remanded EB-2 NIW Case: Biochemistry

identifying data deleted to 
prevent cle~rly unwarr~ted 
invasion of personal pnvacy 
PUBLIC COPY 
DATE: 
JUL 2 3 2012 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
OFFICE: TEXAS SERVICE CENTER 
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. § 1153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will 
withdraw the director's decision and remand the matter for a new decision. 
The petitioner seeks classification under section 203(b)(2) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. § I I 53(b)(2), as a member of the professions holding an advanced degree. The 
pmnlnvm,pnt as a biochemist and . The' is currently a postdoctoral 
associate at The petitioner asserts that an 
exemption from 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, a new job offer letter, and citation data. 
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) WaiverofIob 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., 1 st Sess., II (1989). 
Page 3 
Supplementary information to regulations implementing the Immigration Act of 1990, published at 
56 Fed. Reg. 60897, 60900 (November 29,1991), states: 
The Service [now U.S. Citizenship and Immigration Services (USerS)] believes it 
appropriate to leave the application ofthis 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 quality 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. 
In re New York State Dept. ojTram,portation, 22 I&N Dec. 215 (Act. Assoc. Comm'r 1998), has set 
forth several factors which must be considered when evaluating a request for a national interest waiver. 
First, the petitioner must show that the alien seeks employment in an area of substantial intrinsic merit. 
Next, the petitioner must show 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 United States worker having the same minimum 
qualifications. 
While the national interest waiver hinges on prospective national benefit, the petitioner must establish 
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 intention behind the term "prospective" is 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. 
The AAO also notes that the USCIS regulation at 8 C.F.R. § 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 offer/labor 
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 quality 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 Form 1-140 petition on June II, 2010. In an o{"('nn,no,nv;n 
petitioner claimed to be "key personnel in collaboration between the 
and the (Germany)." The petitioner stated that she 
contribution to studies of biophysics of blood coagulation and photoreceptor biology and published 
10 original research papers and 3 reviews" (emphasis in original). The petitioner stated that her 
published work "has received numerous citations in journals in biomedical research." The petitioner 
also stated: 
Page 4 
has one of the best ophthalmic research programs in the United 
recent work was focused on understanding of molecular mechanisms 
of vision and light adaptation, particularly G protein signaling in rod photoreceptors. 
As indicated in reference letters submitted with this petition my research has 
significantly increased our current understanding of biology of photoreceptors . 
. . . (Mlv research in visual signal transduction has substantially added to the 
fundamental understanding of G protein signaling in photo receptors. 
(Emphasis in original.) The petitioner documented her involvement at various professional 
conferences, and submitted copies of six articles of which she was the first named author. Regarding 
the petitioner's claim of "numerous citations" of these articles, the petitioner submitted a printout 
from a citation database. The printout showed citation figures for six of the petitioner's articles, but 
did not identify the citing articles. 
The petitioner submitted copies of three items 
reviewed research articles. Three researchers from 
reviewed one of the petitioner's papers from the 
appeared in a later issue of the same 1!)lIm" I. o""(,,it,eo 
Another issue of the Journal 
petitioner, in a section called 
lVe;UY(lscien!ce ~"",Q"'~U several new articles, including one by the 
an earlier article the petitioner 
is one of28 cited references in the Wikip1ediia 
acc:onlpanitxl the initial filing of the 
petition. the petitioner earned 
her various de:gre:es, SIal eo: 
Her project was devoted to the analysis of dynamic modes of blood clotting. The 
results of her work were remarkable and her productivity was extraordinary. While 
working in my laboratory, she discovered several new modes of spatial propagation 
in reaction diffusion systems that had been never described previously for any 
systems in physics, chemistry, or biology .... [SJhe also developed a cutting edge 
numerical mathematical model for simulation of blood clotting under flow conditions 
and designed [aJ new experimental setup which was used to obtain novel results on 
spatial dynamics of blood clotting under flow condition[sJ. 
letter, unlike the others submitted with the petition, bears an original signature. Prof 
describ(!d the petitioner's research work in technical detail, and stated that the petitioner's 
r"S,,,",'ch published in the in 2007, 
has a profound importance for understanding how vision works because it provides a 
major molecular insight into such ... 'textbook' questions like: how our visual 
system operates under conditions of bright ambient illumination and why cones are 
never blinded by light." 
