was to reduce levels of cyanide in cassava. Dr. - 
Msikita, a postdoctoral researcher at the Ohio State University, asserts that the petitioner utilized a 
technique "widely 
 plant research to multiply DNA and to verify the presence of 
genes of interest." Dr. 
 this work "is testimony to her qualification as a scientist." 
In a subsequent letter, Dr 
 sserts that the project could not have gone forward without the 
petitioner's participation. 
There is no evidence, however, that the petitioner's role in Dr. laboratory was sufficient to 
gamer authorship credit on any publication or that the work became influential based on the methods 
used for tissue culture and molecular analysis. While a skilled and experienced technician may be 
important to such studies, the petitioner has not explained why the alien employment certification 
process would not address the employer's need for someone with the petitioner's skills and experience. 
The national interest waiver is not warranted simply because the petitioner is a qualified laboratory 
technician who has performed competently. 
The petitioner then worked in the laboratory of Dr. ntil Dr. left the Ohio State 
University. Dr. asserts that the position only required a bachelor's degree although the 
petitioner has a higher level of education. Dr. praises the petitioner's technical skills and 
asserts that she was qualified for her position in the Division of Environmental Health Sciences. Dr. 
fails, however, to 
 contributions the petitioner made to the field of toxicology. Dr. 
explains that in Dr. 
 laboratory, the petitioner worked on BRCA2, a gene linked to 
breast cancer. The 
 studies evaluating the interaction of environmental factors on 
BRCA2. While Dr. asserts that these results "will potentially influence treatment strategies for 
breast cancer and have an [sic] valuable impact on better understanding the etiology of the disease," the 
record lacks evidence that the petitioner's role on this project was sufficient to gamer authorship credit 
or that the resulting publications have been recognized as significant, such as through wide citation. 
In 2002, the petitioner began a research associate position in the laboratory of Dr. -t 
the Ohio State University, Department of Molecular Virology, Immunology and Medical Genetics. Dr. 
plains that her laboratory is working towards identifying novel targets for the development of 
antiviral therapies for herpes viruses and understanding DNA replication in animal cells. Dr. = 
indicates that the petitioner "efficiently purified several of the herpesvirus DNA replication proteins 
and has shown that one of them works closely with another to enhance unwinding." The petitioner has 
also contributed to the efficiency of other researchers in the laboratory. Dr. asserts that she was 
previously unable to complete "several aspects" of her project because of a lack of a qualified research 
associate. As stated above, a shortage of qualified workers falls under the jurisdiction of the 
Department of Labor. Matter of New York State Dep't of Transp., 22 I&N Dec. at 221. 
In a subsequent letter, Dr. sserts that the petitioner is listed as critical personnel on a grant 
application. She submits the application, which gives the petitioner's title as "technician." Dr. m 
continues: 
I also have included copies of three papers from my laboratory in which [the 
petitioner's] research expertise and efforts were SPECIFICALLY acknowledged. 
These papers were published in the top-tier journals of their respective fields. . . . I 
acknowledge specifically only those individuals whose work was absolutely required for 
the project, but who played a somewhat smaller role than necessary for full authorship. 
When the role is important but not exactly required for the work, I generally 
acknowledge "members of the Panis laboratory." 
(Emphasis in original.) Dr. concludes that the work reported in the three articles would not have 
been possible without the pe 1 loner's expertise. Dr. makes clear that the petitioner's role on 
these projects, while necessary, did not rise to the level of those receiving authorship credit. Once 
again, we acknowledge the need for a laboratory to employ a skilled technician. Those skills, however, 
can be articulated on an application for alien employment certification. 
Dr. her states that the petitioner has completed work that a postdoctoral researcher had failed 
to complete and that the petitioner would be given authorship credit on the manuscript. As of the date 
of filing, this article had yet to be published and disseminated in the field. Thus, we cannot gauge the 
impact of this work. We note that all research, in order to be accepted for publication, must be 
original and present some benefit to the general pool of scientific knowledge. It does not follow that 
every researcher who authors a published article has influenced the field to such a degree as to 
warrant a waiver of the job offer in the national interest. The petitioner must also demonstrate the 
influence of the individual article, such as through evidence that the article is widely cited in the 
community. 
The petitioner also assists in the laboratories of Dr. 
 d both 
assistant professors at the Ohio State University. 
 that the petitioner has 
provided important technical assistance on their projects and Dr. 
D 
sserts that the petitioner has 
trained students in certain protocols. While each project as a whole may e important, neither professor 
explains how the petitioner's work has influenced the field. As stated above, not every alien qualified 
to work on an important project warrants a waiver of the alien employment certification in the national 
interest. 
We acknowledge that the petitioner submitted a letter fi-om Dr. - an associate 
professor at the Ohio State University, who confirms that he does not know the petitioner personally. 
This letter, however, still does not establish the petitioner's influence beyond the Ohio State University. 
Finally, Dr. an individual residing in New York who attests to his experience with a major 
pharmaceutical company, discusses the unique nature of the petitioner's background and asserts that the 
United States will benefit from taxing the petitioner's residual earnings fi-om her inventions. Dr. = 
does not explain how he came to know of the petitioner or claim to have been influenced by the 
petitioner's work. He does not suggest that his pharmaceutical company has expressed interest in the 
petitioner's methods. We know of no binding legal authority suggesting that generating taxable 
revenues is a consideration in national interest waiver analysis. 
The record shows that the petitioner is respected by her colleagues and has made useful contributions 
to government-funded projects. It can be argued, however, that most research, in order to receive 
funding, must present some benefit to the general pool of scientific knowledge. It does not follow 
that every researcher working with a government grant inherently serves the national interest to an 
extent that justifies a waiver of the job offer requirement. 
As is clear fi-om 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. tj 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.