dismissed EB-2 NIW Case: Vision Science

U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Of$ce ofAdminrstrative Appeals, MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
SRC 08 050 53 156 
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. 5 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. 5 103.5 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. 5 103.5(a)(l)(i). 
U berry Rhew 
Chief, Administrative Appeals Office 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner1 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 an alien of exceptional ability or a member of the professions 
holding an advanced degree. The petitioner, a Ph.D. candidate at the time of filing, seeks employment 
as a vision scientist. 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 classification as a member of the professions holding an advanced 
degree, 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, most of which relates to accomplishments 
that postdate the filing of the petition. For the reasons discussed below, we uphold the director's 
decision. 
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 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 petitioner holds a Master's degree in vision science fiom the State University of New York 
(SUNY) College of Optometry. 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 
' On the Form 1-140 petition, the petitioner is listed as the State University of New York, College of 
Optometry. The petition, however, is signed by the beneficiary as the self-petitioner. 
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. 
Neither the statute nor pertinent regulations define the term "national interest." Additionally, Congress 
did not provide a specific definition of the phrase, "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, 10 1 st Cong., 1 st Sess., 1 1 (1 989). 
A supplementary notice regarding the regulations implementing the Immigration Act of 1990 
(IMMACT), published at 56 Fed. Reg. 60897,60900 (Nov. 29, 1991), states, in pertinent part: 
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, 2 17- 18 (Comm'r. 1998) (hereinafter 
"NYSDOT"), 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. Id. at 2 17. Next, it must be shown that the proposed benefit will be national 
in scope. Id. 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. Id. at 2 17- 18. 
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. Id. at 219. 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. Id. 
We concur with the director that the petitioner works in an area of intrinsic merit, vision science, and 
that the proposed benefits of his work, improved corneal health, 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. 
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. 
NYSDOT, 22 I&N Dec. at 218. 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 221. 
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 221, n. 7. 
On appeal, counsel asserts that the director failed to consider the petitioner's Ezell Fellowship and 
submits additional information about the fellowship as well as evidence that the petitioner received a 
second fellowship for the 2008-2009 academic year. The petitioner first received an Ezell Fellowship 
from the American Optometric Foundation (AOF) on July 12, 2007, which provided $8,000 to support 
his research during the 2007-2008 academic year. The notification letter advises that 21 optometric 
deans and presidents, 91 optometric faculty members and 98 Fellows of the American Academy of 
Optometry, including three past presidents, were Ezell Fellows. The fellowship was announced in 
SUNY7s newsletter and the Association of Schools and Colleges of Education's Eye on Education. 
AOF's website materials, submitted by the petitioner, reflect that these fellowships are designed to 
"provide support for a graduate student." The AOF materials submitted on appeal state that Ezell 
Fellowships "provide financial support to post-graduate students who plan to pursue an academic 
career in optometry and vision science." Thus, it is not surprising that these fellows have gone on to 
academic careers in optometry, many successfully. 
The Ezell Fellowship is essentially a research grant for graduate students. Research grants, while 
competitive, primarily fund future work rather than recognize the influence of past work. Clearly, the 
AOF determined that the petitioner's research proposal was promising and that he demonstrated the 
experience and credentials to carry out the proposed research. The grant is not, however, evidence of 
the petitioner's influence in the field. 
In addition to the Ezell Fellowship, the petitioner submitted Certificates of Merit from the Minnie 
Flaura Turner Memorial Fund for Impaired Vision Research in 2005, 2006 and 2007; student travel 
awards and a Vision Research Research Scholar Award from SUNY. These awards all appear limited 
to students and are designed to provide financial support for students to perform research, attend 
conferences and continue their education. , a research scientist at CharitB 
Universitatsmedizen Berlin, asserts only that the fellowship is evidence of the petitioner's "potential of 
being an independent scientist." Recognition for achievements and significant contributions by peers, 
governmental entities or professional or business organizations is one of the regulatory criteria for 
Page 5 
aliens of exceptional ability, 8 C.F.R. fj 204.5(k)(3)(ii)(F), a classification that normally requires an 
approved alien employment certification. Section 203(b)(2) of the Act. We cannot conclude that 
meeting one of those criteria, or even the requisite three criteria warrants a waiver of that requirement 
in the national interest. NYSDOT, 22 I&N Dec. at 21 8,222. 
Similarly, the petitioner submits evidence of his student membership in the American Physiological 
Society and the American Academy of Optometry as well as his membership in the International 
Ocular Surface Society and the Association for Research in Vision and Ophthalmology (ARVO). The 
petitioner did not submit evidence that these associations require demonstrated influence in the field. 