Overall, I am extremely impressed by [the petitioner's] progress and record of 
achievement and glad to testifY that she has become as good an experimentalist as she 
is a theoretician - a very rare combination oftalents .... She is currently devoting a 
major effort to establishing mass-spectrometry methodologies to quantifYing lipids 
present in the ocular tissues. This forward-looking project will empower us with new 
approaches to understand the basic principle of photoreceptor biology and address 
many exciting hypotheses related to etiology blinding diseases, including but not 
limited to retinitis pigmentosa and age-related macular degeneration. 
"conduct [ ed] several collaborative 
stated: 
Her work is focused on one of the most excltmg topics in vision research and 
experimental ophthalmology: elucidating the molecular mechanisms of visual signal 
transduction and light adaptation. The main subject of her studies is the molecular 
mechanism underlying the phenomenon of light-induced changes in the protein 
distribution in photoreceptor cells, a phenomenon central to the ability of our visual 
system to adapt to ever-changing conditions of ambient illumination. Her three fIrst 
authorship publications represent important successive breakthroughs in 
understanding the mechanisms by which the light-driven translocation and 
intracellular localization oftransducin regulates the sensitivity ofthe retina's response 
to light. ... Together, these publications represent a major step in our understanding 
oflight adaptation on the molecular level, a truly outstanding accomplishment. 
These studies will have an immediate impact on our understanding of a variety of 
retinal disorders .... I have no doubt that [the petitioner's] fIndings are among the 
most important contributions to the fIeld of vision research and experimental 
ophthalmology in recent years. Her fIndings had a tremendous national and 
international impact. I can assure you that in the near future this work will be taken 
Page 6 
up and pursued along numerous avenues by many research teams in the U.S. and 
worldwide. 
amLong the petitioner's mentors or collaborators is 
Prof _described the petitioner's work in technical 
detail, and stated: "With great interest I am waiting for the further development of this project. ... I 
conclude that she is one of the most intelligent, creative and technically skilled investigators in her 
peer group." 
On December 23, 2010, the director issued a request for evidence, instructing the petitioner to 
submit additional documentation regarding the impact of her work and the citation of her published 
articles. In response, the petitioner submitted evidence showing 85 citations of her published work, 
including 63 independent citations. 
peltiti<on'~r also submitted eight more witness letters. Of the eight new witnesses, one is on the 
and four others acknowledged past collaborations with her. _ 
credited the petitioner with "three groundbreaking 
and 2010 (emphasis in original). 
Professor is familiar with the petitioner's 
work ongomg stands out because she "is highly 
trained in both physics and biology" and is "highly productive," and because "her contributions are 
conceptual and move the field forward by opening new directions ... , providing major mechanistic 
insights into cutting-edge and trendy biological phenomena ... , and providing mechanistic answers 
to long-standing unsolved problems in the field." 
asserted that the petitioner's "expertise ... is entirely 
unique, unlikely shared by any of her peers, and in no way could be considered as a 'routine' set of 
skills of a biomedical researcher." 
an associate professor at the and the petitioner's 
self-described "close colleague and collaborator," credited the petitioner as "a key contributor" to 
Page 7 
~ progress on the mechanistic explanation for the protein translocation phenomenon." Dr. 
_stated that the petitioner's published papers "set the highest standards." 
Another self-described "close colleague," Dr. worked with the petitioner for several 
years before accepting an assistant Dr. "credited the 
petitioner with "seminal advances in the field of vision research." 
not mention any co llaboration with 
the petitioner, but claimed to "have followed [the petitioner's] work closely," and credited the 
petitioner with "major, original contributions" that "greatly exceed the expectations of a postdoctoral 
researcher, and place her in the category of an independent biomedical research scientist." 
"papers provided a breakthrough in our understanding 
Transducin, a key protein in visual signaling .... Her work also 
daylight without our cones being blinded by too much light." 
stated that the petitioner's 
between subunits of 
explained why we can see in 
stated that the petitioner's "findings ... have 
our colnpJ-ehensive ull(ien;taJldlJlg of the regulation of light-triggered 
transducin transport," and that the pel1tlOner "solved one of the most puzzling problems in 
photoreceptor biology: why transducin does not translocate in response to light in cone 
photoreceptors. " 
The director denied the petition on August 9, 2011. The director acknowledged the intrinsic merit 
and national scope of the petitioner's work, but found that the witnesses' "letters are general in 
nature, and do not establish the petitioner's abilities are greater than her peers." Regarding the 
citation of the petitioner's work, the director stated: "Based on the number of publications, and 
citations it has not been established the petitioner's work has made a significant impact within their 
[sic 1 field of study." The director concluded that the petitioner had not shown that her 
"achievements are ... unusual or different from other researchers or professors who have had their 
work[] published, or presented their findings." 
