remanded EB-2 NIW Case: Biochemistry/Physiology

1dentiiymg datpdowed to 
prevent cleady unwarranted 
invasion of persod, p- 
U.S. Dcpartment of Homeland Security 
20 Mass. Ave.. N. W., Rm. A3042 
Washington. DC 20529 
U.S. Citizenship 
and Immigration 
FILE: EAC 03 2 19 53069 Office: VERMONT SERVICE CENTER Date: PEG 1 6 2005 
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. 3 1153(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. 
0 
Administrative Appeals Office 
EAC 03 2 19 53069 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the employment-based immigrant visa petition. 
The matter is now before the Administrative Appeals Ofice on appeal. The decision of the director will be 
withdrawn and the petition will be remanded for further action and consideration. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 9: 1153(b)(2), as a member of the professions holding an advanced degree. The petitioner seeks 
employment as a postdoctoral researcher at the University of Pennsylvania. 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. 
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. 
Counsel states that the petitioner "is a biochemist/physiologist specializing in the study of sensory perception 
of sight, sound, taste and touch (pain and anesthesia) in laboratory animals through state-of-the-art 
visualization techniques like digital fluorescence imaging, nuclear magnetic resonance spectroscopy and 
electroretinographic (ERG) study." The petitioner submits several witness letters. All of the witnesses are 
based in Philadelphia and have worked with the petitioner in that city, either at the University of 
Pennsylvania, Children's Hospital of Philadelphia, or Monell Chemical Senses Center. Some of the witnesses 
offer little information other than the assertion that the petitioner is a trained and competent scientist. Others 
assert only vaguely that the petitioner has earned international recognition for his work. 
The director denied the petition, stating that a successful waiver request cannot rest entirely on the petitioner's 
professional credentials. The director also found that the record did not contain any evidence that the 
petitioner's work has had a significant impact outside of the Philadelphia institutions where he has worked. 
EAC 03 219 53069 
Page 3 
The director specifically noted the petitioner's failure to submit evidence that other researchers in the field 
have heavily cited the petitioner's work. 
In a letter submitted on appeal, Dr. Arkady Lyubarsky of the University of Pennsylvania's Scheie Eye 
Institute states: "The importance and high quality of [the petitioner's] work is confirmed by a high number of 
citations (about 60 in only the last 3 years) which exceeds significantly the mean numbers in the field." Sixty 
citations is indeed a particularly high number, and first-hand documentary evidence of this claim would be a 
very favorable factor. The record as it stands contains no documentation to support Dr. Lyubarsky's claim. 
At the same time, we cannot ignore that the director never issued a request for evidence prior to the denial of 
the petition. The regulations themselves do not specifically mention citations; the emphasis on citations is 
inferred from the discussion of the impact of a given alien's work in Matter of New York Srcrrr Dept. of 
Trunsportation. 
8 C.F.R. !j 103.2(b)(8) reads, in pertinent part: 
If there is evidence of ineligibility in the record, an application or petition shall be denied on 
that basis notwithstanding any lack of required initial evidence. . . . Except as otherwise 
provided in this chapter, in other instances where there is no evidence of ineligibility, and 
initial evidence or eligibility information is missing or the Service finds that the evidence 
submitted either does not fully establish eligibility for the requested benefit or raises 
underlying questions regarding eligibility, the Service shall request the missing initial 
evidence, and may request additional evidence. . . . In such cases, the applicant or petitioner 
shall be given 12 weeks to respond to a request for evidence. 
Upon consideration, the facts of this case appear to indicate that the issuance of a request for evidence would 
have been justified. Therefore, the director must afford the petitioner the opportunity to document the citation 
history claimed on appeal. Acceptable documentation might consist, for example, of a printout from a 
citation database, or partial copies of the citing articles showing the title page and the citations in question. A 
simple list of citing articles, with no identified or confirmed source for the information in the list, will not 
suffice. Because the absence of evidence of citation was provided as a primary basis for denial, any verifiable 
evidence of heavy citation that the petitioner is able to provide warrants careful consideration. 
Therefore, this matter will be remanded. The director may request any additional evidence deemed warranted 
and should allow the petitioner to submit additional evidence in support of its position within a reasonable period 
of time. As always in these proceedings, the burden of proof rests solely with the petitioner. Section 291 of the 
Act, 8 U.S.C. tj 136 I. 
ORDER: The director's decision is withdrawn. The petition is remanded to the director for further action 
in accordance with the foregoing and entry of a new decision which, if adverse to the petitioner, 
is to be certified to the Administrative Appeals Office for review.