Notably, professional memberships are one of the regulatory criteria for aliens of exceptional ability, 
8 C.F.R. 5 204.5(k)(3)(ii)(E), a classification that normally requires an approved alien employment 
certification. Section 203(b)(2) of the Act. As stated above, we cannot conclude that meeting one of 
the regulatory criteria, or even the requisite three criteria, warrants a waiver of that requirement in the 
national interest. NYSDOT, 22 I&N Dec. at 21 8, 222. 
Also on appeal, counsel asserts that the director mischaracterized the reference letters that support the 
petition. We will consider these letters in detail below. 
As stated above, the petitioner was a Ph.D. candidate at SUNY, where he received his Master of 
Science degree, as of the date of filing. At SUNY, the etitioner worked in the laboratory of - 
who provides a letter of support. dexplains that the petitioner has been studying 
corneal epithelial roles in the maintenance of normal vision, which is important for identifying 
~ ~ 
strate ies that promote corneal epithelial wound healing following injury. Specifically, according to 
h , the petitioner (1) identified how specific receptors activate downstream signaling events 
mediating control of corneal epithelial proliferation and cell migration, (2) improved our understanding - 
how corneal epithelial cells sustain their normal cell volume during exposure to stresses, (3) identified 
receptors that mediate inflammatory responses needed to overcome bacterial infection and counter the 
development of corneal translucence and (4) identified a receptor that appears to act as an osmosensor 
whose activation is required for corneal epithelial cells to maintain their isotonic cell volume during 
exposure to osmotic challenges. asserts that the third contribution has proven to be of 
interest to drug companies who are seekin to identify therapeutic approaches to lessen corneal pain 
associated with inflammation. g does not identify any interested drug companies and the 
record does not contain an letters from a drug company confirming their interest in the petitioner's 
work. In addition, h speculates that the petitioner's fourth contribution "could also be of 
great value in the effort to identify protocols needed to restore corneal epithelial integrity through 
restitution of regulatory volume capacity." 
notes that the petitioner's work with is supported by a grant from the national 
Institutes of Health (NIH). Any research, in order to be accepted for funding, must offer new and 
useful information to the pool of knowledge. It does not follow that every researcher who is working 
with a government grant inherent1 serves the national interest to an extent that justifies a waiver of 
the job offer requirement. further states that the petitioner's studies required not only 
advanced knowledge across a broad spectrum of subject but also state-of-the-art experimental 
techniques. concludes that few researchers in the United States possess such a combination 
of expertise. Simple exposure to advanced technology constitutes, essentially, occupational training 
which can be articulated on an application for an 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. NYSDOT 22 I&N Dec. at 221. Significantly, the petitioner 
submitted a near1 identical letter from a professor at Kansas State University. 
While both and si~ffirming their assent to the content of the 
letters, their use of near-identical language suggest that the language is not their own. 
discusses his collaboration with the petitioner relating to the role of transient receptor 
potential vanilloid channel (TRPV) in mediating corneal functionality. asserts that the 
petitioner "principally contributed to the first detection of TRPV4 and their roles in the corneal 
epithelium defense again [sic] pathological conditions." concludes that the petitioner's 
study "carries great value in rovidin a novel therapeutical [sic] approach (TRPV and its signaling 
substrate proteins) to them." does not, however, identify any pharmaceutical company or 
independent research team pursuing a therapeutic approach based on the petitioner's work with TRPV. 
a professor at Baylor College of Medicine, asserts that he has reviewed the 
petitioner's publications and has attended his presentations. explains that the 
petitioner's work with TRP implies a new approach for improving the postoperative visual results of 
LASIK surgery but does not provide examples of how the petitioner's work has already influenced 
LASIK procedures or is under consideration by LASIK providers. 
further explains that the petitioner was the first to identify the process whereby corneal 
cells regulate volume decrease to avoid extremes in cell volume changes andlinked this process with 
the Mitogen activated protein kinase (MAPK) activation. while notes that this work 
was published, he provides no examples of how it is impacting the field. 
of Wenzhou Medical Colle e asserts that he has known the petitioner since the 
petitioner was admitted to that college in 1996. asserts that the petitioner established a "novel 
method of in vitro expanding human corneal stem cells (HCSC), a cell type that is responsible for 
corneal epithelium regeneration and wound healing." - explains that this method is superior to 
traditional corneal transplants as it improves the availability of HCSC while eliminating immunological 
rejection. While asserts that this study was published, he does not indicate that the procedure 
has replaced traditional corneal implants or that a number of clinics are considering adopting this 
procedure. The record contains no letters from clinics that are using this procedure or considering 
doing so. 