On appeal, the petitioner documents her acceptance of an offer for a two-year research scientist 
position in Prof _ laboratory from December 27, 2011 to December 26, 2013. The 
petitioner also submits updated citation figures, showing 97 citations of her work (ten of them self­
citations). The submitted data also shows that the Journ.E.!...21....Neuroscience is the most-cited journal 
specializing in neurosciences, and that the petitioner's _ article from is one of the most-cited 
articles published on the topic oftransducin in that journal since_ 
In an appellate brief, counsel notes several references to "cancer" and "cancer research" in the 
director's decision, and asserts that these references are errors of fact because the petitioner is not, 
and has not claimed to be, a cancer researcher. The director appears to have copied this language 
from another decision. Its inclusion amounts to harmless error. Elsewhere in the decision (as 
Page 8 
counsel acknowledges), the director correctly identified the petitioner's research specialty. Even 
without those references, there is no indication that the director denied the petition because of a 
mistaken belief that the petitioner is a cancer researcher. 
Counsel also disputes the director's conclusion that "many of the letters were submitted by 
individuals that personally know the petitioner, and are not from independent sources." Counsel 
asserts that, of the twelve witnesses, five know [the and have worked 
,,1o",,1v with her. ... These include Dr. Dr. Dr. 
names a 
accompanied the appeal, in which the petitioner stated 
that she "worked closely with" the five people named above, but had little or no contact with seven 
other named witnesses. 
The director did not claim that all or even most of the witnesses have close ties to the petitioner; he 
said only that "many" of them did. Furthermore, counsel's count of "only five" is demonstrably 
It omits who supervised the petitioner's doctoral studies, 
petitioner worked in his laboratory for nine months. 
does not mention either 0 f these two 
seIJ-dlesl~rilJed collaborators who share co-author credit 
with the petitioner (and thus cannot be expected to be fully disinterested when discussing the 
importance of the resulting articles), the above discussion shows that half of the witnesses have, in 
fact, worked closely with the petitioner. The director's general statement about "many" witnesses is, 
therefore, not an error of fact, as counsel claims on appeal. 
More significantly, counsel disputes the director's characterization of the witness letters as being 
"general in nature." The record supports counsel on this point, as it shows that a number of the 
letters describe the petitioner's work in fairly fine detail. 
Witness letters alone may not provide adequate support for a national interest waiver claim, but the 
petitioner has not relied on letters alone. The petitioner has submitted evidence of a significant 
number of citations of her published work, and comparative evidence to show that the citation rate of 
her work is high in comparison to others performing similar work. The number of citations 
continues to rise, demonstrating her ongoing influence on her specialty. The director did not give 
due consideration to this objective evidence of the petitioner's impact on her field. 
The evidence of record could support approval of the waiver application, and therefore of the 
petition. The record, however, lacks a required document. The USCIS regulation at 8 C.F.R. 
§ 204.S(k)( 4)(ii) requires that a petitioner seeking to apply for the exemption must submit Form 
ETA-7S0B, Statement of Qualifications of Alien (or corresponding sections of ETA Form 9089), in 
duplicate. The record does not contain this required document, and therefore the petitioner has not 
properly applied for the national interest waiver. The director, however, did not previously raise this 
issue, either in the request for evidence or in the subsequent denial notice. Because the petition 
appears to be otherwise approvable, the director must afford the petitioner a reasonable opportunity 
Page 9 
to perfect the record by submitting Form ET A-7S0B or the corresponding sections of its successor 
form, ETA Form 9089. 
Therefore, the AAO will withdraw the director's decision and remand the matter to the director in order 
to provide the petitioner with the opportunity to provide required evidence that is now missing from the 
record. As always in these proceedings, the burden of proof rests solely with the petitioner. Section 
291 ofthe Act, 8 U.S.C. § 1361. 
ORDER: The director's decision is withdrawn. The record, however, does not currently establish 
that the petition is approvable. The petition is therefore 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.