On appeal, , an instructor at Harvard Medical School, asserts that he 
collaborated with the petitioner on his TRPV research and that this research has led to consideration 
of an anti-TRPV drug as an excellent candidate to control dry eye associated inflammation and is in 
re-clinical trials for treatment of other chronic inflammatory disease, such as osteoarthritis. 
a professor at Indiana University, asserts that TRPV antagonists have been 
shown to be effective in phase 1/11 clinical trials in treating migraines and irritable bowel syndrome. 
The record does not establish the petitioner's connection to migraine and irritable bowel syndrome 
studies and contains little evidence regarding the use of the anti-TRPV drug identified by 
for dry eye treatment. For example, the record contains no letters from clinicians attesting 
to their use of this drug for dry eye associated inflammation based on the petitioner's work. The 
record also contains little information about the pre-clinical trial, including where they are occurring 
and whether they were conceived prior to the date of filing, the date as of which the petitioner must 
establish his eligibility. See 8 C.F.R. §$ 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 
(Reg'l. Comm'r. 1971). 
University of North Texas Health Sciences Center, asserts that several citations demonstrate that the 
petitioner's work has inspired other studies. First, not every citation represents a study that could not 
have been performed absent the existence of every article cited in that study. The petitioner 
submitted two examples of articles that cite his work. The first, a review, indicates that the 
petitioner extended the previous research of another research team. The second relies on the work of 
the petitioner and other research teams as a possible ex lanation for a phenomenon in the study 
being reported. Regardless, the citations noted by hpostdate the filing of the petition. 
The petitioner submits evidence that seven of his articles have now been cited: with no article 
receiving more than seven citations. Only one of the citations predates the filing of the petition. In 
fact, the petitioner's article that has received seven citations was itself published after the date of 
filing. While citations that postdate the filing of the petition can, on a case-by-case basis, be 
considered as evidence of the field's continued reliance on an alien's work, in the matter before us, 
there was almost no reliance on the petitioner's work as of the date of filing. 
As stated above, the petitioner must demonstrate his eligibility as of the filing date. See 8 C.F.R. 
$4 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. at 49. In this matter, that means that he must 
demonstrate his track record of success with some degree of influence on the field as a whole as of 
that date. All of the case law on this issue focuses on the policy of preventing petitioners from 
securing a priority date in the hope that they will subsequently be able to demonstrate eligibility. 
Matter of Wing's Tea House, 16 I&N Dec. 158, 160 (Reg'l. Comm'r. 1977); Matter of Katigbak, 14 
I&N Dec. at 49; see also Matter of Izummi, 22 I&N Dec. 169, 175-76 (Comm'r. 1998) (citing Matter 
of Bardouille, 18 I&N Dec. 114 (BIA 1981) for the proposition that we cannot "consider facts that 
come into being only subsequent to the filing of a petition.") Consistent with these decisions, a 
petitioner cannot secure a priority date in the hope that his recently published research will 
The director's decision references citations of the petitioner's work although the record before the director 
contained no evidence of citations. Rather, the petitioner submitted requests for reprints, which carry far less 
weight than citations as they do not demonstrate the requestor's subsequent reliance on the petitioner's work. 
subsequently prove influential. Ultimately, in order to be meritorious in fact, a petition must meet 
the statutory and regulatory requirements for approval as of the date it was filed. Ogundipe v. 
Mukasey, 541 F.3d 257,261 (4th Cir. 2008). 
The opinions of experts in the field are not without weight and have been considered above. U.S. 
Citizenship and Immigration Services (USCIS) 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'r. 1988). However, USCIS 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; USCIS may, as we have done 
above, evaluate the content of those letters as to whether they support the alien's eligibility. See id. 
at 795. USCIS 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 SofJici, 22 I&N Dec. 158, 
165 (Comm'r. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l. 
Comm'r. 1972)). 
The letters considered above primarily contain bare assertions of influence. While the letters discuss 
the petitioner's work in detail and affirm its importance, they do not provide specific examples of 
how his work had influenced the field as of the date of filing. The petitioner also failed to submit 
corroborating evidence in existence prior to the preparation of the petition, which could have 
bolstered the weight of the reference letters. 
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. fj 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.